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In re RFC and ResCap Liquidating Trust Action

United States District Court, D. Minnesota

June 12, 2019

In Re RFC and ResCap Liquidating Trust Action
v.
Home Loan Center, Inc., No. 14-cv-1716 (SRN/HB) This document relates to ResCap Liquidating Trust

          OMNIBUS ORDER RE: RULE 50(a) JMOL MOTIONS

          SUSAN RICHARD NELSON, UNITED STATES DISTRICT JUDGE

         From October 15 to November 7, 2018, the parties tried this highly complex contractual indemnification case to a jury.[1] The jury heard the testimony of 29 witnesses (some live, others videotaped), including seven experts, and received over 75 exhibits; most of this evidence was introduced by Plaintiff, the ResCap Liquidating Trust (hereinafter “ResCap”). The Court entertained a multitude of oral arguments from counsel outside the presence of the jury, primarily concerning evidentiary disputes, and issued numerous written and oral decisions resolving those disputes. See, e.g., In re ResCap, 2018 WL 5257641 (D. Minn. Oct. 22, 2018) (addressing “sole responsibility” causation argument and related evidence).[2] Ultimately, following approximately two-and-a-half hours of deliberation, the jury rendered a $28.7 million verdict in favor of ResCap.

         Following the presentation of evidence, but before closing arguments, both parties also moved for judgment as a matter of law on a number of issues. See Fed. R. Civ. P. 50(a). The Court heard argument on these motions, and received briefing from both sides.[3]

         Specifically, Defendant Home Loan Center (hereinafter “HLC”) moved for JMOL as to ResCap's “failure to prove a non-speculative allocation of the MBIA and FGIC settlements.” (See HLC JMOL Br. [Doc. No. 4686]; ResCap Opp. Br. [Doc. No. 4699]; Trial Tr. at 3330-49.)[4]

         For its part, ResCap moved for JMOL as to (1) “the reasonableness and good faith of RFC's bankruptcy settlements” (see ResCap Reasonableness & Servicing Br. (“R&S Br.”) [Doc. No. 4673] at 1-14; HLC 1st Opp. Br. [Doc. No. 4675] at 3-26; Trial Tr. at 2912-43, 2947-59); (2) “the allowance and allocation of servicing claims” (see ResCap R&S Br. at 14-19; HLC 1st Opp. Br. at 29-33; Trial Tr. at 2925-27, 2943-46); (3) “causation” (see ResCap Causation Br. [Doc. No. 4674]; HLC 1st Opp. Br. at 26-29; Trial Tr. at 2889-2912); (4) the applicability of “the Client Guide [to] HLC's at-issue loans” (see ResCap Client Guide Br. [Doc. No. 4689]; HLC 2d Opp. Br. [Doc. No. 4687] at 3-36, 41-43; Trial Tr. at 3264-74, 3289-3313, 3324-30); (5) the relationship of the Assetwise Direct Criteria Agreement to the Client Guide (see ResCap Assetwise Br. [Doc. No. 4690]; HLC 2d Opp. Br. at 36-41; Trial Tr. at 3280-86, 3313-17); and (6) “HLC's affirmative defense of equitable estoppel (and waiver)” (see ResCap Estoppel Br. [Doc. No. 4691]; HLC 2d Opp. Br. at 44-52; Trial Tr. at 3274-80, 3317-24).

         After carefully considering the parties' arguments, the Court ruled from the bench, in part on Monday November 5 and in part on Tuesday November 6. Specifically, the Court denied HLC's motion, and granted five of ResCap's six motions; the Court only denied ResCap's motion “that the Client Guide governs HLC's at-issue loans.” (See generally Minute Entry for Nov. 5, 2018 [Doc. No. 4685] and Minute Entry for Nov. 6, 2018 [Doc. No. 4695].) Because the Court explained its reasoning from the bench at some length, the Court does not feel compelled to issue an elaborate written decision at this juncture. However, for the sake of a clear record, the Court will reprint those remarks in this Order, with additional citations, edits, and footnoted addendums, as needed. The Court will address each motion in turn.

         I. Legal Standard for a Rule 50(a) Motion

         Fed. R. Civ. P. 50(a) provides that, “[i]f a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, ” “the court may resolve the issue against the party . . . before the case is submitted to the jury.” When considering such a motion, a court “must (1) resolve direct factual conflicts in favor of the nonmovant; (2) assume as true all facts supporting the nonmovant which the evidence tended to prove; (3) give the nonmovant the benefit of all reasonable inferences; and (4) deny the motion if the evidence so viewed would allow reasonable jurors to differ as to the conclusions that could be drawn.” Roberson v. AFC Enters., Inc., 602 F.3d 931, 933 (8th Cir. 2010) (quoting Larson ex rel. Larson v. Miller, 76 F.3d 1446, 1452 (8th Cir. 1996) (en banc)). However, because a court “may not accord a party the benefit of unreasonable inferences or those at war with the undisputed facts, ” and because a “reasonable inference” is only “one which may be drawn from the evidence without resort to speculation, ” a court may grant a party JMOL, and thereby remove an issue from the jury's province, if “the record contains no proof beyond speculation to support” a jury finding for the non-movant on that issue. Sip-Top, Inc. v. Ekco Grp., Inc., 86 F.3d 827, 830 (8th Cir. 1996) (cleaned up) (affirming grant of pre-verdict JMOL); accord SL Montevideo Tech., Inc. v. Eaton Aerospace, LLC, 491 F.3d 350 (8th Cir. 2007) (same); Arabian Agric. Servs. Co. v. Chief Indus., Inc., 309 F.3d 479 (8th Cir. 2002) (same); Fought v. Hayes Wheels Intern., Inc., 101 F.3d 1275 (8th Cir. 1996) (same); see also Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1050 (8th Cir. 2000) (reversing a district court for failing to grant JMOL and noting that JMOL “must be granted when a non-movant's case rests solely upon speculation and conjecture lacking in probative evidentiary support”) (emphasis added).

         Moreover, although “[d]etermining the credibility of a witness is the jury's province, whether the witness is lay or expert, ” Stevenson v. Union Pac. R. Co., 354 F.3d 739, 745 (8th Cir. 2004), a jury may generally not “disregard arbitrarily the unequivocal, uncontradicted, and unimpeached testimony of an expert witness where . . . the testimony bears on technical questions . . . beyond the competence of lay determination.” Quintana-Ruiz v. Hyundai Motor Corp., 303 F.3d 62, 76-77 (1st Cir. 2002) (quoting Webster v. Offshore Food Serv., Inc., 434 F.2d 1191, 1193 (5th Cir. 1970)). “A jury in such a case must rely on expert testimony and cannot substitute its own experience.” Id. at 77 (reversing district court for failing to grant JMOL and remanding for judgment in favor of the moving party); see also Cruz-Vargas v. R.J. Reynolds Tobacco Co., 348 F.3d 271 (1st Cir. 2003) (affirming grant of JMOL on similar reasoning).

         Finally, a “court's prior decision on summary judgment [does] not control the outcome of a Rule 50 motion.” St. Louis Convention & Visitor Comm'n v. National Football League, 154 F.3d 851, 861 (8th Cir. 1998). This is especially so where “[t]he Rule 50 motion was made and considered after the court had had the benefit of over four weeks of trial, ” alongside “extensive legal arguments by the parties.” Id. (affirming grant of pre-verdict JMOL motion, on issue where district court had previously denied summary judgment).

         II. HLC's Allocation Motion

         In this motion, HLC argued that, because the Monoline Insurer MBIA “brought and settled claims against RFC for aiding and abetting GMAC Mortgage in fraudulently inducing MBIA . . . to insure GMAC-sponsored trusts” (as evidenced by MBIA's proof of claim), and because ResCap's “damages expert, Dr. Karl Snow, did not allocate any portion of the MBIA . . . settlement to” this “non-indemnifiable claim, ” HLC was entitled to JMOL as to ResCap's “failure to prove a non-speculative basis to allocate the MBIA . . . settlement between indemnifiable and non-indemnifiable claims.” (HLC JMOL Br. at 2, 4, 6.)[5]

         In response, ResCap argued that, not only did HLC fail to raise this issue at any point during trial or during its cross-examination of ResCap's relevant experts, but, under the UnitedHealth Group allocation standard, RFC was under no obligation to allocate this “immaterial” claim in order to articulate a “reasonably certain” measure of damages. (See generally ResCap Opp. Br. (referencing UnitedHealth Grp. Inc. v. Exec. Risk Spec. Ins., 870 F.3d 856, 862 (8th Cir. 2017)).)

         The Court denied HLC's motion. (See generally Trial Tr. at 3356-57.) First, the only support for HLC's argument was a handful of sentences in MBIA's proof of claim. (See PX-79.) This evidence did not support HLC's argument, though, because the Court had already instructed the jury that they could not consider that proof of claim for the truth of the matter asserted therein. (See, e.g., Trial Tr. at 1390.) Moreover, even if the proof of claim was competent evidence upon which to base a JMOL motion, HLC's argument still failed because no evidence adduced at trial demonstrated that MBIA's “aiding and abetting” claim was material. Indeed, Mr. Donald Hawthorne (ResCap's expert on the bankruptcy settlements) was the only witness to testify about the materiality of claims that were settled between RFC and MBIA during the bankruptcy, and he did not mention this claim nor was there any cross examination of him asking why he did not mention this claim. (See generally id. at 1609-1750, 1788-89 (Hawthorne).) Rather, Mr. Hawthorne only testified about repurchase claims, recessionary claims (which encompassed both material breach claims and fraud claims), and servicing claims, and how those claims should be allocated in the context of this indemnification suit; Mr. Hawthorne was under no obligation to prove a negative. Finally, not only was there no competent evidence to suggest that MBIA's “aiding and abetting” claim had value (or was even considered at the time of settlement), this issue was not even raised with the Court once over the course of the four-week trial.

         For these reasons, the Court denied HLC's JMOL motion with respect to allocation.

         III. ResCap's Reasonableness Motion

         In this motion, ResCap argued that no reasonable juror could find that the bankruptcy settlements were not entered into in good faith, and for a reasonable amount. This was so because (1) ResCap's reasonableness expert, Mr. Hawthorne, offered the only expert testimony directly on point, and he explained at great length why the relevant bankruptcy settlements were reasonable in light of RFC's exposure, the strengths and weaknesses of claims and defenses at the time, and comparative settlements; (2) all of the expert witnesses who considered the bankruptcy settlements at the time found the settlements reasonable; (3) the settlement negotiations took place under the auspices of a federal bankruptcy judge as mediator and with the guidance of an independent Chief Restructuring Officer; and (4) the settlement was only approved by the Bankruptcy Court (and all parties to the bankruptcy proceeding) after the Bankruptcy Court (among other parties) had rejected an earlier proposed settlement. (See generally ResCap's R&S Br. at 3-14.)

         By contrast, HLC argued that JMOL was inappropriate, primarily with respect to the MBIA settlement, because (1) Mr. Hawthorne did not adequately justify why the MBIA settlement, at a rate of 90% of expected future losses, was reasonable, when the companion RMBS Trust settlement only settled for 17% of such expected losses; (2) various reports suggested that RFC was not facing the high loan default rates required for a 90% settlement rate; (3) MBIA's material breach and fraud claims, which constituted at least part of the claims RFC settled in bankruptcy, may not have been successful at trial; and (4) a report from an expert not testifying in this case, Mr. Fischel, suggested that Mr. Hawthorne's touchstone settlement comparator (the Assured v. Flagstar case) was not a good comparator. (See generally HLC 1st Opp. Br. at 13-26.) With respect to the RMBS Trust settlement, HLC also argued that (1) its expert, Mr. Phillip Burnaman, called into question the reliability of the RMBS Trust comparator settlements used by Mr. Hawthorne, and (2) an April 2012 10-Q disclosure by RFC's parent company, Ally Financial, suggested that losses from lawsuits against RFC would be lower than what the settlement ultimately ended up being. (See id. at 8-13.)

         In a (comparatively) lengthy oral ruling, the Court granted ResCap's motion. (See Trial Tr. at 2973-84.) To begin, Minnesota law requires that a party seeking indemnity for a settlement (here, ResCap) prove that the at-issue settlement was entered into in good faith, and was reasonable and prudent. See Brownsdale Co-op Ass'n v. Home Ins. Co., 473 N.W.2d 339, 342 (Minn.Ct.App. 1991). Minnesota jurisprudence on this question primarily derives from the case of Miller v. Shugart and what is commonly known as a Miller-Shugart settlement. See Miller v. Shugart, 316 N.W.2d 729, 732-33 (Minn. 1982); see also In re ResCap, 332 F.Supp.3d 1101, 1155-58 (D. Minn. 2018) (providing background). In such a case, a defendant settles a claim with a plaintiff for a stipulated sum, but conditions the settlement on the plaintiff's right to seek recovery only from the defendant's insurer. Id. Similarly here, RFC settled the RMBS Trust and Monoline Insurer claims against it for stipulated “Allowed Claims, ” on the condition that those Trusts and Monolines (by way of the newly-formed ResCap Liquidating Trust) be permitted to seek contractual indemnification from the mortgage lenders, or “insurers, ” who sold RFC the underlying defective loans, and whose breaches of the Client Guide's representations and warranties (“R&Ws”) contributed to RFC facing such claims. See generally In re ResCap, 332 F.Supp.3d at 1151-54 (describing the stringency of the Client Guide's indemnification provisions for breached R&Ws, which afforded RFC “considerable discretion” and “wide-ranging remedies” against the mortgage lenders that sold it loans).

         As the Minnesota Supreme Court explained in Jorgensen v. Knutson, the Miller-Shugart “reasonableness requirement” exists “to discourage possible overreaching.” 662 N.W.2d 893, 905 (Minn. 2003). In other words, the specter of “collusion and fraud” in such a setting triggers the requirement that the party seeking indemnification establish that the settlement was reached at arm's length, in good faith, and that the settlement was prudent and reasonable. See Alton M. Johnson Co. v. M.A.I. Co., 463 N.W.2d 277, 280 (Minn. 1990) (noting that, in a Miller-Shugart setting, “the exposed insured has no incentive to drive a hard bargain”); Miller, 316 N.W.2d at 735 (similarly worrying that an insured may be “quite willing to agree to anything as long as plaintiff promise[s] them full immunity”).

         Given this policy concern, Minnesota law requires objective proof of good faith and reasonableness. See Vetter v. Subotnik, 844 F.Supp. 1352, 1355 (D. Minn. 1992).[6] An objective analysis of good faith and reasonableness, in turn, requires an analysis of what the parties knew or could have known at the time of the settlement; knowledge obtained years later, of new facts or new law, cannot inform the reasonableness of the settlement at the time it was made. See Miller, 316 N.W.2d at 735. Moreover, in evaluating objective indicia of good faith and reasonableness, the fact finder must consider whether a reasonable, prudent person would have entered into the settlement based upon (i) an analysis of the defendant's potential exposure at trial, (ii) the strengths and weaknesses of the claims and defenses, both factually and legally, (iii) the risks of proceeding to trial, and (iv) the costs and burdens of litigation. See id.; accord Jorgensen, 662 N.W.2d at 904-05 (listing these factors, among others, and emphasizing that “reasonableness” is a multi-factor inquiry). The issue is not whether there was a single correct or perfect settlement. Rather, Minnesota precedent makes clear that the issue is whether the settlement for which a party seeks indemnification fell within a reasonable range of potential recoveries. See Nelson v. Am. Home Assur. Co., 824 F.Supp.2d 909, 917 (D. Minn. 2011) (“[T]he stipulated $900, 000 judgment amount would be recoverable as long as it fell without a reasonable range of potential recoveries.”); cf. Jackson Nat. Life Ins. Co. v. Workman Sec. Corp., 803 F.Supp.2d 1006, 1012 (D. Minn. 2011) (noting that “[t]he party seeking indemnification need only show it could have been liable under the facts shown at trial, not whether [it] would have been”).

         Now, at the summary judgment stage of this case, ResCap moved for summary judgment on this very issue. This Court denied that motion, citing the need for a full record on such a fact-intensive inquiry. See In re ResCap, 332 F.Supp.3d at 1157.[7] At the close of trial, however, the Court had before it a full factual record on which to consider ResCap's Rule 50 motion. That record contained the following uncontroverted evidence: First, the bankruptcy settlements were entered into after a lengthy mediation conducted by a federal bankruptcy judge, Judge James Peck. (See, e.g., Trial Tr. at 1603-04 (Hawthorne).) Second, an independent Chief Restructuring Officer, Lewis Kruger, presided over the mediation and ultimately approved the settlements. He testified at trial that his goal was to achieve “a consensual deal that treated creditors fairly and established claims of creditors in a way that was appropriate, ” and emphasized that his decision to enter into the settlements was informed by his discussions with his advisors and with all of RFC's principal creditor constituencies. (See, e.g., id. at 1392-1407 (Kruger); see also id. at 1604 (Hawthorne) (describing Kruger as a “well-respected experienced lawyer, ” who “had been appointed by the [bankruptcy court] and was looking out for the interest of all creditors”).) Third, RFC's expert in the bankruptcy case, Mr. Frank Sillman, testified that the settlements reached were reasonable. (See, e.g., id. at 1416 (Sillman).) Fourth, the RMBS Trusts' expert, Mr. Allen Pfeiffer, testified that the settlements reached were reasonable. (See, e.g., id. at 1466-67 (Pfeiffer).) Fifth, all constituencies to RFC's bankruptcy supported the settlements, including parties such as the Creditors' Committee that opposed the original RMBS Trust settlement. (See id. at 1606-08 (Hawthorne)). For instance, Mr. John Dubel, the chairperson of the Creditor's Committee, testified that litigating these issues would have involved great uncertainty and “numerous complex and novel issues of fact and law.” (See, e.g., ResCap's R&S Br. at 14 (citing excerpts from Mr. Dubel's deposition, which were introduced into evidence but ultimately not played before the jury in light of the Court's oral decision on this issue); see Trial Tr. at 2990-91 (providing context).) Sixth, the RMBS Trusts supported the settlements. (See, e.g., id. at 1287 (Lipps).) Seventh, ResCap's expert witness, Mr. Hawthorne, an experienced RMBS litigator and an expert on RMBS litigation, testified that the settlements were entered into in good faith and were reasonable. (See, e.g., id. at 1541; see also supra at 13-15.) Eighth, the bankruptcy judge presiding over the bankruptcy in the Southern District of New York, Judge Martin Glenn, approved the settlements, after having rejected an earlier proposed settlement. (See, e.g., id. at 1608-09 (Hawthorne).)[8]

         It was further undisputed that the factual evidence arising out of the settled litigation was highly complex, involving analyses of over 100, 000 loans and RFC's accordant exposure to many billions of dollars in damages. (See, e.g, id. at 1499, 1501-02, 1590-93 (Hawthorne).) As Ms. Tammy Hamzehpour, RFC's general counsel, testified, RFC faced “shockingly high” breach claims that exposed the company to tens of billions of dollars in potential damages, plus years of litigation and expenses. (See, e.g., id. at 2849-51.) In fact, RFC's exposure - in excess of $42 billion - was also uncontroverted. (Id.)

         Of all of these facts, Mr. Hawthorone's lengthy expert testimony was arguably the most important. Indeed, he was the only expert to testify at trial on reasonableness. As such, it is worth considering how, exactly, he reached his conclusion that these settlements were reasonable. In accordance with the multi-factor reasonableness framework detailed above, Mr. Hawthorne employed a three-step methodology for evaluating the reasonableness of the settlements - ranging from the MBIA settlement at 90% of expected losses to the RMBS Trust settlement at 17% of expected losses. He first considered the exposure RFC faced were it to try these cases to verdict. (See, e.g., id. at 1499-1502.) He then evaluated, both factually and legally, the strengths and weaknesses of the claims asserted against RFC by both the RMBS Trusts and the Monoline Insurers, alongside RFC's defenses to those claims. (See, e.g., id. at 1511-62.) Finally, Mr. Hawthorne compared the at-issue settlements to other, contemporaneous RMBS settlements. (See, e.g., id. at 1564-74.) Notably, Mr. Hawthorne testified at length about a decision by Judge Jed Rakoff of the District Court in the Southern District of New York, which Judge Rakoff issued only months prior to the at-issue settlements. (See, e.g., id. at 1564-67 (describing Assured Guar. Mun. Corp. v. Flagstar Bank, FSB, 920 F.Supp.2d 475 (S.D.N.Y. 2013)).) That decision, Assured v. Flagstar, was a case brought by a monoline insurer much like MBIA. Following a bench trial, the monoline insurer in that case, Assured, obtained a judgment for 100 percent of its losses, plus interest. (Id.) As Mr. Hawthorne testified, that an aggressive monoline insurer had just been awarded 100 percent of its damages in a similar case just months before the settlement would have been “very much on the minds” of counsel mediating the bankruptcy settlements. (Id. at 1564.)

         Mr. Hawthorne further testified about the range of settlement rates as among the Monoline settlements and the RMBS Trust settlement in this case, and noted the differences in litigation risk RFC faced as between those cases. (See, e.g., id. at 1575-82.) Importantly, it was uncontroverted that MBIA had sued RFC in 2008, five years before the settlements were reached. (See, e.g., id. at 1217-24 (Lipps).) In the MBIA case, 130 depositions had been taken, more than a million pages of documents had been exchanged, and expert disclosures had been issued. (See, e.g., id. at 1243-45 (Lipps).) Indeed, by 2012, MBIA was actually out of pocket 98 percent of its damages, i.e., well over $1.2 billion. (See, e.g., id. at 1504 (Hawthorne).) Mr. Hawthorne compared that to the RMBS Trusts who, for varying legal reasons, did not organize themselves or hire counsel until October of 2011, years after MBIA commenced litigation. (See, e.g., id. at 1578-80 (describing the failure of the RMBS Trusts to organize themselves for litigation as a “herding cats” problem); accord id. at 1250-52 (Lipps).) In fact, the RMBS Trusts never actually sued RFC. (Id.) Rather, the RMBS Trusts only filed proofs of claim after RFC filed for bankruptcy. (Id.) Moreover, Mr. Hawthorne testified, without serious rebuttal on cross-examination, that the Monolines had additional legal rights available to them under the law and by virtue of their contracts, including a contractual right of interest, all of which meaningfully changed the calculus of a reasonable settlement as between the RMBS Trust claims and the Monoline Insurer claims. (See, e.g., id. at 1504-07, 1588-89.) Further, Mr. Sillman, RFC's expert in the bankruptcy proceeding, testified as to the unique strength of the Monoline claims, and observed that it was reasonable for Monoline claims to be settled for 80 to 100 percent of lifetime losses. (See, e.g., id. at 1416.)

         Mr. Hawthorne also provided uncontroverted, uncontested testimony about the importance and complexity of the law on the relevant statute of limitations applicable to such claims at the time of the settlements (see, e.g., Trial Tr. at 1547-54), and the legal burden of proof on causation at the time of the settlements (see, e.g., id. at 1530-34, 1545-47). Both of these legal issues were highly relevant to his determination that RFC faced potentially enormous liability from the Monoline claims, and arguably less significant liability when it came to the RMBS Trusts.

         The only witness to attempt to challenge Mr. Hawthorne's testimony was Mr. Phillip Burnaman, and even Mr. Burnaman only challenged Mr. Hawthorne with respect to the RMBS Trust settlement (rather than the MBIA settlement, which made up the lion's share of HLC's liability in this case). (See generally id. at 2459-2625.) However, Mr. Burnaman expressly disqualified himself as an expert on reasonableness on at least three different occasions. First, he testified, “I'm not offering an opinion on the reasonableness of this settlement.” (Id. at 2600.) Second, he testified, “I didn't fault Mr. Hawthorne on aspects of the litigation risk and I didn't undertake to review the litigation issues around this case because it's a very complicated subject.” (Id. at 2601.) Such an analysis “requires a legal education, ” Mr. Burnaman added, which he did not have. (Id.) Third, in response to the question, “and you're not here to challenge any of that discussion, ” in reference to Mr. Hawthorne's discussion of the law relevant to the bankruptcy settlements, Mr. Burnaman answered, “No. It's a very complicated subject. I'm not a lawyer . . . there are different laws in different states in different jurisdictions and I'm not expert enough to undertake to discuss that.” (Id. at 2605-06.)

         However, the reasonableness of these settlements could only be evaluated by analyzing the exposure, the litigation risks, and the legal strength of the claims and defenses, together. See Jorgensen, 662 N.W.2d at 905 (reversing lower court for “focusing solely” on one factor when undertaking a reasonableness analysis). Mr. Burnaman expressly disavowed the expertise to engage in that analysis. The Court set aside entirely Mr. Burnaman's credibility on the testimony he did offer on other comparator settlements which, of course, Rule 50(a) required the Court to do. See Stevenson, 354 F.3d at 745. Entirely setting aside his credibility nonetheless, the fact that Mr. Burnaman had so disqualified himself made it so that his testimony was simply not probative of reasonableness. Cf. Concord Boat Corp., 207 F.3d at 1050 (noting that JMOL “must be granted when a non-movant's case rests solely upon speculation and conjecture lacking in probative evidentiary support”). If the other settlements to which Mr. Burnaman testified were considered in the context of the changing law at the time, such as the law on causation and the law on the statutes of limitations, one could ...


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