Free Objections - District Court of Colorado - Colorado

Case 1:00-cv-02098-REB-MJW

Document 265

Filed 09/24/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 00-cv-02098-REB-MJW KELLY FINCHER, by her guardian, JAMES FINCHER, on behalf of herself and all others similarly situated, Plaintiffs, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, a New Jersey Corporation, Defendant.

PLAINTIFFS' OBJECTIONS TO DEFENDANT'S DESIGNATIONS OF DEPOSITION TESTIMONY

Plaintiffs, pursuant to Fed.R.Civ.P. 26(a)(3) and 32 and REB Civ. Practice Standard III.F.1.b., hereby submit their objections to Defendant's designation of deposition testimony to be used at trial, as follows: GENERAL OBJECTIONS Plaintiffs object to the attempt to proffer deposition testimony by Prudential Property And Casualty Insurance Company ("Prudential") as described in its Deposition Designations filed on September 4, 2007. As a general matter, the designated testimony is irrelevant to the issues remaining in this matter, and in many cases is from persons who will testify at trial and/or that Prudential has failed to demonstrate are unavailable for trial. In addition, the designations are often unfairly truncated, and

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Plaintiff therefore lists counter designations as set forth below in the event the court allows any deposition testimony from such witnesses. With respect to the designations of witnesses Gibboney, Rowe, Henry, and Bekeshka, Prudential has failed to make any showing pursuant to F.R.C.P 32(2) or (3) authorizing the use of deposition testimony in certain circumstances, such as that the witness is unable to attend or testify at trial. Plaintiffs therefore object to the use of any deposition testimony from these witnesses. The same is true with respect to the testimony of James Fincher and Kelly Fincher. Rule 32 evinces "the long-established principle that testimony by deposition is less desirable than oral testimony and should ordinarily be used as a substitute only if the witness is not available to testify in person." Wright & Miller, 8A Fed. Prac. & Procedure § 2142. Here, both of the Finchers will be present at trial and available to testify in person. Given the express acknowledgement in Rule 32(a)(3)(E) of the "importance of presenting the testimony of witnesses orally in open court," the deposition testimony of these witnesses should not be used. Plaintiffs also object to each of Prudential's designations to the extent they include inadmissible testimony, such as testimony that is irrelevant, lacks a proper foundation, or that makes or consists of a legal conclusion. PARTICULAR OBJECTIONS AND COUNTER DESIGNATIONS A. Witnesses Gibboney, Rowe, Henry and Bekeshka The testimony of Prudential witnesses Thomas Gibboney, Mary Rowe, Mary Henry, and Anthony Bekeshka (Prudential's insured) should not be permitted under any

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circumstances. The testimony designated by Prudential relates exclusively to events that occurred on or before the accident in question, and therefore does not relate to the issues that remain for determination after this Court's order reforming the Prudential policy effective as of the date of the accident in May 1994. The testimony Prudential seeks to admit is completely irrelevant to the issues related to Prudential's handling of Fincher's claim for benefits, and improper in that it would invite the jury to improperly question the bases for the law of this case as already determined by this Court's ruling establishing the effective date of reformation. First, the proffered testimony is inappropriate because it can only serve to encourage the jury to question this Court's reasoning and analysis in its February 28, 2006, Order setting the effective date of reformation. Prudential's recent motions and other documents filed with this Court indicate that Prudential continues to contest the bases for the Court's Order reforming the Prudential policy to provide APIP benefits for Plaintiff as of the date of the accident in 1994. The testimony of these witnesses

designated by Prudential relates solely to Prudential's difficulties in complying with the $200,000 cap requirement and the circumstances of the offer and selection of coverage by Bekeshka, Prudential's insured--events that are no longer relevant to this case. For example, Prudential's designation of the testimony of witness Gibboney includes testimony at pages 116-120 regarding the 1991 disapproval of Prudential's forms and filings which this Court expressly considered at page 6 of its February 2006 Order. Def. Depo. Design. p. 2. To permit the jury to hear this testimony could only invite the jury to reach a different conclusion on an issue that this Court has already

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determined as a matter of law. The same is true of witness Bekeshka, whose testimony has conclusively been determined to be irrelevant by the Tenth Circuit. Notwithstanding Prudential's continuing displeasure and disagreement with the these rulings, these Orders are the law of this case, and reformation and the effective date of that reformation is not an issue for the jury to determine. Any introduction of such evidence by Prudential could only encourage the jury to question or pass judgment on the basis for the Court's Order establishing the effective date, which is clearly impermissible. See Morrison Knudsen Corp. v. Ground Improvement Techniques, Inc. 2006 WL 753207, *4 (D. Colo. 2006) (limiting testimony of witness based on prior findings and rulings leaving only certain issues to be determined upon remand). The deposition testimony Prudential seeks from these witnesses is also inadmissible because it is irrelevant. In order to decide the issues to be tried in this matter, which revolve around Prudential's conduct after the effective date of reformation when it was handling Fincher's claim for benefits, the jury need only know that the Prudential policy was reformed by the Court, and the effective date of such reformation. Relevant evidence is that related to demonstrating that a fact of consequence is more or less probable, F.R.E. 401, and any other evidence regarding Prudential's knowledge or conduct prior to reformation is not relevant to any facts of consequence related to the remaining claims and issues to be determined at trial. These issues have already been exhaustively analyzed by the Court in its February 28, 2006 Order, and no evidence or testimony regarding how the impermissible APIP policy limits came to be included in the

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Prudential policy and the reasons why this Court reformed the policy would be appropriate in this trial. Only relevant evidence is admissible at trial under F.R.E. 402, no evidence or information about the conduct informing the Court's reasoning or basis for reforming the policy is relevant to the issues in this case. Instead, what is relevant to the issues to be determined by the jury is evidence regarding Fincher's claims for breach of the contract of insurance, including bad faith breach, which is evidence related to the reasonableness of Prudential's conduct in processing and handling Fincher's PIP claim. See Goodson v. American Standard Ins. Co., 89 P.2d 409, 414 (Colo. 2004) ("Firstparty bad faith cases involve an insurance company refusing to make or delaying payments owed directly to its insured under a first-party policy such as...no-fault auto insurance."). None of the testimony designated by Prudential for these witnesses

relates to Fincher's claims based on its violation of the No-Fault Act and bad faith breach of contract in handing her claim for benefits, and this is obviously true with respect to the testimony of its insured, Bekeshka, who has no knowledge of any events relevant to these matters. Based on the forgoing, Plaintiffs' specific objections are as follows: 1. Thomas Gibboney, deposed November 7, 2001 Pltf. Counter designation pp. 37 ll. 9-25 to 42 ll.15 pp. 115 ll. 4-25 to 120, ll. 1-15 Pltf. Objection Relevance, Foundation

Prudential designation ALL

2. Mary Rowe, deposed August 1, 2001 Prudential designation Pltf. Counter designation ALL p. 119 ll. 4-25

Pltf. Objection Relevance, Foundation

Case 1:00-cv-02098-REB-MJW

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3. Mary Henry, deposed August 2, 2001 Prudential designation Pltf. Counter designation ALL pp. 38 ll. 3-25 to 39 ll.1-3 p. 116 ll. 6-21 p. 157 ll. 17-25 4. Anthony J. Bekeshka, deposed November 1, 2001 Prudential designation Pltf. Counter designation ALL none B. Witnesses James Fincher and Kelly Fincher

Pltf. Objection Relevance, Foundation

Pltf. Objection Relevance, Foundation

With respect to the testimony of James Fincher and Kelly Fincher, F.R.C.P. 32 evinces "the long-established principle that testimony by deposition is less desirable than oral testimony and should ordinarily be used as a substitute only if the witness is not available to testify in person." Wright & Miller, 8A Fed. Prac. & Procedure § 2142. In this case, both of the Finchers will be present at trial and available to testify in person. Given the express acknowledgement in Rule 32(a)(3)(E) of the "importance of presenting the testimony of witnesses orally in open court," the deposition testimony of these witnesses should not be used. 1. James Fincher, Vol. 1, deposed November 12, 2001 Prudential designation Pltf. Counter designation Pltf. Objection ALL p. 55 ll. 13-15 Relevance, Foundation, p. 55 ll. 25 to p. 56 ll. 1-5 Cumulative 2. James Fincher, Vol. 2, deposed March 11, 2005 Prudential designation Pltf. Counter designation ALL pp. 9 ll. 1 to p. 11 ll. 1-10

Pltf. Objection Relevance, Foundation, Cumulative

3. Kelly Fincher, deposed March 11, 2005 Prudential designation Pltf. Counter designation ALL pp. 8 ll. 15-25 to 9 ll. 1-10 pp. 10 ll. 1-25 to p. 13 ll. 1-9 p. 15 ll. 1-9 p. 18 ll. 4-11

Pltf. Objection Relevance, Foundation, Cumulative

Case 1:00-cv-02098-REB-MJW

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Respectfully submitted this September 24, 2007.

s/Leif Garrison Robert B. Carey Leif Garrison The Carey Law Firm 2301 East Pikes Peak Ave. Colorado Springs, Colorado 80909 Phone: (719) 635-0377 Fax: (719) 635-2920 Email: [email protected] Steve W. Berman, WSBA #12536 HAGENS BERMAN, L.L.P. 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 L. Dan Rector FRANKLIN D. AZAR & ASSOCIATES, PC 5536 Library Lane Colorado Springs, CO 80918 Attorneys for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on this September 24, 2007, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF System, which will send notification to the following email addresses: [email protected] s/Leif Garrison Robert B. Carey Leif Garrison The Carey Law Firm 2301 East Pikes Peak Ave. Colorado Springs, Colorado 80909 Phone: (719) 635-0377 Fax: (719) 635-2920 Email: [email protected]