United States District Court, W.D. Oklahoma
ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA, Plaintiff/Counterclaim Defendant,
GENE L. MUSE, M.D., Defendant/Counterclaimant; and PATIA PEARSON, Defendant.
CHARLES B. GOODWIN, UNITED STATES DISTRICT JUDGE
before the Court is the Second Motion in Limine (Doc. No.
142) filed by Plaintiff/Counterclaim Defendant Allianz Life
Insurance Company of North America (“Allianz”). A
response has been filed by Defendant/Counterclaimant Gene L.
Muse, MD (“Muse”) (Doc. No. 154), and the Court
heard argument on the Motion on January 7, 2020. The Court
rules as outlined below.
Hypothetical Questions to Fact Witnesses
that “[h]ypothetical questions are only appropriate for
expert witnesses, ” Allianz asks the Court to prohibit
“counsel for Defendants [from] ask[ing] hypothetical
questions regarding how Muse and/or [Defendant Patia Pearson
(“Pearson”)] would have acted on a particular
occasion if a particular fact were true.” Pl.'s
Second Mot. at 2. Muse responds that a prohibition on posing
any hypothetical questions to lay witnesses is unwarranted
and premature. See Def. Muse Resp. at 2-3. The Court
agrees, and this request is DENIED. See Luce v. United
States, 469 U.S. 38, 40 n.2 (1984) (defining a
“motion in limine” as a motion “to exclude
anticipated prejudicial evidence before the evidence
is actually offered” (emphasis added)). Either party
may raise procedural objections to the other party's
questioning of a witness when and if such questions are
“Golden Rule” Arguments
seeks an instruction to the effect that Muse's counsel be
prohibited from making a “golden rule” argument
to the jury-i.e., to “implore the jur[ors] to put
themselves in Muse's shoes and ask them to consider what
they would want if they were injured as Muse claims to
be.” Pl.'s Second Mot. at 2-3. Muse's counsel
has represented to the Court at the hearing on this Motion
that he does not intend to improperly raise a golden rule
argument. Therefore, this request is GRANTED.
Allianz's and LTCG's Promotional Materials
requests that the Court prohibit presentation of advertising
and website materials of Allianz and of its third-party
claims administrator LTCG, arguing that such evidence is
irrelevant and would be unfairly prejudicial to Allianz.
See Pl.'s Second Mot. at 3-4. Muse responds that
he does not intend to offer Allianz's advertising but
does seek to introduce promotional statements made by LTCG
that highlight the relationship of that company to insurers
such as Allianz. According to Muse, LTCG's website and
other promotional materials are relevant and probative to:
(i) show the bias and financial motivations of Stephen
Holland, MD, the Medical Director of LTCG who reviewed
certain evidence in Muse's Allianz claim file; and (ii)
“expose the motives of Allianz and LTCG” as a
defense to the fraud and conspiracy claims raised against
Muse and Pearson. Def. Muse Resp. at 4-7.
Court agrees that evidence of potential bias of Dr.
Holland-who has an ownership interest in LTCG-may be
relevant, and so Allianz's request is DENIED in this
respect. See VTT Mgmt. Inc. v. Fed. Ins. Co., No.
CIV-17-767-M, 2018 WL 5078111, at *1 (W.D. Okla. Oct. 17,
2018) (“It is well-settled that cross-examination to
show the bias of a witness or his interest in a case is
entirely proper.” (internal quotation marks omitted)).
Muse fails to adequately explain, however, how LTCG's
promotional materials or LTCG's connection to Allianz is
relevant to the determination of whether Muse and Pearson
engaged in fraud or conspired to engage in fraud or to any
defense to those claims. Accordingly, Allianz's request
is GRANTED in this respect, and introduction of such evidence
shall not be permitted for that purpose.
Other Litigation Results
seeks the exclusion of references to the results of other
litigation involving Allianz. See Pl.'s Second
Mot. at 4-5. In response, Muse states, “Muse and
Pearson do not intend to offer this evidence.” Def.
Muse Resp. at 7. This request is therefore GRANTED.
Evidence of New Theories or Claims
contends that Muse may improperly try to assert new theories
of liability or new legal claims at trial and that allowing
Muse to do so would countenance gamesmanship and deprive
Allianz of an opportunity to properly counter such theories
or claims. Specifically, Allianz cites Muse's references
in the proposed Final Pretrial Report (Doc. No. 129) and
Defendants' Trial Brief (Doc. No. 137), which were filed
on December 20, 2019, to Allianz's alleged
“anticipatory repudiation” of the insurance
this issue is also raised in Allianz's Motion for
Continuance (Doc. No. 145), the Court will address this