United States District Court, E.D. Tennessee, Knoxville Division
MEMORANDUM OPINION & ORDER
LEON JORDAN, District Judge.
This action is set for trial on July 28, 2015. Now before the court are four motions in limine filed by the Plaintiff ("ANPAC") [docs. 136, 138, 139, 140] and six motions in limine filed by the Defendants (collectively, the "Stuttes") [docs. 144, 145, 146, 147, 148, 149]. One motion in limine [doc. 137] has already been resolved [doc. 192].
The case arises from the total destruction of the Stuttes home by fire on September 10, 2010. The facts underlying this insurance dispute have been summarized at length in a prior ruling of this Court [doc. 101] and will be referenced herein only to the extent necessary to address the instant motions. While there are many legal and factual issues for trial, the primary dispute will be whether the Stuttes intentionally destroyed their home. The Stuttes maintain that they were in Nashville at the time of the fire. After conducting an investigation, ANPAC denied their claim and filed this action seeking a declaratory judgment that they were not obligated to cover the loss under the terms of the Policy. ANPAC's complaint [doc. 1] alleges that the Stuttes breached the contract by (1) causing their home to be destroyed, and (2) concealing and misrepresenting facts related to the claim. The Stuttes sought their own declaratory judgment and filed additional counter-complaints [doc. 53] in (1) breach of contract, (2) unfair and deceptive acts in violation of the Tennessee Consumer Protection Act; and (3) intentional and negligent infliction of emotional distress. The Stuttes also asked the Court to find that ANPAC acted in bad faith in refusing to pay their claim, asking for a statutory penalty under Tenn. Code Ann. 56-7-105. The claims for infliction of emotional distress were dismissed on summary judgment [doc. 102].
A. ANPAC's First Motion in Limine
ANPAC moves to exclude any reference to or evidence that the Stuttes were not prosecuted for arson [doc. 136]. The Motion is supported by precedent in this Circuit. "Evidence of non-prosecution for arson is inadmissible, whether during a party's case-in chief, during cross-examination, or during rebuttal." Kelly's Auto Parts, No. 1, Inc. v. Boughton, 809 F.2d 1247, 1253 (6th Cir. 1987).
However, this case warrants some special consideration. The Stuttes response [doc. 164] cites case law finding the fact that an official investigation was conducted to be relevant. Indeed, the parties in this case appear to agree, because they have proposed evidence regarding the investigation in their pre-trial exhibit and witness lists. We must, therefore, take careful note to distinguish the occurrence of an official investigation from the occurrence of a criminal prosecution. Only the latter is the subject of this motion and only the same will be excluded by this order. Objections to any evidence regarding the arson investigation may be raised at trial.
ANPAC's First Motion in Limine [doc. 136] will be GRANTED.
B. ANPAC's Second Motion in Limine
ANPAC moves Second Motion in Limine to exclude Mark Kinsman as a witness was GRANTED by this Court [doc. 192, following the parties' representations that the issue had been resolved.
C. ANPAC's Third Motion in Limine
ANPAC third moves to exclude damages evidence of a job opportunity that the Stuttes claim to have lost as a result of this litigation [doc. 138]. The Stuttes respond that they are not entitled to damages for the lost opportunity and but that the evidence is relevant to the bad faith determination [doc. 165]. The Stuttes seek to show that ANPAC continued to act in bad faith during the course of litigation, because it had knowledge of the job offer and disregarded the Stuttes' financial interests. In other words, the Stuttes contend that ANPAC acted in bad faith when it failed to dismiss its suit and pay the Stuttes' claim on learning that Laura Stutte had been forced to reject a job in Hawaii.
The Court finds the explanation disingenuous. The email by which the Stuttes' counsel informed ANPAC of the lost opportunity indicates that the opportunity had already been lost before ANPAC learned of it. Counsel stated "I am writing to inform you that Laura Stutte had been offered a high-paying nursing position[.]"[doc. 138-1]. ANPAC did not have the chance to reconsider its decision in light of Laura Stutte's job offer because she unilaterally turned it down before notifying ANPAC of it. Therefore, the loss of the job offer has no logical relevance to ANPAC's claims decision or the Stuttes' bad faith allegations.
ANPAC's Third Motion in Limine is GRANTED. The Stuttes will not be permitted to introduce evidence relating to the loss of a job opportunity as relevant to either their damages or to ANPAC's actions.
D. ANPAC's Fourth Motion in Limine
ANPAC seeks to exclude the deposition testimony of Dr. Larry Miller, an expert handwriting analyst who assisted the Tennessee Bomb and Arson investigation [doc. 139]. Dr. Miller's opinion concerns the authorship of the QUEERS graffiti found on the Stuttes' home following the fire. The Court has already determined that this is a relevant question of fact.
Dr. Miller has not been disclosed as an expert in this case, and the deadline for expert disclosures has expired. However, the Stuttes deposed Dr. Miller and now seek to use his deposition as evidence at trial. ANPAC argues that Dr. Miller's deposition testimony contains impermissible opinions. While the deadline to object to expert opinions under a Daubert analysis has expired, ANPAC does not base its argument in Daubert, but rather on the procedural objection that Dr. Miller was not disclosed as an expert witness.
Rule 26(a)(2) requires disclosure of any expert witness whose opinion will be used at trial. Rule 26 (a)(2)(B) further requires parties to exchange "a complete statement of all opinions the witness will express and basis and reasons for them." A party that fails to comply with Rule 26's expert disclosure requirements "is not allowed to use that information or witness to supply evidence... at trial, unless the failure was substantially justified or is harmless." See also King v. Ford Motor Co., 209 F.3d 886 (6th Cir. 2000) (upholding the exclusion of an undisclosed expert).
The parties do not dispute that Dr. Miller's deposition testimony is inadmissible. The Stuttes response asks to extend the exclusion to all evidence of Dr. Miller analysis, including an expert report [doc. 168]. The Court additionally notes that Dr. Miller does not appear on ANPAC's witness list [doc. 110].
There being no apparent dispute, the Motion will be GRANTED. All evidence of and reference to any expert opinion of Dr. Miller, including his ...