Just when you think you’ve heard all, along comes an argument that a new trial should be granted because a trial court judge improperly used hand gestures during jury instructions to explain a point.
In the case of Antonio v. Progressive Insurance Co., No. 19-1074 (3d Cir. Jan. 8, 2020 Fuentes, J., Scirica, J., Shwartz, J.), the Third Circuit Court of Appeals reviewed various evidentiary rulings by a lower court judge in a post-verdict appeal after a jury entered a verdict in favor of the carrier in a UIM bad faith case.
Of note, the Third Circuit Court of Appeals agreed that there was no abuse of discretion by the trial court judge in barring the Plaintiff’s expert testimony. The Plaintiff wanted her expert to testify for the very limited purpose of establishing a range of value for her underlying UIM claim.
The court noted that this analysis involved the expert looking at other cases not before the court in this trial. The trial court had ruled that “what other cases have paid is not relevant to this case [and] what the value of this case is [and] the jury will be instructed to use their common sense in compensating [the insured] should be prevail.”
The court of appeals found no abuse in the trial court’s discretion in finding that the proposed expert testimony would not aid the jury in the case at hand.
The Third Circuit Court of Appeals also upheld the trial court’s ruling that precluded the Plaintiff from introducing into evidence in the bad faith claim a medical report that addressed the extent of the Plaintiff’s alleged injuries and damages, where that report was never provided to the carrier during the underlying claims process.
The court found that such evidence had no relevance to the issue of whether the carrier acted in bad faith as they had not been provided with any opportunity to include that information in their underlying investigation and evaluation.
The appellate court also rejected the Plaintiff’s challenge to the jury instructions. The Plaintiff was complaining that she was entitled to a new trial because the judge had used “hand gestures demonstrating [the Plaintiff’s] burden in the ‘clear and convincing’ standard as a point mid-way between proof by preponderance of the evidence and proof beyond a reasonable doubt.” The court found no error here that would merit the relief requested by the Plaintiff in this regard.
Anyone wishing to review a copy of this decision may click this LINK.
I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris for bringing this decision to my attention. Please be sure to check out Attorney Applebaum’s excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog.