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Bancroft v. Minnesota Life Insurance Co.

United States District Court, W.D. Washington, Seattle

July 18, 2018

COLIN BANCROFT, Plaintiff,
v.
MINNESOTA LIFE INSURANCE COMPANY, Defendant.

          ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

          JAMES L. ROBART, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before the court are (1) Plaintiff Colin Bancroft's motion for summary judgment of liability on all claims against Defendant Minnesota Life Insurance Company (“Minnesota Life”) (Plf. 2d MSJ (Dkt. # 29) at 2 (“The undisputed facts in this matter lead to the conclusion that Minnesota Life is liable on all claims made by [Mr.] Bancroft.”); and (2) Minnesota Life's cross motion for summary judgment of no liability on all of Mr. Bancroft's claims (Def. MSJ (Dkt. # 35)). The court has considered the motions, the submissions filed in support of and in opposition to both motions, the relevant portions of the record, and the applicable law. In addition, on June 12, 2018, the court heard counsel's oral argument. Being fully advised, the court DENEIS Mr. Bancroft's motion for summary judgment and GRANTS Minnesota Life's cross motion as more fully described herein.

         II. BACKGROUND

         A. The Accelerated Benefits Policy Rider

         Mr. Bancroft is an employee of King County. (10/25/17 Bancroft Decl. (Dkt. # 8) ¶ 2.) Minnesota Life issued a Group Term Life Insurance Policy (“the Policy”) to King County. (Compl. (Dkt. # 1-1) ¶ 4; Ans. (Dkt. # 4) ¶ 4.) As a part of his benefits package, Mr. Bancroft is covered under the Policy. (Compl. ¶ 6; Ans. ¶ 6.) The Policy's Basic Life Insurance provision pays one year's salary upon acceptance of a claim. (Id.) Mr. Bancroft also paid for Supplemental Life Insurance, which provides for an additional four years of salary as a death benefit. (Id.)

         Included in the Policy is an Accelerated Benefits Policy Rider (“the ABPR”), which provides “for the accelerated payment of . . . the full . . . amount of an insured's death benefit . . . [i]f the insured has a terminal condition as defined in the [ABPR].” (11/06/17 Marisseau Decl. (Dkt. # 16) ¶ 4, Ex. A at ¶ 0037.) The ABPR defines a “terminal condition” as “a condition caused by sickness or accident which directly results in a life expectancy of twenty-four months or less.” (Id.) The insured must request the accelerated payment and give Minnesota Life “evidence that satisfies [Minnesota Life] that the insured's life expectancy, because of sickness or accident, is twenty-four months or less.” (Id.) The evidence that the insured provides “must include certification by a physician.” (Id.) The ABPR also states:

[Minnesota Life] reserve[s] the right to ask for independent medical verification of a terminal condition. In the case of a difference of opinion, the insured has the right to mediation or binding arbitration conducted by a disinterested third party who has no ongoing relationship with either party.

(Id.) Finally, Minnesota Life “retain[s] the right to have the insured medically examined at [its] own expense to verify the insured's medical condition.”[1] (Id.)

         B. Mr. Bancroft's Diagnosis with Stage IV Mantle Cell Lymphoma

         Dr. Sherry Hu examined Mr. Bancroft on January 25, 2017. (Hu Decl. (Dkt. # 10) ¶ 5.) On January 25, 2017, Dr. Hu performed a bone marrow biopsy on Mr. Bancroft and ordered a PET/CT scan. (Id.) On January 30, 2017, Mr. Bancroft underwent a PET/CT scan. (Id.) On February 1, 2017, Mr. Bancroft returned to the clinic, and Dr. Hu informed him that he had high risk stage IV mantle cell lymphoma and recommended immediate treatment. (Id. ¶ 6; see also Plf. 1st MSJ (Dkt. # 7) at 4 (“On February 1, 2017, [Mr.] Bancroft returned . . . for the results of the biopsy and PET/CT. . . . At that time, Dr. Hu diagnosed him with Stage IV Mantle Cell Lymphoma and recommended immediate treatment.”); see also 10/25/17 Bancroft Decl. ¶ 6; Compl. ¶ 16.)

         On February 6, 2017, Mr. Bancroft came under the care of Dr. Andrew Cowan. (10/25/17 Bancroft Decl. ¶¶ 6-7.) Dr. Cowan confirmed Dr. Hu's diagnosis. (10/25/17 Cowan Decl. (Dkt. # 9) ¶ 5.) Mr. Bancroft chose to see Dr. Cowan because he is an // oncologist with expertise in mantle cell lymphoma. (10/25/17 Bancroft Decl. ¶ 6.) Dr. Cowan prescribed a treatment regime, and Mr. Bancroft started chemotherapy on February 17, 2017. (Id. ¶ 7.)

         C. Mr. Bancroft's Claim to Minnesota Life

         After his diagnosis, Mr. Bancroft completed a Notice of Claim for Accelerated Benefit, a form provided by Minnesota Life. (Id. ¶ 11, Ex. C.) Mr. Bancroft submitted this form to Minnesota Life on or about May 16, 2017. (Id.) He requested payment of “100%” of the accelerated benefit at that time. (Id.) On May 26, 2017, Dr. Cowan signed an Attending Physician's Statement that was provided to Minnesota Life in support of Mr. Bancroft's claim. (See id.)

         In the Attending Physician's Statement, Dr. Cowan states that Mr. Bancroft was “diagnosed w/stage IV mantel cell lymphoma high risk leukemia presentation w/elevated LDH.” (Id. at 5.) He states that Mr. Bancroft was undergoing VR-CAP treatment, [2]indicated that Mr. Bancroft's progress was “[i]mproved, ” and noted that he expected “[i]mprovement” as a “fundamental or marked change” in Mr. Bancroft's condition.[3] (Id. at 5-6.)

         Dr. Cowan indicated on the form that Mr. Bancroft's condition was terminal. (Id. at 6.) He states that Mr. Bancroft's Mantel Cell Lymphoma International prognostic index (“MIPI”) score is 7.2, [4] but Dr. Cowan does not base his prognosis for Mr. Bancroft on this score. (See Cowan Dep. at 56:24-75:5.) Instead, based on a 2007 “publication in Cancer (PMID 17477385), ” Dr. Cowan opined that “the median survival for [Mr. Bancroft] would be 24 months.” (10/25/17 Bancroft Decl. ¶ 11, Ex. C at 6 (italics added).) The paper on which Dr. Cowan relied was published before the MIPI score was developed in 2008. (11/13/17 Shapland Decl. ¶ 18; see Cowan Dep. at 56:24-57:4 (“Q: . . . So Exhibit 13 is the stuff that you're referencing as, well, the only medical literature that you're citing in support of your prognosis? A: Yeah, uh-huh. Q: And that's a 2007 study? A: That's correct.”); see id., Ex. 13.) Dr. Cowan later testified that his “prognosis [also] included [his] overall evaluation of Mr. Bancroft at that time.” (10/25/17 Cowan Decl. ¶ 9.) Dr. Cowan provided his contact information on the form, as well as contact information for Dr. Hu.[5] (10/25/17 Bancroft Decl. ¶ 11, Ex. C at 6.)

         During his deposition, Dr. Cowan conceded that the 2007 Cancer publication is the only medical literature he relied upon to support his 24-month life expectancy estimate. (Cowan Dep. at 56:24-57:5.) He also acknowledged that the 2007 study “could be” outdated and that at least one of the treatments that Mr. Bancroft received was not available during the applicable time period of the 2007 study. (Id. at 58:3-25; 59:8-14.) Dr. Cowan testified that the reason, in part, that he relied on the 2007 study rather than Mr. Bancroft's MIPI score was due to Mr. Bancroft's high white blood cell count and LDH. (Id. at 55:13-56:4.) Yet, Dr. Cowan admitted that these factors are accounted for as part of the MIPI score. (Id. at 56:10-12.) Dr. Cowan also stated that chromosomal changes, such as the deletion of 17p (long arm chromosome 17), was a factor that put Mr. Bancroft at high risk. (Id. at 55:13-56:4; 10/25/17 Cowan Decl. ¶ 6.) Yet, Dr. Cowan also admitted in his deposition that a 2011 publication in the Journal of Leukemia “certainly . . . call[s] into question whether 17p deletions are important.” (Cowan Dep. at 65:11-67:4; see also Grinblatt Decl. ¶ 7.) Dr. Cowan acknowledged that his 24 month estimate for Mr. Bancroft life expectancy was a deviation from the MIPI score prognosis, but he stated that life expectancy estimation is “not a perfect science, ” and he tries “to be more realistic and maybe a bit paranoid and pessimistic rather than overly optimistic.” (Cowan Dep. at 61:3-18.)

         Mr. Bancroft does not recall Dr. Cowan advising him that his life expectancy was 24 months or less. (5/7/18 Marisseau Decl. ¶ 5, Ex. 1 (“Bancroft Dep.”) at 87:8-88:16.) Rather, Mr. Bancroft repeatedly described Dr. Cowan as “very encouraging” or “very positive.” (Id. at 44:3-5; 46:1-5.) Indeed, in contrast to the 24-month median survival prognosis that Dr. Cowan provided to Minnesota Life, Dr. Cowan advised Mr. Bancroft in February 2017 that “the median overall survival [for] mantle cell lymphoma is about 5-7 years . . . but with new intensive treatments . . . many patients are living much longer.” (Cowan Dep. at 18:19-19:5.) Mr. Bancroft testified that he “[a]bsolutely” expected Dr. Cowan to provide him with accurate information concerning overall median survival so that he could make informed decisions about treatment options (Bancroft Dep. at 45:16-21), and Dr. Cowan testified that his statement to Mr. Bancroft was accurate at the time he gave it. (Cowan Dep. at 19:11-14).

         D. Minnesota Life's Initial Review of Mr. Bancroft's Claim

         Upon receipt of Mr. Bancroft's claim, Minnesota Life forwarded the claim to its medical reviewer, Dr. Maryam Shapland, for an evaluation of Mr. Bancroft's prognosis. (See 11/13/17 Shapland Decl. ¶ 7.) Dr. Shapland limited her review to the notes of Minnesota Life's claims examiner, Ms. Sarah Taylor, and Dr. Cowan's Attending Physician's Statement. (4/19/18 Crowe Decl. ¶ 3 (attaching excerpts of the March 28, 2018, deposition of Dr. Shapland) (“Shapland Dep.”) at 31:13-20.) She also reviewed “Up to Date, ” a resource that provides information and current scientific articles on various medical conditions, including mantle cell lymphoma. (Id. at 52:9-55:6; 5/7/18 Shapland Decl. (Dkt. # 38) ¶ 2.) The Up to Date article that Dr. Shapland reviewed further referred to an article in a publication known as Blood. (Shapland Dep. at 52:9-55:6.) The Blood article consists of the first published information on the MIPI score. (Id.; Cowan Dep. at 13:9-12.) Dr. Shapland did not read the Blood article, but relied instead on the information Up to Date conveyed about that article. (Shapland Dep. at 52:9-55:6.)

         The MIPI score is a “well-recognized evidence based prognostic index for patients with mantle cell lymphoma.” (11/13/17 Shapland Decl. ¶ 8.) A physician can determine an MIPI score for any individual diagnosed with mantle cell lymphoma based on four independent factors: age, ECOG performance status, lactate dehydrogenase (“LDH”) (which is a cell enzyme), and leukocyte count (which is also known as white blood cell count). (Id. ¶ 9; Grinblatt Decl. (Dkt. # 37) ¶ 5; see also Cowan Dep. at 13:13-18.) A biologic MIPI score includes those same four factors but also includes analysis of Ki-67 positive cells, a marker for proliferation or how fast a tumor is growing that has independent prognostic value when considered with the MIPI score. (11/13/17 Shapland Decl. ¶ 9; Grinblatt Decl. ¶ 6; Cowan Dep. at 16:2-19.) The MIPI, including the biologic MIPI, takes into account all the characteristics of the disease at issue that have been confirmed to have a statistically significant effect on prognosis. (Grinblatt Decl. ¶ 6; Cowan Dep. at 16:2-19.)

         An MIPI score from 6-12 is considered a high-risk MIPI score. (11/13/17 Shapland Decl. ¶ 10.) Mr. Bancroft's attending physician, Dr. Cowan, scored Mr. Bancroft at 7.2. (Id.; 10/25/17 Bancroft Decl. ¶ 11, Ex. C at 5.) The 2008 Blood article indicated that patients with a high-risk MIPI score had a median overall survival of 29 months and patients with a high-risk biologic MIPI score had a median overall survival of 37 months.[6] (11/13/17 Shapland Decl. ¶ 11.) Thus, based on his score, the high-risk biologic MIPI predicted a median overall survival of 37 months for individuals such as Mr. Bancroft. (See id.; Grinblatt Decl. ¶ 6; see also 10/25/17 Cowan Decl. ¶ 13 (“The letter provided by Minnesota Life also refers to a life expectancy of 37 months being the ‘median survival' expected of Mr. Bancroft. I presume that this was taken from . . . Blood 2008 - using the biologic MIPI, which is not as widely used as the MIPI score.”) (italics added).) Dr. Shapland also considered Dr. Cowan's statement on the Attending Physician's Statement that Mr. Bancroft was responding to treatment, his notation that Mr. Bancroft's condition was “[i]mproved, ” and his expectation that Mr. Bancroft will continue to experience “fundamental or marked” “[i]mprovement.” (See 10/25/17 Bancroft Decl. ¶ 11, Ex. C at 6.) Dr. Shapland did not ask for any additional medical records or information from Dr. Cowan, although she recognized that she had the ability to do so. (Shapland Dep. at 66:10-67:4.)

         Based on her review of Dr. Cowan's Attending Physician's Statement and the medical information in Up to Date, Dr. Shapland opined that she was “unable to determine with greater than 90% certainty that [Mr. Bancroft's] life expectancy is 24 months or less.” (4/19/18 Crowe Decl. ¶ 3, Ex. 22 (attaching claim journal entries from Minnesota Life for Mr. Bancroft's claim).) As Minnesota Life explained:

The 90% confidence in a life expectancy of 24 months or less is a standard applied at Minnesota Life. It is based on the policy provision that provides that Minnesota Life “must be given evidence that satisfies us that the insured's life expectancy, because of accident or sickness, is twenty four months or less.”
As noted, Dr. Shapland was orally advised of Minnesota Life's policy that she should apply a 90% level of confidence in determining the level of satisfactory evidence to determine life expectancy, rather than 100%.

(4/19/18 Crowe Decl. ¶ 3, Ex. 32 at 7, 9.) Nevertheless, Dr. Shapland testified that whether she applied a “more likely than not” or a “90% certainty” standard to the evidence relating to Mr. Bancroft's life expectancy, her opinion would be the same. (5/7/18 Shapland Decl. ¶ 10.) She also testified that she believes both her opinion and Dr. Cowan's prognosis are reasonable. (Shapland Dep. at 71:14-17 (“I feel that my opinion was reasonable, and [Dr. Cowan's] opinion was reasonable. . . . There's no exact way to determine exact life expectancy.”).)

         Dr. Cowan testified that he put Mr. Bancroft's MIPI score into his medical notes because “it conveys information about risk and prognosis.” (Cowan Dep. at 13:2.) He agreed that the MIPI prognostic index was first validated in the 2008 Blood article and then confirmed again in a later 2014 study. (Id. at 13:3-12; 15:1-16:1, Ex. 3.) Although Dr. Cowan believed that his 24-month prognosis for Mr. Bancroft in the Attending Physician's Statement was reasonable, he agreed that either the 29-month non-biologic MIPI or the 37-month biologic MIPI was a reasonable estimate of Mr. Bancroft's life expectancy at the time.[7]

         Minnesota Life retained an expert witness, Dr. David Grinblatt, M.D., who specializes in blood cancers.[8] Dr. Grinblatt agrees with Dr. Shapland that the median overall survival rate for Mr. Bancroft was 37 months at the time of his claim based on the standard biologic MIPI. (Grinblatt Decl. ¶ 6.) Further, he opines:

The biologic MIPI, when available, is the standard prognostic metric for mantle cell lymphoma. The MIPI, including the biologic MIPI, takes into account all of the characteristics of this disease which have been validated to have a statistically significant effect on prognosis. It is the fairest, most objective measure for determining prognosis for mantle cell lymphoma. The MIPI, including biologic MIPI, remains the best and only validated method to assess survival in patients with Mantle Cell Lymphoma.

(Id.) He also notes that “it was reasonable to determine that Mr. Bancroft had a median life expectancy of greater than 24 months as of May 2017, based on his February diagnosis.” (Id. ¶ 10.)

         E. Minnesota Life's Initial Response to Mr. Bancroft's Claim.

         After receiving Dr. Shapland's opinion, Minnesota Life's claims examiner, Ms. Taylor, sent a letter dated June 8, 2017, to Mr. Bancroft containing the following statement:

With the information we received from your doctor, we are unable to determine, at this time, if your life expectancy will be less than 24 months, which the policy requires. Your doctor did indicate on the claim form that your condition was terminal and provided a life expectancy of 24 months. Per medical literature, median survival for your diagnosis is 37 months. You were diagnosed in January 2017. You are currently undergoing treatment and your physician states that your condition has improved and marked change (improvement) is continued to be expected. We understand this a difficult and sensitive issue. Please be assured this is not a permanent denial of benefits. At this time, however, the medical information does not support a life expectancy of 24 months or less, which the policy requires. If you have new information that supports a life expectancy of 24 months or less, please submit it for our review and we will gladly reassess your claim for the Accelerated Benefit.

(4/19/18 Crowe Decl. ¶ 3, Ex. 24; 10/25/17 Bancroft Decl. ¶ 16, Ex. D.)[9] Ms. Taylor also invited Mr. Bancroft to ask questions and to call her on a toll-free direct dial number. (Id.) Mr. Bancroft did not contact Minnesota Life; nor did he submit any additional information related to his claim prior to filing suit. (See Bancroft Dep. at 95:1-23.)

         In the letter, Minnesota Life did not refer to Dr. Shapland's review of Mr. Bancroft's claim or her use of the “90% certainty” standard for life expectancy in evaluating Mr. Bancroft's medical information. (See 4/19/18 Crowe Decl. ¶ 3, Ex. 24; 10/25/17 Bancroft Decl. ¶ 16, Ex. D.) The claims examiner who handled Mr. Bancroft's claim did not seek an independent medical review prior to sending the letter. (4/18/18 Crowe Decl. ¶ 3 (attaching excerpts of the March 28, 2018 deposition of Sarah Taylor) (“Taylor Dep.”) at 22:24-23:1 (“Q: Have you ever sought independent medical verification of any claim you've processed? A: Nope.”).) Indeed, she testified that she does not know what such a review entails. (Id. at 22:21-23 (Q: . . . You don't know what independent medical review entails? A: No.”).)

         F. Mr. Bancroft's Suit

         Although the ABPR provides that “[i]n the case of a difference of opinion, the insured has the right to mediation or binding arbitration” (10/25/17 Bancroft Decl. ¶ 16, Ex. A at 12), Mr. Bancroft demanded neither after receiving Minnesota Life's June 8, 2017, letter.[10] Instead, Mr. Bancroft engaged counsel, and on June 22, 2017, he filed and served a 20-day notification sheet under the Insurance Fair Conduct Act (“IFCA”), RCW 48.30.015. (See 10/25/17 Bancroft Decl. ¶ 16, Ex. E; see also 4/19/18 Crowe Decl ¶ 2.) Minnesota Life admits that it received Mr. Bancroft's 20-day IFCA notice (Compl. ¶ 44; Ans. ¶ 44) but did not respond within the 20-day notice period (4/19/18 Crowe Decl. ¶ 2).

         Mr. Bancroft filed suit against Minnesota Life in King County Superior Court on August 2, 2017. (See Compl.) He alleges claims for (1) breach of contract (id. ¶¶ 46-48), (2) breach of the covenant of good faith and fair dealing (id. ¶¶ 49-51), (3) negligence (id. ¶¶ 52-54), (4) insurance bad faith (id. ¶¶ 55-58), (5) breach of Washington's Consumer Protection Act (“CPA”), RCW ch. 19.86 (id. ¶¶ 59-63), (6) breach of Washington's IFCA (id. ¶¶ 64-67), and (7) declaratory relief (id. ¶¶ 68-71). Minnesota Life removed the action to this court on August 30, 2017. (Notice of Rem. (Dkt. # 1).)

         On October 25, 2017, Mr. Bancroft filed an early motion for summary judgment. (Plf. 1st MSJ (Dkt. # 7).) Along with his motion, Mr. Bancroft filed a declaration from Dr. Cowan dated October 19, 2017. (See 10/25/17 Cowan Decl.) Pursuant to Federal Rule of Civil Procedure 56(d), the court denied the motion without prejudice to refiling, if appropriate, after Minnesota Life had an opportunity obtain discovery. (2/21/18 Order (Dkt. # 26) at 12.)

         G. Dr. Shapland's Second Review of Mr. Bancroft's Claim

         After receiving Dr. Cowan's October 19, 2017, declaration, Dr. Shapland reevaluated Mr. Bancroft's life expectancy as of November 1, 2017. (5/7/18 Shapland Decl. ¶¶ 8-9.) She reviewed additional medical literature, which she concluded supported her original opinion. (Id. ¶ 8; 4/19/18 Crowe Decl. ¶ 3, Ex. 22 at 1.) She noted that in his declaration, Dr. Cowan “acknowledged that the median survival using the biologic MIPI with a high risk MIPI score was 37 months and that using the non-biologic MIPI with a high risk MIPI score provided a median survival of 29 months ‘for individuals with similar factors as Mr. Bancroft.'” (5/7/18 Shapland Decl. ¶ 8 (quoting 10/25/17 Cowan Decl. ¶ 13).) Dr. Shapland interpreted Dr. Cowan's statement to mean that he was confirming that Mr. Bancroft shared similarities with individuals who had a median survival of 29 months using the non-biologic MIPI. (See id.) Dr. Shapland also interpreted Dr. Cowan's declaration as suggesting that Mr. Bancroft had experienced a negative reaction to treatment. (Id. ¶ 9.) Mr. Bancroft also testified in October 2017 that he had experienced “severe reactions” to some of his treatments and that Dr. Cowan had needed to adjust his treatments accordingly. (See 10/25/17 Bancroft Decl. ¶ 8.) Due to the passage of nearly five additional months since her original opinion in early June 2017, her acceptance of Dr. Cowan's October 2017 statement “that individuals with similar factors as Mr. Bancroft” had a (non-biologic) MIPI prognosis of 29 months, her inference that the “marked” improvement anticipated by Dr. Cowan had not occurred, and the fact that Mr. Bancroft may have taken a turn for the worse or there may have been negative developments in Mr. Bancroft's treatment, Dr. Bancroft used the 29-month median survival (non-biologic MIPI) and determined based on a 90% certainty standard that as of November 1, 2017, Mr. Bancroft's life expectancy was 24 months or less. (5/7/18 Shapland Decl. ¶ 9; Shapland Dep. at 108:3-122:6.) Minnesota Life paid Mr. Bancroft $384, 000.00 the next day. (Plf. 2d MSJ at 12; Def. MSJ at 10.)

         III. ANALYSIS

         On April 19, 2018, Mr. Bancroft filed a second motion for summary judgment on liability for his claims of (1) breach of contract; (2) bad faith; (3) breach of Washington's IFCA; and (4) breach of Washington's CPA. (See generally Plf. 2d MSJ.) On May 7, 2018, Minnesota Life filed its response to Mr. Bancroft's motion and a cross motion for summary judgment in its favor. (See generally Def MSJ.) The court considers both motions after resolving an evidentiary issue.

         A. Admissibility of Don Kelley's Expert Testimony

         The court first addresses a preliminary issue concerning the admissibility of certain evidence. In its reply memorandum, Minnesota Life objects to the admissibility of Mr. Don Kelley's opinions and testimony. (Def. Reply (Dkt. # 49) at 5-6.) Mr. Kelley is Mr. Bancroft's expert witness on insurance issues. (See Kelley Decl. (Dkt. # 48) ¶ 2, Ex. J (attaching Mr. Kelley's expert witness report).) In response to Minnesota Life's objection, Mr. Bancroft filed a surreply arguing that Minnesota Life's request to exclude Mr. Kelley's testimony “was improperly presented in reply and otherwise in violation of the local rules.” (Plf. Surreply (Dkt. # 51) at 1.) Mr. Bancroft maintains that he had an inadequate opportunity to respond to Minnesota Life's objection. (See id.)

         Before considering the admissibility of Mr. Kelley's testimony, the court first addresses Mr. Bancroft's procedural objection. Local Rule LCR 7(d)(4) states that “[e]xcept upon a showing of good cause, any motion in limine shall be filed as one motion.” Local Rules W.D. Wash. LCR 7(d)(4). Mr. Bancroft apparently objects that Minnesota Life did not file its objection to Mr. Kelley's testimony in a separate omnibus motion containing all of its motions in limine as required by this local rule. (See Plf. Surreply at 1.) However, Local Rule LCR 7 begins with the following proviso: “Unless otherwise provided by rule or court order, motions shall be noted for consideration as follows.” Id., LCR 7. Thus, the directive in Local Rule 7(d)(4) that all motions in limine shall be filed as one motion, is cabined by the provisio-“[u]nless otherwise provided by . . . court order.” See Id. Here, the court expressly separated motions objecting to expert witness testimony from all other motions in limine in its scheduling order. (See Sched. Order (Dkt. # 20) at 1.) The court's scheduling order requires parties to file all dispositive motions and motions challenging expert witness testimony by July 11, 2018, but all other motions in limine by August 28, 2018. (Id.) Thus, although it was not filed as a separate motion, Minnesota Life's June 1, 2018, objection to Mr. Kelley's testimony was timely and not improperly segregated from Minnesota Life's other motions in limine.

         Mr. Bancroft also objects that Minnesota Life raised its challenge to Mr. Kelley's testimony for the first time in its reply memorandum. (Plf. Surreply at 1.) Mr. Bancroft, however, did not rely upon Mr. Kelley's testimony until his third memorandum addressing the parties' cross motions. (See Plf. Resp. (Dkt. # 46) at 4, 11, 17 n.15, 24.) Thus, Minnesota Life's first opportunity to address the admissibility of Mr. Kelley's expert opinions was in its reply memorandum. (See Def. Reply at 5-6).[11] “A trial court can only consider admissible evidence in ruling on a motion for summary judgment.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). ...


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