1.

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 26, 2008 Pollak, J.

The court has before it defendants’ Motion for Clarification and/or Partial

Reconsideration (Docket No. 154) addressing Memorandum/Orders of September 18,

2008 and September 19, 2008. The motion seeks relief under Fed. R. Civ. P. 60(b)(1) and

was filed in accordance with Local Rule 7.1(g). Clarification – and, as appropriate, minor

modification – appears sensible with respect to a few of the challenged rulings; most of

the rulings, however, remain sound in the court’s view and will not be reconsidered. 

(With respect to the aspect of the motion calling for partial reconsideration, defendants do

not undertake seriously to argue that this portion of their motion meets the Third Circuit

criteria for reconsideration. See Max’s Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d

Cir. 1999)).

Case 2:04-cv-00539-LP Document 156 Filed 09/26/08 Page 1 of 5
 This court’s September 19 Memorandum/Order incorrectly referred to the larger 1

segment containing these lines as “Spasiano 14.” The correct label should have been

“Stow 14.”

2.

I. Deposition Excerpts

Defendants have moved the court to reexamine certain portions of deposition

testimony that the court excluded under Rules 402 and 403 because the testimony probed

whether a “special relationship” existed between defendants and RAS. Memorandum/

Order of September 19, 2008 at 2-3. Defendants assert that those portions within the

excluded segments address issues apart from the irrelevant area of questioning. The court

disagrees, for the following reasons:

Casati 73:23 - 74:1. While this excerpt contains the word “advisor,” the content of

the question clearly points to the same “special relationship”

issue that the court already has deemed irrelevant and

potentially confusing.

Hogan 187:18-22, 188:1 Here again, the excerpt is so closely related to the previous

(and inadmissible) discussion of a special relationship just a

few lines above it that the court cannot see enough of a

distinction to warrant allowing this segment into evidence. In

fact, this appears to be an instance of the questioner searching

for signs of a “special relationship” through a more specific

line of inquiry.

Stow 188:20-23. The reasons for denial here mirror those above. The 1

questioning does not seek to determine if any guidance at all

was provided; rather, the inquiry probes whether special

guidance was provided (as distinguishable, it seems, from

mere guidance). The focus of the questioning is on a very

particular type of guidance and on whether the witness could

and did provide it. Meanwhile, the law at issue requires only

proof of guidance and reliance. Given that the question

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3.

focuses, in truth of fact, on whether the deponent played a

special role of any kind, this testimony remains excluded as

irrelevant and confusing. The defendants correctly argue that

issues of guidance are relevant to the lawsuit, but their

contentions that the (mere) mention of guidance here makes

the line of questioning relevant are unsustainable.

Turner 219:1-10. This also appears to be a fishing expedition for anything

“special” as opposed to a relevant line of inquiry regarding

whether the company furnished guidance and when. It does

not seem designed to garner information “having any

tendency to make the existence of any fact of consequence to

the action more probable or less probable” as required by

Rule 401. 

II. Exhibits

Exhibit 1: motion granted in part and denied in part. The court admitted this

exhibit under Fed. R. Evid. 1006 as a summary of voluminous information. Plaintiffs

asserted that they assembled the summaries and chart from relevant information available,

or provided, to the defendants. Defendants did not object that they did not receive the

underlying documents. Defendants’ assertion in their earlier motion in limine (Docket

No. 145 at 15) that this exhibit was prepared only for litigation does not undermine its

admissibility under Rule 1006.

However, the defendants correctly point out that portions of this exhibit may be

based on information that this court has excluded pending further authentication

(Memorandum/Opinion of September 18, 2008), such as portions of Exhibit 571. In fact,

plaintiffs stated in their earlier cross-motion (Docket No. 146 at 24) that portions of the

chart in Exhibit 1 are supported by Exhibit 571. Rule 1006 cannot serve as a back door to

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4.

evidence that is otherwise inadmissible. Eichhorn v. AT & T Corp., 484 F.3d 644, 650

(3d Cir. 2007). Accordingly, the court will exclude any portions of Exhibit 1 that are

specifically and solely based on other exhibits that were specifically objected to by

defendants and excluded by this court in previous orders. If the plaintiffs properly

authenticate these other exhibits or otherwise cure the reasons for their exclusion, Exhibit

1 will be admitted in its entirety. If plaintiffs fail to authenticate these other exhibits,

Exhibit 1 will only be admissible in a redacted form that excludes the portions that

represent summaries solely generated from inadmissible evidence.

Given that the only exhibits that might meet the terms described above – being (i)

specifically challenged by defendants, (ii) excluded by this court, and (iii) solely used to

create summary information included in Exhibit 1 – would appear to be Plaintiffs’

Exhibits 571 & 598 (as listed and numbered in Docket No. 146 at 53-54), the court would

permit plaintiffs to undertake to do the following. Plaintiffs may promptly submit their

own motion, along with affidavits, to properly and more-fully authenticate these exhibits. 

Defendants, of course, may respond. If the court deems that such proofs meet the

requirements of Fed. R. Evid. 803(6) and 901(a), these exhibits may be admitted—thus

eliminating any Eichhorn problem concerning Exhibit 1. 

Exhibit 597. This exhibit was listed in defendants’ memorandum (Docket No. 145

at 22), but not listed in plaintiffs’ or included in the Joint Appendix. The court also

received word from the plaintiffs prior to review of the cross-motions in limine that they

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5.

did not intend to introduce Exhibit 597 at trial. Consequently, the court did not review it. 

As correctly asserted by defendants, this means Exhibit 597 was not formally admitted by

the court. As requested, the court will note that this exhibit, to date, has been withdrawn. 

III. Demonstrative exhibits

Following this court’s Memorandum/Order of September 19, 2008 (Docket No.

153), defendants rewrote four of the slides excluded under that order. They seek

admission of these new versions of Slides 91, 92, 95, and 96. The court has reviewed

these versions and will admit them because defendants have expunged all mention of a

“special relationship” and they appear otherwise admissible. 

IV. Conclusion

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

Motion for Clarification and/or Partial Reconsideration is GRANTED IN PART. The

court has provided clarification above; and, further, the court directs that its previous

rulings be AMENDED as follows: 

1. Plaintiffs’ Exhibit 1 is inadmissible only in the portions described above

and subject to the conditions likewise described above.

2. Defendants’ demonstrative slides numbered 91, 92, 95, and 96 are

admissible as revised and presented to the court. 

BY THE COURT:

/s/ Louis H. Pollak

Pollak, J.

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