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Smith v. Auto-Owners Insurance Co.

United States District Court, D. New Mexico

February 12, 2018

MELVIN SMITH and STAN FOWLER, Plaintiffs, [1]
v.
AUTO-OWNERS INSURANCE COMPANY, Defendant.

          ORDER RESULTING FROM PRETRIAL CONFERENCE

          STEPHAN M. VIDMAR United States Magistrate Judge

         Pursuant to a Pretrial Conference held on February 7, 2018, the following rulings are made:

         Exhibits[2]

         • The Court admits Exhibits 1-11, 14, 29, 31, 32, 35.

         • Subject to the Court's rulings on the objections to the deposition designations, Exhibits 18-23 are admitted.

         • Considering the Court's rulings on the objections to the designations of Ms. Donald's deposition, counsel will attempt to agree on the admissibility of Exhibit 34. If they are unable to agree and if a ruling is needed from the Court, counsel must advise no later than February 19, 2018

         • The Court excludes Exhibits 12, 13, 15, 16, 17, 25, 27, 28, 33.

         • The Court will allow counsel to attempt to admit at trial Exhibits 24, 26, 30.

o As to Exhibit 24 (Various Health Insurance Claims Forms), the forms may be admitted at trial if Plaintiff lays the proper foundation.
o As to Exhibit 26 (photographs), there is no dispute that these photographs were not disclosed to Defendant. However, depending on the purpose for which Plaintiff attempts to utilize them, the Court may allow them. For example, if they are utilized merely for demonstrative purposes, they may be permissible.
o As to Exhibit 30 (Email string between Frederick Sherman and Kim Barrick from April 23, 2015 to May 11, 2016), Defendant may attempt to lay adequate foundation for admission at trial.

         Witnesses[3]

         • The transcripts of the depositions of Dr. Anthony D'Angelo, Jr., and Michelle Franklin, D.C., have been admitted subject to the Court's rulings on Defendant's objections to Plaintiffs designations. If these witnesses appear at trial to testify live, neither may offer evidence or testimony beyond the scope of Fed.R.Evid. 701.

         • Susan Appleby may testify, but her testimony may not exceed the scope of Fed.R.Evid. 701.

         • Plaintiffs expert economist, Stan V. Smith, Ph.D., may testify, subject to the Court's previous Memorandum Opinion and Order [Doc. 128]. Although Dr. Smith may offer testimony about hedonic damages in general, he may not offer an opinion on the quantification of such damages. Id. at 10-11.

         • Plaintiff Melvin Smith may not offer any evidence or testimony that goes to phase 2. Mr. Smith, however, may offer testimony related to causation, but it may not exceed the scope of Fed.R.Evid. 701.

         • Former Plaintiff Stanley Fowler may testify as to facts of the vehicle accident and Plaintiff Melvin Smith's damages, but Mr. Fowler may not testify regarding any admissions of Defendant, allegations in the Complaint, or Mr. Fowler's own damages.

         • Defendant's Claims Representative, Kim Barrick, may not offer testimony that goes to phase 2, including but not limited to “bad faith failure to pay a first party claim[, ] bad faith failure to settle[, ] violations of the Insurance Practices Act[, and] violations of the Unfair Practices Act[.]” [Doc. 153] at 6. Moreover, Ms. Barrick may not offer testimony that exceeds the scope of Fed.R.Evid. 701. Other than Plaintiffs objection to Ms. Barrick's offering expert testimony, which is sustained, Plaintiffs objections are overruled. See generally [Doc. 163] at 1 (Plaintiffs objections).

         • Defendant's expert economist, Allen Parkman, Ph.D., J.D., may not offer testimony beyond that which was disclosed in his expert report. The Court may revisit this ruling depending on the scope of testimony offered by Plaintiffs expert economist, Dr. Stan Smith.

         • Defendant's medical expert, G. Theodore Davis, M.D., may testify consistent with the Court's Memorandum Opinion and Order [Doc. 129].

         • Defendant may call Kimberly Donald, DNP, by deposition, subject to the Court's rulings on the objections to the deposition designations.

         Deposition Designations[4]

         Defendant's objections [Doc. 162] to Plaintiffs Designations of Dr. Boardman's Deposition [Doc. 155]

         • 8:1-8:25: No objection to lines 8:1-8:21 (up to “…section.”). Remainder is expert testimony under Rule 702 and has been excluded by Doc. 146, Memorandum Opinion and Order. Sustained.

         • 9:1-9:25: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Sustained.

         • 10:1-10:9: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Sustained.

         • 10:23-10:25: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Sustained.

         • 11:4-11:7: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Sustained.

         • 11:14-11:18: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Sustained.

         • 12:25: Object. Expert testimony under Rule 702, excluded by Doc. 146 and lack of foundation. Sustained.

         • 13:1-13:5: Object. Expert testimony under Rule 702 and excluded by Doc. 146 and lack of foundation. Sustained.

         • 14:9-14:13: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Overruled.

         • 14:19-14:25: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Sustained.

         • 15:1: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Sustained.

         • 15:9-15:12: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Sustained.

         • 15:14-15:20: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Sustained.

         • 16:22-16:25: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Sustained.

         • 17:1-17:19: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Sustained.

         • 18:1-18:4: Object. Expert testimony under Rule 702, excluded by Doc. 146 and lack of foundation. Overruled.

         • 18:10-18:16: Object. Expert testimony under Rule 702, excluded by Doc. 146 and lack of foundation. Overruled.

         • 18:19-18:21: Object. Expert testimony under Rule 702, excluded by Doc. 146, lack of foundation and hearsay. Overruled.

         • 19:16-19:19: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Overruled.

         • 19:22-19:25: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Sustained.

         • 20:1: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Sustained.

         • 20:8-20:9: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Sustained.

         • 20:12-20:25: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Sustained.

         • 21:1-21:8: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Sustained.

         • 21:11-21:19: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Sustained.

         • 22:5-22:17: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Overruled.

         • 22:20-22:25: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Overruled.

         • 23:1-23:4: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Overruled.

         • 23:6-23:9: Object. Expert testimony under Rule 702, excluded by Doc. 146 and lack of foundation. Overruled.

         • 24:24-24:25: Object. Expert testimony under Rule 702, excluded by Doc. 146 and lack of foundation. Sustained.

         • 25:1-25:25: Object. Expert testimony under Rule 702, excluded by Doc. 146 and lack of foundation. Sustained.

         • 26:1-26:6: Object. Expert testimony under Rule 702, excluded by Doc. 146 and lack of foundation. Sustained.

         • 28:5-28:8: Object. Expert testimony under Rule 702, excluded by Doc. 146, lack of foundation and hearsay. Overruled.

         • 28:10-28:12: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Sustained.

         Defendant's objections [Doc. 162] to Plaintiffs Designations of Dr. D'Angelo's Deposition [Doc. 155]

         • 8:1-8:5: No objection to 8:1-8:2. Remainder is expert testimony under Rule 702 and excluded by Doc. 146. Sustained.

         • 8:12-8:16: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Sustained.

         • 8:18-8:24: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Sustained.

         • 9:3-9:25: Objection to 9:3-9:23 on the grounds it is expert testimony under Rule 702 and excluded by Doc. 146. Sustained. No objection to remainder.

         • 11:24-11:25: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Sustained.

         • 12:1-12:10: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Sustained.

         • 12:17-12:25: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Sustained.

         • 13:1-13:8: Object. Expert testimony under Rule 702 and excluded by Doc. 146. Sustained.

         • 14:24-14:25: Objection, lack of foundation and outside ...


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