sources. Eliasen v. Hamilton, 111 F.R.D. 396, 400 (N.D.Ill.
1986) (internal quotation omitted). The party seeking discovery
may meet this exceptional circumstances standard in one of two
ways. First, the moving party may show that the object or
condition at issue is destroyed or has deteriorated after the
non-testifying expert observes it but before the moving party's
expert has an opportunity to observe it. See Disidore v. Mail
Contractors of Am., Inc., 196 F.R.D. 410, 417 (D.Kan. 2000);
Hartford Fire Ins., 154 F.R.D. at 207. Second, the moving party
may show there are no other available experts in the same field
or subject area. See Bailey v. Meister Brau, Inc., 57 F.R.D.
11, 14 (N.D.Ill. 1972) (party seeking discovery must prove that
opinions by others on the subject are unavailable).
Here, defendant fails to allege either that an alteration of
the roof prevented it from obtaining necessary information about
the condition of the roof, or that there are no other available
experts in the same field or subject area. In fact, defendant has
substantial information relating to the condition of the roof and
the cause of damage. Defendant had ample opportunity to conduct
whatever investigations it desired, and the site was inspected by
Brian Mager of Starr Roofing and Tim Dickson of Stuart Jacobson &
Associates, both hired by defendant. Thus, Kurucz is not the sole
source of facts and opinions regarding the cause of damage to the
roof. Defendant simply argues that exceptional circumstances
exist because plaintiff is shopping for an expert. Even assuming
plaintiff chose not to use Kurucz because he rendered an adverse
opinion, "this is not only perfectly permissible, but . . . the
very purpose of [Rule 26(b)(4)(B)] is to protect [a plaintiff]
from having [its expert's] testimony used by [its] opponent. . .
. The Rule was intended to prevent an advisor from becoming an
involuntary witness." Eliasen, 111 F.R.D. at 401 (internal
quotations omitted). Defendant has not met its heavy burden of
showing that the present situation qualifies as an exceptional
circumstance. Thus, defendant is prohibited from presenting
Kurucz as a witness.
In addition, the "exceptional circumstances" standard of Rule
26(b)(4)(B) also applies to a non-testifying expert's reports,
notes, and records that were developed or acquired in
anticipation of litigation. See, e.g., Braun v. Lorillard,
Inc., 84 F.3d 230, 235-36 (7th Cir. 1996) (applying "exceptional
circumstances" standard to results of tests conducted by
plaintiff's expert); Hartford Fire Ins., 154 F.R.D. at 210
(applying "exceptional circumstances" standard to expert's
report). Thus, defendant is prohibited from eliciting the
testimony or records of Kurucz regarding the opinions he
developed or information he acquired in preparing for the
appraisal process and in anticipation of litigation.*fn3
Accordingly, the court grants plaintiff's second motion in
limine. However, any opinions or records developed or acquired
by Kurucz prior to consultation by plaintiff fall outside the
protection of Rule 26(b)(4)(B). See, e.g., Eliasen, 111 F.R.D.
at 403 (finding no justification for barring testimony concerning
facts and opinions not developed in connection with the
B. Defendant's Motions in Limine
Defendant has brought two motions in limine. Defendant's
first motion in limine consists of six numbered paragraphs,
each seeking to exclude evidence relating to Count I, Breach of
Contract. Defendant's second motion in limine consists of three
numbered paragraphs, each seeking
to exclude evidence relating to Count II, Bad Faith.
1. Defendant's Motion in Limine for Count I — Breach of
a. Paragraphs 1, 2, 3, 4, and 6
Plaintiff does not object to paragraphs numbered 1, 2, 3, 4,
and 6 of defendant's Motion in Limine for Count I, Breach of
Contract. Thus, the court treats these portions of defendant's
motion in limine as agreed and grants defendant's motion with
respect to these paragraphs.
b. Paragraph 5
Defendant seeks to prohibit any and all mention of settlement
discussions between representatives of defendant and plaintiff.
First, plaintiff argues that Federal Rule of Evidence 408 states
that evidence otherwise inadmissible as part of settlement
negotiations is admissible "when the evidence is offered for
another purpose," and that Rule 408 allows a settlement offer
into evidence when it is germane to the question of bad faith in
delay. FED. R. EVID. 408. Second, plaintiff argues that a
statement made by Mr. Button ("Button"), the independent adjuster
hired by defendant, is admissible as an exception to the hearsay
rule because it is a statement made in Button's representative
capacity — as defendant's agent — and with defendant's
authorization. (Pl.'s Mot. at 9, citing FED. R. EVID.
801(d)(2)(A), (C) and (D).)
With regard to plaintiff's first argument, the court notes that
defendant raises its motion in limine to prohibit mention of
settlement discussions only with respect to Count I, Breach of
Contract, not for Count II, Bad Faith. Thus, plaintiff's first
contention — that this evidence is germane to the question of bad
faith — is irrelevant. Plaintiff's only relevant argument relates
to statements made by Button. The context and circumstances of
the settlement discussions between representatives of the
plaintiff and defendant are unclear, as is Button's role — if any
— in these negotiations. Specifically, the court has insufficient
evidence to determine whether Button acted as defendant's agent
and with defendant's authorization, and whether Button's
statements occurred as part of settlement discussions. Rather
than prematurely speculating as to whether such evidence is
admissible, the court will reserve ruling until trial.
Accordingly, the court denies defendant's motion in limine with
respect to Button's statements, but grants the motion in limine
in all other respects. Defendant is not precluded from raising
appropriate objections at trial.
2. Defendant's Motion in Limine for Count II — Bad Faith
a. Paragraph 1
Defendant seeks to prohibit plaintiff's attorney of record,
Kevin Moore ("Moore"), from offering testimony as a witness at
this trial. Plaintiff responds that it intends to elicit Moore's
testimony for the sole purpose of laying the foundation for four
letters he wrote to Steve Siemann ("Siemann"), defendant's
adjuster. Plaintiff argues that these letters pertain to limited
issues on the plaintiff's bad faith claim insofar as the letters
establish (1) that plaintiff put defendant on notice of the
applicable law and defendant ignored it, and (2) that defendant
wrongly and belatedly insisted on participation in an appraisal
process, "thereby working unconscionable delay into [plaintiff's]
claim." (Pl.'s Mot. at 5.) Because the plaintiff has not named
Moore on its witness list, the court is unsure why the defendant
brings this motion. Moreover, the court seriously questions the
relevancy of these letters to plaintiff's claim. Nevertheless,
the court now addresses this motion.
Under the advocate-witness rule, an attorney is barred from
acting as both an advocate and a witness in a single proceeding
except under special circumstances. See United States v.
Marshall, 75 F.3d 1097, 1106 (7th Cir. 1996) (internal citations
omitted). While allowing a lawyer to testify is a situation to be
avoided if possible, the limits on being a lawyer and
witness in the same case are not absolute. See United States v.
Johnston, 690 F.2d 638, 644 (7th Cir. 1982) (en banc). In
exercising its discretion to allow or forbid an attorney to
appear as a witness, the court should examine the goals sought to
be served by the rule against such dual appearances and determine
whether the particular situation confronting the court precludes
an attorney from appearing as a witness. See United States v.
Morris, 714 F.2d 669, 671-72 (7th Cir. 1983) (recognizing five
rationales for forbidding counsel to appear as witness and
stating that "[a] judge is unlikely to be confused by the dual
appearance as advocate and witness."); see also LOC. R.
83.53.7(a)(2) (a lawyer may testify "if the testimony will relate
to a matter of formality and the lawyer reasonably believes that
no substantial evidence will be offered in opposition to the
The court will reserve ruling on whether Moore will be allowed
to testify on Count II, Bad Faith, for the sole purpose of
authenticating four letters he wrote to Siemann. In this case,
authentication of the letters is easily available by other means,
and the court strongly urges the parties to employ some other
means of authenticating these letters. For example, the parties
may easily stipulate to the authenticity of these letters, or
another witness (i.e., the secretary with initials "kb" who
appears to have typed the letters) may be available to
authenticate the letters. See FED. R. EVID. 901.
In sum, the court grants in part and denies in part defendant's
motion in limine with respect to Moore's testimony. The motion
is granted to the extent that Moore is prohibited from testifying
regarding Count I, Breach of Contract, or any substantive
evidence relating to Count II, Bad Faith. The motion is denied to
the extent that the court reserves ruling until trial to
determine whether Moore will be allowed to testify regarding
Count II for the sole purpose of authenticating four letters he
wrote to Siemann. The court strongly urges the parties to utilize
an alternative means of authenticating these letters.
b. Paragraph 2
Defendant seeks to prohibit any and all reference regarding
defendant's setting or computation of reserves. Plaintiff agrees
that evidence of the reserve should not be admitted to show
coverage but should be admissible on defendant's bad faith.
Courts have distinguished between admissibility of evidence of
reserves for a bad faith claim in first-party insurance
(indemnity insurance) and third-party insurance (liability
insurance).*fn4 See Am. Prot. Ins. Co. v. Helm Concentrates,
Inc., 140 F.R.D. 448, 449-50 (E.D.Cal. 1991). In considering a
bad faith claim in third-party insurance, the fact that the
defendant established a reserve may be probative on the issue of
whether there is a potential for liability, and thus reserve
information may be relevant to the issue of bad faith. See id.
On the other hand, in first-party insurance, the policy either
provides coverage or does not. Thus, the potential for liability
— and therefore reserve information — is irrelevant to a bad
faith claim. Rather, in first-party insurance, the insurer's good
faith is determined (1) by the manner and depth of its
investigation, and (2) the determination of whether there was a
good faith factual or legal question as to whether the loss was
covered. See id.
Plaintiff points to no case involving first-party insurance
where reserve information is discoverable or admissible, nor does
it provide a valid argument why such information would be
admissible or probative at trial. Accordingly, the court grants
defendant's motion in limine with respect to defendant's
setting or computation of reserves.
c. Paragraph 3
Plaintiff does not object to paragraph number 3 of defendant's
second motion in limine. Thus, the court treats this portion of
defendant's motion in limine as agreed and grants defendant's
motion with respect to this paragraph.
For the foregoing reasons, the court grants in part and denies
in part plaintiff's motions in limine. The court grants in part
and denies in part defendant's motions in limine.
1. Plaintiff's Motion in Limine No. 1 is denied.
2. Plaintiff's Motion in Limine No. 2 is granted.
3. Defendant's Motion in Limine for Count I, Breach
of Contract, is granted with respect to paragraphs
1, 2, 3, 4, and 6.
4. Defendant's Motion in Limine for Count I, Breach
of Contract, is denied with respect to paragraph 5
insofar as the court reserves ruling until trial
regarding Button's statement. In all other
respects, paragraph 5 of defendant's Motion in
Limine for Count I, Breach of Contract, is
5. Defendant's Motion in Limine for Count II, Bad
Faith, is granted with respect to paragraph 1
insofar as Moore is prohibited from testifying
regarding any substantive evidence relating to
Count II, Bad Faith, but denied insofar as the
court reserves ruling until trial to determine
whether Moore will be allowed to testify on Count
II, Bad Faith, for the sole purpose of
authenticating four letters he wrote to Siemann.
6. Defendant's Motion in Limine for Count II, Bad
Faith, is granted with respect to paragraphs 2 and