Green v. Allstate Insurance Company

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
JEFFREY R. GREEN, 	)
)
Plaintiff, 	) 	3:11-cv-00210 JWS
)
vs. 	) 	ORDER AND OPINION
)
ALLSTATE INSURANCE COMPANY, 	) 	[Re: Motion at docket 31]
)
Defendant. 	)
)
I. MOTION PRESENTED
At docket 31, plaintiff Jeffrey R. Green (“Green” or “plaintiff”) moves in limine to
exclude certain evidence. Defendant Allstate Insurance Company (“Allstate” or
“defendant”) opposes the motion at docket 45. Plaintiff’s reply is at docket 56. Oral
argument was not requested and would not assist the court.
II. DISCUSSION
A. Character Evidence
Green concedes that evidence of his financial condition is relevant to motive. He
argues, however, that evidence of why he was in a particular financial state is
inadmissible character evidence under Rule 404. Rule 404(a) only precludes
introduction of character evidence “to prove that on a particular occasion [a] person
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acted in accordance with the character or trait.”1 There is no indication that Allstate
intends to introduce evidence of Green’s character in order to prove conduct in
conformity with that character.
B. Green’s Criminal Record
1. Rule 404
Green argues that evidence of Green’s misdemeanor and felony convictions is
inadmissible pursuant to Rule 404(b). Rule 404(b) precludes introduction of “[e]vidence
of a crime . . . to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” 2 There is no indication
that Allstate intends to introduce evidence of Green’s criminal convictions to prove
character to show conduct in conformity with that character. To the extent Green seeks
notice if Allstate intends to use such evidence, that requirement only applies in criminal
cases. 3
2. Rule 609
The court is unable to rule on the admissibility of any particular conviction to
impeach Green’s credibility because Green’s motion does not provide any context or
specific objections. Green requests that he be given notice if Allstate intends to
introduce evidence of his convictions to impeach him. However, there is no notice
provision in Rule 609.
C. Evidence of Drug Dealing Allegations
Green argues that testimony suggesting that Green is a drug dealer is irrelevant
and unfairly prejudicial. Allstate argues that it is premature to exclude evidence that
Green is a drug dealer and that such evidence could be relevant to motive, insofar as it
reflects on Green’s financial situation. Compared to other evidence of Green’s financial
1
Fed. R. Evid. 404(a).
2
Fed. R. Evid. 404(b).
3
Fed. R. Evid. 404(b)(2)(A).
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condition, the probative value of evidence that he is a drug dealer is slight. Moreover,
that probative value is substantially outweighed by the danger of unfair prejudice and its
tendency to confuse the issues. 4
D. Evidence of Domestic Violence
Green argues that evidence of domestic violence between him and his girlfriend,
Christa Finley, is irrelevant and unfairly prejudicial. Allstate argues that such evidence
suggests that Green had a motive to set his house on fire while his girlfriend was still in
it. Allstate also maintains that it considered those allegations in denying Green’s claim.
Green responds that Allstate has never raised that theory in the past. The court agrees
with Green that, under the circumstances, the danger of unfair prejudice, confusion of
the issues, and potential waste of time substantially outweigh the probative value of
allegations that Green and his girlfriend engaged in domestic violence.
E. Evidence of Polygraph Tests
Green argues that evidence of polygraph examinations is inadmissible pursuant
to Brown v. Darcy. 5 Allstate correctly notes that Brown was overruled by Daubert v.
Merrel Dow. 6 Allstate also notes that a Daubert analysis is not necessary here because
Allstate only intends to introduce evidence of Green and his girlfriend’s polygraph
examinations to demonstrate that Allstate had a reasonable basis to deny coverage.
Because Green is no longer pursuing a bad faith claim–and has conceded that Allstate
had a reasonable basis to deny coverage, presenting polygraph examination evidence
would be needlessly cumulative. 7
4
Fed. R. Evid. 403.
5
783 F.2d 1389 (9th Cir. 1986).
6
509 U.S. 579 (1993). See, e.g., United States v. Cordoba, 104 F.3d 225, 228 (9th Cir.
1997).
7
Fed. R. Evid. 403.
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F. Expert Findings Not Expressed in Report
Green argues that defendant’s experts should not be allowed to opine as to
matters not contained in their reports. Federal Rule of Civil Procedure 26(a)(2)(B)
states that expert witnesses must provide a written report containing “a complete
statement of all opinions the witness will express and the basis and reasons for them.”8
Although the court agrees with Allstate that the report need not spell out the expert’s
testimony word for word, the court disagrees with Allstate that “Mr. Shouman [Allstate’s
expert] can testify as to findings and opinions supporting his conclusion not expressly
stated in his report.”9 Allstate’s contention is contrary to the express language of
Rule 26.
G. Evidence of Accelerant
Green argues that the limited “evidence of an accelerant should be prohibited
because Mr. Shouman cannot reasonably conclude from the chemical testing alone that
an accelerant was used in the fire.”10 The presence of gasoline residue provided a
basis for Shouman’s opinion. Green believes that such evidence may only be used to
corroborate other evidence. Green’s criticism of the test results goes to the weight of
the evidence, not its admissibility. The evidence is relevant to Allstate’s defenses, and
Green will have an opportunity to discredit it at trial.
H. Non-Testifying Experts
Green argues that Allstate should be precluded from presenting opinions of other
experts through its testifying expert. Specifically, Green argues that because Shouman
was not involved in the test of the fire debris samples sent to MDE Forensics, Inc., he
should not be able to present the conclusions of Dale Mann, the chemist who conducted
8
Fed. R. Civ. P. 26(a)(2)(B)(i).
9
Doc. 46 at 19.
10
Doc. 32 at 6.
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the testing. The parties discuss Alaska Rule of Evidence 703 which does not apply in
this lawsuit.
Federal Rule 703 provides that “[i]f experts in [a] particular field would reasonably
rely on those kinds of facts or data in forming an opinion on the subject, they would
need not be admissible for the opinion to be admitted.” 11 However, “if the facts or data
would otherwise be inadmissible, the proponent of the opinion may disclose them to the
jury only if their probative value in helping the jury evaluate the opinion substantially
outweighs their prejudicial effect.”12 Here, the data from MDE Forensics would be
reasonably relied upon by experts in the field of fire investigation, but would otherwise
constitute inadmissible hearsay. Rule 703 instructs the court to consider the probative
value of the data as it pertains to the jury’s evaluation of the expert’s opinion. Because
Shouman’s opinion was based in large part on the test results, the court concludes that
its probative value in this respect substantially outweighs any prejudicial effect.
V. CONCLUSION
For the reasons above, Green’s motion in limine at docket 31 is GRANTED in
part and DENIED in part as follows:
1) It is denied with respect to evidence of why Green was in a particular financial
condition.
2) It is denied without prejudice to an objection at trial, or renewal in proper
context, with respect to Green’s criminal history. It is denied with respect to Green’s
request for notice from Allstate.
3) It is granted insofar as evidence that Green is a drug dealer is excluded.
4) It is granted insofar as evidence of domestic violence involving Green is
excluded.
11
Fed. R. Evid. 703.
12Id.
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5) It is granted with respect to the polygraph examinations. Evidence of Green
and Finley’s polygraph tests is excluded.
6) It is granted insofar as Shouman may not offer expert opinions not included in
his expert report.
7) It is denied with respect to Green’s request to exclude evidence that
accelerant was used.
8) It is denied insofar as Shouman may disclose the test results from MDE
Forensics to the jury.
DATED this 7th day of August 2012.
/s/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
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