York International Corporation v. Liberty Mutual Insurance Company
Filing
112
MEMORANDUM re mtn for reconsideration 108 of Order 107 (Order to follow as separate docket entry) Signed by Honorable Sylvia H. Rambo on 10/13/15. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
YORK INTERNATIONAL
CORPORATION,
Plaintiff
v.
LIBERTY MUTUAL INSURANCE
COMPANY,
Defendant
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Civ. No. 1:10-CV-0692
Judge Sylvia H. Rambo
MEMORANDUM
In this civil action, Plaintiff filed suit seeking a declaration that Defendant, its
former insurer, owes a duty to defend and indemnify Plaintiff against underlying asbestosrelated actions. On July 9, 2015, the court entered partial summary judgment in favor of
Plaintiff as to a choice of law issue and struck certain portions of an affidavit submitted by
Defendant in support of its motion for partial summary judgment. Presently before the court
is Defendant‟s motion for reconsideration brought pursuant to Federal Rule of Civil
Procedure 59(e), wherein it asserts that the court made an error of law in striking portions of
the affidavit and granting partial summary judgment in favor of Plaintiff. For the following
reasons, Defendant‟s motion will be granted in part and denied in part.
I.
Background
The court presumes the parties‟ familiarity with the background of this litigation,
and a detailed account has been set forth at length in the court‟s memorandum
accompanying its order granting Plaintiff‟s motion for partial summary judgment in its
entirety and its motion to strike in part. See generally York Int’l Corp. v. Liberty Mut. Ins.
Co., 10-cv-0692, 2015 WL 4162981 (M.D. Pa. July 9, 2015). Accordingly, the court will set
forth only the most pertinent portions of the factual and procedural history that justify its
decision to grant in part and deny in part the instant motion for reconsideration.
A.
Relevant Factual Background and Procedural History
Plaintiff, a manufacturer and seller of products that formerly contained asbestos,
is subject to over a thousand products liability claims in multiple jurisdictions throughout
the United States for injuries caused by its asbestos-containing products.1 Defendant is one
of several former products liability insurers for Plaintiff, with its policies (the “York
Policies”) covering Plaintiff‟s general products liability risk from October 1, 1952 through
October 1, 1956. During the time period covered by the York Policies, as well as the
negotiation and consummation of the policies, Plaintiff resided in York, Pennsylvania. At
all relevant times, Defendant was, and is, a Massachusetts mutual insurance company with a
principal place of business in Boston, Massachusetts. After Defendant denied Plaintiff‟s
claim for defense and indemnification of the underlying asbestos claims pursuant to the
York Policies, Plaintiff initiated this action seeking a declaration that Defendant was indeed
obligated to defend and indemnify Plaintiff. In a May 26, 2011 memorandum and order,
1
As discussed in the court‟s prior memoranda in this case, Plaintiff‟s predecessor corporate entity, York
Corporation, is the actual insured and party subject to the underlying asbestos claims. For brevity, however,
the court will herein refer only to Plaintiff. A more detailed summary of Plaintiff‟s corporate history, which
is not relevant to the instant motion, is discussed in the court‟s May 26, 2011 memorandum. See York Int’l
Corp. v. Liberty Mut. Ins. Co., Civ. No. 10-cv-0692, 2011 WL 2111989 (M.D. Pa. May 26, 2011).
2
the court held that Plaintiff was not barred from submitting claims for defense and
indemnification to Defendant for the asbestos-related litigation that Plaintiff was facing, but
limited the scope of the claims to those alleging injury that occurred during the effective
period of the York Policies.
A dispute subsequently arose as to whether Pennsylvania or New York law
would apply to Defendant‟s duties to defend and indemnify Plaintiff for those claims arising
under the York Policies, and the parties filed cross-motions for partial summary judgment
as to choice of law. Due to the passage of more than fifty years between the period covered
by the York Policies and the initiation of the instant action, no party with firsthand
knowledge of the negotiation or consummation of the policies could be identified, and
complete copies of the York Policies could not be located. Declarations pages were located
for the York Policies, however, listing “c/o Henry E. Wood & Associates Inc., 45 John
Street, New York 38, New York” as the address for Plaintiff.
Significantly, in support of its motion for partial summary judgment, Defendant
submitted an affidavit of a consultant and former longtime employee, Jerry McCullough
(the “McCullough Affidavit”). (Doc. 83-1.) Although Mr. McCullough did not begin his
employment with Defendant until several years after the period covered by the York
Policies, he nonetheless testified, based on the listed address on the declarations pages and
his familiarity with Defendant‟s standard practices during the 1950s, as to Henry E. Wood‟s
role in negotiating and acquiring the York Policies. Plaintiff moved to strike portions of the
3
McCullough Affidavit due to Mr. McCullough‟s lack of personal knowledge as to some of
the facts contained therein, the inclusion of improper legal conclusions, and contradictions
with his own prior deposition testimony. On July 9, 2015, the court granted Plaintiff‟s
motion for partial summary judgment, holding that Pennsylvania law applied to
Defendant‟s duties of defense and indemnification, and denied Defendant‟s motion. In so
ruling, the court granted Plaintiff‟s motion to strike the following portions of the
McCullough Affidavit:
14. Based on this standard practice, when Liberty Mutual Insurance
issued the policies at issue, they would have been sent to Henry E.
Wood in New York.
...
17. Based on the above, the policies issued to York Corporation
would have been negotiated in New York between a salesperson in
Liberty Mutual Insurance's New York office and Henry E. Wood.
...
19. Based on this standard practice, Henry E. Wood would have
sent the premium payment to Liberty Mutual Insurance in New York.
York Int’l Corp., 2015 WL 4162981, at *5-6.
On July 23, 2015, Defendant filed the instant motion for reconsideration pursuant
to Federal Rule of Civil Procedure 59(e) (Doc. 108), and a brief in support thereof (Doc.
109). In its supporting brief, Defendant argues that the court erred in striking Paragraphs 14,
17, and 19 of the McCullough Affidavit because the testimony contained therein was based
on Mr. McCullough‟s knowledge of Defendant‟s routine organizational practices, which is
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admissible under Federal Rule of Evidence 406. (Id., pp. 1-4 of 10.) Defendant further
argues that because the court can properly rely on Paragraphs 14, 17, and 19 of the
McCullough Affidavit, the court should reverse its decision on choice of law and find that
New York law applies to Defendant‟s defense and indemnification obligations, or, in the
alternative, find that the McCullough Affidavit raises a genuine issue of material fact which
precludes summary judgment as to choice of law. (Id., p. 10 of 10.) Plaintiff filed its
response on August 6, 2015 (Doc. 110), and Defendant replied on August 20, 2015 (Doc.
111). Thus, the motion has been fully briefed and is ripe for consideration.
II.
Legal Standard
Motions for reconsideration under Federal Rule of Civil Procedure 59(e) serve
primarily to correct manifest errors of law or fact in a prior decision of the court. See United
States v. Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003). Under Rule 59(e), “a judgment may be
altered or amended if the party seeking reconsideration establishes at least one of the
following grounds: (1) an intervening change in the controlling law; (2) the availability of
new evidence that was not available when the court granted the motion for summary
judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest
injustice.” Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d
Cir. 1999). Motions for reconsideration may also be appropriate in instances “where, for
example, the Court has patently misunderstood a party, or has made a decision outside the
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adversarial issues presented to the Court by the parties, or has made an error not of reasoning
but of apprehension.” Reaves v. Pa. State Police, Civ. No. 09-cv-2549, 2014 WL 486741,
*3 (M.D. Pa. Feb. 6, 2014) (quoting Rohrbach v. AT&T Nassau Metals Corp., 902 F. Supp.
523, 527 (M.D. Pa. 1995)). “A motion for reconsideration is not to be used as a means to
reargue matters already argued and disposed of or as an attempt to relitigate a point of
disagreement between the Court and the litigant.” Ogden v. Keystone Residence, 226 F.
Supp. 2d 588, 606 (M.D. Pa. 2002). “Likewise, reconsideration motions may not be used to
raise new arguments or present evidence that could have been raised prior to the entry of
judgment.” Hill v. Tammac Corp., Civ. No. , 2006 WL 529044, *2 (M.D. Pa. Mar. 3, 2006)
(citing McDowell Oil Serv., Inc. v. Interstate Fire & Cas. Co., 817 F. Supp. 538, 541 (M.D.
Pa. 1993)). Reconsideration of a judgment is an extraordinary remedy, and courts should
grant such motions sparingly. D’Angio v. Borough of Nescopeck, 56 F. Supp. 2d 502, 504
(M.D. Pa. 1999).
It follows from the remedial purpose of a Rule 59(e) motion that the standard of
review relates back to the standard applicable in the underlying decision. See Fiorelli, 337
F.3d at 288. Accordingly, when a motion for reconsideration challenges the court‟s decision
to grant or deny summary judgment, the standard set forth in Federal Rule of Civil
Procedure 56 guides the analysis. Relief may be granted if the materials related to the
summary judgment motion - including the pleadings, discovery materials, and affidavits “show that there is no genuine dispute as to any material fact and the movant is entitled to
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judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court must consider all facts in the
light most favorable to the nonmoving party to determine whether a reasonable jury could
return a verdict for the nonmoving party. See Anderson v. Liberty Lobby Inc., 477 U.S. 242,
247 (1986); Int’l Raw Materials Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir.
1990). It is through this lens that the court must address Defendant‟s instant motion.
III.
Discussion
Defendant‟s sole argument in support of its motion for reconsideration is that the
court, in “striking the affidavit of Mr. McCullough[, made] an error of law in that it was
contrary to [Federal Rule of Evidence 406.]” (Doc. 109, p. 4 of 10.) As an initial matter,
Plaintiff contends it is inappropriate for Defendant to raise an argument premised on Rule
406 in its motion for reconsideration because such “motions may not be used to raise new
arguments,” (Doc. 110, p. 4 of 9 (quoting Doc. 52, p. 2 of 3 (citing McDowell Oil Serv. Inc.,
817 F. Supp. At 541))), and Defendant did not address the rule in its motion for summary
judgment. However, while the court recognizes that Defendant failed to specifically
reference Rule 406 in its motion for summary judgment, its argument therein directly
implicated the rule. Therefore, the court finds that Defendant has not raised a new argument,
and will consider Defendant‟s argument on its merits.
Rule 406 states that “[e]vidence of . . . the routine practice of an organization,
whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to
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prove that the conduct of the . . . organization on a particular occasion was in conformity
with the . . . routine practice.” Fed. R. Evid. 406. “The routine practice of an organization is
defined as „the regular practice of responding to a particular kind of situation with a specific
type of conduct.‟” Argentieri v. First Veh. Servs., Inc., Civ. No. 10-cv-2086, 2011 WL
710485, *9 (E.D. Pa. Feb. 28, 2011) (citing Kenneth S. Broun, 1 McCormick on Evidence §
195, at 783 (6th ed. 2009)). The purpose of this so-called “habit evidence” is “to fill in a gap
in direct evidence about what [an organization] did on a specific occasion with
circumstantial evidence sufficient to reasonably allow one to conclude that the
[organization] probably acted in conformity with [its] usual pattern on the occasion in
question.” Id. (citing Pugh v. Wynder, Civ. No. 07-cv-3399, 2008 WL 2412978, *14 (E.D.
Pa. June10, 2008)).
In order to establish specific conduct as habit, a party “must produce evidence
establishing a „degree of specificity and frequency of uniform response that ensures more
than a mere „tendency‟ to act in a given manner, but rather, conduct that is „semi-automatic‟
in nature.‟” In re Giquinto, 388 B.R. 152, 168 (Bankr. E.D. Pa. 2008) (quoting Simplex, Inc.
v. Diversified Energy Sys., Inc., 847 F.2d 1290, 1293 (7th Cir. 1988)). Generally, “[h]abit
evidence „is never to be lightly established, and evidence of examples, for purposes of
establishing such habit, is to be carefully scrutinized before admission.‟” Dover-Hymon v.
Southland Corp., Civ. No. 91-cv-1246, 1993 WL 419705, *4 (E.D. Pa. Sept. 27, 1993)
(quoting Wilson v. Volkswagen of Am., Inc., 561 F.2d 494, 511 (4th Cir. 1977)). Such care
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in establishing conduct as habit is especially important when dealing with the routine
practice of business organizations because “evidence of their routine practice is „particularly
persuasive.‟” Hancock v. Am. Tel. & Tel. Co., Inc., 701 F.3d 1248, 1262 (10th Cir. 2012)
(citation omitted).
Turning to the portions of the McCullough Affidavit that were stricken by the
court, Defendant argues that Paragraphs 14, 17, and 19 are admissible based on Mr.
McCullough‟s familiarity with Defendant‟s routine business practices at the time it
negotiated and contracted the York Policies. The court will reconsider the admissibility of
each paragraph.
A.
Paragraph 14 of the McCullough Affidavit
In Paragraph 11, the McCullough Affidavit states that “[i]t was the standard
practice of Liberty Mutual Insurance that upon issuance, the insurance policy would be sent
to [the] address designated for the insured [on] the Declarations page.” (Doc. 83-1, ¶ 11.)
Paragraph 14 provides that, “[b]ased on this standard practice, when Liberty Mutual
Insurance issued the policies at issue, they would have been sent to Henry E. Wood in New
York.” (Id. at ¶ 14.) Because these portions of the affidavit establish that it was Defendant‟s
regular practice to issue its insurance policies to the address for the insured listed on the
declarations pages of the policies, the court finds that the specificity and frequency required
to treat the conduct as a routine organizational practice under Rule 406 is met. See Schwartz
v. Comcast Corp., 256 F. App‟x 515, 519 (3d Cir. 2007) (holding that defendant‟s standard
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practice of providing a subscription agreement to every new customer was sufficient to find
that plaintiff had notice of the subscription agreement); Vanalt Elec. Constr. Inc. v. Selco
Mfg. Corp., 233 F. App‟x 105, 108 (3d Cir. 2007) (finding that defendant‟s practice of
attaching a limitation of liability document “to every quote it submitted” sufficient to show
plaintiff received the document). The court will therefore grant Defendant‟s motion for
reconsideration as to Paragraph 14. The inclusion of Paragraph 14, however, does not alter
the court‟s prior decision regarding choice of law.
Upon reconsideration, Paragraph 14 establishes, for purposes of the matter sub
judice, that the York Policies were initially sent to Henry E. Wood in New York. In its July
9, 2015 decision, the court specifically contemplated the scenario in which the York Policies
were sent to Henry E. Wood in New York, stating as follows:
Even assuming, as Defendant contends, that the policies were initially
delivered to Henry E. Wood at the listed address, it would have
presumably forwarded those policies to the insured in Pennsylvania
for execution. Under Pennsylvania law, “[i]t is unclear whether . . . a
contract sent from an insurer to an insured's broker, which forwards
the contract to the insured, is considered delivered at the place of the
broker or the insured.”
2015 WL 4162981, at * 13 (quoting Travelers Prop. Cas. Co. of Am. v. Chubb Custom
Ins. Co., 864 F. Supp. 2d 301, 310 n.1 (E.D. Pa. 2012)). Based on both the uncertainty
of Pennsylvania law and the lack of any credible evidence to establish whether Henry E.
Wood was acting as Plaintiff‟s broker in acquiring the York Policies, the court relied on
Pennsylvania‟s default rule that “delivery is presumed at the insured‟s residence” in
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concluding that the place of contracting favored the application of Pennsylvania law.
Id. (citing Chubb, 864 F. Supp. 2d at 310); see also Gen. Refractories Co. v. First State
Ins. Co., 862 F. Supp. 2d 382, 387 (E.D. Pa. 2012) (“The law of the state where the
insurance policy was delivered to the insured is the law to be applied in construing its
terms.”) (citing Peele v. Atl. Express Transp. Group, Inc., 840 A.2d 1008, 1011 (Pa.
Super. Ct. 2003)) (emphasis supplied). The court arrives at the same conclusion herein.
In addition to presuming delivery to the insured‟s residence, Pennsylvania
also adopts the Restatement (Second) of Conflict of Laws in assessing a state‟s contacts
with a contract, see Specialty Surfaces Int’l, Inc. v. Cont’l Cas. Co., 609 F.3d 223, 230
(3d Cir. 2010), which states that “[t]he place of contracting is „the place where occurred
the last act necessary . . . to give the contract binding effect.‟” Travelers Indem. Co. v.
MTS Transp., LLC, Civ. No. 11-cv-1567, 2012 WL 3929810, *9 (W.D. Pa. Sept. 7,
2012) (quoting Restatement (Second) Conflict of Laws § 188(2) cmt. e (Am. Law. Inst.
1971)). Regardless of Henry E. Wood‟s role in the transaction, the last act necessary to
give the contracts binding effect, that is, the execution of the contracts, presumably
occurred in Pennsylvania at Plaintiff‟s residence, as Plaintiff maintained no office in
New York. Accordingly, the court again concludes that the place of contracting favors
the application of Pennsylvania law.
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B.
Paragraphs 17 and 19
Both Paragraphs 17 and 19 of the McCullough affidavit rely on Mr.
McCullough‟s conclusions that Henry E. Wood acted as Plaintiff‟s broker and that, as an
insurance broker, he would have taken certain actions. Specifically, in Paragraph 17, Mr.
McCullough states that the York Policies “would have been negotiated in New York
between a salesperson in Liberty Mutual Insurance‟s New York office and Henry E. Wood”
(Doc. 83-1, ¶ 17), and in Paragraph 19, he states that “Henry E. Wood would have sent the
premium payment to Liberty Mutual Insurance in New York” (Id. at ¶ 19). In its prior
memorandum, the court concluded that Mr. McCullough lacked the personal knowledge to
make these statements namely because (1) there is no independent basis to conclude that
Henry E. Wood acted as Defendant‟s broker; (2) the pertinent documents underlying the
York Policies are no longer available; (3) Mr. McCullough was not employed by Defendant
until several years after the negotiation and consummation of the York policies; and (4)
Defendant did not have a standard practice of working with insurance brokers such that Mr.
McCullough would be competent to testify as to that practice.
In its motion for reconsideration, Defendant asks the court to consider Rule 406‟s
impact on its prior analysis. Specifically, Defendant argues that, although Mr. McCullough
does not have personal knowledge of the negotiation of the York Policies, he does have the
personal knowledge to testify as to Defendant‟s standard practices in issuing policies to
insureds that were utilizing the services of an insurance broker such that the court may rely
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upon that evidence to conclude that Defendant and the brokers with which it worked acted in
conformity with those practices on this occasion. Defendant highlights that, in his affidavit,
Mr. McCullough testified that he worked as an underwriter for Defendant until 1971; “his
training included the review of insurance policies issued by Liberty Mutual in the 1950s so
that he „could become familiar with the practices of the company, its procedures and
protocols for the issuance, sale and underwriting of policies, and its practice in dealing with
insureds who employed brokers and advisors in connection with the purchase of insurance;”
and that he “worked directly on accounts that used a broker or advisor to assist with their
insurance and had to become knowledgeable about what insurance brokers and advisors did
in order to compete with insurance competitors that used brokers and advisors.” (Doc. 109,
p. 11 of 13) (emphasis in original).
As stated above, to establish specific conduct as a habit, a party “must produce
evidence establishing a „degree of specificity and frequency of uniform response that ensures
more than a mere „tendency‟ to act in a given matter, but rather, conduct that is „semiautomatic‟ in nature.‟” In re Giquinto, 388 B.R. at 168 (citation omitted). Contrary to
Defendant‟s argument that it had routine practices associated with an insured‟s use of a
broker, Mr. McCullough testified that “[i]t was not the typical practice that insureds would
have a broker or advisor assist with the negotiation of policies issued by Liberty Mutual
Insurance, but it did happen on a number of occasions during my career.” (Doc. 97-1, ¶ 10e
(emphasis supplied); see also id. at ¶ 9b (“On some occasions, I worked directly with
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accounts that used a broker or advisor to assist with their insurance.”) The court cannot
conclude that Defendant‟s use of a broker on a number of occasions is sufficient to establish
the degree of specificity required for a routine practice such that Paragraphs 17 and 19 are
properly admissible. See Mobil Expl. & Producing U.S., Inc. v. Cajun Constr. Servs., Inc.,
45 F.3d 96, 99-100 (5th Cir. 1995) (holding that “[e]vidence of the defendant‟s actions on
only a few occasions . . . are not enough” to be considered a routine practice). Indeed, not
only did Mr. McCullough explicitly state that working with brokers was not Defendant‟s
standard practice, he also testified that, when he had occasion to work with an insured who
utilized a broker, he had to research the practices of Defendant‟s direct competitors that did
use insurance brokers and advisors (see id. at ¶ 9.b), thus belying any argument that
Defendant‟s practices in dealing with insureds that used insurance brokers were “semiautomatic in nature.”
Because the court cannot find that Defendant had a routine organizational
practice when dealing with an insured who used a broker, Mr. McCullough would have to
have personal knowledge of the negotiation and contracting of the York Policies in order to
provide admissible testimony on that subject. As the court held at summary judgment, Mr.
McCullough does not have such personal knowledge. Significantly, Mr. McCullough‟s
statement in Paragraph 17 that the York Policies “would have been negotiated in New York
between a salesperson in Liberty Mutual Insurance‟s New York office and Henry E. Wood”
(Doc. 83-1, ¶ 17) is based on Mr. McCullough‟s testimony that Henry E. wood was “the
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designee of York Corporation.” (Id., ¶ 15.) As discussed at summary judgment, Mr.
McCullough has no personal knowledge of the relationship between Plaintiff and Henry E.
Wood. Even if the court were able to conclude that Defendant had a routine practice when
dealing with insureds who utilized a broker, such practice would not determine the role that
Henry E. Wood played for Plaintiff in acquiring the York Policies, and therefore the
admissibility of this testimony falls squarely within the purview of Rule 602 and its personal
knowledge requirement, not Rule 406. Accordingly, Paragraph 17 will remain stricken.
Likewise, Mr. McCullough‟s statement in Paragraph 19 of the McCullough
Affidavit that “Henry E. Wood would have sent the premium payment to Liberty Mutual
Insurance in New York” (id., ¶ 19) is not based on the personal knowledge of Mr.
McCullough, or his knowledge of Defendant‟s routine business practices. Rather, it is a
statement as to what Henry E. Wood would have done under the circumstances, which is
based on Mr. McCullough‟s supposition that Henry E. Wood was in fact acting as Plaintiff‟s
broker in acquiring the York Policies. Mr. McCullough simply does not have the personal
knowledge required to give such testimony about what Henry E. Wood‟s conduct would
have been, and, as stated above, Henry E. Wood‟s conduct would not be determined by
Defendant‟s practices. 2 Accordingly, Paragraph 19 will remain stricken.
2
To the extent that Defendant is relying on Mr. McCullough‟s purported familiarity with the insurance
industry in general and the practices of those insurance companies that routinely utilized insurance brokers as
a foundation for his testimony herein, the court notes that Mr. McCullough is not testifying as an expert
witness. Therefore, the scope of his testimony is limited to Defendant‟s standard practices, not those of
Plaintiff, Henry E. Wood, or insurance brokers generally in the 1950s.
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IV.
Conclusion
For the reasons stated herein, the court finds that Mr. McCullough‟s
testimony does not establish the requisite standard practice necessary to reasonably
conclude that Defendant acted in conformity with that practice on the occasion in
question, and Mr. McCullough has no basis upon which to testify as to the practices of
Plaintiff or Henry E. Wood. Therefore, the court will grant Defendant‟s motion for
reconsideration in part and place Paragraph 14 of the McCullough Affidavit back on the
record. The court will deny the remainder of Defendant‟s motion, however, and
Paragraphs 17 and 19 will remain stricken. The inclusion on the record of Paragraph 14
does not create a genuine issue of material fact that would preclude summary judgment,
and the court‟s choice of law analysis remains unchanged.
An appropriate order will issue.
s/Sylvia H. Rambo
United States District Judge
Dated: October 13, 2015
Moreover, even if Mr. McCullough were providing his testimony as an expert witness, without personal
knowledge regarding Plaintiff and Henry E. Wood, his testimony would nonetheless be irrelevant to
determining facts that are disputed by the parties. The District Court for the Southern District of New York
put it best:
It is readily apparent that Rule 406 has nothing to do with the proffered expert
opinion testimony about industry customs and practices. The plaintiff's proffered
experts do not pretend to know anything about the habits of any individual whose
conduct is pertinent to the case, or the routine practice of any such organization.
Rule 406 has nothing to do with expert opinion testimony, which is covered by
Rules 701-706.
R.B. Ventures, Ltd. v. Shane, Civ. No. 91-cv-5678, 2000 WL 520615, *5 (S.D.N.Y. May 1, 2000).
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