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Bancroft Life & Casualty v. Lo

United States District Court, Third Circuit

November 21, 2013

BANCROFT LIFE & CASUALTY, Plaintiff,
v.
ERWIN LO, M.D., SUE JIN YU, M.D., Defendants.

MEMORANDUM OPINION AND ORDER RE: PLAINTIFF'S EVIDENTIARY OBJECTIONS TO DEFENDANTS' AMENDED DESIGNATIONS FROM THE DEPOSITION OF JOHN PATTON (DOC. NO. 248)

ARTHUR J. SCHWAB, District Judge.

Before the Court are Bancroft's Objections to Defendants' Amended Designations from the Deposition of John Patton (doc. no. 248), Defendants' Responses to those Objections (doc. no. 261), and Bancroft's Reply to Defendants' Responses (doc. no. 260). These evidentiary matters are now ripe for adjudication.

I. Prior Court Order (Doc. No. 229)

As a preliminary matter, the Court notes that it has entered one previous Order (doc. no. 229) which relates to the deposition designations of John Patton and impacts the following Objections currently before the Court.[1]

In Court Order No. 229, at item no. 6, this Court denied Defendants' Motion in Limine to Exclude Deposition Testimony of John Patton in Part (doc. no. 185). As set forth in Bancroft's Brief in Support of its Motion in Limine to Exclude Deposition Testimony of John Patton in Part (doc. no. 186), Bancroft argued ( inter alia ) that the alleged Patton designations to which it was objecting were primarily being offered by Defendants in support of the following:

... [1] that commission payments made by American Residential Equities XXVII, LLC ("ARE 27") to another company in which Bancroft directors Philip Sigel and Bradley Barros had an ownership interest in 2004 in exchange for Bancroft's making loans of its reserves to ARE 27 is somehow improper and/or constitutes an illegal "kickback"; [2] that Bancroft's write-down of reserves as a result of ARE 27's default on its indebtedness to Bancroft and the decrease in value of the underlying collateral during the height of the real estate market downturn was somehow fraudulent, illegal, or improper; [3] that Bancroft director Philip Sigel has inappropriately charged personal expenses to the pooled Premium Lite reserves allocable to certificate holders such as SYJEL (as opposed to Bancroft's shareholder equity or against profit distributions); [4] that Bancroft was accepting premiums from certificate holders prior to June 11, 2003 (in spite of Bancroft's own bank statements conclusively proving the opposite); and [5] that Bancroft was somehow involved in a scheme to "defraud" certificate holders who had initially applied for coverage from Boston Life & Annuity, Ltd. through ABG."

Doc. no. 186, pp 2-3. Accordingly, by denying Bancroft's Motion in Limine in this regard, the Court deemed that this type of objected-to Patton testimony could be heard by the jury.

Next, the same Court Order (doc. no. 229) ruled upon Bancroft's Motion in Limine to Exclude Improper Opinion Testimony (doc. no. 181). Bancroft's Motion in Limine and its Brief in Support (doc. nos. 181-182) primarily attempted to exclude opinion testimony of witnesses who were not testifying as experts in this case.

Bancroft's Brief in Support of this Motion in Limine, in subsection "C." specifically addressed a portion of John Patton's testimony. The specific portion of Mr. Patton's testimony to which Bancroft objected (which was quoted in Bancroft's Brief as well as attached as an exhibit) reads as follows:

BY MR. FRIEDMAN:

Q. Mr. Patton, do you have an understanding of the term "kickback"?
A. Sure. As a general rule, yeah. I'm an attorney, so I know about kickbacks. I know about self-dealing.
A. And how would you characterize the $480, 000 commission that Mr. Barros and Mr. Sigel took in exchange for placing $20 million with ARE 27?

MR. SCHWARTZ: Objection.

A. Very much the same as accepting commissions on life insurance that was bought by Bancroft on its - on its insureds when they purchased a life insurance policy, called it reinsurance and pocketed the - those commissions. It's self-dealing You're going to pay a premium. You're going to pay expenses, but you're also going to be credited with interest to your reserve account and you have a potential to get that money back, then you owe the duty, and ...


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