Two undeniable and interconnected facts: the U.S. housing market remains virtually stagnant and the number of lawsuits against real estate professionals is on the rise.  Existing home sales have dropped steadily since 2005.  There is a glut of product on the market, yet relatively few ready, willing and able buyers.  During the same period, delinquency and foreclosure rates have grown at an alarming rate.  Real estate professionals have been under considerable pressure to adapt to the conditions of this weak and sputtering market.  Many have not fared so well, as there has been a noticeable increase in lawsuits filed against agents, brokers, inspectors and other real estate professionals.

The Topps Company (“Topps”) is suing fellow baseball trading card manufacturer Leaf Trading Cards (“Leaf”) for copyright and trademark infringement in a lawsuit recently filed in federal court (The Topps Company, Inc. v. Leaf Trading Cards, LLC, USDC SDNY, No. 11-civ-5585).  Topps claims that Leaf does not have the right to use pictures of old Topps cards featuring the company’s logos and players it has under exclusive contract.  The dispute arose over Leaf’s recent advertisement for its “2011 Leaf Best of Baseball” product.  The Best of Baseball pack, available to collectors, consists of one Leaf-created cut signature card and a PSA or BGS graded and authenticated card previous issued by various other manufacturers.  Some of the cards included in the packs are a 1952 Topps Mickey Mantle, a 1972 Carlton Fisk rookie, a 2001 Albert Pujols rookie, as well as cards autographed by teenage phenom Bryce Harper. One-pack boxes have been selling at retail for $235-275.

This post focuses on one of eight motions in limine ruled on in the April 14, 2011 Order in Altheim v. GEICO General Insurance Co., No. 8:10-cv-156-T-24 TBM, 2011 WL 1429735 (M.D. Fla. Apr. 14, 2011).

Specifically, this post focuses on Plaintiff's Motion in Limine Regarding Testimony From Defendant’s Expert Witness and Others, and the court’s disposition of that motion.  See id. at **2-3.

The Defendant’s expert witness is Kathy Maus, Esquire of Tallahassee, Florida.  Her expertise caused her to be retained by a Pensacola, Florida attorney to be an expert witness in an uninsured/underinsured motorist “bad faith lawsuit” pending in federal court in Tampa, Florida.  Id. at *1.  To quote from the federal court's Order, she is “an attorney who was hired as a defense expert regarding claims handling.”  Id. at *2.  She will testify to opinions in that lawsuit “based on her extensive experience in claims handling.”  Id.

Although not stated by the United States District Court in its opinion in this case, Ms. Maus’s law firm also enjoys a statewide reputation for its expertise.  (Many of its partners, including Ms. Maus, are also tireless volunteers in support of the activities of the Defense Research Institute.)

The Plaintiff's subject motion in limine was expressly addressed to three (3) matters as to which, the Plaintiff argued, Ms. Maus should not be permitted to testify at trial in this case.  First, the motion in limine requested that she not be allowed to offer any “medical opinions.”  The court granted this motion to the extent that Ms. Maus, an attorney (and one of the Plaintiff's own experts, also an attorney) was not a doctor and therefore could not testify to medical opinions.  Id.

However, as to this first issue, the federal court made an effort to be very clear in its ruling.  “However, [Ms. Maus] can interpret the medical records based on her expertise in claims handling practices and procedures.”  Id. (Emphasis added).

The Plaintiff also conjectured that Ms. Maus may testify concerning the Plaintiff's doctor’s “state of mind” and argued that Ms. Maus should not be allowed to do so.  The federal court did not accept this argument and denied the motion in this regard.  The court held that Attorney Maus could testify at trial in this regard to the extent that her trial testimony (1) describes her own past experiences with the Plaintiff's doctor and (2) identifies any similarity between that doctor’s medical reports on the Plaintiff, and that doctor’s medical reports on other people.  Id.

Finally, the Plaintiff argued that any defense witness who was “biased” against any “profession” should not be allowed to offer “biased” testimony, and in particular charged that Ms. Maus should not be allowed to testify to the following excerpt apparently taken from the transcript of her deposition (as quoted by the court in this opinion): “As we all know, chiropractors oftentimes will treat you until your insurance runs out.  They will say you need treatment until your insurance runs out.”  Id.  According to the federal court, “Defendant did not directly respond to this argument.”  Id.

Under the circumstances, the court granted this motion in limine in this regard, to the extent “that Maus cannot testify that ‘chiropractors oftentimes will treat you until your insurance runs out.  They will say you need treatment until your insurance runs out.’”  Id. at *10.

Over all, three interesting rulings on one uniquely presented motion in limine.

In the case of Nationwide Insurance Co. of Florida v. Demmo, No. 2D10-4104, 2011 WL 1197538 (Fla. Dist. Ct. App. Apr. 1, 2011), a Florida state circuit judge ordered Nationwide to produce “Nationwide’s claims notes, activity logs, property loss notice information, and property loss notice forms in Demmo’s first-party breach of contract action against Nationwide.”  Id. at *1.  On certiorari review, the Florida appellate court quashed the trial court’s order.

The reason for reversal in this case was a simple one.  According to the appellate court, the trial court erred by focusing on the date that Nationwide denied coverage under the homeowner’s policy it issued to Ms. Demmo.  The trial court then ordered production of everything prepared before Nationwide denied coverage, on the ground that none of it could have been work product prepared in anticipation of litigation, in the eyes of the trial judge.

Instead, the appellate court concentrated on the nature of the action which Ms. Demmo filed against Nationwide.  “Rather, the issue turns on what type of action Demmo has brought.  Here she is not pursuing a bad faith claim, but rather seeks relief for breach of contract.”  Id.  In this particular case, the materials requested by Ms. Demmo were simply not discoverable where coverage was disputed and not yet resolved, and where, in addition, the homeowner’s insurance company faced prejudice if it were compelled to produce its claim file materials during the insurance coverage litigation.

In an appropriate case, the appellate court indicated that it might be inclined to hold that certain documents contained in a first-party claims file might be discoverable, see id. at *2 n.2, but in effect, the appellate court held that this was not an appropriate case.