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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

 

LINDA COOK, HUBERT COOK, : 

ADAM COOK AND BRIANNA WILLIS, : 

 : Case No. 2:18-cv-00282 

 Plaintiffs, : 

 : CHIEF JUDGE ALGENON L. MARBLEY 

 v. : 

 : Magistrate Judge Elizabeth P. Deavers 

ERIE INSURANCE COMPANY : 

 : 

 Defendant. : 

I. INTRODUCTION 

This matter comes before the Court on multiple pre-trial motions. Defendant Erie Insurance 

Company submitted a Motion to Bifurcate. (ECF No. 89). Both sides also filed motions in limine. 

(ECF Nos. 90, 94). This Court held a final pre-trial conference with the parties on May 14, 2021. 

As set forth orally on the record and for the reasons below, this Court holds as follows: (1) 

Defendant’s Motion to Bifurcate is GRANTED, (ECF No. 89); (2) Defendant’s First, Second, 

Fifth, Sixth, and Eighth Motions in Limine are DENIED; and Defendant’s Third, Fourth, and 

Seventh Motions in Limine are GRANTED IN PART AND DENIED IN PART, (ECF No. 90); 

and (3) Plaintiff’s First Motion in Limine is HELD IN ABEYANCE, and Plaintiff’s Second and 

Third Motions in Limine are DENIED. (ECF No. 94). 

II. BACKGROUND 

This Court set out the factual history of this case in its May 5, 2020 Order and incorporates 

those facts as if fully set forth herein. (ECF No. 76). In that Order, this Court granted in part 

Defendant’s Motion for Summary Judgment on Plaintiff’s contract and breach of the duty of good 

faith claims. Plaintiffs’ claims alleged that Erie: (1) placed its interests above that of its insured by 

requesting documents pursuant to a cooperation clause; (2) failed to investigate the underlying 
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claim; and (3) filed a counterclaim against Plaintiffs for overpayment in a display of bad faith. 

(ECF No. 76). Further, this Court held in abeyance Defendant’s Motion for Summary Judgment 

as to the bad faith claim premised on Erie’s allegedly superfluous requests for documents as a 

means of delaying payment because the only evidence that Plaintiffs had presented in support of 

that claim was Mr. Setcavage’s expert report. (Id. at 18.). This Court determined that if admissible, 

Mr. Setcavage’s expert report was sufficient evidence to raise a genuine issue of material fact on 

that particular bad faith claim. In its reply, Defendant argued that this report was inadmissible since 

it was an ipse dixit opinion. Because Plaintiffs did not have an opportunity to address the 

admissibility of their expert’s report, this Court ordered both parties to brief the issue. The parties 

submitted supplemental briefing addressing the admissibility of Mr. Setcavage’s expert report. 

(ECF No. 79, No. 80). On August 11, 2020, this Court found that Mr. Setcavage’s expert testimony 

was admissible in part and denied in part Defendant’s Motion for Summary Judgment as to 

Plaintiffs’ breach of the implied duty of good faith and fair dealing. (ECF No. 81). On September 

17, 2020, Defendant Erie filed a Motion for Reconsideration or, in the Alternative, Motion to 

Certify Interlocutory Appeal, which this Court denied on March 19, 2021. (ECF Nos. 82, 103). 

Now, Defendant Erie moves to bifurcate, and Defendant and Plaintiffs filed motions in 

limine. (ECF Nos. 90, 94). This Court reviews these pre-trial motions below. 

III. STANDARD OF REVIEW 

As a general rule, “a court should exclude evidence on a motion in limine only when that 

evidence is determined to be clearly inadmissible on all potential grounds.” Delay v. Rosenthal 

Collins Grp., LLC, No. 2:07-CV-568, 2012 WL 5878873, at *2 (S.D. Ohio Nov. 21, 2012). Thus, 

when the “court is unable to determine whether . . . certain evidence is clearly inadmissible, 

evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and 
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potential prejudice can be resolved in the proper context.” Id. Orders on motions in limine that 

exclude broad categories of evidence should rarely be employed; the better practice is to deal with 

questions of admissibility of evidence as they arise. Sperberg v. Goodyear Tire & Rubber Co., 519 

F.2d 708, 712 (6th Cir. 1975). Whether to grant a motion in limine falls within the sound discretion 

of the trial court. Delay, 2012 WL 5878873, at *2. 

IV. LAW & ANALYSIS 

A. Motion to Bifurcate Trial 

Defendant Erie seeks to bifurcate the trial on the issue of punitive and compensatory 

damages to a second stage of trial, if necessary, and preclude the introduction of evidence that 

relates solely to the issues of punitive and compensatory damages during the liability stage of trial. 

This Court has held that bifurcation is mandatory under the Ohio statute: “Because this is a tort 

action under Ohio law involving a request for compensatory and punitive damages, it is mandated 

this trial be bifurcated upon [the defendant’s] motion.” Geiger v. Pfizer, Inc., Case No. 2:06-cv636, 2009 WL 1026479, at *1 (S.D. Ohio Apr. 15 2009) (Marbley, J.). Accordingly, Defendant’s 

Motion to Bifurcate is GRANTED. References to punitive damages will be allowed to be a part 

of voir dire. Thus, the trial will proceed as follows: The first phase will concern the determination 

on the issue of liability on the remaining bad faith claim. Depending on the jury’s findings, the 

jury will also determine the amount of compensatory damages. The second phase of trial, if it is 

needed, will involve the jury rendering a determination on punitive damages. 

B. Defendant’s Motions in Limine 

Defendant Erie submits eight Motions in Limine, styled as follows: (1) inadmissibility of 

unfair trade practices regulations; (2) inadmissibility of false statements of law by Plaintiffs’ 

attorney and expert; (3) legal conclusions by Stuart Setcavage; (4) post-litigation allegations of 
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bad faith; (5) Plaintiffs’ counsel’s opinions regarding attorney standard of care/conduct; (6) no 

evidence regarding Plaintiffs’ counsel’s prior claims and cases against Erie; (7) prohibiting claims 

or evidence that Erie failed to investigate; and (8) prohibiting testimony or other evidence 

regarding Erie’s financial records or income unless or until a second phase of trial on punitive 

damages. This Court reviews these motions below. 

1. Defendant’s First Motion in Limine Regarding Unfair Trade Practices Regulations 

Defendant seeks to exclude Plaintiff’s expert, Stuart Setcavage, from characterizing Ohio’s 

unfair trade practices regulations as the standard for claims handling in Ohio. Erie contends that 

courts have conclusively held that Ohio insurance regulations, including OAC §3901-1-07, are 

inadmissible as standards in a bad-faith case. Plaintiffs respond by noting that Mr. Setcavage’s 

opinions do not address these administrative regulations for the sole purpose of establishing a 

standard of care. Rather, Mr. Setcavage also incorporates these administrative regulations into his 

testimony to demonstrate how insurance company representatives are taught to handle claims. 

This Court DENIES Defendant’s First Motion in Limine. It is true that the fact finder may 

not consider Ohio’s administrative regulations governing unfair insurance practices to establish 

the appropriate standard of care for the insurance carrier. Nevertheless, pursuant to Rule 702 of 

the Federal Rules of Evidence, expert testimony on insurance should be permitted where it 

discusses how claims are processed and investigated. As such, Mr. Setcavage will be permitted to 

testify regarding Ohio insurance regulations as is related to the training of insurance adjusters and 

claims handlers. 
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2. Defendant’s Second Motion in Limine: Inadmissibility of False Statements of Law by 

Plaintiffs’ Attorney and Expert 

Defendant asks this Court to issue an order in limine that prohibits Plaintiffs’ attorney and 

expert from making false statements of law at trial. Defendant alleges that Plaintiffs’ attorney has 

made false statements about Ohio law, such as whether: (1) Plaintiffs’ uninsured motorist claim 

was governed by Ohio’s wrongful-death statute (it was, Defendant argues); (2) the settlement of 

the claim required probate-court consent (it did, Defendant claims); and (3) a settlement could be 

final without the injured claimant first notifying the workers’ compensation lienholder and 

affording the lienholder an opportunity to protect its rights (it cannot, Defendant states). Defendant 

thus seeks to exclude these statements and similar ones repeated by Plaintiffs’ insurance expert, 

Mr. Setcavage, at his deposition. 

Plaintiffs respond that it is merely Erie’s opinion that Plaintiffs’ counsel has made false 

statements of law with respect to the necessity of probate approval and the issue of the workers’ 

compensation lien. Plaintiffs have not pled that Defendant engaged in any wrongful or neglectful 

act that proximately caused Mr. Cook’s death. Rather, Plaintiffs’ allegations arise out of Erie’s 

conduct in handling the uninsured motorist claim. As such, probate court approval is not required, 

and it is not—as a legal matter—“false” for Plaintiffs’ counsel to say so, Plaintiffs contend. 

As explained in this Court’s previous opinions, the two core elements to bring an action 

for wrongful death in Ohio are governed by O.R.C. 2125.01 and require: (1) a wrongful act, 

neglect, or default that; (2) entitled the decedent to maintain a civil action and recover damages 

had death not ensued. O.R.C. § 2125.02(C) confers on the probate court jurisdiction to approve a 

settlement offer with respect to a wrongful death claim. 
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Furthermore, the rights and duties under an insurance contract concerning an uninsured 

motorist are contractual rights, even though the underlying event sounds in tort. Landis v. Grange 

Mutual Ins. Co., 82 Ohio St.3d 339, 695 N.E.2d 1140 (1998). Because the legal basis for recovery 

on an uninsured motorist claim is contract law, such a claim is subject to an award of prejudgment 

interest. Snow v. Pollick, Lucas App. No. L–02–1104, 2003-Ohio-490, 2003 WL 220457, 

¶ 15 (noting that “claims arising out of an uninsured/underinsured policy of motorist insurance are 

contractual claims, and as such, [O.]R.C. 1343.03(A) is the applicable provision under which to 

award prejudgment interest.”). In other words, the requirement that the probate court approves the 

settlement does not alter Erie’s duty to pay the claim, but it only affects the after-the-fact 

enforceability of a final settlement. Accordingly, Erie’s interest in probate approval relates solely 

to ensuring that its payment and settlement of the uninsured motorist claim is final and enforceable. 

Thus, Erie’s motion to prohibit false statements of law is premised upon the parties’ disagreement 

over the relevant legal principles—a dispute that this Court has addressed repeatedly in its Order 

on the Motion for Summary Judgment and the Motion for Reconsideration. Erie’s Second Motion 

in Limine is DENIED. 

3. Defendant’s Third Motion in Limine: Expert Legal Conclusions 

Third, Defendant asks that Plaintiffs’ expert, Mr. Setcavage, be prohibited from making 

any legal opinions as part of his testimony. While expert testimony is permitted to embrace an 

“ultimate issue,” an expert is not permitted to testify regarding “legal conclusions” since the 

testimony “may convey unexpressed, and perhaps erroneous, legal standards to the jury” Martin 

v. Life Care Centers of Am., Inc., No. 1:08-CV-251, 2014 WL 4816006, at *3 (E.D. Tenn. Sept. 

29, 2014) (internal quotation marks omitted) (citing Shahid v. City of Detroit, 889 F.2d 1543, 1547 

(6th Cir. 1989) and Torres v. Cnty. of Oakland, 758 F.2d 147, 150 (6th Cir. 1985)). Accordingly, 
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Defendant’s Third Motion in Limine is GRANTED IN PART and DENIED IN PART. It is 

GRANTED insofar as Mr. Setcavage is not permitted to testify regarding legal conclusions. It is 

DENIED to the extent that Mr. Setcavage’s testimony is premised upon his experience as an 

insurance adjuster. 

4. Defendant’s Fourth Motion in Limine: Post-Litigation Allegations of Bad Faith 

Fourth, Erie seeks an order excluding Plaintiffs or their witnesses from claiming that 

Defendant’s litigation tactics, strategy, and pleadings serve as the basis of a bad-faith claim. 

Plaintiffs respond that the counterclaim is a factual and procedural element of this litigation, and 

Plaintiffs should be permitted to introduce evidence of the same where it is relevant to providing 

the jury with a full and complete understanding of the facts, circumstances, and history of this 

case. Defendant’s Fourth Motion in Limine is GRANTED IN PART and DENIED IN PART. It 

is GRANTED insofar as Plaintiffs will be prohibited from presenting evidence on whether the 

filing of the counterclaim constitutes bad faith, which is consistent with this Court’s previous 

rulings. (ECF No. 76 (“Here, the existence of an ambiguity supports Erie’s claim that it had a 

reasonable belief in the validity of its counterclaim) (citing Valley Force Ins. Co. v. Fisher 

Klosterman, Inc., 1:14-CV-792, 2016 WL 1642961, at *10 (S.D. Ohio Apr. 26, 2016)). The 

Motion is DENIED insofar as Plaintiffs is entitled to present evidence that various litigation 

strategies point to bad faith. 

5. Defendant’s Fifth Motion in Limine: Plaintiff’s Counsel’s Opinions Regarding Attorney 

Standard of Care and Conduct 

Fifth, Defendant seeks to exclude Plaintiffs’ counsel’s opinions regarding the attorney 

standard of care and conduct. Plaintiffs oppose, arguing that Erie has not identified any specific 

evidence that it seeks to exclude and instead seeks a sweeping exclusion that Plaintiffs’ counsel 
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may not testify about anything that “could” constitute evidence as to an attorney’s standard of care 

in handling uninsured motorist claims with the insurance company. 

On the one hand, Plaintiffs’ counsel’s opinion is not critical to determining whether 

Defendant delayed payment of the uninsured motorist claim. On the other hand, Defendant’s 

motion is too broad to grant the requested relief. This Court will DENY Erie’s Fifth Motion in 

Limine. Defendant has not pointed to what testimony it seeks to exclude, and this Court will not 

broadly prohibit counsel from commenting on an attorney’s standard of care. As presented, this is 

a question of the weight a jury should give to the evidence rather than its admissibility. 

6. Defendant’s Sixth Motion in Limine: Evidence Regarding Plaintiffs’ Counsel’s Prior Claims 

and Cases Against Erie 

Sixth, Erie moves for an order in limine to prohibit references to past dealings between 

Plaintiffs’ counsel and Erie or other insurers as irrelevant. Even if past dealings were relevant, 

Defendant argues that their probative value is substantially outweighed by the risk of unfair 

prejudice. Plaintiffs respond that insurance claims handling is governed by standards of care that 

are applicable to all claims, and whether Erie violates its responsibilities to its insureds is relevant 

evidence of its bad faith conduct. Given the centrality of bad faith in this matter, this Court finds 

allegations that Erie has a history of bad-faith conduct relevant to these allegations. Erie’s Sixth 

Motion in Limine is DENIED. 

7. Defendant’s Seventh Motion in Limine: Prohibiting Claims or Evidence that Erie Failed to 

Investigate 

Defendant’s Seventh Motion in Limine seeks to prohibit Plaintiffs from suggesting at trial 

that Erie acted in bad faith by failing to investigate the Plaintiffs’ claim properly. Plaintiffs retort 

that Erie’s efforts to investigate the uninsured motorist claim are interrelated to the issue to be 
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presented at trial. This case has been narrowed to one specific allegation of bad faith. Other 

allegations already disposed of by the court—like failure to investigate—should not be relitigated 

at trial. Accordingly, Erie’s Seventh Motion in Limine is GRANTED IN PART and DENIED 

IN PART. It is GRANTED insofar as Plaintiffs cannot re-allege that Erie’s investigation into the 

Plaintiffs’ uninsured motorist claim constituted bad faith; it is DENIED insofar Plaintiffs seek to 

present evidence on Erie’s efforts to investigate the uninsured motorist claim more generally. 

8. Defendant’s Eighth Motion in Limine: Prohibiting Testimony or Other Evidence 

In its Eighth Motion in Limine, Defendant asks this Court to exclude Plaintiffs from 

introducing evidence regarding Erie’s financial condition or alleged motivations to delay payment. 

Erie contends such evidence would inflame the jury and ultimately may result in a decision 

rendered on an improper basis. Plaintiffs state that Erie’s financial records serve as evidence of the 

high volume of claims which Erie handles at any given time and the significant financial impact 

that delay in payment of claims can have for Erie. Plaintiffs do not contend that the jury needs to 

hear evidence of Erie’s net worth or review detailed financial statements in order to understand 

Mr. Setcavage’s opinions or the reasons that Erie engages in delay when adjusting claims, but it 

would be prejudicial and inappropriate to exclude all evidence of Erie’s financial records from 

trial. This Court DENIES Erie’s Eighth Motion in Limine. Plaintiffs do not intend to present to 

the jury the Defendant’s detailed financial statements. In addition, Defendant’s general financial 

records are relevant to whether Erie’s delays in paying Plaintiffs’ claims were justified. Objections 

concerning the relevance or prejudicial effect of the same will be heard and ruled on at trial. 
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C. Plaintiff’s Motions in Limine 

1. Plaintiffs’ First Motion in Limine: “Get Rich Quick” 

Plaintiffs move this Court for entry of an Order prohibiting the admission of, or any 

reference to, any suggestion that insurance claimants who pursue a right of recovery against an 

insurance company are playing a “lottery” or “game of chance,” or seeking a “bonanza,” a “way 

to get rich quick,” or any similar metaphor. 

Under Rule 401 of the Federal Rules of Evidence, evidence is relevant if (a) it has any 

tendency to make a fact more or less probable than it would be without the evidence; and (b) the 

fact is of consequence in determining the action. Accordingly, Plaintiffs argue that any statement 

that Plaintiffs would be pursuing recovery as a way to “get rich quick” would not only be irrelevant 

but also would be unfairly prejudicial to the Plaintiffs in the presentation of his case. 

Defendant Erie agrees that it is generally improper for trial counsel to make general, 

categorical statements that are unsupported by evidence or testimony in a case (e.g., that all 

plaintiffs who pursue a right of recovery against an insurance company are trying to “get rich 

quick”). Whether the Plaintiffs in this case have an underlying financial motive and/or are seeking 

to “get rich quick,” Defendant argues, will depend on evidence solicited at trial. 

The live testimony Defendant presents will demonstrate the basis of any pecuniary motive 

on the part of the Plaintiffs. This Court will not rule on the motion at this time, and this Court holds 

Plaintiffs’ First Motion in Limine IN ABEYANCE. 

2. Plaintiff’s Second and Third Motions in Limine: References to Insurance Crisis and Tort 

Reform 

Plaintiffs move to prevent Defendant from introducing evidence at trial of an insurance 

“crisis,” lawsuit “abuse,” or otherwise describing the insurance climate in Ohio, as well as any 
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allegation that a verdict in this case will affect premiums in Ohio or any other place. Plaintiffs also 

seek to exclude references to tort reform or the need for tort reform. Defendant retorts that 

Plaintiffs provide absolutely no evidence, testimony, explanation or other information specific to 

this case which provides context on how or why these topics or phrases may come up at trial. 

Plaintiffs’ Second and Third Motions in Limine are DENIED. “[T]hose words can be used, to the 

extent they appropriately describe a relevant matter.” Hale v. State Farm Mut. Auto. Ins. Co., No. 

12-0660-DRH, 2018 WL 4052413, at *8 (S.D. Ill. Aug. 21, 2018). 

V. CONCLUSION 

For the reasons set forth above, this Court finds holds: (1) Defendant’s Motion to Bifurcate 

is GRANTED, (ECF No. 89); (2) Defendant’s First, Second, Fifth, Sixth, and Eighth Motions in 

Limine are DENIED; and Defendant’s Third, Fourth, and Seventh Motions in Limine are 

GRANTED IN PART AND DENIED IN PART, (ECF No. 90); and (3) Plaintiff’s First Motion 

in Limine is HELD IN ABEYANCE, and Plaintiff’s Second and Third Motions in Limine are 

DENIED. (ECF No. 94). 

IT IS SO ORDERED. 

 s/ Algenon L. Marbley 

 ALGENON L. MARBLEY 

 CHIEF UNITED STATES DISTRICT JUDGE 

DATED: May 20, 2021