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 18, 2008 Pollak, J.

The court has before it extensive filings, submitted on the eve of trial, regarding

over 200 outstanding evidentiary disputes (Docket Nos. 145-46 and accompanying

appendices). They will be treated as cross-motions in limine to exclude evidence. The

court has reviewed the briefings and appendices, as well as its own previous evidentiary

decisions and guidance in this case, and will now rule on the conflicts in the groupings

presented by the parties. In an effort to permit the parties to prepare for trial efficiently,

this memorandum/order will address challenges to alleged admissions by plaintiffs and all

challenges to proposed trial exhibits. The court will address objections to proposed

deposition testimony and demonstrative exhibits in a later memorandum/order.

Case 2:04-cv-00539-LP Document 152 Filed 09/18/08 Page 1 of 8
 The parties collaborated on hefty joint appendices containing all the disputed evidence. 

1

Apparently, they were unable to agree as to the form for the first volume, containing alleged

admissions by the plaintiffs United National, et al. For the determination of these issues, the

court relied on both parties’ appendices, but will refer to the admissions categories and numbers

propounded by the plaintiffs in their memorandum of law (Docket No. 146) and appendix.

2.

I. Alleged Admissions by Plaintiffs

Defendants seek to admit a series of excerpts (from filings and arguments) from

earlier arbitration between RAS and UNG. Defendants assert that each excerpt comprises

a proper admission under Fed. R. Evid. 801(d)(1). Plaintiffs counter that the disputed

evidence falls outside of the narrow band of admissions of fact permitted by this court’s

opinion of August 7, 2008 (Docket No. 140) and established case law regarding use of

arbitration records in subsequent proceedings. Plaintiffs also, in some cases, have not

objected to proposed admissions but instead require, under Fed. R. Evid. 106, that the jury

hear a fuller presentation from the record or the recitation of a supplemental excerpt to

ensure a fair presentation of the admission. Relying on and incorporating its August 7

decision, the court takes each alleged admission in turn. 

1

Alleged Admissions by Lawyers.

1. Inadmissible. All of the statements herein comprise arguments and not factual

admissions.

2. Inadmissible. All the statements herein comprise arguments, except footnote 16 on

page 22 of the excerpt, which appears factual in nature. However, the court finds

that this statement is offered as support for the argument in the body of the text

above it and thus comprises an extension of that argument and not an independent

factual admission.

3. Inadmissible. All of the statements herein comprise arguments and not factual

Case 2:04-cv-00539-LP Document 152 Filed 09/18/08 Page 2 of 8
3.

admissions.

4. Inadmissible. All of the statements herein comprise arguments and not factual

admissions.

5. Inadmissible. This group of statements poses the greatest difficulty. Many of

them appear, out of context, to be clear factual admissions. They are, however,

headings to lengthy sections in UNG’s arbitration briefs. In reviewing these

statements, it quickly becomes clear that they are offered as summary conclusions

argued by that party from a complex analysis of the facts and various allegations. 

The court cannot thereby recognize them as admissions of fact. In addition, the

final set of statements propounded as admissions here by the defendants comprise

a legal heading, a conclusion drawn from an expert report used during the

arbitration and previously excluded from evidence by this court (Opinion of

August 7, 2008 at 19 excluding the Gentry report), and legal conclusions. This

cobbled-together “admission” must be excluded from trial as it represents,

minimally, both legal argument and a proposal to admit material already deemed

unduly prejudicial.

6. Inadmissible. All of the statements herein comprise arguments and not factual

admissions.

7. Inadmissible. All of the statements herein comprise arguments and not factual

admissions. 

8. Inadmissible. On its face, this statement appears to represent a factual conclusion

by UNG of their well-considered belief. On closer scrutiny, however, it serves as a

bridging proposition within a legal argument offered by UNG’s counsel in his

summation, and also represents a proposed conclusion offered to the arbitrators

rather than a clear admission of fact. Under this court’s opinion of August 7,

2008, this statement must be excluded. 

Alleged Testimonial Admissions 

1. Admissible, and the court grants plaintiffs’ request that, under Fed. R. Evid. 106,

defendants be required to read 134:5 - 136:4 to the jury when they present their

desired excerpt from this deposition.

2. Admissible, and the court grants plaintiffs’ request that, under Fed. R. Evid. 106,

defendants be required to read 4:17-22, 5:9 - 6:5, 59:11 - 61:4, 92:10-15, and 93:2-

Case 2:04-cv-00539-LP Document 152 Filed 09/18/08 Page 3 of 8
4.

11 to the jury when they present the first segment from the deposition and 148:24 -

149:8 when they present the second segment from the deposition.

3. Inadmissible. Defendants have not established the relevance of this segment of the

deposition, and therefore the court will exclude it under Fed. R. Evid. 402. 

4. Admissible, and the court grants plaintiffs’ request that, under Fed. R. Evid. 106,

defendants be required to read the entirety of Trial Exhibit 364 when they present

the first segment from the hearing transcript and 329:2-14, 334:4-13, and 357:1-5

from Seth Freudberg’s deposition of Nov. 16, 2006 when they present the second

segment. Plaintiffs have requested that another segment from the Freudberg

deposition of Nov. 16, 2006 (393:21-23, 394:17 - 395:5, and 395:15 - 398:7) be

read when the third segment of the hearing segment at issue is presented. 

Plaintiffs must establish, at trial, that this segment ought in fairness to be

considered contemporaneously. 

II. Defendants’ proposed trial exhibits objected to by plaintiffs

Plaintiffs object to a small group of defendants’ proposed trial exhibits, all of

which arise from the UNG/RAS arbitration that preceded this litigation. The arguments

here resemble those concerning the alleged admissions, and the court again incorporates

its August 7, 2008 decision into the following rulings. All exhibit numbers refer to the

defendants’ pre-trial exhibit numbers, which are reflected in the parties’ filings on these

issues.

281. Inadmissible. This exhibit comprises a summary legal argument from the

arbitration. The court already has established that it will not allow the jury to “sift

through the arbitration record to divine what the arbitrators were thinking.” 

Opinion of August 7, 2008 at 15 (Docket No. 140). As this exhibit poses a clear

risk of precipitating such mystical prognostication, the court will exclude it. 

282. Inadmissible. This exhibit comprises a summary legal argument from the

arbitration. The court will exclude it for the same reasons as Ex. 281.

288. Inadmissible. This signed declaration represents hearsay under Fed. R. Evid.

Case 2:04-cv-00539-LP Document 152 Filed 09/18/08 Page 4 of 8
5.

801(c). It does not fall under Fed. R. Evid. 801(d)(2) as a non-hearsay statement

adopted by a party-opponent, nor does it fall under any other hearsay exception. 

As all parties to this lawsuit had the opportunity to develop the declarant’s

testimony on the issues, the court will exclude this exhibit from evidence.

296. Inadmissible. This exhibit comprises detailed legal arguments from the arbitration. 

The court will exclude it for the same reasons as Ex. 281.

298. Inadmissible. This exhibit comprises detailed legal arguments from the arbitration. 

The court will exclude it for the same reasons as Ex. 281.

299. Plaintiffs’ memorandum (Docket No. 146) lists this exhibit as the entire arbitration

transcript, but raises no specific objection except to say that it (i) stands by

previous rulings regarding this exhibit and (ii) awaits the court’s decisions on other

specific objections from this round of disputes. The court thereby makes no broad

ruling on this exhibit beyond what appeared in the August 7, 2008 opinion and the

court’s decisions on the current disputed particulars.

326, 327. The defendants assert in their memorandum (Docket No. 145) that they intend

to make use of English court decisions previously challenged by plaintiffs. The

court writes here only to state that it stands by the August 7, 2008 decision on

these documents. Parties may use them only in the manner described, and the

court will issue a limiting instruction to the jury prior to their admission.

III. Plaintiffs’ proposed trial exhibits objected to by defendants

Defendants have lodged objections to ninety-six of plaintiffs’ proposed trial

exhibits on a variety of grounds. For the large majority, the court will rule the evidence

admissible and find the plaintiffs’ explanations and arguments in their memorandum

(Docket No. 146) sufficient under the Federal Rules of Evidence for inclusion of the

exhibits at trial. Challenged evidence that the court deems inadmissible is listed below

along with the reason for its exclusion. The court also has listed exhibits that will only be

admitted upon further action by the plaintiffs at trial. If the plaintiffs cannot meet the

Case 2:04-cv-00539-LP Document 152 Filed 09/18/08 Page 5 of 8
6.

requirements stated below, such evidence will be excluded. In short, if a challenged

exhibit is not listed here, it is admitted; if it is listed, the court’s decision on that item

follows the number. All exhibit numbers refer to the plaintiffs’ pre-trial exhibit numbers,

which are reflected in the parties’ filings on these issues.

45. Inadmissible without further authentication. Plaintiffs argue that Fed. R. Evid.

901(b)(4) permits “distinctive characteristics” of evidence to serve as

authentication, taken in conjunction with the circumstances. Such characteristics

and circumstances are insufficient for authentication here. While the item bears

similar features as other admissible evidence or some form of “distinctive

markings,” the broader circumstances do not suggest reliability and authenticity. 

Other challenged evidence under review here, and deemed admissible by the court,

offered additional support for admissibility such as: (i) its production by an

opposing party; (ii) its existence in files of both plaintiffs and defendants; (iii)

recognition of it by a deponent in this lawsuit; or (iv) other valid circumstantial

considerations beyond mere like-appearance to other documents. If plaintiffs can

provide further authentication of this exhibit at trial, the court may admit it.

105. Inadmissible without further authentication. The court will exclude this exhibit for

the same reasons as Exhibit 45 unless plaintiffs can provide further authentication

at trial.

135. Inadmissible without further authentication. The court will exclude this exhibit for

the same reasons as Exhibit 45 unless plaintiffs can provide further authentication

at trial.

368. Inadmissible without further authentication. The court will exclude this exhibit for

the same reasons as Exhibit 45 unless plaintiffs can provide further authentication

at trial.

511. Inadmissible under Fed. R. Evid. 402. No part of this document links its contents

directly to the issues of this lawsuit. On its face, it concerns the insurance program

only in the years 1994-95. Plaintiffs’ argument that the “uniform approach”

statement constitutes a broader admission, one that would include the time and

activities in controversy here, is unsupported by the document itself. 

512. Inadmissible under Fed. R. Evid. 402 for the reasons stated under Ex. 511.

Case 2:04-cv-00539-LP Document 152 Filed 09/18/08 Page 6 of 8
7.

526. Inadmissible under Fed. R. Evid. 402. This e-mail, written in 1995, does not

indicate the time frame or specific activities described. The related deposition

testimony, which the court will also exclude, likewise fails to place this

communication in the time frame at issue in this lawsuit, even by broad suggestion. 

Consequently, the court will not admit this evidence without further proof that it

describes relevant circumstances.

533. Inadmissible without further authentication. This business letter was not

authenticated as required by Fed. R. Evid. 901. The court finds unpersuasive

plaintiffs’ argument that the deposition testimony by Mr. Harrell, regarding his

attendance at the meeting described, sufficiently authenticates this document. If

plaintiffs can provide further authentication of this exhibit at trial, the court may

admit it.

544. Inadmissible under Fed. R. Evid. 402. No part of this document links its contents

to the issues of this lawsuit. This e-mail, written in 1996, contains a statement

about the close connection between different entities, but does not suggest clearly

whether this “unanimity” is broad and general or more specific to the issues

discussed in the previous (included) e-mail. Consequently, the court cannot admit

this evidence without further proof that it describes relevant circumstances.

571. Inadmissible unless plaintiffs are able to present a suitable foundation for this

exhibit during Kevin Tate’s testimony at trial.

598. Inadmissible unless plaintiffs are able to present a suitable foundation for this

exhibit during Kevin Tate’s testimony at trial.

620. Inadmissible without further authentication. Plaintiffs obtained this (seemingly

relevant) document from the defendants during discovery but failed to offer any

other reasons beyond this for its admissibility. The court agrees that, without more

foundation, it is unclear whether this document represents valid policy. The court

will exclude this exhibit unless plaintiffs can provide such foundation at trial. 

635. Inadmissible without further authentication. The court will exclude this exhibit for

the same reasons as Exhibit 45 unless plaintiffs can provide further authentication

at trial.

715. Inadmissible without further authentication. The court will exclude this exhibit for

the same reasons as Exhibit 45 unless plaintiffs can provide further authentication

at trial.

Case 2:04-cv-00539-LP Document 152 Filed 09/18/08 Page 7 of 8
8.

760. Inadmissible unless plaintiffs are able to present a suitable foundation for this

exhibit during Edward McKinnon’s testimony at trial. 

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 admissions and proposed trial 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.

Case 2:04-cv-00539-LP Document 152 Filed 09/18/08 Page 8 of 8