Philadelphia Indemnity Insurance Company v. Hewlett-Packard Company

Opinion

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5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 11 PHILADELPHIA INDEMNITY CASE NO. 2:19-cv-00138-TL INSURANCE COMPANY, 12 ORDER ON MOTIONS Plaintiff, 13 v. 14 HEWLETT-PACKARD COMPANY, 15 Defendant. 16

17 This matter is before the Court on Plaintiff Philadelphia Indemnity Insurance Company’s 18 Motion to Exclude Defendant’s Expert Nash Johnson (Dkt. No. 63 at 13–15), Defendant 19 Hewlett-Packard Company’s Motion to Preclude Prejudgment Interest (Dkt. No. 61 at 3–4), 20 Defendant’s Motion to Strike Witnesses Steve DeKoekkoek, Belfor, and JS Held from Pretrial 21 Order and to Exclude Their Testimony (Dkt. No. 92), and Defendant’s Motion for 22 Reconsideration of Court Ruling on Plaintiff’s Motion in Limine Excluding Lynn Yevrovich 23 Evidence (Dkt. No. 99). Having reviewed the Parties’ briefing and the relevant record, the Court 24 decides the motions as follows. 1 I. BACKGROUND 2 Having recently summarized the facts and history of this case, the Court assumes 3 familiarity with the background of this case and only sets out recent developments below. See 4 Dkt. No. 59.

5 Jury trial in this matter is set to begin on October 16, 2023. Dkt. No. 41. At a pretrial 6 conference held on October 10, 2023, the Court made oral rulings on a variety of motions in 7 limine filed by the Parties (Dkt. Nos. 61, 63), and a pretrial order was issued thereafter in which 8 those rulings are summarized. Dkt. Nos. 90, 95. 9 The Court granted Plaintiff’s motion to exclude the statements of Ms. Lynn Yevrovich 10 (Dkt. No. 63 at 4–12) but permitted Defendant to move for reconsideration of its ruling as to Ms. 11 Yevrovich’s video-recorded interview “should it find authority that a videorecorded interview 12 not taken under oath qualifies for admission” under the residual hearsay exception. Dkt. No. 95 13 at 8. The Court reserved ruling on Plaintiff’s motion to exclude the expert testimony of 14 Defendant’s expert Nash Johnson and directed Defendant to file a supplemental declaration with

15 Mr. Johnson’s qualifications and support for his opinions. Dkt. No. 95 at 9. The Court also 16 reserved ruling on Defendant’s motion to preclude prejudgment interest, pending the outcome of 17 the motion on Mr. Johnson’s testimony. Id. Finally, the Court directed Plaintiff to respond to 18 Defendant’s motion to strike Plaintiff’s damages witnesses, which the Court permitted to testify 19 as lay witnesses. Id. 20 II. LEGAL STANDARD 21 “A motion in limine is a procedural mechanism to limit in advance [of trial] testimony or 22 evidence in a particular area.” United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009); see 23 also Fed. R. Evid. 401, 403. While the Federal Rules of Evidence (“FRE”) do not explicitly

24 permit motions in limine, they are a part of a “district court’s inherent authority to manage the 1 course of trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1984). A motion in limine should 2 not be used to resolve factual disputes, weigh evidence, or as a substitute for a motion for 3 summary judgment. See, e.g., Coppi v. City of Dana Point, No. C11-1813, 2014 WL 12589639, 4 at *3 (C.D. Cal. Feb. 24, 2014). A motion in limine is ordinarily granted only if the evidence at

5 issue is inadmissible on all potential grounds; if not, the evidentiary ruling is better deferred until 6 trial, to allow for questions of foundation, relevancy, and prejudice to be resolved with the 7 appropriate context. See United States v. Sims, 550 F. Supp. 3d 907, 912 (D. Nev. 2021). A 8 motion in limine should not be used to resolve factual disputes or weigh evidence. Id.; Liu v. 9 State Farm Mut. Auto. Ins. Co., No. C18-1862, 2021 WL 717540, at *1 (W.D. Wash. Feb. 24, 10 2021). A court’s ruling on a pre-trial motion in limine is preliminary and can be revisited at trial 11 based on the facts and evidence as they are actually presented. See, e.g., Luce, 469 U.S. at 41 12 (“Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of 13 sound judicial discretion, to alter a previous in limine ruling.”). 14 Further, “[m]otions for reconsideration are disfavored.” LCR 7(h)(1). Such motions must

15 be denied absent a showing of “manifest error in the prior ruling or . . . new facts or legal 16 authority which could not have been brought to [the Court’s] attention earlier with reasonable 17 diligence.” Id. Motions for reconsideration should be granted only in “highly unusual 18 circumstances.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 19 (9th Cir. 2009) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). 20 “A motion for reconsideration ‘may not be used to raise arguments or present evidence for the 21 first time when they could reasonably have been raised earlier in the litigation.’” Id. (quoting 22 Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)). “Whether or not to 23 grant reconsideration is committed to the sound discretion of the court.” Navajo Nation v.

24 Confederated Tribes & Bands of the Yakima Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003). 1 III. DISCUSSION 2 A. Plaintiff’s Motion to Exclude Defendant’s Expert 3 Among its motions in limine, Plaintiff seeks to exclude the expert testimony of Nash 4 Johnson, arguing that Mr. Johnson does not have a basis for his opinions or will make

5 impermissible legal conclusions. See Dkt. No. 63 at 13–15. The Court ordered Defendant to file 6 a supplement declaration from Mr. Johnson with his qualifications and support for his opinions. 7 Dkt. No. 95 at 9. After the pretrial conference, Defendant filed a supplemental declaration from 8 Mr. Johnson detailing his qualifications and the basis for his opinions. See Dkt. No. 100 9 (declaration); 100-1 (curriculum vitae). Mr. Johnson’s qualifications include “over 29 years of 10 work experience in commercial construction management in the Pacific Northwest.” Id. at 1; see 11 also id. at 1–2 (detailing experience). His opinions are based on review of discovery materials 12 and document productions, and they are supported by his education and experience. Id. at 3; see 13 also id. at 4–21 (expert’s review, discussion, comments, and opinions). Mr. Nash has now 14 supplied sufficient support for his opinions.

15 However, Mr. Johnson included two new categories of damages that were not in his 16 original report: (1) a fire alarm system; and (2) Washington State Sales Tax. See Dkt. No. 100 at 17 20–21. These two categories of damages were not timely disclosed and thus will not be added on 18 the eve of trial. Therefore, the Court finds that Mr. Johnson is permitted to testify as an expert 19 except that he may not testify about the cost of a fire alarm system or state taxes. See Fed. R. 20 Evid. 702. Plaintiff’s motion is DENIED. 21 B. Defendant’s Motion to Preclude Prejudgment Interest 22 For the reasons stated at the pretrial conference, and as the Court is allowing the 23 testimony of Mr. Johnson, Defendant’s motion is GRANTED.

24 1 C. Defendant’s Motion to Strike and Exclude Plaintiff’s Witnesses 2 Defendant moves to strike from the pretrial order and exclude the testimony of Plaintiff’s 3 damages witnesses: Steve DeKoekkoek, Belfor USA Group, Inc., and JS Held Construction 4 Consulting.1 See Dkt. No. 92. Plaintiff previously raised this issue in its trial brief, noting that

5 Defendant “seeks to exclude this testimony by claiming that it is expert testimony.” Dkt. No. 74 6 at 6. At the pretrial conference, the Court heard the Parties on the issue and made an oral ruling 7 that Plaintiff’s witnesses would be excluded as experts but permitted to testify as lay witnesses. 8 Because Defendant’s motion was filed after the Court’s ruling at the pretrial conference, the 9 Court considers it to be a motion for reconsideration. 10 Defendant fails to demonstrate manifest error in the Court’s prior ruling or to bring forth 11 new facts or legal authority that could not have been brought to the Court’s attention earlier with 12 reasonable diligence. Marlyn Nutraceuticals, Inc., 571 F.3d at 880. The crux of Defendant’s 13 argument, renewed in the instant motion, is that the testimony of Plaintiff’s damages witnesses is 14 “expert in nature.” See Dkt. No. 92 at 5–8. The Court respectfully disagrees. As Defendant

15 acknowledges, Plaintiff identified these witnesses in their initial disclosures and stated that they 16 had information related to the repairs and repair costs sustained by Plaintiff as part of the 17 insurance claim. See Dkt. No. 92 at 2–4. Defendants could have deposed these individuals to 18 determine the specifics of their knowledge about Plaintiff’s damages but chose not to do so. Dkt. 19 No. 98 at 2. This knowledge, as Plaintiff explains, “includes the costs to repair the building, 20 which includes the costs incurred to make the property complaint with current building codes.” 21 Dkt. No. 98 at 2. The witnesses will only testify to “actual costs of repair” and “amounts lost in 22 rent” which “do not require technical or scientific expertise.” Id. at 3. Defendant will be able to 23

24 1 Defendant also moves for permission to file a reply. Dkt. Nos. 101, 101-1 (reply). Defendant’s request is GRANTED. 1 use the information it has from its expert, Mr. Johnson, to challenge Plaintiff’s witnesses on what 2 costs are reasonably necessary during Plaintiff’s case-in-chief and during its own case, should it 3 choose to do so. Defendant’s motion is DENIED.2 4 D. Defendant’s Motion to Reconsider Court’s Ruling on Yevrovich Evidence

5 Finally, Defendant moves for reconsideration of the Court’s ruling on evidence of 6 statements made by Ms. Yevrovich. See Dkt. No. 99. Specifically, Defendants seeks the 7 admission of two documents: (1) a video-recorded statement made to police investigators (Dkt. 8 No. 64-1 (transcript)); and (2) a sworn written statement (Dkt. No. 64-5). At the pretrial 9 conference, the Court granted Plaintiff’s motion in limine to exclude this evidence as 10 inadmissible hearsay. See Dkt. No. 95 at 8. 11 The crux of Defendant’s argument is that both documents should be admitted under the 12 so-called “residual exception” to hearsay. See Fed. R. Evid. 807. That rule permits the admission 13 of a statement that meets the following criteria: 14 (1) the statement is supported by sufficient guarantees of trustworthiness—after considering the totality of circumstances 15 under which it was made and evidence, if any, corroborating the statement; and 16 (2) it is more probative on the point for which it is offered than any 17 other evidence that the proponent can obtain through reasonable efforts. 18 Id. 807(a).3 However, Defendant fails to demonstrate manifest error in the Court’s prior ruling or 19 to bring forth new facts or legal authority that could not have been brought to the Court’s 20 attention earlier with reasonable diligence. Marlyn Nutraceuticals, Inc., 571 F.3d at 880. 21 22 2 For these same reasons, the Court denied Plaintiff’s motion to exclude Defendant’s witness, Mr. Lee Atkinson, as 23 an expert witness. See Dkt. No. 95 at 10. 3 The proponent of the evidence must also provide reasonable notice of the intent to introduce such evidence to the 24 adverse party. Fed. R. Evid. 807(b). This does not appear to be an issue in this case. 1 As to the video-recorded statement, the Court does not, as Defendant asserts, “impose[ ] a 2 standard . . . that simply does not exist under Rule 807,” namely, a “requirement” that a 3 statement be “made under oath” before admission. Dkt. No. 99 at 5. Instead, the Court considers 4 “the totality of the circumstances” to assess the trustworthiness of the statement. Fed. R. Evid.

5 807(a)(1). In doing so, the Court notes that some of the circumstances do cut in favor of 6 admission. As Defendant points out, Ms. Yevrovich provided “critically important” eyewitness 7 testimony, which was video-recorded (Dkt. No. 99 at 4); she appeared to understand the 8 investigators’ questions and recalled details of the fire and the apartment (id. at 5); and she gave 9 her statements voluntarily (id. at 6). 10 However, the video statement should be excluded because the remaining circumstances 11 weigh heavily against its trustworthiness. As Defendant concedes (id. at 6), Ms. Yevrovich did 12 not make this statement under oath, a factor considered important in United States v. Sanchez- 13 Lima, 161 F.3d 545, 547–48 (9th Cir. 1998), and United States v. Leal-Del Carmen, 697 F3d 14 964, 974 (9th Cir. 2012). Although it is a misdemeanor under Washington law to make a false or

15 misleading statement to police investigators (see RCW 9A.76.175), this statutory backdrop is not 16 as strong a guarantor of trustworthiness as taking an oath and facing threat of perjury, nor does 17 Defendant cite any court that has credited such an argument. 18 Even more significantly, Ms. Yevrovich had a strong motive to lie: she believed herself 19 to be a possible target of the investigation. This belief is demonstrated by her repeated (and 20 unprompted) protestations of innocence. See, e.g., id. at 5 (4:18–19) (“I’m not guilty, so I’m 21 happy to tell you what happened.”); id. at 25 (24:4–5) (“And I felt really bad, but I wasn’t the 22 one that did it, you know.”); id. at 38 (37:7–9) (“You know, I don’t know what happened with 23 him – with that, because I didn’t set the fire. I only found it.”); id. at 79 (78:10–13) (“I lost at

24 least as much as [my neighbor] did, and just because it happened in my apartment didn’t – 1 doesn’t mean I set it or I wanted it set. I didn’t want it set.”); id. at 89 (88:23–25) (“I said, I have 2 to make a statement to somebody, and so I did that very night. And obviously I wouldn’t have 3 done that if I were guilty.”). Her belief is also demonstrated by her repeated (and unprompted) 4 efforts to discredit her roommate, Mr. Mike Davis, to whom she ascribed blame for the fire. See,

5 e.g., id. at 47 (46:4–8) (“But, you know, he’s a liar. I don’t know how it started, because he lies 6 all the time. . . . A fire, huh? It destroyed all the proof that you ever had a degree or anything, 7 you know, how convenient.”). 8 For this reason alone, this case is easily distinguishable from Harrington v. City of 9 Redwood City, 7 F. App'x 740 (9th Cir. 2001),4 where the Ninth Circuit found it was not an 10 abuse of discretion for the district court to admit a taped police interview under the residual 11 exception. In Harrington, there was “a substantial guarantee of trustworthiness because [the 12 declarant] was a law enforcement officer himself, and was talking on a tape recorder to the 13 inspectors from the district attorney's office.”5 Id. at 743. This case is also distinguishable from 14 Thompson v. Prop. & Cas. Ins. Co., where “the record contain[ed] absolutely no evidence” that

15 the witness—the owner of a jewelry shop interviewed as part of an investigation into a former 16 customer’s insurance claim—had a motive to lie. No. C13-2437, 2015 WL 9009964, at *5 (D. 17 Ariz. Dec. 15, 2015). 18 The written statement suffers from some of the same problems and then some of its own. 19 Unlike the video-recorded statement or the statement in Sanchez-Lima, the written statement 20 cannot be viewed by the jury and thus does not permit the jurors an opportunity to view Ms. 21

22 4 The Court also notes that Harrington is not binding precedent, nor may it be cited here because it was issued prior to January 1, 2007. See 9th Cir. R. 36-3(a), (c). 23 5 Defendant asserts that the interview in Harrington was not given under oath (Dkt. No. 99 at 4), but the Court does not see that fact described in the case. Even giving Defendant the benefit of the doubt, a substantial guarantee of the 24 trustworthiness of the statement in Harrington was that the declarant was a police officer. 7 F. App'x at 743. 1 Yevrovich’s demeanor. Sanchez-Lima, 161 F.3d at 547. Nor will Defendant be able to 2 authenticate the document, as it is not calling the officer who took the statement nor any other 3 officer who could lay a foundation for its admission. See Fed. R. Evid. 901.6 The only evidence 4 corroborating Ms. Yevrovich’s written or video-recorded statements are her own prior

5 statements.7 But even then, the written statement contradicts the video-recorded statement on a 6 critical issue: Ms. Yevrovich wrote that Mr. Davis “smoked in his room” and she “smelled 7 smoke” before she “opened the door to his room” and saw “[t]he mattress was on fire” (Dkt. 8 No. 64-5 at 2), she told police investigators that the smoke “didn’t smell like tobacco” (Dkt. 9 No. 64-1 at 51 (50:18)). 10 Finally, even if these statements were admissible under the residual exception, the core 11 statements regarding her opinion as to the cause of the fire would be inadmissible speculation. 12 As Ms. Yevrovich told investigators, she was in a separate room from Mr. Davis for about an 13 hour and a half preceding the fire. See Dkt. No. 64-1 at 15–16 (14:3–7, 14:14–15:2). During that 14 time, the door to Mr. Davis’s bedroom was closed, and Mr. Davis did not communicate with Ms.

15 Yevrovich in any way. See id. at 6 (5:16–18), 80 (79:18–23). Therefore, she did not have any 16 personal knowledge as to the cause of the fire and any statements to that end would be 17 speculation. See Fed. R. Evid. 602; Dkt. No. 64-1 at 66 (65:12–13) (“I don’t know what 18 happened, because I wasn’t there when it started.”). Defendant’s motion is DENIED. 19

20 6 The date of the statement alone is insufficient. Defendant asserts a number of facts regarding the circumstances of the statement (Dkt. No. 99 at 7-8), but counsel’s statements are not evidence. Notably, Defendant did not include on 21 its witness list any officer that could establish the time the statement was written or testify regarding Ms. Yevrovich’s demeanor at the time she provided the statement to the extent Defendant suggests it might qualify as an excited utterance or present sense impression. See Dkt. No. 95 at 4–5 and 6–7. 22 7 At the pretrial conference, Defendant expressed a concern that it would be forced to put on a sanitized case. However, the 911 call will provide context. Further, the Court has ruled that “[t]o the extent that any experts 23 considered any of Ms. Yevrovich’s statements in forming their opinions, the experts may be questioned regarding those statements because in that context, the statements will not be offered in evidence to prove the truth of the 24 matter asserted in the statements.” Dkt. No. 95 at 8. 1 IV. CONCLUSION 2 Accordingly, it is hereby ORDERED: 3 (1) Plaintiff’s Motion in Limine to Exclude Defendant’s Expert Nash Johnson (Dkt. 4 No. 63 at 13–15) is DENIED.

5 (2) Defendant’s Motion in Limine to Preclude Prejudgment Interest (Dkt. No. 61 at 6 3–4) is GRANTED. 7 (3) Defendant’s Motion to Strike Witnesses Steve DeKoekkeok, Belfor, and JS Held 8 from Pretrial Order and to Exclude Their Testimony (Dkt. No. 92) is DENIED. 9 (4) Defendant’s Motion for Reconsideration of Court Ruling on Plaintiff’s Motion in 10 Limine Excluding Lynn Yevrovich Evidence (Dkt. No. 99) is DENIED. 11 Dated this 13th day of October 2023. 12 A 13 Tana Lin United States District Judge 14

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