Case 3:10-cv JDM Document 91 Filed 04/05/13 Page 1 of 4 PageID #: 3775 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE

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1 Case 3:10-cv JDM Document 91 Filed 04/05/13 Page 1 of 4 PageID #: 3775 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE CIVIL ACTION NO. 3:10-CV H THE CINCINNATI INSURANCE COMPANY, PLAINTIFF V. OMEGA FLEX, INC., DEFENDANT MEMORANDUM OPINION AND ORDER In anticipation of trial, scheduled for April 9, 2013, both parties have raised numerous evidentiary issues which the Court has now had the opportunity to review and discuss with counsel. The Court has considered the motions in some detail and is now prepared to rule. I. To the extent that the motions merit discussion, the Court comments on the following: With respect to Plaintiff s motion to bar reference to the testing of the effectiveness of electrical bonding, the Court will permit Defendant expert Dr. Stringfellow to testify as to subject matter evidenced in his expert report and restated in his deposition. As a general rule, experts will be allowed to testify concerning information, reports and observations contained in their Rule 26 disclosure or specifically referenced in their depositions. As discussed with counsel, Dr. Stringfellow may not post-hoc supplement his testimony with information that was not disclosed at the time of his deposition. The Bonding Report is inadmissible. With respect to Plaintiff s motion in limine to bar any and all reference to electrical bonding, Defendant is permitted, subject to objection, to put on countermanding evidence that bonding would have perhaps prevented the loss. Cross-examination of that theory is sufficient to address any deficiencies in testimony or opinions on bonding. 1

2 Case 3:10-cv JDM Document 91 Filed 04/05/13 Page 2 of 4 PageID #: 3776 With respect to Defendant s motion to exclude or limit the testimony of Dr. Thomas Eager, Dr. Eager s professional qualifications permit him to testify as to causation and defective design, to the extent such opinions are metallurgical in nature. However, Dr. Eager may not opine generally as to the standard of care of manufacturers or specifically as to Omega Flex s conduct. Such opinions are outside his field of expertise, metallurgy. With respect to Defendant s motion to limit the opinions of Plaintiff s cause and origin expert, Mr. Lynn Nobles, Mr. Nobles is permitted to testify as to the opinions expressed in his cause and origin report but may not testify to matters outside his area of expertise, such as the field of electrical engineering. With respect to Defendant s motion to preclude evidence of personal property damages totaling $431,061.64, it is well settled in Kentucky that the proper measure of damages for injury to personal property is the difference in the fair market value of the property before and after the accident. McCarty v. Hall, 697 S.W.2d 955, 956 (Ky. Ct. App. 1985). 1 Being otherwise sufficiently advised, IT IS HEREBY ORDERED that Plaintiff s Motion in Limine to Bar the Reference to Testing of the Effectiveness of Electrical Bonding [Doc. 52] is DENIED IN PART and GRANTED IN PART. Experts are permitted to give testimony consistent with expert reports and prior depositions, but may not supplement such opinions with information disclosed following the close of discovery. IT IS FURTHER ORDERED that Plaintiff s Motion in Limine to Bar the Testimony of Michael Stringfellow, Ph.D. [Doc. 53] is DENIED. 1 The Court highlights that this motion is concerning personal property, so reliance on a measure of damages for real property is misplaced. 2

3 Case 3:10-cv JDM Document 91 Filed 04/05/13 Page 3 of 4 PageID #: 3777 IT IS FURTHER ORDERED that Plaintiff s Motion in Limine to Bar the Testimony of Douglas C. Buchan [Doc. 54] is MOOT. IT IS FURTHER ORDERED that Plaintiff s Motion in Limine to Bar Any and All Reference to Electrical Bonding [Doc.55] is DENIED. IT IS FURTHER ORDERED that Defendant s Motion to Exclude Plaintiff s Causation Expert, Dr. Thomas Eager, or in the Alternative to Limit Dr. Thomas Eager s Testimony [Doc.50] is GRANTED IN PART and DENIED IN PART. Dr. Eager may only testify to the metallurgically significant features and properties of the CSST, and may not testify as to the standard of care for manufacturers. IT IS FURTHER ORDERED that Defendant s Motion in Limine to Exclude All Evidence of Compromise Offers and Settlement Negotiations [Doc. 56] is GRANTED. IT IS FURTHER ORDERED that Defendant s Motion in Limine to Exclude Evidence of Subsequent Remedial Measures [Doc. 57] is GRANTED IN PART and DENIED IN PART. Subject to other objections, evidence of Counterstrike I is admissible as it is relevant and not a subsequent remedial measure; evidence of Counterstrike II is excluded pursuant to Federal Rules of Evidence 401 and 403; evidence of subsequent changes to the D&I Guides is excluded pursuant to Federal Rule of Evidence 407. IT IS FURTHER ORDERED that Defendant s Motion in Limine to Limit the Opinions and Testimony of Plaintiff s Cause and Origin Expert Lynn Nobles [Doc.58] is DENIED. IT IS FURTHER ORDERED that Defendant s Motion in Limine to Exclude Expert Opinions Offered by Lay Witness, Gary Lee Woods [Doc. 59] is GRANTED. Per Plaintiff s Witness List [Doc. 70], Mr. Woods is listed as a factual witness. As such, he cannot proffer expert testimony. 3

4 Case 3:10-cv JDM Document 91 Filed 04/05/13 Page 4 of 4 PageID #: 3778 IT IS FURTHER ORDERED that Defendant s Motion in Limine to Preclude Evidence of Personal Property/Contents Damages [Doc. 60] is DENIED. Plaintiff may offer a measure of personal property damages pursuant to Kentucky law. Date: cc: Counsel of Record 4

5 Case 3:10-cv JDM Document 60-2 Filed 03/25/13 Page 1 of 13 PageID #: 1807 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY THE CINCINNATI INSURANCE COMPANY : a/s/o Richard Sauer and Leila Davis : CASE NO. 3:10-cv-670-JGH Plaintiff, : vs. : OMEGA FLEX, INC. : Defendant. DEFENDANT S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION IN LIMINE TO PRECLUDE EVIDENCE OF PERSONAL PROPERTY/CONTENTS DAMAGES Pursuant to Federal Rules of Evidence 702 and 703, Defendant, Omega Flex, Inc., moves this Court for an Order in limine precluding any evidence of, or reference to personal property and/or contents damages totaling $431, In support of its motion, Defendant submits the within Memorandum of Law and exhibits. I. STATEMENT OF FACTS This is a two party subrogation action. Plaintiff, The Cincinnati Insurance Company, as subrogee of Richard Sauer and Leila Davis, brings this negligence and strict product liability action for money damages, which arises out of a fire that occurred at the insured home in Prospect, Kentucky, on May 27, 2009, following a direct lightning strike to the home. Plaintiff brings suit against defendant as the manufacturer of the TracPipe corrugated stainless steel tubing ( CSST ) that was being used in the insured home on the day of the lightning strike and fire. No other parties have been joined. Plaintiff does not allege that, but for defendant s product, the lightning would not have struck the home. Instead, plaintiff alleges that the TracPipe product was defective because it could not withstand the direct lightning strike to the 1

6 Case 3:10-cv JDM Document 60-2 Filed 03/25/13 Page 2 of 13 PageID #: 1808 home. That being so, this is essentially a lightning strike worthiness design claim. Omega Flex denies that the TracPipe installed in the home was defective in any respect, but maintains that it is a safe and effective product when installed in accordance with its installation instructions. It is undisputed that no lightning protection system was installed on the subject home at the time it was initially constructed, and none was in place during the subject lightning storm. It is also undisputed that the Sauer home sustained at least one direct lightning strike. Indeed, the electrical energy from the lightning was so strong that a portion of the brick exterior was blown apart, wood framing members splintered and buckled, and wooden soffit pieces were displaced. The electric garage door opener and sensors were also damaged as a result of the lightning current. Experts for both parties agree that the controlling manufacturing standard, the ANSI LC-1 Standard, contains no requirement that CSST withstand lightning induced current in any amount. Experts for both parties also agree that the subject TracPipe system was being used in the subject home without the dedicated bonding clamp and jumper wire called for by defendant s installation instructions. Bonding gives the electrical current from a lightning strike a preferential path to ground, and reduces the risk of arcing by providing an equipotential route for the current. If metal piping has not been bonded to a building s grounding electrode, it is possible for electrical current, for example, that precipitated from a lightning strike, to arc between metal conductors. It is also undisputed that the TracPipe perforated as a result of electrical arcing. TracPipe was not designed to withstand the massive and unpredictable energy associated with a direct lightning strike. Its intended use is to distribute propane and natural gas 2

7 Case 3:10-cv JDM Document 60-2 Filed 03/25/13 Page 3 of 13 PageID #: 1809 to appliances within a building, and not function as a lightning rod or a lightning protection system. As elements of its claimed damages and subject of this instant motion, Plaintiff is claiming $431, in damages stemming from its insureds various personal property losses See expert report of Travis Kiser, of River City Solutions, attached hereto as Exhibit 1. In addition to the restoration contractor for the structural damage to the home, Mr. Kiser was also retained directly by the homeowners, with the ultimate approval of Plaintiff, The Cincinnati Insurance Company, to adjust the personal property aspect of the claim. See copy of relevant portion of deposition transcript of Travis Kiser, of River City Solutions, at pp , attached hereto as Exhibit 2. Prior to the incident at issue, Plaintiff issued an Executive Classic Homeowner s Policy (the Policy ) for the Sauer property. See expert report of claims adjuster, Kevin O Donnell, attached hereto as Exhibit 3. Importantly, the Policy provided for full replacement of the destroyed or damaged items without any depreciation taken on those items. See copy of relevant portion of deposition transcript of claims adjuster, Kevin O Donnell, at p. 129, attached hereto as Exhibit 4. Under the relevant Policy, replacement costs means whatever it costs to replace the items. Id. at p The Policy, in force at the time of this incident, was more expensive than normal coverage and provided guaranteed replacement cost without even having to replace the items with receipts. Id. at p The Cincinnati Insurance Company did not have any disputes with its insureds during the claims adjustment process. Id. at p Plaintiff s claims adjuster, Kevin O Donnell, relied upon the insureds preferred contractor, Travis Kiser for the personal property adjustment. See Exhibit 3. Mr. Kiser was a 3

8 Case 3:10-cv JDM Document 60-2 Filed 03/25/13 Page 4 of 13 PageID #: 1810 principal in Colonial Services, which was the restoration contractor for this home, prior to currently being employed by Belfor Property Restoration. See Exhibit 2 at pp He testified he began River City Solutions to adjust personal property losses and obtained this assignment from his affiliation with Colonial Services. Id. at pp Mr. Kiser explained that he began his adjustment of the claim with the understanding that no depreciation was to be taken for the items. Id. at p. 32. However, upon Plaintiff s request, Mr. Kiser did perform an arbitrary depreciation of certain portions of the personal property. Id. at p. 33. Mr. Kiser testified he utilized an unknown National Depreciation Guide, which he obtained from performing a Google internet search, to depreciate certain items in his report. Id. at p. 47. Mr. Kiser further testified he had little experience depreciating items prior to this case. Id. at p. 48. Despite his inexperience and lack of any reliable methodology to base his findings, Mr. Kiser purportedly arrived at a figure of $431, as being the depreciated value of the homeowners personal property damaged and/or destroyed as a result of this incident. Id. at pp Many, if not all, of the damages items included in this sum are without any reliable basis. Nor is Mr. Kiser qualified to offer an opinion of the estimated value of these items. For example, some of the items adjusted in this incident were antiques and artwork that were either restored or replaced. Mr. Kiser testified he does not have any experience in evaluating antiques. Id. at p. 36. Nor does he have any experience in evaluating artwork. Id. at p. 39. Further, there was no valuation done of the artwork. Id. at p. 39. None of the artwork was ever appraised. See Exhibit 4 at p In particular, the following list of damage items are included in Mr. Kiser s $431, damages calculation, which are wholly unsupported by qualified expert opinion or reliable methodology to support their claimed value: 4

9 Case 3:10-cv JDM Document 60-2 Filed 03/25/13 Page 5 of 13 PageID #: Exhibit 1 to Mr. Kiser s report addresses costs to inventory, ship and restore and/or replace textiles and clothing totaling $42, However, Mr. Kiser s report fails to provide an accurate accounting of their fair market value. 2. Exhibit 2 to Mr. Kiser s report addresses costs to inventory, ship and restore and/or replace various textiles totaling $8, Mr. Kiser s report again fails to provide an accurate accounting of their fair market value. 3. Exhibit 3 to Mr. Kiser s report addresses initial costs to inventory, ship and restore and/or replace textiles and clothes totaling $49, Mr. Kiser s report again fails to provide an accurate accounting of their fair market value. 4. Exhibit 4 to Mr. Kiser s report addresses costs to inventory, ship and restore and/or replace various artwork and antiques totaling $135, Mr. Kiser s report again fails to provide an accurate accounting of their fair market value. There are also no appraisals provided to determine the actual worth, if any. 5. Exhibit 5 to Mr. Kiser s report addresses costs to inventory, ship and restore and/or replace various home electronics totaling $58, Again, an accurate accounting of their fair market value is not provided. Nor appraisals to determine their actual worth, if any. 6. Exhibit 6 to Mr. Kiser s report addresses costs to inventory, ship and restore and/or replace various furniture totaling $30, The depreciation calculation made by Mr. Kiser to reach this sum is taken from the unidentified National Depreciation Guide, which he obtained from performing a Google internet search. 7. Exhibit 7 to Mr. Kiser s report addresses costs to inventory, ship and restore and/or replace various furniture/rugs totaling $17, Again, the depreciation calculation is 5

10 Case 3:10-cv JDM Document 60-2 Filed 03/25/13 Page 6 of 13 PageID #: 1812 made by Mr. Kiser according to the National Depreciation Guide, which he obtained from performing a Google internet search. 8. Exhibit 8 to Mr. Kiser s report addresses costs to inventory, ship and restore various artwork totaling $13,895.68, wholly without regard to the actual value of the artwork prior to the decision to restore it. 9. Exhibit 9 to Mr. Kiser s report addresses costs to inventory, ship and restore and/or replace various furniture/rugs/clothing totaling $9, Again, with a depreciation taken according to the National Depreciation Guide obtained by Mr. Kiser from Google. 10. Exhibit 10 to Mr. Kiser s report addresses costs to inventory, ship and restore and/or replace various furniture/rugs/clothing totaling $ Again, with a depreciation taken according to the National Depreciation Guide obtained by Mr. Kiser from Google. 11. Exhibit 11 to Mr. Kiser s report addresses costs to inventory, ship and restore and/or replace various furniture/rugs/clothing totaling $41, Again, with a depreciation taken according to the National Depreciation Guide obtained by Mr. Kiser from Google. 12. Exhibit 12 to Mr. Kiser s report addresses costs to inventory, ship and restore and/or replace various furniture/rugs/clothing sent directly to The Cincinnati Insurance Company $1, Again, with a depreciation taken according to the National Depreciation Guide obtained by Mr. Kiser from Google. The Cincinnati Insurance Company insured a risk where they were obligated to replace damaged items for its insured, under the terms of its Policy. Under prevailing Kentucky law, this is not the legal measure of damages in the subrogation case at bar. As a matter of law, the maximum recoverable damages for loss of personal property is the fair value at the time of the incident. Plaintiff has failed to present any reliable, credible and qualified expert opinion 6

11 Case 3:10-cv JDM Document 60-2 Filed 03/25/13 Page 7 of 13 PageID #: 1813 regarding the actual fair market value of the personal property items identified that were allegedly damaged and replaced by Plaintiff to be allowed to recover as subrogee. Therefore, Plaintiff should be precluded from offering purely speculative evidence of $431, in personal property damages. II. STATEMENT OF THE LAW A. Kentucky Law Governing Measure Of Damages For Personal Property And Subrogation. A federal court sitting in diversity must apply the substantive law of the forum State, absent a federal statutory or constitutional directive to the contrary. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); see also, 28 U. S. C Under Kentucky law, the measure of damages for injury to personal property is "the difference between the reasonable market value immediately before and immediately after the injury." Rudd Constr. Equipment Co. v. Clark Equipment Co., 735 F.2d 974, 984 (6th Cir. Ky. 1984). Kentucky law states that the maximum amount of damages a plaintiff can recover for injury to property is equal to the diminution of fair market value. Ellison v. R. & B. Contracting, Inc., 32 S.W.3d 66, 70 (Ky. 2000) ("[a]s a practical matter, therefore, the amount by which the injury to the property diminished its total value operates as an upper limit on any damage recovery."); Caldwell v. Olshan Found. Repair Co., 2007 U.S. Dist. LEXIS 24590, **5-6 (E.D. Ky. Apr. 2, 2007) (citing Ellison, supra.). An award of the cost of repairs to restore the damaged property to substantially its original state is appropriate only when the cost of repairs is less than the decrease in the property's fair market value. Caldwell, 2007 U.S. Dist. LEXIS 24590, at **5-6 (citing Ellison, supra., and Lichtefeld v. Mactec Eng'g & Consulting, No , 2007 U.S. App. LEXIS 6902, 2007 WL (6th Cir. Mar. 21, 2007)). Moreover, [a] subrogee stands in the shoes of its subrogor and has no 7

12 Case 3:10-cv JDM Document 60-2 Filed 03/25/13 Page 8 of 13 PageID #: 1814 greater cause of action than would the subrogor. United States Fid. & Guar. Co. v. Preston, 26 S.W.3d 145, 150 (Ky. 2000) (citing Sharp v. Bannon, Ky., 258 S.W.2d 713 (1953)). B. Federal Rule Of Evidence 702 And Daubert. Under Rule 702 and Daubert, federal courts serve as "gatekeep[ers]" to ensure that "any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). These requirements apply to all "technical" or "other specialized" testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999). The proponent of expert testimony must show by a "preponderance of proof' that the expert meets each of the Daubert requirements. Daubert, 509 U.S. at 592 n.10. First, the proponent of expert testimony must demonstrate that the proffered expert is "qualified by knowledge, skill, experience, training, or education" to offer his opinions. Fed. R. Evid. 702; Burke v. U-Haul Int l, Inc., 2006 U.S. Dist. LEXIS 78231, *10 (W.D. Ky. Oct. 20, 2006). An expert is only permitted to offer testimony within the bounds of his qualifications, not opinions outside of his area of expertise. See Burke, 2006 U.S. Dist. LEXIS 78231, at *10. Second, the proponent of expert testimony must demonstrate that the testimony is relevant to the issues at hand. Rule 702 mandates that the expert testimony must assist the factfinder to understand the evidence in the case or to make a factual determination. Id. at *29. Rule 702's relevancy prong "requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility." Daubert, 509 U.S. at 592. Where there is "too great an analytical gap between the data and the opinion proffered," the expert's opinion must be excluded. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). "[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." Id.; see also, Burke, 2006 U.S. Dist. LEXIS at *

13 Case 3:10-cv JDM Document 60-2 Filed 03/25/13 Page 9 of 13 PageID #: 1815 (recognizing that a trial judge does not have to admit expert testimony that is connected to data by ipse dixit). Finally, to meet Daubert's reliability prong, the proponent of expert testimony must show that the testimony is based on "sufficient facts or data," that it is "the product of reliable principles and methods," and that those methods have been "reliably" applied to the "facts of the case." Fed. R. Evid. 702 & advisory committee's note (2000); Daubert, 509 U.S. at In other words, the expert's opinions must be "derived by the scientific method" and "supported by appropriate validation i.e., 'good grounds,' based on what is known." Daubert, 509 U.S. at 590. Under Rule 702 and Daubert, "any step that renders the analysis unreliable under the Daubert factors renders the expert's testimony inadmissible." In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 745 (3d Cir. 1994) (emphasis added). The Daubert Court provided a list of nonexclusive factors that trial courts may rely on when assessing the reliability of expert testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). These factors include: whether the expert s theory has been tested; (2) whether the theory has been the subject of peer review or publication; (3) whether there is a known or potential error rate and the inclusion of standards or control techniques; and (4) whether the theory has been accepted in the scientific community. Id. at 594. Additionally, the Sixth Circuit has recognized the existence of a fifth factor. Smelser v. Norfolk S. Ry. Co., 105 F.3d 299, 303 (6th Cir. 1997). This factor is whether the expert testimony arises out of litigation or whether the theory has been derived independent of litigation. Hayes v. MTD Products, Inc., 518 F. Supp. 2d 898, (W.D. Ky. 2007); see also, Smelser, 105 F.3d at 303. Likewise, expert testimony prepared solely for the purpose of litigation, as opposed to testimony flowing naturally from an expert s line of scientific research 9

14 Case 3:10-cv JDM Document 60-2 Filed 03/25/13 Page 10 of 13 PageID #: 1816 or technical work, should be viewed with some caution. Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 434 (6th Cir. 2007). III. ARGUMENT A. Evidence Related To Plaintiff s Claim, As Subrogee, For Recovery Of Personal Property/Contents Damages Paid To Its Insured Should Be Excluded At Trial Pursuant To Federal Rule Of Evidence 702 And 703. Plaintiff, as subrogee, stands in the shoes of its insured and is not legally entitled to any more damages than the homeowners would have been able to recover if they had brought the claim themselves. The maximum amount of recovery under Kentucky law is the fair market value of the property Plaintiff s insureds allegedly lost. Ellison, 32 S.W.3d at 70; Caldwell, 2007 U.S. Dist. LEXIS 24590, at **5-6. To substantiate its claim for damages, Plaintiff was required to produce evidence of the fair market value of the personal property items damaged and/or destroyed at the time of the subject fire on May 27, Plaintiff cannot simply recover the replacement cost of the property paid for under the Policy. Caldwell, 2007 U.S. Dist. LEXIS 24590, at **5-6 Plaintiff has failed to produce any competent evidence of record to prove the fair market value of the personal property for which Plaintiff allegedly compensated its insured. Therefore, Plaintiff should be precluded from making a claim at trial for recovery of the $431, in damages paid to replace the insureds personal property. Under Rule 702 and Daubert, Plaintiff s expert, Travis Kiser, is not qualified to offer an opinion as to the fair market value of the various personal property damage items listed in his expert report. By his own admission, Mr. Kiser is not experienced with the evaluation of artwork, antiques or depreciating certain assets. See Exhibit 4 at pp. 36, 39. Mr. Kiser was also unaware of the legal measure of damages that Plaintiff would be limited to in the case at bar or the need to account for depreciation of the personal property items claimed. Id. at

15 Case 3:10-cv JDM Document 60-2 Filed 03/25/13 Page 11 of 13 PageID #: 1817 Frankly, Mr. Kiser is no more knowledgeable of the fair market value of the various items of personal property replaced by Plaintiff than a lay person. Nor does Mr. Kiser base his damages calculations in his report on any reliable methodology accepted by other economic experts. Mr. Kiser testified that after the matter proceeded into litigation, he was requested by Plaintiff to account for depreciation of the personal property, and opted to utilize an unidentified, national depreciation guide obtained from a Google internet search. Id. at p. 47. There has been no evidence that the use of this internet depreciation guide is a generally accepted method for depreciating personal property. Hence, in addition to being unqualified, Mr. Kiser s opinions regarding the personal property damage items claimed by Plaintiff lack any reliable basis or methodology to be admitted under Federal Rules of Evidence 702 and 703. Permitting the jury to hear these damages claims, via the testimony of Plaintiff s socalled expert, would be prejudicial to Defendant because it would invite the jury to award a claim for damages that is an excess of what is allowed under Kentucky law. Moreover, whereas Mr. Kiser is entirely unqualified to offer an opinion regarding the depreciation of the various personal property items supposedly damaged or replaced, and failed to utilize any reliable methodology in reaching his calculations, any damages award by the jury would be based purely on speculation and conjecture. Plaintiff s decision to generously adjust its insureds personal property damages claims by paying for the replacement value of allegedly expensive artwork, furniture, clothing and other personal items does not entitle Plaintiff to an automatic right to recovery at trial. Nor should Plaintiff be permitted to merely present a list of damage items through its expert when the actual recoverable fair market value of the items claimed is wholly unsupported. 11

16 Case 3:10-cv JDM Document 60-2 Filed 03/25/13 Page 12 of 13 PageID #: 1818 IV. CONCLUSION Based on the foregoing, Defendant, Omega Flex, Inc., respectfully requests this Court to preclude any evidence of, or reference to personal property and/or contents damages claimed by Plaintiff totaling $431, Respectfully submitted, MARKS, O NEILL, O BRIEN, DOHERTY & KELLY Dated: March 25, 2013 /s/ Dawn Courtney Doherty Dawn Courtney Doherty (PHV) Norman H. Brooks, Jr. (PHV) Daniel R. Bentz (92471) 300 Delaware Avenue, #900 Wilmington, DE (302) Attorneys for Defendant, Omega Flex, Inc. 12

17 Case 3:10-cv JDM Document 60-2 Filed 03/25/13 Page 13 of 13 PageID #: 1819 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY THE CINCINNATI INSURANCE COMPANY : a/s/o Richard Sauer and Leila Davis : CASE NO. 3:10-cv-670-JGH Plaintiff, : vs. : OMEGA FLEX, INC. : Defendant. CERTIFICATE OF SERVICE NORMAN H. BROOKS, JR., ESQUIRE, counsel to the Defendant in the abovecaptioned action, hereby certifies that on March 25, 2013, I electronically filed the attached Motion in Limine to Preclude Evidence of Personal Property/Contents Damages, Memorandum of Law and proposed Order with the Clerk of the Court using the CM/ECF system which will send notification of such filings to all counsel of record who have properly entered and arranged for electronic service. MARKS, O NEILL, O BRIEN, DOHERTY & KELLY, P.C. /s/ Norman H. Brooks, Jr. NORMAN H. BROOKS, JR., ESQUIRE Admitted Pro Hac Vice 13

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