Williams v. Farmers New World Life Insurance Company

Filing 96

FINAL PRETRIAL ORDER signed by Magistrate Judge William E Duffin on 3/15/2022. See Order for details. Defendant's Motion in Limine 87 is untimely and DENIED on that basis; however, witness may testify. Plaintiff's Motion to Strike this m otion in limine 93 is GRANTED IN PART. Defendant's Motion in Limine 88 is GRANTED. Plaintiff's Motion in Limine 90 is DENIED. Briefing on issue of existence of a contract: Deft's brief due 3/23/2022; Pltf's response due 3/30/2022. (cc: all counsel)(lz)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOYCE M. WILLIAMS,
Plaintiff,
v.

Case No. 18-CV-354

FARMERS NEW WORLD LIFE INSURANCE COMPANY,
Defendant.
FINAL PRETRIAL ORDER
On March 15, 2022, the court held a final pretrial conference. Appearing for the
plaintiff Joyce M. Williams were attorneys Gregory J. Cook and William C. Gleisner,
III. Appearing for the defendant Farmers New World Life Insurance Company were
attorneys Asim K. Desai and Margaret M. Drugan.
A jury trial is scheduled to begin on April 11, 2022. The court has set aside five
days for trial.
Based on the court’s consideration of the parties’ pretrial reports and the
statements of counsel, for the reasons more fully stated on the record, the court enters the
following Order, which shall govern the trial in this matter:
A. A seven-person jury will be selected. Its verdict shall be unanimous.

B. The court will conduct the voir dire of the entire pool. Following voir dire, the
court will entertain motions to strike for cause. From the first 13 remaining
prospective jurors the parties will each exercise three peremptory strikes per
side to arrive at a final seven-person jury.
C. The jurors will not be permitted to ask questions of witnesses.
D. The jurors will be permitted to take notes.
E. The parties shall prepare a single joint exhibit list. The exhibits shall be
numbered sequentially. No exhibit shall be listed more than once. Any
“compilations” of exhibits should be broken out so that each exhibit is
individually numbered. Parties should consider whether lengthy exhibits can
be limited to only the portions that are relevant and that the party will seek to
admit.
F. Exhibits shall be compiled into tabbed binders. One set shall be for the court;
one set will be for the witness; and then as many sets as the parties desire for
their personal use. The set for the witness will be the “official” set that will be
received by the court.
G. All exhibits received in evidence will be sent to the jury room during jury
deliberation unless a specific objection to the exhibit or portion thereof is raised
by a party following the conclusion of the trial. The jury will receive a copy of

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the jury instructions, and each juror will receive a copy of the special verdict
for their deliberations.
H. If a party wishes to publish an exhibit to the jury, the party must use
demonstrative means to make that the exhibit is visible to all jurors
simultaneously and/or provide each juror with a paper copy of the exhibit.
I. Upon request, made at least one week before trial, the court should be able to
provide any of the following technology: a projector that may be connected to
counsel’s laptop computers; a screen; and a document camera (e.g., an Elmo).
Parties wishing to use any additional technology must provide it themselves.
Parties should contact the court’s deputy clerk at 414-297-3964 or
[e-mail] with any questions to make arrangements
regarding court-supplied technology or to schedule a time to set up or test any
hardware.
J. Each party is responsible for ensuring the appearance of any witness the party
intends to call to testify.
K. Only a single attorney for each party shall examine or cross-examine any
individual witness.
L. Only if absolutely necessary are parties to ask for a side-bar conference if the
jury is present. Ordinarily, if additional argument or explanation is necessary

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regarding an objection, the objection should be raised, and the party should
request to be heard at the next break.
M. Trial days shall begin at 8:30 A.M., with a break in the morning, roughly one
hour for lunch, an afternoon break, and court will adjourn for the day at 5:00
P.M.
N. Currently, masks are not required in the courthouse. See General Order
Regarding

COVID-19

Mask

Policy

(March

7,

2022),

available

at

https://www.wied.uscourts.gov/news/update-general-order-regarding-covid19-mask-policy-1. Requirements for masking in the public areas of the
courthouse vary depending on the Centers for Disease Control and
Prevention’s

COVID-19

Community

Levels,

and

therefore

masking

requirements may change between now and trial. Parties should review the
court’s website, www.wied.uscourts.gov, for current protocols. Even if masks
become required in the public spaces in the building, the court does not
anticipate requiring masks in the courtroom.
O. As to the defendant’s motion in limine to exclude the plaintiff’s expert (ECF
No. 87), the motion is untimely. Following multiple extensions, the court
required any motion challenging an expert to be filed no later than July 9,
2019.” (ECF No. 27.) Having failed to comply with this court’s order, Farmers
has forfeited its challenge to James T. O’Donnell’s testimony, and the motion is

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denied on that basis. See Terry v. Woller, No. 08-4063, 2010 U.S. Dist. LEXIS
128953, at *4 (C.D. Ill. Dec. 7, 2010). Nonetheless, the court recognizes that it
has an independent duty under Fed. R. Evid. 702 to prevent unreliable opinions
from being presented to the jury. However, courts are afforded much
discretion in applying Daubert’s flexible framework and the ultimate admission
of expert testimony. See C.W. v. Textron, Inc., 807 F.3d 827, 835 (7th Cir. 2015).
Based on the information contained in his report, O’Donnell is “qualified as an
expert by knowledge, skill, experience, training, or education may testify in the
form of an opinion or otherwise.” Fed. R. Evid. 702. His “scientific, technical,
or other specialized knowledge will help the trier of fact … to determine a fact
in issue,” Fed. R. Evid. 702(a), including, for example, the materiality of the
Farmer’s inquiry regarding an applicant’s marijuana use or the accuracy of the
notation in Tajah Williams’s medical records indicating she regularly used
marijuana. The relevant opinions in O’Donnell’s report appear to be based on
sufficient facts and data and to be the product of sufficiently reliable principles
and methods. Finally, it appears that O’Donnell reliably applied those
principles and methods to the facts of this case. Consequently, in light of
Farmers’ failure to timely challenge O’Donnell’s opinions, the court will err on
the side of allowing O’Donnell’s opinions. The court nonetheless finds that it
would be an abuse of discretion to permit O’Donnell to testify that Tajah

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Williams was not a chronic user of marijuana because “she was a college
student and held two jobs.” (ECF No. 87 at 5.) Such an opinion falls far short of
the standards required under Rule 702 in that there is no evidence that
O’Donnell considered, for example, Tajah Williams’s functioning in school or
at work or considered the duration of qualitative effects of marijuana use in
reaching his opinion. As to the opinions contained in his report (ECF No. 27-3
at 2-3), the court finds it would not be an abuse of discretion to permit such
testimony at trial. Accordingly, Williams’s motion to strike the defendant’s
motion in limine (ECF No. 93) is granted in part.
P. As to the defendant’s motion in limine to exclude the plaintiff’s claim for
emotional distress (ECF No. 88), the motion is granted. The record
demonstrates that the plaintiff unequivocally waived any such claim, and the
plaintiff acknowledged as much at the final pretrial conference.
Q. As to the plaintiff’s motion in limine (ECF No. 90), the motion is denied. The
plaintiff’s reliance on Wis. Stat. § 631.11(4)(b) is misplaced. The evil the statute
seeks to prevent is a situation where an insurer learns of a basis for rescinding
a policy but then sits on that information and continues to collect premiums,
all the while knowing that it has a basis to deny coverage should a claim arise.
Such conduct would prejudice an insured by misleading the insured as to her
coverage and denying her the opportunity to seek other coverage. The present

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situation involves a review of an application following a claim during the
contestability period of a life insurance policy. See Wis. Stat. § 632.46(1).
Because the information in the “Broyles Report” was learned after the claim
(which the court understands is the basis for the plaintiff’s objection), the time
limits in Wis. Stat. § 631.11(4)(b) are inapplicable. Insofar as Wis. Stat.
§ 631.11(4)(b) may impose an obligation to disclose information learned in the
claims investigation process, cf. Broege v. Lincoln Nat'l Life Ins. Co., No. 11-cv566-slc, 2012 U.S. Dist. LEXIS 196686, at *11-15 (W.D. Wis. Apr. 9, 2012), the
plaintiff has not shown that the defendants delayed in disclosing the Broyles
Report. Rather, the plaintiff’s argument, as clarified at the final pretrial
conference, is that the Broyles Report must be excluded because it relies on
information that was acquired more than 120 days after the application.
Because this argument misunderstands Wis. Stat. § 631.11(4)(b), the plaintiff’s
motion in limine is denied.
R. Defendant shall brief the issue regarding the existence of a contract vis-à-vis
the plaintiff’s allegation that the insured did not sign the application no later

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than March 23, 2022. Plaintiff shall respond by March 30, 2022.
SO ORDERED.
Dated at Milwaukee, Wisconsin this 15th day of March, 2022.

_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge

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