United States District Court, D. Kansas
MEMORANDUM AND ORDER
MONTI L. BELOT, District Judge.
Before the court are the following:
1. Illinois Union's motions in limine (Docs. 372, 496);
2. Coffeyville's motion in limine (Doc. 459);
3. National Union's motions in limine (Docs. 377, 378, 385, 493);
4. Coffeyville's motion to preclude challenges to standing (Doc. 510).
The parties have filed the foregoing motions seeking to prohibit the admission of certain evidence at trial. To the extent it can with the information before it, the court will rule on the motions. The court cautions the parties, however, that nothing in this order will preclude the admissibility of the excluded evidence if it otherwise becomes relevant at trial. See Turley v. State Farm Mut. Ins. Co. , 944 F.2d 669, 673 (10th Cir. 1991) ("The better practice would seem to be that evidence of this nature... should await development of the trial itself."). This is especially true here, because the court has no clear idea how the parties expect to try the case to the jury. By the same token, nothing said herein should be constituted as a final ruling admitting evidence to which a valid objection is made at trial.
I. Illinois Union motion in limine (Docs. 372, 373 and 403).
A. Any mention of or evidence relating to the settlement between Liberty and plaintiff, and the allocation of Liberty's payment among coverage categories. The court previously took under advisement Illinois' motion to exclude this evidence. (Doc. 412 at 15).
Illinois cites Rule 408 or alternatively, Rules 401 and 403, in support of its motion. (Doc. 497 at 3). The court previously noted the doubtful application of Rule 408 to the Liberty settlement and said that if Illinois wanted to pursue this argument "it must clarify its position and cite relevant case authority." Doc. 512 at 15. Illinois attempted to do so by string-citing cases from jurisdictions other than Kansas (federal or state) and the Tenth Circuit. (Doc. 373 at 4). It does not appear that any of the cases deal with the Rule 408 question as presented in this case. Plaintiff's response as to why the settlement is "admissible and necessary" is not particularly helpful, either.
As a practical matter, the court doubts it will be feasible to keep all references to Liberty and the Liberty settlement from being mentioned at trial. At this juncture - i.e. prior to trial - it is impossible to determine how the Liberty policy and settlement will be presented to the jury. The court expects any such evidence to be limited and introduced only insofar as necessary to explain the reasonableness of plaintiff's settlements and perhaps to show the amount of plaintiff's uncompensated expenses.
Assuming the jury hears some reference to the Liberty policy or settlement, Illinois Union will not be permitted at trial to challenge plaintiff's allocation of the Liberty settlement payments (or "undo" them, as National argues). Nor will it be permitted to argue that the Liberty policy was not in fact exhausted or that the Illinois policy is not now primary coverage for property damage claims settled by plaintiff. The ship has sailed on those matters. The best way to deal with Liberty's involvement and the settlement is through limiting instructions. The court will consider any proposed instruction from plaintiff and defendants explaining, among other things, that the Liberty settlement does not preclude Illinois Union from showing that plaintiff's settlements relating to any unreimbursed expenses were unreasonable. The proposed instruction(s) must be filed on or before November 10 and should include appropriate modification to proposed claims instructions. Illinois Union's motion to exclude the evidence, however, is denied.
II. Plaintiff's Motion to Admit a Summary of Voluminous Records. (Docs. 459, 460, 471, 473 and 490). Plaintiff moves to admit a summary of its expenses, costs, payments, etc., relating to the oil release, under the authority of Federal Rule of Evidence 1006 or Rule 611. It argues the summary "will simplify presentation of $33, 456, 028.33 worth of invoices, claim documentation, and payments, which will shorten the trial and allow the jury to concentrate on the legal arguments and facts necessary to determine if the settlements at issue were reasonable." Doc. 460 at 9.
Illinois Union and National Union both oppose the request. They contend the summary is misleading because it "was drafted in part to correspond with CRRM's coverage position." See Doc. 471 at 2. They particularly object to what they contend are "slanted" cost categories and headings developed by plaintiff for purposes of litigation. They also contend plaintiff has not established the ...