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UDALL LAW FIRM, LLP

ATTORNEYS AT LAW

2198 E. Camelback Road, Suite 375

Phoenix, AZ 85016

Telephone: 602-222-4848

Fax: 602-222-4858

minuteentries@udalllaw.com

Thomas P. Burke, II SBN 9631

Bret S. Shaw SBN 31732

Attorneys for Defendants

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Benjamin McClure, an individual,

Plaintiff, 

vs. 

Country Life Insurance Company, dba 

Country Financial, previously dba Country 

Companies; Does I-10; Roes 1-10;

Defendants. 

NO. CV15-02597-PHX-DLR

DEFENDANTS’ TRIAL BRIEF 

NO. 2 RE SELL

This trial brief addresses the following issue of law listed in the parties’ Final Joint 

Pretrial Order: Whether evidence of similar bad faith practices by Defendants is relevant 

and admissible.

This issue truly relates to a different litigation between plaintiff’s counsel and 

Country Life, Sell v. Country Life. It is the subject of defendants’ Motion in Limine Number 

One. (Doc. 279). This Court should preclude plaintiff from presenting evidence from Sell

because it is irrelevant or, alternatively, unfairly prejudicial.

/ / /

/ / /

Case 2:15-cv-02597-DLR Document 298 Filed 08/09/17 Page 1 of 4
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UDALL LAW FIRM, LLP

2198 E. CAMELBACK ROAD, SUITE 375

PHOENIX, ARIZONA 850016

(602) 222-4848

I. BACKGROUND

There is no overlap between the two separate claims that serve as the basis of this 

litigation and Sell. The claims were made on different insurance policies with different 

requirements for eligibility, were handled at different times, and were handled by different 

personnel. Indeed, at the time that Country Life made its original claims decision in April 

2014 in this case, Country Life’s claims department had a different supervisor, a different 

medical reviewer, and used a different claims analyst than were involved in the Sell claim.

Plaintiff lists as an exhibit an order from Sell in which the Sell court found that 

Country Life had not acted consistently with its discovery obligations and entered a default 

judgment against Country Life as a sanction. The order has nothing to do with the merits of 

the Sell plaintiff’s claims; it deals with case-specific discovery in that litigation. In addition 

to discussing the alleged discovery violations, which Country Life disputes, the order 

questions the credibility of certain Country Life employees, only one of whom was involved 

in this plaintiff’s claim but whose involvement in Sell was limited to the lawsuit itself, not 

the underlying claim. The Sell order also questions the credibility of Country Life counsel. 

During discovery here, plaintiff questioned in deposition Country Life employees regarding 

the Sell litigation, focusing on what changes, if any, Country Life had made as a result of 

the Sell order which was based on discovery disputes in that lawsuit.

II. ANALYSIS

There are several reasons that Sell should be kept out of this litigation. First, the 

order disclosed by plaintiff is hearsay—an out-of-court statement that will be offered for the 

truth contained therein. Courts nationwide have rejected attempts to introduce decisions and 

their findings of facts from other courts because they are hearsay. See e.g. Auguste v. 

Sullivan, 2009 WL 807446 (D. Colo); Herrick v. Garvey, 298 F.3d 1184 (10th Cir.2002); 

Nipper v. Snipes, 7 F.3d 415 (4th Cir. 1993); Brooks v. Schults, 333 F.Supp.2d 678 (E.D. 

Tenn. 2004). Indeed, Brooks, a civil rights action, saw the Eastern District of Tennessee 

reject a plaintiff’s attempt to introduce portions of a State Court transcript from a related 

criminal case that included the State Court’s oral rulings and reasons for those rulings, 

Case 2:15-cv-02597-DLR Document 298 Filed 08/09/17 Page 2 of 4
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UDALL LAW FIRM, LLP

2198 E. CAMELBACK ROAD, SUITE 375

PHOENIX, ARIZONA 850016

(602) 222-4848

including, like here, credibility determinations. Brooks, 333 F.Supp.2d at 679-80. This 

Court should follow suit and preclude plaintiff from introducing the order from Sell into 

evidence.

Second, other evidence from Sell that plaintiff wants to introduce should be 

precluded because that “evidence” is irrelevant to plaintiff’s claim in this case. Thus, 

pursuant to Federal Rule of Evidence 402, it should be precluded. Specifically, testimony 

regarding the discovery issues in another case is irrelevant to plaintiff’s claims here. 

Furthermore, this evidence should also be precluded pursuant to Rules 403 and 404. The 

analysis here is intertwined. Evidence of the sanctions against Country Life are prohibited 

under Rule 403 because they are likely to mislead the jury or confuse the issues. Similarly, 

such evidence is really character evidence, which is prohibited under Rule 404. Finally, any 

evidence related to changes made by Country Life as a result of the Sell decision is barred

by Federal Rule of Evidence 407. 

Plaintiff should be barred from presenting Sell-related evidence.

DATED this 9th day of August, 2017.

UDALL LAW FIRM, LLP

/s/Bret S. Shaw

Thomas P. Burke, II

Bret S. Shaw

Attorneys for Defendants

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UDALL LAW FIRM, LLP

2198 E. CAMELBACK ROAD, SUITE 375

PHOENIX, ARIZONA 850016

(602) 222-4848

CERTIFICATE OF SERVICE

I hereby certify that on the 9th day of August, 2017, a copy of the foregoing

DEFENDANTS’ TRIAL BRIEF NO. TWO RE SELL was electronically filed with the 

clerk of the court, United States District Court, Arizona, and a copy e-served to all related 

parties via the court’s CM/ECF system, as follows:

Steve German, Esq.

ADELMAN GERMAN, P.L.C.

8245 N. 85th Way

Scottsdale, AZ 85258

and

Steve C. Dawson

Anita Rosenthal

Sander R. Dawson

DAWSON & ROSENTHAL, P.C.

25 Schnebly Hill Road

Sedona, AZ 86336-4233

Attorneys for Plaintiff

/s/Michelle Bryant

Michelle Bryant

(21731-3C)

Case 2:15-cv-02597-DLR Document 298 Filed 08/09/17 Page 4 of 4