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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED NATIONAL INSURANCE

CO., et al.,

Plaintiffs,

v.

AON LTD., et al.,

Defendants.

Civ. No. 04-539

MEMORANDUM / ORDER

September 19, 2008 Pollak, J.

This memorandum/order represents a continuation of the court’s order of

September 18, 2008 regarding the parties’ cross-motions in limine on pre-trial evidence

disputes. This document thereby incorporates that order as well as the court’s August 7,

2008 opinion on evidence disputes (Docket No. 140). This memorandum/order will

address objections to proposed deposition testimony and demonstrative exhibits.

I. Defendants’ proposed deposition testimony objected to by plaintiffs

Plaintiffs object to eighteen segments or groups of segments of defendants’

proposed deposition testimony. Where a challenged segment is not listed below, the court

rules the evidence admissible and finds the defendants’ explanations and arguments in

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their memorandum (Docket No. 145) sufficient under the Federal Rules of Evidence for

inclusion of the testimony at trial. The court will use the numbers assigned to these

segments in the plaintiffs’ memorandum (Docket No. 146) and not enumerate the exact

location of the testimony in the record—except where a portion of a disputed group is

admitted while another portion is excluded. 

Casati 1. Inadmissible under Fed. R. Evid. 402 and 403. The court agrees with the

plaintiffs that these segments probe issues of a “special relationship” that

are irrelevant to the law at issue in this case. The Restatement (Second) of

Torts § 552, as adopted by the Supreme Court of Pennsylvania in Bilt-Rite

Contractors, Inc. v. Architectural Studio, 866 A.2d 270, 286-86 (Pa. 2005),

does not require proof of any special relationship to establish liability nor

does common law negligent misrepresentation in Pennsylvania. See Bortz

v. Noon, 729 A.2d 555, 561 (Pa. 1999). Introduction of such deposition

testimony is thereby irrelevant and of no probative value. Given the risk of

confusion posed by such non-probative information, the court also excludes

it under Rule 403. 

Hogan 4. Inadmissible under Fed. R. Evid. 402 and 403 for the same reasons given

for exclusion of Casati 1. 

Hogan 5. Hogan Dep. 198:1-11 is inadmissible as irrelevant attorney remarks and 

colloquy between attorneys. The remainder of this segment will be

admitted.

McKenzie 6. Inadmissible under Fed. R. Evid. 402 and 403 for the same reasons given

for exclusion of Casati 1. 

Orlando 8. Orlando Dep. 182:14 – 184:4 is inadmissible for the same reasons given for

exclusion of Casati 1. The remainder of the segments listed in Orlando 8

will be admitted based on the arguments for their relevance advanced by

defendants. 

Orlando 9. The court will not exclude this segment, but will subject it to the “Rule of

Completeness” of Fed. R. Evid. 106. To stave off confusion of the jury,

plaintiffs should select a segment from earlier in the deposition that

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explains the numbers discussed here. That segment will be played or read

to the jury at the same time as Orlando 9 to ensure fairness and

understanding. If the plaintiffs cannot suggest a suitable segment for this

purpose, Orlando 9 will be admitted on its own.

Raim 12. Inadmissible under Fed. R. Evid. 402. This line of questioning is irrelevant.

Spasiano 13. Inadmissible under Fed. R. Evid. 402. The court is unable to divine the

relevance of the relationships discussed in this segment or how they might

make the existence of any fact of consequence more or less probable. 

Spasiano 14. Inadmissible under Fed. R. Evid. 402 and 403 for the same reasons given

for exclusion of Casati 1. 

Turner 16. Inadmissible under Fed. R. Evid. 402 for the same reason given for

exclusion of Spasiano 13.

Turner 17. Inadmissible under Fed. R. Evid. 402 and 403 for the same reasons given

for exclusion of Casati 1.

Warman 18. Inadmissible under Fed. R. Evid. 602 and 701. The question here calls for

speculation rather than personal knowledge and the answer suggests that the

deponent is, in fact, offering a mere guess. 

II. Plaintiffs’ proposed deposition testimony objected to by defendants

Defendants have lodged objections to ninety-seven segments or groups of

segments of plaintiffs’ proposed deposition testimony. The same framework applies to

this part as above—challenges by defendants that are unlisted here are admitted based on

plaintiffs’ arguments for admissibility. The court again will refer to the naming/

numbering system from plaintiffs’ memorandum (Docket No.146) except where the

decision requires a more specific indication of statements deemed inadmissible.

Casati 3. Inadmissible. The statements here are based on a trial exhibit deemed

inadmissible without further authentication. This recorded testimony will

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be excluded from trial unless plaintiffs properly authenticate the exhibit. 

Upon suitable authentication of the exhibit, the testimony will be admitted.

Harrell 7. Inadmissible for the same reason and with the same conditions as Casati 3.

Kennedy 16. Inadmissible under Fed. R. Evid. 602 and 701. The deponent appears to be

guessing, not giving an answer based on personal knowledge.

Spasiano 55. Inadmissible under Rule 802. These statements amount to little more than

the deponent recounting the statements of others. Because the court cannot

intuit a showing of the deponent’s state of mind, this testimony is

inadmissible hearsay.

Spasiano 58. Inadmissible under Fed. R. Evid. 602 and 701. This is a difficult decision

because the deponent appears to be testifying from experience. However,

he takes a broad question, reframes it in hypothetical terms, and concludes

that the impact of the hypothetical could be spectacular—but he cannot say

for certain. The court must conclude that this strays too far from the realm

of personal experience, or even admissible professional opinion, and into

speculation. 

Spasiano 62. Lines 155:8 – 155:16 are inadmissible under Fed. R. Evid. 602 and 701. 

The testimony in these lines appears speculative and outside the realm of

personal experience or admissible professional opinion. The other lines

listed in Spasiano 62 are admissible. 

Toms 64. Lines 114:16 – 114:18 and 114:22 – 115:5 are inadmissible. The

statements therein are based on a trial exhibit deemed inadmissible without

further authentication. This recorded testimony will be excluded from trial

unless plaintiffs properly authenticate the exhibit. Upon suitable

authentication of the exhibit, the testimony will be admitted. The remaining

portions of Toms 64 are admissible regardless.

Toms 77. Inadmissible under Fed. R. Evid. 402. These statements treat on a trial

exhibit deemed inadmissible by the court for lack of relevance, so they too

must be excluded.

Defendants have challenged Kennedy 34, as well as the email to which the

testimony refers (Pl. Ex. 580, admitted in the court’s September 18 order), as both

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irrelevant and unfairly prejudicial under Fed. R. Evid. 403. Because of the shortness of

time between the submission of the motions challenging evidence and the commencement

of trial, the court has not undertaken to explain its decisions to admit challenged evidence

(and is providing only very cursory explanations of decisions to exclude). However,

Kennedy 34 and the related email raise somewhat unusual issues, so the decision to admit

them calls for some account. 

Kennedy alleges in this deposition segment that counsel for the defendants

telephoned him in December 2006 and delivered a veiled threat regarding his

participation in this lawsuit. The challenged exhibit consists of an email from Kennedy to

counsel for the plaintiffs, purportedly sent shortly after the telephone call, recounting the

alleged threats. The defendants assert that all this evidence is irrelevant to the issues at

bar and that, even were it relevant, its probative value is substantially outweighed by the

risk of unfair prejudice to the defendants. The plaintiffs argue that the conduct of

defendants’ counsel is attributable to the defendants themselves and amounts to an

admissible statement of the weakness of the defendants’ case. 

As a preliminary matter, well-settled agency law and the rules of professional

conduct establish that statements and conduct by counsel can be attributed to the client if

made in the course of representation. See, e.g., Senyshyn v. Karlak, 299 A.2d 294, 297

(Pa. 1973) (stating that, outside of a group of final “substantive” decisions that require

express authority, an attorney has broad power to bind a client by admissions or acts in

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the course of a lawsuit); cf. Pa. R. Prof. Conduct 1.2(a) and Explanatory Comments [1] -

[3] (limning the attorney-client relationship as a specialized form of agency). In addition,

courts and commentators agree that misconduct by a party in regards to witness testimony

or other evidence can stand in evidence itself as an admission of the weakness of that

party’s case. McQueeny v. Wilmington Trust Co., 779 F.2d 916, 921 (3d Cir. 1985); 2

Wigmore, Evidence § 278(2) (Chadbourne rev. 1979); McCormick on Evidence § 265

(5th ed. 1999). Such a rule appears even more powerful and necessary when the alleged

impropriety was carried out by counsel—whose acts stand in for the client and who

ought, as both a badge and a positive requirement of his position as an officer of the

court, to know better.

Kennedy alleges, through his testimony and the email exhibit, that he received a

telephone call from an attorney for the defendants who suggested that a loss for the

attorney’s clients would result in a hailstorm of recriminations and additional lawsuits. 

Counsel apparently insisted at the end of the call that he was not threatening Kennedy, but

Kennedy felt otherwise. While it is not absolutely clear from the evidence that Kennedy

received a threat, the interaction is relevant and admissible under McQueeny. Further, the

court will not exclude the evidence under Fed. R. Evid. 403 as unfairly prejudicial. 

Evidence of possible misconduct in this vein may be highly probative of whether a party

fundamentally doubts the strength of its own case. McQueeny, 779 F.2d at 992-93. In the

present instance, the potential probative value of the challenged evidence is not

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substantially outweighed by the potential prejudice to the defendants. Accordingly, the

evidence is admissible. Defendants will, of course, have opportunities at trial to

undertake to impeach or discredit the witness and/or to establish that the evidence should

be given little weight by the jury.

III. Defendants’ proposed demonstrative exhibits objected to by plaintiffs

Plaintiffs object to twenty-two of the 100+ slides that defendants intend to display

during their opening statements. The court wishes to interfere as little as possible with

counsel’s openings, but the court has a responsibility to ensure that arguments by counsel

do not undercut evidentiary rulings. The decisions with respect to the following

objections refer to the slide numbers provided by the parties in their memoranda (Docket

Nos. 145-46 and JA Vol. VII).

Slides 1, For reasons stated in this memorandum/order and its predecessor, the 

107. mention of “special relationship” in these slides is inadmissible for lack of

relevancy and risk of confusion. Defendants must excise this language

from these identical slides.

Slide 9. All mention and depiction of the Cayman Islands in this slide is

inadmissible under Fed. R. Evid. 402 and 403. The fact of the location of

UAI appears wholly irrelevant, thus of no probative value, while the risk of

prejudice to the plaintiffs is palpable. The court does not object to this slide

in broader terms, however. A depiction of plaintiffs’ larger corporate

structure, together with information on plaintiffs’ gross premiums, would

appear to be informative and relevant, if not highly probative. The court

advises defendants that it will be necessary to “retool” this slide to focus it

solely on the relevant information.

Slide 10. Because this slide represents what jurors may find to be a persuasive

summary of admissible facts, the court is reluctant to demand that the

defendants present “the whole truth” within it. For example, if Gay &

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Taylor served as agent to both UNG and Generali, defendants can

appropriately state that G & T was UNG’s agent. Accuracy, if not

completeness, is required of this exhibit, however. Plaintiffs’ challenge of

the bulleted statement “UNG to approve settlement of all large claims” has

merit in this regard. The claims handling procedure document included in

Volume VII of the Joint Appendix, directly following Slide 35, does state

that Generali, not UNG, had authority to settle large claims. Thus, this

bulleted statement is inadmissible. If this fact actually is in dispute in this

lawsuit, the bulleted statement still remains inadmissible among a list of

established and supported (if not necessarily complete) factual propositions

and must be presented separately as argument.

Slide 23. Inadmissible. Defendants propounded these statements as admissions by

plaintiffs. The court excluded them from evidence as part of the September

18, 2008 order on these issues. The rationale presented there applies here.

Slide 24. Inadmissible. This slide likewise presents legal arguments from the earlier

arbitration related to this matter. 

Slide 26. The court agrees that the title of this slide presents a risk of confusing the

jury and inviting the kind of inappropriate speculation regarding the

arbitration that the court sought to discourage through its August 7, 2008

opinion (Docket No. 140). The phrase “No Mention of Aon” in the title is

thereby inadmissible.

Slide 28. The court will allow this slide but with a caveat to counsel for both sides. 

This court’s August 7, 2008 opinion states clearly that the court wants the

jury to consider the evidence at this trial—not to try to read the minds of the

UNG/RAS arbitrators. Attempts by the parties to encourage such

conjecture are strongly discouraged. The court is admitting this slide

because, on its face, it does present factual admissions recently advanced by

the plaintiffs. 

Slide 34. Because defendants specifically refer here to record evidence, the court will

apply Rule 106 and require the last statement to mention UNG/Generali as

requested by plaintiffs.

Slide 36. Inadmissible. This slide presents legal arguments from the earlier

arbitration related to this matter and must be excluded under the court’s

August 7, 2008 opinion.

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Slide 45. Inadmissible. This slide presents legal arguments from the earlier

arbitration related to this matter and must be excluded under the court’s

August 7, 2008 opinion.

Slide 52. Inadmissible. This slide presents legal arguments from the earlier

arbitration related to this matter and must be excluded under the court’s

August 7, 2008 opinion.

Slide 68. Inadmissible. This slide presents legal arguments from the earlier

arbitration related to this matter and must be excluded under the court’s

August 7, 2008 opinion.

Slides 90.5, Inadmissible. For reasons stated in this memorandum/order and its

91, 92, 93, predecessor, the mention of “special relationship” in these slides is

94, 95, 96 inadmissible for lack of relevance and risk of confusion.

IV. Conclusion

AND NOW, for the reasons stated above, it is hereby ORDERED that plaintiffs’

and defendants’ cross-motions in limine are GRANTED IN PART and DENIED IN

PART as to objections to proposed deposition testimony and proposed demonstrative

exhibits. Evidence challenged in these cross-motions will be excluded from trial only as

enumerated above. 

BY THE COURT:

/s/ Louis H. Pollak

Pollak, J.

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