Ross et al v. Erie Insurance Property & Casualty Company

Filing 73

MEMORANDUM OPINION AND ORDER CONFIRMING PRONOUNCED ORDER OF THE COURT REGARDING OBJECTIONS TO EXHIBITS AND MOTIONS IN LIMINE. Signed by Senior Judge Frederick P. Stamp, Jr on 10/15/2019. (copy to counsel via cm/ecf) (nmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MANUELA M. ROSS and
DAVID A. ROSS,
Plaintiffs,
v.

Civil Action No. 5:18CV101
(STAMP)

ERIE INSURANCE PROPERTY
AND CASUALTY COMPANY,
Defendant.

MEMORANDUM OPINION AND ORDER
CONFIRMING PRONOUNCED ORDER OF THE COURT
REGARDING OBJECTIONS TO EXHIBITS AND MOTIONS IN LIMINE
On October 7, 2019, the parties in the above-styled civil
action,1

plaintiffs

Manuela

M.

Ross

and

David

A.

Ross

(“plaintiffs”) and defendant Erie Insurance Property and Casualty
Company (“Erie”), appeared by counsel for a supplemental pretrial
conference.2

At the supplemental pretrial conference, this Court

pronounced its rulings on the parties’ respective objections to
trial exhibits as well as the defendant’s ten pending motions in
limine.
This

memorandum

opinion

and

order

confirms

this

Court’s

pronounced rulings made at the supplemental pretrial conference and

1

For a more thorough background of this civil action, see ECF
No. 63.
2

At the supplemental pretrial conference, this Court granted
the defendant’s unopposed request to reschedule the trial date in
this civil action from October 29, 2019 to November 19, 2019. ECF
No. 72.

discusses

the

parties’

objections

to

trial

exhibits

and

the

defendant’s motions in limine, in turn, below.
I.

Objections to Trial Exhibits

As an initial matter, this Court confirms its pronounced
ruling that all exhibits to which there was no objection are deemed
admitted.

Further, this Court confirms its pronounced rulings on

the parties’ respective objections to exhibits as stated below.
A.

Plaintiffs’ Objections to Defendant’s Exhibits (ECF No. 61)
1.

Exhibit No. 11 — Objection Sustained

Plaintiffs filed an objection to defendant’s Exhibit No. 11,
a May 18, 2016 letter from plaintiffs’ counsel to Mr. Eric Paugh of
Erie Insurance, arguing that the exhibit is not complete in that it
does not contain the “enclosed” Medical Specials Index.

In

response, defendant agreed to supplement this exhibit under Federal
Rule of Evidence 106 and the rule of completeness to include the
materials originally enclosed along with the letter.

By agreement

of the parties, the plaintiffs’ objection is sustained.
2.

Exhibit No. 14 — Objection Sustained

Plaintiffs filed an objection to defendant’s Exhibit No. 14
arguing that the exhibit is not complete in that it does not
contain

the

plaintiffs’

interrogatories

and

complete

requests

for

responses
production

to
of

defendant’s
documents.

Plaintiffs request the defendant supplement the exhibit, only to a
degree of relevancy to avoid an overly voluminous and burdensome
2

exhibit, by adding the Medical Specials Index and the Medical
Records Index with corresponding bills.

In response, defendant

agreed to supplement this exhibit under Federal Rule of Evidence
106 and the rule of completeness to include the materials requested
by plaintiffs and to remove the cover letter to the Clerk of the
Circuit Court of Marshall County, West Virginia.

By agreement of

the parties, the plaintiff’s objection is sustained.
3.

Exhibit No. 17 — Objection Sustained

Plaintiffs filed an objection to defendant’s Exhibit No. 17,
a February 14, 2017 letter from plaintiffs’ counsel to Erie’s
counsel, arguing that the exhibit is not complete in that it does
not contain the “enclosed” Medical Specials Index.

In response,

defendant again agreed to supplement this exhibit under Federal
Rule of Evidence 106 and the rule of completeness to include the
materials originally enclosed along with the letter.

By agreement

of the parties, the plaintiffs’ objection is sustained.
4.

Exhibit No. 20 — Objection Sustained

Plaintiffs filed an objection to defendant’s Exhibit No. 20,
the Circuit Court of Marshall County, West Virginia Scheduling
Conference Order in the underlying action, arguing that the exhibit
is not relevant under Federal Rule of Evidence 401.

In response,

defendant agreed that the Scheduling Conference Order from the
underlying state court action does not need to be admitted into
evidence as the defendant can elicit testimony from witnesses at
3

trial

as

evidence

underlying action.

of

the

pertinent

dates

and

events

in

the

By agreement of the parties, the plaintiffs’

objection is sustained.
5.

Exhibit No. 21 — Objection Overruled

Plaintiffs filed an objection to defendant’s Exhibit No. 21,
a letter dated August 22, 2017 from Thomas S. Muzzonigro, M.D. to
Erie’s counsel, arguing that the exhibit is misleading and “gives
a false impression to the jury” that Dr. Muzzonigro was “unbiased”
because it is “improperly labeled” as an “independent medical
evaluation” rather than a Report of Rule 35 examination.

Upon

consideration, this Court finds that the “labeling” of defendant’s
exhibit will not present an issue as it can be addressed by
plaintiffs and clarified during examination at trial. Accordingly,
the plaintiffs’ objection is overruled.
6.

Exhibit No. 26 — Objection Sustained

Plaintiffs filed an objection to defendant’s Exhibit No. 26,
the “Release Agreement” from the underlying action, arguing that
the exhibit “invades the province of the Court” in that it deals
with the release of plaintiffs’ claims.

Upon consideration, this

Court finds that, at this time, introducing the Release Agreement
from the underlying action as an exhibit is not necessary as the
parties’ are in agreement as to what claims remain in this civil
action, and clarification of this issue, if necessary, can be

4

achieved by trial testimony and even argument.

Accordingly, the

plaintiffs’ objection is sustained.
B.

Defendant’s Objections to Plaintiffs’ Exhibits (ECF No. 62)
1.

Exhibit Nos. 39 and 41 — Objections Sustained

Defendant filed an objection to plaintiffs’ Exhibit Nos. 39
and 41, the Circuit Court of Marshall County, West Virginia Order
of Default Judgment on Liability against Kevin Strope in the
underlying action and the Circuit Court of Marshall County, West
Virginia Judgment Order entered in the underlying action, arguing
that these exhibits are not relevant to the claims against Erie and
would be misleading and confusing to a jury and prejudicial to
Erie.

Upon consideration, as previously stated in this Court’s

memorandum opinion and order regarding summary judgment (ECF No. 63
at 7 n.1), this Court finds that the judgment entered against the
tortfeasor, Kevin Strope, in the underlying action occurred after
Erie’s settlement with the plaintiffs, as the result of a bench
trial to which Erie was not a party, and accounted for a deduction
in the amount of $75,000.00 as a result of plaintiffs’ settlement
with Erie.

Thus, contrary to the position taken by plaintiffs,

this Court finds that the judgment order entered against Kevin
Strope is not relevant and, alternatively, any relevancy would be
outweighed by unfair prejudice, confusion of the issues, and
unnecessary delay of trial under Federal Rule of Evidence 403.
Accordingly, the objections are sustained.
5

2.

Exhibit No. 45 — Objection Sustained As Framed

Defendant filed an objection to plaintiffs’ Exhibit No. 45, a
Quarterly Report by Erie filed with the United States Securities
and Exchange Commission, arguing that to the extent this exhibit
will be offered to show Erie’s net worth, evidence regarding Erie’s
net worth is not relevant to the claims against Erie in this matter
and this exhibit would be misleading and confusing to a jury and
prejudicial to Erie. Upon consideration, this Court finds that the
exhibit related to the defendant’s net worth is not relevant under
Federal Rule of Evidence 401, particularly in light of this Court’s
previous ruling in its memorandum opinion and order granting
defendant’s motion for summary judgment as to plaintiffs’ claim for
punitive damages. ECF No. 63 at 19. Accordingly, the objection is
sustained as framed.3
II.

Motions in Limine

Now before the Court are ten pending motions in limine filed
by the defendant: (1) Motion in Limine Regarding Intangible Damages
(ECF No. 30); (2) Motion in Limine Regarding Golden Rule Type
Arguments (ECF No. 31); (3) Motion in Limine to Prohibit Reference
to Defendant’s Wealth (ECF No. 32); (4) Motion in Limine Requesting
that the Court Prohibit an Award of Prejudgment Interest or, in the
Alternative, Proffer a Special Interrogatory to the Jury Regarding
3

Should this Court be inclined to reconsider its ruling on
punitive damages based upon the evidence adduced at trial, this
Court’s ruling on this issue may be reconsidered.
6

Prejudgment Interest (ECF No. 33); (5) Motion in Limine to Preclude
Reference to Evidence of the Out-of-State Conduct of Defendant (ECF
No. 34); (6) Motion in Limine to Preclude Reference to Evidence or
Argument Related to the Injuries Sustained or Fault Relative to the
Underlying Motor Vehicle Accident (ECF No. 35); (7) Motion in
Limine to Bifurcate Claims at Trial (ECF No. 36); (8) Motion in
Limine to Preclude Reference to Opinions or Other Attempts to
Classify Erie or the Insurance Industry as Unsavory (ECF No. 37);
(9) Motion in Limine to Preclude Reference to Evidence of the
Judgment Against Kevin Strope (ECF No. 38); and (10) Motion in
Limine to Preclude Evidence Regarding Total Defense Expenses and
“Ross 004021” (ECF No. 53).
This Court has reviewed the motions and the memoranda and
exhibits submitted by the parties and pronounced its rulings on the
pending motions in limine at the supplemental pretrial conference.
This Court will address the motions in limine and set forth its
findings in confirming its pronounced rulings, below.
1.

Motion in Limine Regarding Intangible Damages (ECF No. 30) —

GRANTED
Defendant filed a motion in limine to preclude plaintiffs’
counsel and plaintiffs from suggesting to the jury in voir dire,
opening statement, closing argument or at any point during the
trial of this matter, a dollar figure for intangibles and damages
not quantified by expert testimony and/or special damages. As this
7

Court noted at the supplemental pretrial conference, plaintiffs did
not file a response in opposition to this motion in limine.
Therefore, this Court deemed the motion unopposed and granted the
motion.

Accordingly, the motion in limine regarding intangible

damages (ECF No. 30) is GRANTED.
2.

Motion in Limine Regarding Golden Rule Type Arguments (ECF No.

31) — GRANTED
Defendant filed a motion in limine for entry of an order
prohibiting plaintiffs, plaintiffs’ counsel, or any witness from
testifying, arguing, or suggesting that the jury should place
themselves in the position of the plaintiffs.

As this Court noted

at the supplemental pretrial conference, plaintiffs did not file a
response in opposition to this motion in limine.
Court

deemed

the

motion

unopposed

and

Therefore, this

granted

the

motion.

Accordingly, the motion in limine regarding golden rule type
arguments (ECF No. 31) is GRANTED.
3.

Motion in Limine to Prohibit Reference to Defendant’s Wealth

(ECF No. 32) — GRANTED AS FRAMED
Defendant filed a motion in limine for entry of an order to
prohibit

any

mention

or

reference

directly

or

indirectly

by

argument of counsel or through the testimony of any witness or any
fact relating to the wealth of defendant Erie.

ECF No. 32.

Defendant argues that the wealth of Erie is irrelevant for purposes
of proving any fact of consequence in this litigation and should be
8

excluded in that defendant’s wealth has no probative value with
respect to the reasonableness or timeliness of defendant’s decision
to settle plaintiffs’ claims.

Id. at 1.

Plaintiffs filed a

response in opposition (ECF No. 43). Upon review, at this time and
based on the law of the case, the parties are not permitted to make
any mention of punitive damages and this Court further finds that
the defendant’s net worth is not relevant under Federal Rule of
Evidence 401 in light of this Court’s previous ruling in its
memorandum

opinion

and

order

granting

defendant’s

motion

for

summary judgment as to plaintiffs’ claim for punitive damages. ECF
No. 63 at 19.

Accordingly, the motion in limine to prohibit

reference to defendant’s wealth (ECF No. 32) is GRANTED AS FRAMED.4
4.

Motion in Limine Requesting that the Court Prohibit an Award

of Prejudgment Interest or, in the Alternative, Proffer a Special
Interrogatory to the Jury Regarding Prejudgment Interest (ECF No.
33) — GRANTED AS FRAMED
Defendant filed a motion in limine requesting that the Court
prohibit any award of prejudgment interest in the absence of outof-pocket expenses due to plaintiffs’ contingency fee agreement
with plaintiffs’ counsel or, in the alternative, proffer a special
interrogatory to the jury asking the jury to set forth special or
liquidated

damages

for

the

purpose

4

of

attaching

prejudgment

Should this Court be inclined to reconsider its ruling on
punitive damages based upon the evidence adduced at trial, this
Court’s ruling on this issue may be reconsidered.
9

interest

on

any

special

damage

award.

ECF

No.

33.

After

discussion, and by agreement of the parties, this Court finds that
a

special

interrogatory

would

be

appropriate

in

this

case.

Further, the parties have previously been directed to meet and
confer in an attempt to reach an agreement regarding the issue of
any special interrogatories regarding a potential prejudgment
interest calculation in this matter, should it be necessary.
No. 72 at 2.

ECF

Accordingly, the motion in limine regarding a

potential award of prejudgment interest is GRANTED AS FRAMED.
5.

Motion in Limine to Preclude Reference to Evidence of the Out-

of-State Conduct of Defendant (ECF No. 34) — GRANTED
Defendant filed a motion in limine for entry of an order
prohibiting plaintiffs’ counsel in voir dire, opening statement,
closing argument or at any point during the trial of this matter,
including but not limited to, via witnesses, documentary evidence
or expert testimony, from producing, submitting or referring to any
and all evidence of the out-of-state activities of Erie.

As this

Court noted at the supplemental pretrial conference, plaintiffs did
not file a response in opposition to this motion in limine.
Therefore, this Court deemed the motion unopposed and granted the
motion. Accordingly, the motion in limine to preclude out-of-state
conduct of the defendant (ECF No. 34) is GRANTED.

10

6.

Motion Limine to Preclude Reference to Evidence or Argument

Related

to

the

Injuries

Sustained

or

Fault

Relative

to

the

Underlying Motor Vehicle Accident (ECF No. 35) — GRANTED
Defendant filed a motion in limine for entry of an order
prohibiting plaintiffs’ counsel in voir dire, opening statement,
closing argument or at any point during the trial of this matter,
including but not limited to, via witnesses, documentary evidence
or expert testimony, from producing, submitting or referring to any
and all evidence of the injuries allegedly sustained by plaintiffs
as

a

result

of

the

motor

vehicle

accident

that

occurred

on

September 24, 2016, or from arguing or otherwise litigating the
value of the damages that were allegedly sustained by plaintiffs as
a

result

of

such

accident.

opposition (ECF No. 42).

Plaintiffs

filed

a

response

in

Upon review, this Court finds that for

substantially the same reasons stated in this Court’s memorandum
opinion and order regarding summary judgment (ECF No. 63 at 7 n.1),
and reiterated in this Court’s ruling on defendant’s objections to
plaintiffs’ trial exhibits above, fault or liability for the
underlying accident or the value of the injuries suffered by
plaintiffs as a result of the underlying motor vehicle accident are
not at issue in this civil action.

This Court again finds that the

judgment entered against the tortfeasor, Kevin Strope, in the
underlying

action

occurred

after

Erie’s

settlement

with

the

plaintiffs, as the result of a bench trial to which Erie was not a
11

party, and accounted for a deduction in the amount of $75,000.00 as
a result of plaintiffs’ settlement with Erie.

Thus, contrary to

the position taken by plaintiffs, this Court finds that the
judgment order entered against Kevin Strope in the underlying
accident is not relevant and, alternatively, any relevancy would be
outweighed by unfair prejudice, confusion of the issues, and
unnecessary delay of trial under Federal Rule of Evidence 403.
Accordingly, the motion in limine to preclude reference to evidence
or argument related to the injuries sustained or fault relative to
the underlying motor vehicle accident (ECF No. 35) is GRANTED.
7.

Motion in Limine to Bifurcate Claims at Trial (ECF No. 36) —

GRANTED
Defendant filed a motion in limine for entry of an order
bifurcating the claims at trial separating the liability and
compensatory damages from a punitive damages phase.

As this Court

noted at the supplemental pretrial conference, this Court has
previously granted defendant’s motion for summary judgment on
plaintiffs’ claim for punitive damages and plaintiffs did not file
a response in opposition to this motion in limine. Therefore, this
Court

deemed

the

motion

unopposed

and

granted

the

motion.

Accordingly, the motion in limine for entry of an order bifurcating
the claims at trial separating the liability and compensatory
damages from a punitive damages phase (ECF No. 36) is GRANTED.

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8.

Motion in Limine to Preclude Reference to Opinions or Other

Attempts to Classify Erie or the Insurance Industry as Unsavory
(ECF No. 37) — GRANTED
Defendant filed a motion in limine for entry of an order
prohibiting plaintiffs’ counsel in voir dire, opening statement,
closing argument or at any point during the trial of this matter,
including but not limited to, via witnesses, documentary evidence
or expert testimony, from producing, submitting or referring to any
and all subjective opinions regarding Erie and/or the insurance
industry and to refrain from any attempt to classify Erie and/or
the insurance industry as unsavory, scandalous, duplicitous, evil,
or otherwise generally objectionable, including but not limited to
general and unsupported references with respect to the collection
of premiums by insurance companies and the subsequent “failure” to
pay claims.

As this Court noted at the supplemental pretrial

conference, plaintiffs did not file a response in opposition to
this motion in limine.

Therefore, this Court deemed the motion

unopposed and granted the motion.

Accordingly, the motion in

limine to preclude reference to opinions or other attempts to
classify Erie or the insurance industry as unsavory (ECF No. 37) is
GRANTED.

13

9.

Motion in Limine to Preclude Reference to Evidence of the

Judgment Against Kevin Strope (ECF No. 38) — GRANTED
Defendant filed a motion in limine for entry of an order
prohibiting plaintiffs’ counsel in voir dire, opening statement,
closing argument or at any point during the trial of this matter,
including but not limited to, via witnesses, documentary evidence
or expert testimony, from producing, submitting or referring to any
and all evidence of the judgment against Kevin Strope.
filed a response in opposition (ECF No. 41).

Plaintiffs

Upon review, for

substantially the same reasons stated in this Court’s memorandum
opinion and order regarding summary judgment (ECF No. 63 at 7 n.1),
and reiterated in this Court’s ruling on defendant’s objections to
plaintiffs’ trial exhibits above, this Court finds that evidence
related to the judgment against Kevin Strope in the underlying
action is properly excluded.

Accordingly, the motion in limine to

preclude reference to evidence of the judgment against Kevin Strope
(ECF No. 38) is GRANTED.
10.

Motion in Limine to Preclude Evidence Regarding Total Defense

Expenses and Ross 004021 (ECF No. 53) — DEFERRED
Defendant filed a motion in limine for entry of an order
preventing plaintiffs’ counsel from offering evidence or argument
regarding

Erie’s

total

defense

expenses

Plaintiffs filed a response in opposition.

and

“ROSS

004021.”

ECF No. 60.

Upon

review, this Court finds that a ruling on defendant’s motion in
14

limine to preclude evidence regarding defense expenses and “Ross
004021” must be deferred at this time, as this Court finds it
appropriate to reserve a ruling on the motion to further consider
the

parties’

arguments

related

to

inadvertent

disclosure,

confidential communications, and privilege with respect to the use
of evidence regarding total defense expenses and “Ross 004021” at
trial.

Accordingly, the motion in limine (ECF No. 53) is DEFERRED

and this Court will reserve a ruling on the motion until it has
further opportunity to review the document “Ross 004021.”
Accordingly, Motion in Limine Regarding Intangible Damages
(ECF No. 30) is GRANTED; Motion in Limine Regarding Golden Rule
Type Arguments (ECF No. 31) is GRANTED; Motion in Limine to
Prohibit Reference to Defendant’s Wealth (ECF No. 32) is GRANTED AS
FRAMED; Motion in Limine Requesting that the Court Prohibit an
Award of Prejudgment Interest or, in the Alternative, Proffer a
Special Interrogatory to the Jury Regarding Prejudgment Interest
(ECF No. 33) is GRANTED AS FRAMED; Motion in Limine to Preclude
Reference to Evidence of the Out-of-State Conduct of Defendant (ECF
No. 34) is GRANTED; Motion in Limine to Preclude Reference to
Evidence or Argument Related to the Injuries Sustained or Fault
Relative to the Underlying Motor Vehicle Accident (ECF No. 35) is
GRANTED; Motion in Limine to Bifurcate Claims at Trial (ECF No. 36)
is GRANTED; Motion in Limine to Preclude Reference to Opinions or
Other Attempts to Classify Erie or the Insurance Industry as
15

Unsavory (ECF No. 37) is GRANTED; Motion in Limine to Preclude
Reference to Evidence of the Judgment Against Kevin Strope (ECF No.
38) is GRANTED; and Motion in Limine to Preclude Evidence Regarding
Total Defense Expenses and Ross 004021 (ECF No. 53) is DEFERRED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

October 15, 2019

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

16