United States District Court, W.D. Washington, Seattle
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
L. ROBART, UNITED STATES DISTRICT JUDGE
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.
The Accelerated Benefits Policy Rider
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
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
(Id.) Finally, Minnesota Life “retain[s] the
right to have the insured medically examined at [its] own
expense to verify the insured's medical
Mr. Bancroft's Diagnosis with Stage IV Mantle Cell
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.)
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.)
Mr. Bancroft's Claim to Minnesota Life
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.)
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, 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. (Id. at 5-6.)
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,  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. (10/25/17 Bancroft Decl. ¶
11, Ex. C at 6.)
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.)
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
Minnesota Life's Initial Review of Mr. Bancroft's
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.)
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.)
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. (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.)
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
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
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
Life retained an expert witness, Dr. David Grinblatt, M.D.,
who specializes in blood cancers. 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,
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.)
Minnesota Life's Initial Response to Mr. Bancroft's
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.) 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.
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?
Mr. Bancroft's Suit
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. 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. ¶
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).)
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.)
Dr. Shapland's Second Review of Mr. Bancroft's
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.)
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.
Admissibility of Don Kelley's Expert Testimony
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.)
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.
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). “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). ...