UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
June 28, 2007
WHISPERING WINDS CATHOLIC CASE CONFERENCE CENTER, INC., PLAINTIFF,
MARKEL INSURANCE COMPANY, AND DOES 1 TO 75, INCLUSIVE, DEFENDANTS.
The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER (1) GRANTING IN PART LIMINE and (2) ADDRESSING MATTERS RELATED TO TRIAL AND DENYING IN PART PLAINTIFF'S MOTION IN [Doc. No. 72]
On June 22, 2007, the Court held a hearing on Whispering Winds Catholic Conference Center's ("plaintiff") motion in limine*fn1 (Doc. No. 72) and Markel Insurance Company's ("defendant") ex parte application (Doc. No. 73) to continue the trial schedule. The Court denied defendant's ex parte application. The Court heard oral argument on the motion in limine and other matters related to trial preparation. The Court hereby ORDERS the following:
-The Court GRANTS IN PART and DENIES IN PART plaintiff's motion in limine to limit experts' testimony to opinions rendered in their Rule 26 written reports and depositions. The Court finds that Markel has not shown the "substantial justification" required to introduce Rule 26 evidence that Markel failed to disclose timely. See Fed. R. Civ. 37(c)(1). The failure to disclose is not harmless because the introduction of the undisclosed evidence at trial would result in unfair surprise to plaintiff. The motion is denied to the extent that the Court will allow Mr. Peter Fowler, defendant's construction costs expert, to offer rebuttal testimony concerning the opinion and cost estimate of plaintiff's expert, Mr. Ted Bumgardner. Id.; Fed. R. Evid. 703; Hill v. Reederei F. Laeisz G.M.B.H., Rostock, 435 F.3d 404, 423 (3d Cir. 2006).
-In addition to the seven trial days previously assigned (July 24-27, August 1-3), the Court ADDS an eighth trial day: Tuesday, August 7.
-The Court ASSIGNS twenty (20) hours of trial time to plaintiff, and eighteen (18) hours of trial time to defendant.
-The Court SHALL ALLOW evidence concerning plaintiff's claim for extra expenses. The Court's ruling IS WITHOUT PREJUDICE. Because of this ruling, Mr. Don Kojis SHALL SIT for a supplemental deposition prior to the beginning of trial.
-In its February 27, 2007 Order on the cross-motions for summary judgment, the Court held defendant was "liable for bad faith arising from its ongoing delay in paying the undisputed Policy benefits." (Doc. No. 55, at 11.) The amount of unpaid, undisputed Policy benefits was $20,424. (Id. at 7.) The Court did not find that defendant acted in bad faith with respect to any other aspect of plaintiff's claim. Therefore, when the parties submit proposed jury instructions, those instructions SHALL BE CONSISTENT with the Court's prior finding that defendant acted in bad faith only in its ongoing failure to pay $20,424 of undisputed Policy benefits.
IT IS SO ORDERED.