AmTrust North America, Inc. v. KF&B, Inc.
- Lewis Liman
- 1:17-cv-05340
- U.S. District Court · Southern District of New York
- 13
In AmTrust North America v. KF&B, Judge Liman granted in part and denied in part KF&B’s motion to strike witness declarations.
The ruling affected AmTrust’s ability to use portions of its witnesses’ declarations at trial and KF&B’s ability to challenge that evidence. Murphy’s testimony remained available, specified portions of Bendure’s testimony and five exhibits were stricken, and Scruggs’s declaration was stricken from AmTrust’s case-in-chief.
What happened
In AmTrust North America, Inc. v. KF&B, Inc., KF&B asked the court to remove portions of declarations submitted by AmTrust’s witnesses Mark Murphy, Donald Bendure, and Michael Scruggs before trial. KF&B challenged testimony as inconsistent, newly disclosed, improper expert or lay opinion, irrelevant, or unsupported.
The court denied the motion as to Murphy’s declaration. It granted in part and denied in part the motion as to Bendure’s declaration, striking several undisclosed opinions and exhibits while allowing the remainder to be considered subject to later objections. It granted the motion as to Scruggs’s declaration for AmTrust’s case-in-chief, although some of his opinions might become admissible later depending on KF&B’s evidence.
Judge Lewis J. Liman concluded that the motion to strike the witness declarations was granted in part and denied in part, and directed the Clerk of Court to close the related motions.
The detailed version
- AmTrust North America, Inc. v. KF&B, Inc. · No. 1:17-cv-05340
- Lewis Liman
- Sept. 16, 2020
Background
KF&B moved to strike portions of declarations submitted by AmTrust North America, Inc., Wesco Insurance Company, Inc., and Technology Insurance Company, Inc. The motion concerned declarations from Mark Murphy, Donald Bendure, and Michael Scruggs. The court was preparing for a bench trial, scheduled to begin on September 21, 2020.
Mark Murphy Declaration
The court denied the motion to strike Murphy’s declaration. KF&B argued that portions of Murphy’s declaration were inconsistent with testimony he had given as AmTrust’s representative under Federal Rule of Civil Procedure 30(b)(6), and that other portions improperly offered lay opinions about the contract and the parties’ legal responsibilities.
The court held that Rule 30(b)(6) testimony commits an organization to the witness’s position at that time but does not prevent the witness from explaining, correcting, or supplementing the testimony. The court also noted that, in a bench trial, it could admit testimony and later decide how much weight to give it. The court therefore admitted all of Murphy’s testimony, while leaving KF&B free to seek to strike it at the conclusion of trial.
Donald Bendure Declaration
The court granted in part and denied in part the motion to strike Bendure’s declaration. It struck Bendure’s opinions concerning the applicability of ISO Rule 5J2, an alleged error involving Allocated Loss Adjustment Expenses, and inclusion of a detrend factor in the formula for calculating loss. Those opinions were not disclosed in his expert reports, and Bendure had testified that he was relying on Scruggs rather than offering his own opinion on those issues.
The court also struck Bendure’s opinions about KF&B’s knowledge of the alleged 2011–2014 Rating Model error. Those opinions included conclusions that KF&B would have seen the error, knew about the deficiency, ignored certain duties, or knew the model was wrong. The court found those opinions were new, addressed state of mind and legal conclusions, and were not adequately based on Bendure’s professional expertise.
The court further granted the motion to strike five exhibits containing emails about accounts outside the 25 taxi accounts involved in AmTrust’s claimed damages. The court found that AmTrust had not sufficiently connected those emails to the alleged deficiencies or damages and that using them would be cumulative and create a lengthy tangent.
The court allowed the remainder of Bendure’s declaration to be received subject to later objections. It stated that KF&B could challenge the testimony through cross-examination and contrary evidence, and that methodological criticisms generally went to the weight of the evidence at that stage. The court also stated that it would disregard improper expert opinions about state of mind. It concluded that the remaining opinions were sufficiently referenced in Bendure’s reports to avoid unfair surprise, and that an expert could address industry customs and standards when those matters were relevant to contract language concerning industry standards.
Michael Scruggs Declaration
The court granted the motion to strike Scruggs’s declaration from AmTrust’s case-in-chief. AmTrust had designated Scruggs solely as a rebuttal witness, but his damages opinion had not previously been disclosed and, according to KF&B, was being used to support Bendure’s damages opinion rather than to rebut KF&B’s expert.
The court found that allowing Scruggs’s declaration in AmTrust’s case-in-chief would significantly prejudice KF&B and could require additional rebuttal expert testimony, time, and expense. The court stated that some or all of Scruggs’s opinion might become admissible depending on the evidence KF&B presented in its own case, but that issue would be decided later.
Disposition
The court ordered that the motion to strike the witness declarations was granted in part and denied in part. Specifically, the motion was denied as to Murphy’s declaration, granted in part and denied in part as to Bendure’s declaration, and granted as to Scruggs’s declaration for use in AmTrust’s case-in-chief. The Clerk of Court was directed to close Docket Nos. 162 and 165.
Read the full 13-page opinion on CourtListener, the free public archive maintained by the Free Law Project.