U.S. District Court Denies Insurance Company’s Request to Remain Anonymous, and Compels the Parties Experts’ Witnesses to Testify, at Trial
In the case of Whitlock v. Allstate Fire & Cas. Ins. Co., No. 2:20-CV-00373-KSM (E.D. Pa. Oct. 13, 2022), the Court determined that the Federal Rules of Evidence (FRE) 403 and 411 did not apply in a contract action against and insurance company; and analyzed the Federal Rules of Civil Procedure in the context of allowing evidentiary video-taped depositions in lieu of live testimony at trial.
Plaintiff Robert Whitlock was injured in a car accident caused by a negligent driver. The negligent driver’s (tortfeasor) insurance company tendered her policy limits to Whitlock. Whitlock then filed a claim against his own insurance company, Defendant Allstate Fire and Casualty Insurance Company (Allstate), seeking underinsured motorist benefits. The only issues for trial were the cause and extent of Whitlock’s injuries. Prior to trial, Allstate argued Whitlock and the Court were foreclosed from referring to it as an insurance company pursuant to FRE 403 and 411 at trial, and from mentioning insurance during trial. Instead, Allstate wanted to be referred to as the tortfeasor. The parties also sought the Court’s permission to present the videotaped depositions of their medical experts in lieu of live testimony at trial.
FRE 411 provides, evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. However, the Court determined FRE 411 was limited to personal injury claims where the negligence of the tortfeasor was at issue, and not contract claims. See Schwendinger-Roy v. State Farm Mut. Auto. Ins. Co., Civil Action No. 11-445, 2012 WL 13034915, at *1 (W.D. Pa. July 10, 2012; cf. Price v. Yellow Cab Co. of Phila, 278 A.2d 161, 166 (Pa. 1971).
FRE 403 provides, the court may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Allstate argued there was no legitimate purpose having Allstate identified at trial; and by doing so it would be unfairly prejudiced. Rather, Allstate believed it would be fair to identify it as the tortfeasor. The Court disagreed, concluding the Defendant Allstate issued the insurance policy at issue, and was alleged to have breach that policy in failing to properly pay an amount on underinsurance benefits due and owing to its policyholder. Thus, Allstate’s identity and the fact of insurance are at the very heart of the matter. The Court also concluded allowing Allstate to proceed as the tortfeasor would confuse the jury and unfairly prejudice Whitlock, who chose to bring this case against Allstate and not the tortfeasor.
Allstate also argued evidence of insurance coverage was ordinarily inadmissible under Pennsylvania law, and cited a number of cases to support its position. However, the Court determined that the vast majority of the cases involved personal injury negligence claims, and not contract claims. The Court acknowledged that there were some cases involving both personal injury and first-party breach of contract claims whereby Pennsylvania’s appellate courts, over concern of unfair prejudice to the tortfeasor, have conferred discretion to the trial court to maintain the anonymity of the insurance company and preclude evidence of insurance. Bingham v. Poswistilo, No. 10 CV 6026, 2011 WL 8809426, at *3 (Pa. Ct. Comm. Pl. Apr. 8, 2011). However, those circumstances did not exist in this case. Therefore, the Court denied Allstate’s motion.
Finally, the parties asked the court to allow them to present the testimony of their experts by way of video depositions due to the experts’ patients’ schedules. Federal Rule of Civil Procedure 32(a)(4)(A)-(E) permits a party to use a deposition at trial when a witness is unavailable because: (1) of death, age, illness, infirmity, or imprisonment; (2) the witness is more than 100 miles from the courthouse; (3) the party offering the deposition could not procure the witness’s attendance by subpoena; or (4) exceptional circumstances make it desirable—in the interest of justice and with due regard to the importance of live testimony in open court—to permit the deposition to be used. After an exhaustive review of federal case law, the Court determined that most Courts required some showing of the witness’s unavailability before allowing a party to present a deposition in lieu of live testimony at trial.
The Court was inclined to follow Flores v. N.J. Transit Rail Ops., Inc., No. CIV.A. 96-3237, 1998 WL 1107871, at *5 (D.N.J. Nov. 2, 1998), wherein the term “exceptional circumstances” was defined to be a situation analogous to the unavailability of a witness because of a death; the witness’s distance greater than 100 miles from the courthouse; the witness’s age, illness, infirmity or imprisonment; or the party’s inability to procure the witness through subpoena. Moreover, the Court determined through a review of the case law that an expert’s busy patient scheduled was no in and of itself an exceptional circumstances warranting an evidentiary video-taped deposition.