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350 W.A. LLC v. Chubb Group of Insurance

January 15, 2008

350 W.A. LLC AND HOKOJITSUGUYU COMPANY, LTD., PLAINTIFF,
v.
CHUBB GROUP OF INSURANCE A/K/A FEDERAL INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: William Q. Hayes United States District Judge

SUPPLEMENTAL ORDER ON MOTIONS IN LIMINE

HAYES, Judge:

Pending before the Court are Defendant's third, fourth, seventh, and ninth motions in limine. (Docs. # 169, 172, 174,177).

PROCEDURAL BACKGROUND

On December 14, 2004, Plaintiffs David Blackburn (Blackburn) and Hokojitsuguyu Company (Hoko) filed this action in California State Superior Court in San Diego. See Notice of Removal (Doc. # 1). Plaintiffs asserted claims for breach of insurance contract, breach of the implied covenant of good faith and fair dealing, and other violations of state law against Defendant Federal Insurance Company (Federal). (Doc. # 1). Plaintiffs' claims concerned a building located at 350 West Ash Street in San Diego, California (the Property), and specifically water damage which the Property sustained in November and December 2002. Defendant Federal issued an insurance policy which insured the Property during November and December 2002, and the Complaint alleged that Defendant Federal improperly denied Plaintiffs' insurance claims and delayed in compensating Plaintiffs under the insurance policy in bad faith.

On December 12, 2005, Plaintiffs filed a First Amended Complaint which terminated David Blackburn as a Plaintiff, and named 350 W.A., LLC (350 W.A.) as a new Plaintiff. (Doc. # 34). The First Amended Complaint reasserted Plaintiffs claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and other miscellaneous relief. (Doc. # 34).

On January 4, 2007, and after the Court ruled on the parties' cross-motions for summary judgment (Doc. # 101), the Court set this matter for jury trial. (Doc. # 165). The only claims which remain to be tried to the jury are Plaintiff Hoko's claims for breach of insurance contract and breach of the implied covenant of good faith and fair dealing. (Doc. # 101); Revised Proposed Pretrial Order. The parties agree that 350 W.A. is no longer a party for the purposes of the jury trial. The jury trial is scheduled to begin on Wednesday, February 13, 2008 at 9:00 A.M. (Doc. # 267).

BACKGROUND ON THE MOTIONS IN LIMINE

In the late summer and early fall of 2007, the parties filed and briefed motions in limine. On Friday, September 7, 2007, the parties appeared at a motions in limine hearing, and on December 5, 2007, this Court issued a comprehensive Order on the motions in limine. (Doc. # 258). Though the Court's Order of December 5, 2007, disposed of the majority of the pending motions in limine, the Court deferred ruling on Defendant's motions in limine # 3, 4, and 9, and part of Defendant's motion in limine in # 7. Defendant's motions in limine # 3, 4, 7, and 9 concern whether the opinions of certain of Plaintiff's experts are based on good science, reliable, and relevant to the case at hand under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 597 (1993). Specifically, the motions concern Plaintiff's proposed experts Steven Wright, Joseph Gildner, and Gene Royce.

On December 14, 2007, the parties appeared at a status conference to discuss, among other things, Defendant's motions in limine # 3, 4, 7, and 9. (Doc. # 263). At the conference, the Court identified portions of the opinions of Wright, Gildner, and Royce to which Defendant objected, and informed Plaintiff that it would be given an opportunity to call those individuals to bolster their qualifications and the foundation of their testimony. The Court set a hearing for that purpose to be held January 10, 2008. (Doc. # 263).

On January 10, 2008, the parties appeared to argue the merits of Defendant's motions in limine # 3, 4, 7, and 9. Though given an opportunity, Plaintiff elected not to elicit testimony from Wright, Gildner, or Royce.

LEGAL STANDARD FOR THE ADMISSION OF EXPERT TESTIMONY

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion." FED. R. EVID. 402; see also Kumho Tire v. Carmichael, 526 U.S. 137, 141, 148-49 (1999).

The Federal Rules of Evidence "assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation, and is relevant to the task at hand." Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 597 (1993). In serving this "gatekeeper" function, a district court performs a two-part analysis. Domingo v. T.K., 289 F.3d 600, 605 (9th Cir. 2002). First, a district court "must determine nothing less than whether the experts' testimony reflects scientific knowledge, whether their findings are derived by the scientific method, and whether their work product amounts to good science." Daubert v. Merrell Dow Pharmaceuticals (Daubert II), 43 F.3d 1311, 1315 (9th Cir. 1995) (internal quotations and citations omitted). "Daubert's general holding--setting forth the trial judge's general 'gatekeeping' obligation--applies not only to testimony based on 'scientific' knowledge, but also to testimony based on 'technical' and 'other specialized' ...


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