UNITED STATES FIRE INSURANCE COMPANY v. KELMAN BOTTLES, LLC et al
Filing
290
MEMORANDUM OPINION on outstanding motions in limine. Signed by Judge D. Michael Fisher on 8/8/2014. (dmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES FIRE INSURANCE
COMPANY,
Plaintiff, and Counterclaim
Defendant,
11cv0891
ELECTRONICALLY FILED
v.
KELMAN BOTTLES LLC and KELMAN
GLASS, LLC,
Defendants, Counterclaim
Plaintiffs and Third Party
Plaintiffs,
v.
CONTINENTAL CASUALTY
COMPANY,
Third Party Defendant.
MEMORANDUM OPINION
FISHER, Circuit Judge
Pending before the court are twelve motions in limine filed by the parties in this
insurance breach of contract action. The outstanding motions are styled as follows: (1)
Third Party Defendant Continental Casualty Company’s (“Continental”) motion to
exclude the expert testimony of Gary S. Barach (ECF No. 178); (2) Continental’s motion
to preclude Third Party Plaintiff Kelman Bottles (“Kelman”) from asserting or suggesting
that Continental violated Pennsylvania insurance law or regulations (ECF No. 214); (3)
Continental’s motion to preclude testimony from Randolph Goodman on alleged property
damage (ECF No. 216); (4) Continental’s motion to preclude testimony from Douglas
Hilliard or other Kelman witnesses to prove proximate cause of direct physical damage to
the furnace interior (ECF No. 218); (5) Continental’s motion to limit recovery based upon
the “other insurance” provision in its policy (ECF No. 221) (this motion is duplicative of
Kelman’s motion to preclude Continental from arguing that Kelman’s recovery is limited
by the other insurance provision (ECF No. 235)); (6) Kelman’s motion to preclude expert
testimony speculating that a loan to Kelman would have been called (ECF No. 223); (7)
Kelman’s motion to preclude expert testimony that it expected a leak in the furnace (ECF
No. 225); (8) Kelman’s motion to exclude the expert testimony of Jeffrey P. Belack as
redundant and cumulative (ECF No. 227); (9) Kelman’s motion to exclude expert
testimony by Nicholas Bozovich (ECF No. 229); (10) Kelman’s motion to preclude
redundant and cumulative testimony from refractory experts (ECF No. 233); (11)
Continental’s motion to exclude testimony concerning alleged property damage (ECF
No. 237); and (12) Continental’s motion to preclude Kelman from introducing evidence
of certain alleged damages (ECF No. 239). The motions have been fully briefed and are
now ripe for disposition. The Court today decides all but the last two motions, as
discussed below.
Background
The parties are intimately familiar with the factual background of this case, so the
Court need not discuss the facts at length herein. It bears noting, however, that this case
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stems from an incident that occurred on March 15, 2011 at Kelman’s glass manufacturing
facility in Glenshaw, Pennsylvania. At the time, Kelman was operating only one furnace
at the facility (“Furnace #2”). Molten glass escaped from Furnace #2 on that day,
resulting in physical damage to the furnace and other property. At issue in this case—
which is scheduled to go to trial on August 18, 2014—is whether the March 15, 2011
incident was a “breakdown” as defined in Continental’s policy.
1.
Continental’s motion to preclude expert testimony from Gregory S.
Barach
Continental’s first motion seeks to exclude testimony from certified public
accountant Gregory S. Barach. The motion is wide-ranging and attacks several aspects of
Barach’s expert report.1 At the outset, we note that Barach will be permitted to testify
within the scope of his expertise as a certified public accountant—a conclusion that
Continental does not appear to challenge. That said, he will not be permitted to testify as
to the glass bottle manufacturing industry or insurance underwriting practices. Although
the Court will DENY Continental’s motion, the scope of that conclusion as it applies to
each of Continental’s arguments will be addressed below.2
a.
Kelman would have sustained operations but for the loss
Continental argues that Barach should be precluded from testifying that Kelman
would have been able to sustain its business operations but for the March 15, 2011
1
Kelman has stipulated in its response that certain aspects of Barach’s report (specifically related to
property damage) will not form the basis for his testimony, (ECF No. 186 at 3), and the Court will therefore not
consider Continental’s argument as to those issues.
2
The Court notes that some aspects of Continental’s challenge to Barach’s testimony implicates the
principles set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny. Neither
party raises Daubert, however, nor have they requested a hearing for the purposes of the present motions. Instead,
they have presented their arguments as motions in limine and the Court will treat them as such.
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incident because his testimony is not based upon a valid methodology. See Fed. R. Evid.
702 (expert testimony must be based upon “reliable principles and methods”). Contrary
to Continental’s assertion, however, Barach’s expert report describes his review of
Kelman’s books and records, including those related to accounts receivable, sales and
cash flow, payroll liabilities, short-term debt liabilities, and future plans for expansion.
Because Barach, as an accountant, relied upon Kelman’s financial books and documents
in reaching his conclusions, the Court concludes that his methodology was reliable under
Rule 702. See ProtoComm Corp. v. Novell Advanced Servs., Inc., 171 F. Supp. 2d 473,
480 (E.D. Pa. 2001) (finding an accountant’s expert testimony to be reliable where his
opinions were based upon a review of a “multitude of relevant business documents”). To
the extent that Continental wishes to undermine Barach’s conclusions, it is free to do so
by way of cross-examination.
b.
Business income losses
Continental likewise challenges the reliability of Barach’s conclusion with respect
to business income losses. Continental argues that the time period from which
production figures were drawn and the basis for the number of expected production days
are speculative and unsupported. Kelman responds by pointing to Barach’s report, which
states the basis for his conclusion insofar as “financial metrics indicate increased
production yields during the recent months preceding the incident as well as significant
increase in income for operations.” (Barach Report at 27).
The Court concludes that Barach will be permitted to testify as to the business
income losses on the ground that any dispute Continental has with the factual
4
underpinning of Barach’s testimony can be effectively tested on cross-examination. See
Sterling v. Redevelopment Auth. of City of Phila., 836 F. Supp. 2d 251, 272 (E.D. Pa.
2011) (“‘As a general rule, the factual basis of an expert opinion goes to the credibility of
the testimony, not the admissibility, and it is up to the opposing party to examine the
factual basis for the opinion in cross-examination’” (quoting Children’s Broad. Corp. v.
Walt Disney Co., 357 F.3d 860, 865 (8th Cir. 2004)). Barach has supported his
conclusions with the rationale that Kelman had shown increased production in the months
leading up to the incident, and was on track to continue to do so. Continental may
challenge that conclusion at trial.
c.
Enterprise value
Continental challenges Barach’s calculation of Kelman’s enterprise value on the
ground that the “mechanical computation” undertaken by Barach in making that
calculation was not done in accordance with the standards adopted by his profession.
Kelman counters by pointing out that Barach’s expert report acknowledges this
shortcoming, and notes that Barach’s deposition testimony established that a
“comprehensive valuation” cannot be conducted when a plant like Kelman’s is not
operating.
Barach will be permitted to testify based upon the mechanical computation.
Kelman maintains that Barach was unable to follow the “comprehensive valuation”
methodology given the facts of this case, and Continental offers no basis for finding that
assertion to be untrue. Moreover, the Court is not persuaded by Continental’s citation to
Elcock v. Kmart Corp., 233 F.3d 734, 748 (3d Cir. 2000), for the proposition that
5
Barach’s methodology was an improper synthesis of two accepted methodologies.
Barach followed the “mechanical computation” methodology, which is an acceptable
alternative to the requirements applicable to his profession under certain circumstances.
The methodology at issue in Elcock involved a hybrid procedure that was, according to
the court, a “novel method” that was based upon an “arbitrary admixture of two widely
used methods.” Id. No such circumstance exists here; the mere fact that Barach utilized
his professional judgment in conducting the accepted “mechanical computation” does not
amount to an “arbitrary admixture” of more than one method of valuation.
d.
Rebuttal testimony
Continental’s final objection to Barach’s testimony is that it should not be used to
rebut the testimony of Continental’s experts. Continental did not brief this issue in its
memorandum of law in support of the motion in limine, presumably because doing so
would have exceeded the applicable page limitation. The Court will not consider this
challenge to Barach’s testimony because Continental should not be permitted to
circumvent the Court’s rules merely by filing a lengthy motion. See CTS Corp. v. Mills
Gap Rd. Assocs., No. 10-156, 2012 WL 6802057, at *5 n.1 (W.D. N.C. Nov. 15, 2012)
(“the Court notes that the actual Motion for Summary Judgment . . . is more of a
supplemental brief than an actual motion. A motion should be a short and plain statement
setting forth the relief requested; it is not an opportunity to circumvent the Court’s page
limits and offer supplemental argument to the Court”). For the reasons set forth above,
the Court will DENY Continental’s motion (ECF No. 178).
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2.
Continental’s motion to preclude Kelman from asserting that
Continental violated Pennsylvania insurance law or regulations
Continental argues that Federal Rule of Evidence 403 precludes Kelman from
eliciting testimony or arguing before the jury that Continental violated its obligations
under the Pennsylvania Unfair Insurance Practices Act, 40 Pa. Stat. § 1170.1 (“UIPA”),
or the Unfair Claims Settlement Practices regulations, 31 Pa. Code § 146.1 (“UCSP”).
Rule 403 provides that a “court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” Fed. R. Evid. 403.
Continental argues that the Court’s decision to grant in part its motion for
summary judgment (which was affirmed after reconsideration) has rendered Kelman’s
arguments or testimony moot. Kelman counters by arguing that a violation of the UCSP
and UIPA is not per se bad faith, and that no such sweeping prohibition for violations of
the two exists in the Third Circuit. In support of its argument, Kelman attempts to
distinguish the Third Circuit’s nonprecedential decision in Dinner v. United Services
Automobile Association Casualty Insurance Co., 29 F. App’x 823 (3d Cir. 2002), which
held that evidence of an insurer’s violation of the UPIA and UCSP was properly excluded
under Rule 403 due to risk of prejudice. Id. at 828.
The Court rejects Kelman’s argument insofar as evidence of Continental’s
violation of the Pennsylvania insurance laws is not relevant to any of Kelman’s
remaining viable claims. Moreover, even if the evidence were probative, the risk of jury
7
confusion is great. Absent relevance and in light of the risk of confusion of issues,
Continental’s motion (ECF No. 214) will be GRANTED.
3.
Continental’s motion to exclude expert testimony from Randolph
Goodman
Continental argues that under Rule 702 Kelman should not be permitted to offer
testimony from Randolph Goodman concerning the scope of Kelman’s damages and its
costs of repair. Goodman’s testimony includes and relies upon a report prepared by
Henry F. Teichmann, Inc., a company that specializes in the building, repair, and
renovation of glass melting furnaces. Goodman (who is a public adjustor) hired
Teichmann to determine the loss and damage to Kelman’s property by inspecting Furnace
#2 and preparing a report describing the “costs for a proposed rebuild” of the furnace.
Goodman incorporated Teichmann’s report into his own, and performed an adjustment to
Teichmann’s damages calculation.
As an initial matter, the Court notes that Continental’s argument that Goodman
was required to possess particular knowledge and skills relative to the design and
construction of glass-making furnaces is incorrect. See ZF Meritor, LLC v. Eaton Corp.,
696 F.3d 254, 292 (3d Cir. 2012) (recognizing that experts routinely rely upon records
produced by those with knowledge in a particular field when formulating their opinions).
Continental does not challenge the Teichmann’s qualifications with respect to the
glassmaking industry.
Continental also argues that ZF Meritor applies to bar Goodman’s testimony in
this case. It does not. In ZF Meritor, the excluded expert testimony was based upon
8
underlying business plans about which the expert had no knowledge. Id. at 291 (noting
that the expert’s reliance on the business plans “was improper because he did not know
either the qualifications of the individuals who prepared the . . . estimates or the
assumptions upon which the estimates were based”). In this case, the Court finds that
Goodman’s report is reliable because he personally hired Teichmann to prepare the
estimates and provided Teichmann with specific instructions as to the information to
include in the report. Continental’s motion (ECF No. 216) will therefore be DENIED.
4.
Continental’s motion to exclude the testimony of Douglas Hilliard
Continental seeks to exclude testimony by Kelman’s Batch and Furnace Manager,
Douglas Hilliard, indicating that the Furnace #2 melter was damaged by an uncontrolled
cooldown during the March 15, 2011 event. Specifically, Continental argues that such
conclusions must be rendered by an expert and that Kelman failed to disclose its intention
to present such evidence as required in Federal Rule of Civil Procedure 26(a)(2)(C).3 In
response, Kelman notes that Hilliard has twenty-nine years’ experience in the
glassmaking industry and that, on the date in question, he personally witnessed and
helped stop the flow of molten glass. A week after the event, Hilliard accompanied
outside contractors inside the furnace and once inside, he observed cracks in the furnace
that he had not seen prior to the event.
Hilliard will be permitted to testify about his observations before and after the
event as a lay witness, not as an expert. His statements during his deposition indicate a
3
With respect to expert witnesses who do not provide a written report, Rule 26 requires the offering party
to disclose “the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence
702, 703, or 705; and . . . a summary of the facts and opinions to which the witness is expected to testify.” Fed. R.
Civ. P. 26(a)(2)(C).
9
lack of sufficient knowledge or experience to qualify him as an expert under Rule 702,
particularly with respect to the makeup and properties of refractory brick and the
scientific basis for thermal shock theory. Nevertheless, he will be permitted to testify as
to his observations of the furnace along with the testimony outlined in Kelman’s pretrial
statement, including: the construction, maintenance, use, and operation of the furnace;
the design, operation, and maintenance of the furnace as compared to other glass
furnaces; the life expectancy of the block in the melter; the date on which that block was
last replaced; the events of March 15, 2011; and Kelman’s efforts to repair the furnace.
Continental’s motion (ECF No. 218) will therefore be DENIED IN PART to the extent
that Hilliard will be permitted to testify consistent with Kelman’s pretrial statement and
GRANTED IN PART to the extent that Hilliard will not be permitted to testify as an
expert.
5.
Continental’s motion to limit recovery due to the “other insurance”
provision in its policy, and Kelman’s motion to preclude Continental
from asserting the “other insurance” provision
Continental argues that, assuming Kelman prevails at trial, it can be liable for no
more than 50% of the damages awarded by a jury. In support, Continental maintains that
Pennsylvania law precludes recovery of the full amount because of the presence of an
“other insurance” clause in both its policy and the policy provided by United States Fire
Insurance Company. Kelman rejects this argument by noting that the “other insurance”
clause does not apply to these two insurers because the policies insure different risks.
Kelman has also filed a motion to preclude Continental from asserting the “other
insurance” provision. Both motions implicate substantially the same legal analysis.
10
The Court concludes that these motions are premature insofar as they assume
events that have not yet occurred. As such the motions (ECF Nos. 221 & 235) will be
DENIED without prejudice to them being reasserted at the appropriate time.
6.
Kelman’s motion to preclude expert testimony by Jeffrey Belack and
David Duffus on Kelman’s ability to continue its operations
Kelman moves to exclude the expert testimony by Continental witnesses Jeffery
Belack and David Duffus, who will testify that Kelman’s primary loan to Citizen’s Bank
in the amount of $10.7 million would have been called and that Kelman was in “financial
distress” prior to the incident on March 15, 2011. Kelman argues that these opinions are
speculative and unsupported by the record and thus, should be precluded. Continental
counters that its experts’ opinions are based upon Kelman’s financial status and are thus
reliable and admissible under Rule 702.
To the extent that Belack and Duffus will testify about Kelman’s financial
condition during the time period leading up to March 15, 2011 based upon financial
records and other documentation that they have reviewed, that testimony will be
permitted. Such testimony may include the opinion that Kelman was in financial distress
during that time period. The Court notes that Belack and Duffus’ backgrounds as
certified public accountants qualifies them to testify about Kelman’s financial condition,
particularly where their testimony is based upon financial records that they have reviewed
and incorporated in their expert reports. Such testimony is therefore sufficiently based in
fact to meet the standard set forth in Rule 702.
11
The Court will not, however, permit Belack and Duffus to testify as to whether
Citizens Bank would have foreclosed on Kelman’s loan. Such a conclusion is
speculative, and is in fact contradicted by the actual events that occurred in this case, as
Kelman points out in its brief. As discussed above, therefore, Kelman’s motion (ECF
No. 223) will be GRANTED IN PART as to speculative statements and DENIED IN
PART as to testimony based upon the facts in the record.
7.
Kelman’s motion to exclude expert testimony that Kelman expected a
leak
Kelman seeks to preclude testimony from Continental’s expert David Boothe (and
possibly Dr. Dennis McGarry) indicating that Kelman expected the molten glass leak that
occurred on March 15, 2011. In support, Kelman argues that the Third Circuit’s opinion
in this case clarified that whether the leaks were expected was inconsequential to the
ultimate issue of whether the breakdown was “‘sudden and accidental’ and thus was not
covered under Continental’s ‘Equipment Breakdown’ policy.” U.S. Fire Ins. Co. v.
Kelman Bottles, 538 F. App’x 175, 181 (3d Cir. 2013). Kelman also maintains that
expert opinion is not appropriate to demonstrate a subjective belief on the part of Kelman
and its employees. Continental counters that the testimony will assist the jury by
showing how the history of other leaks at the Kelman facility demonstrates the likelihood
of a catastrophic leak in the future.
Boothe and Dr. McGarry will not be permitted to testify that Kelman (or its
employees) expected a leak to occur. Such testimony amounts to little more than their
“subjective belief or unsupported speculation,” which is not permitted under Rule 702.
12
In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 (3d Cir. 1994) (internal quotation
marks omitted). An expert witness cannot speak to the subjective belief of Kelman
employees about the likelihood of a leak. Boothe and Dr. McGarry will, however, still be
permitted to testify based upon their knowledge and experience about the nature of leaks
in a glass furnace, how they can spiral out of control, what constitutes a sign of danger,
and what can be done to avoid a catastrophic loss when one does occur. Kelman’s
motion (ECF No. 225) will, therefore, be GRANTED.
8.
Kelman’s motion to preclude cumulative expert testimony from Belack
Kelman argues that Belack’s testimony with respect to Kelman’s financial
condition prior to the March 15, 2011 event is unnecessarily cumulative of that being
presented by Duffus, and thus should be excluded under Rule 403. See Fed. R. Evid. 403
(providing that evidence may be excluded if its probative value is outweighed by
considerations of the “needless presentation of cumulative evidence”). Kelman also
argues that cumulative testimony from two experts will cause the jury to give those
opinions more weight because the jury will be “counting heads” instead of giving fair
consideration to each side. In response, Continental notes that Kelman has identified two
experts to describe its financial losses to the jury (Gary S. Barach and Hayes Walker),
and thus the “counting heads” argument is flawed. Continental also notes that the Third
Circuit has held that it is an abuse of discretion to limit a party to one expert witness,
even where the testimony may be cumulative, when the other party has as many or more
witnesses prepared to testify. Habecker v. Copperloy Corp., 893 F.2d 49, 51, 53 (3d Cir.
1990).
13
Belack will be permitted to testify. Rule 403 precludes testimony only where its
probative value is “substantially outweighed” by the danger of “needlessly presenting
cumulative evidence.” Fed. R. Evid. 403. Such is not the case here, where Continental
has shown how each expert addressed Kelman’s financial position from a different
perspective, and thus they do not overlap. (See ECF No. 265 at 4-5). Provided that
Belack and Duffus present their testimony from these differing perspectives, the Court
will DENY Kelman’s motion (ECF No. 227), with the added caveat that if the testimony
does become cumulative or causes undue delay, the Court will not hesitate to limit the
testimony.
9.
Kelman’s motion to exclude expert testimony from Nicholas Bozovich
Kelman’s argument to preclude testimony from Continental’s insurance expert,
Nicholas Bozovich, is based upon Continental’s pretrial statement that Bozovich will
testify as to his knowledge of “Pennsylvania jurisprudence interpreting the term ‘sudden
and accidental,’” among other details about insurance industry custom and practice.
Kelman contends that Bozovich should not be permitted to opine upon “what the law
required” or to “testify as to the governing law” in the case. Continental responds that
Bozovich will testify as to his role in making the coverage decision at issue in this case as
part of his role as Continental’s Consulting Claim Director for Equipment Breakdown
Claims. In making that decision, Continental maintains that Bozovich relied upon his
experience and knowledge of Pennsylvania law interpreting “sudden and accidental” in
other similar policies.
14
Bozovich will be permitted to testify. Kelman acknowledges—as it must—that
Federal Rule of Evidence 704 permits an expert to provide an opinion that embraces an
ultimate issue to be decided by the trier of fact. Fed. R. Evid. 704. Moreover, courts
have permitted “expert testimony as to custom and practice as to the meaning of a
particular contract term within an insurance policy, so long as the expert’s testimony does
not venture into the realm of purely legal contract construction or interpretation.”
Nationwide Life Ins. Co. v. Commw. Land Title Ins. Co., No. 05-281, 2011 WL 204619,
at *13 (E.D. Pa. Jan. 20, 2011) (citing First Nat’l State Bank of N.J. v. Reliance Elec. Co.,
668 F.2d 725, 731 (3d Cir. 1981); see also Flemming v. Air Sunshine, Inc., 311 F.3d 282,
297 n.10 (3d Cir. 2002) (“We agree with the District Court that the expert’s opinion as to
the custom and usage of the term ‘occurrence’ in the insurance industry did not constitute
an impermissible legal conclusion. We find no abuse of discretion in the court’s refusal
to exclude this opinion.”). To the extent that Bozovich’s testimony will aid the jury in
understanding the custom and usage of the term “sudden and accidental” in the insurance
industry, Kelman’s motion (ECF No. 229) will be DENIED.
10.
Kelman’s motion to exclude cumulative refractory expert testimony
Kelman seeks to exclude the testimony of Continental’s three refractory block
experts, Dr. McGarry, Joel Schubbe, and Boothe, as cumulative and redundant.
Specifically, Kelman contends that all three will testify that the leak was caused by wear
and tear on the refractory block and will opine as to the damage that resulted in the
March 15, 2011 incident. Continental counters that each expert’s testimony will be
highly probative, and that each expert comes from a different field and is equipped to
15
address different aspects of the refractory block in the furnace, the damage that resulted
from the incident, and the scientific and engineering underpinnings of how the incident
occurred.
Continental’s three witnesses will be permitted to testify. Boothe (an expert in
glass manufacturing) authored a report that notes that the furnace could have been
restored to its pre-March 15, 2011 condition within six to eight weeks after the incident.
Dr. McGarry, a metallurgical engineer, authored a report discussing the condition of the
furnace prior to the incident and also addresses the thermal shock theory. Schubbe, a
material science engineer, will testify as to the material characteristics and manufacturing
of refractory block, the impact of operating conditions on refractory, the signs and
characteristics of thermal shock and water damage, and ways to detect and monitor the
deterioration of refractory block. Although the testimony from each expert can be
generally categorized as being about “refractory block,” each brings a unique educational
and professional background that informs their analysis. Rule 403 does not preclude
some overlap in testimony, provided that the cumulative nature of the testimony does not
substantially outweigh its probative value. It appears as though the testimony here will
be highly probative as a counter to Kelman’s assessment of the damage to Furnace #2.
As discussed above, moreover, the Court will not hesitate to stop any of the witnesses
should their testimony become cumulative or result in a waste of time. Kelman’s motion
(ECF No. 233) will, therefore, be DENIED.
11.
Remaining motions
16
Continental raises two final motions related to the calculation of damages that the
Court will not resolve at this time. The first is Continental’s motion (ECF No. 237) to
preclude testimony concerning Kelman’s alleged property damage. The second is
Continental’s motion (ECF No. 239) to preclude Kelman from introducing evidence of
alleged damages (1) outside the terms of the policy and (2) that are unsupported by
admissible evidence. The remaining outstanding motions will be resolved at a time to be
determined by the Court.
Conclusion
For the reasons set forth above, the outstanding motions in limine will therefore be
resolved as follows: Continental’s motion to preclude expert testimony from Barach
(ECF No. 178) will be DENIED; Continental’s motion to preclude Kelman from
asserting the UPIA or the UCSP (ECF No. 214) will be GRANTED; Continental’s
motion to preclude expert testimony from Goodman (ECF No. 216) will be DENIED;
Continental’s motion to preclude testimony from Hilliard (ECF No. 218) will be
GRANTED in part and DENIED in part; Continental’s motion to limit recovery due to
“other insurance,” (ECF No. 221), and Kelman’s motion to preclude Continental from
asserting that Kelman’s recovery is limited by the other insurance provision (ECF No.
235), will both be DENIED without prejudice; Kelman’s motion to preclude testimony
from Belack and Duffus (ECF No. 223) will be GRANTED in part and DENIED in part;
Kelman’s motion to preclude testimony that it expected a leak (ECF No. 225) will be
GRANTED; Kelman’s motion to preclude cumulative testimony by Belack (ECF No.
227) will be DENIED; Kelman’s motion to preclude testimony by Bozovich (ECF No.
17
229) will be DENIED; and Kelman’s motion to preclude cumulative refractory expert
testimony (ECF No. 233) will be DENIED. An appropriate order will follow.
DATED: August 8, 2014
BY THE COURT:
/s/D. Michael Fisher
D. Michael Fisher
U.S. Circuit Judge
Sitting by Designation
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