Opinion
99 Civ. 12405 (RWS), 00 Civ. 5098 (RWS).
March 10, 2006
KINGSLEY KINGSLEY Attorney for American National Fire Ins. Co. Hicksville, NY, By: HAROLD M. KINGSLEY, ESQ. Of Counsel.
HAIGHT GARDNER HOLLAND KNIGHT Attorney for Mirasco, Inc. New York, NY, By: JAMES M. TORIELLO, ESQ. JAMES V. MARKS, ESQ. Of Counsel.
OPINION
Mirasco, Inc. ("Mirasco"), defendant in 99 Civ. 12405 (the "New York Action") and plaintiff in 00 Civ. 5098 (the "Georgia Action"), has moved in limine against American National Fire Insurance Company ("American National") and Great American Insurance Co. ("Great American") (collectively the "Insurers"), the plaintiffs in the New York Action and defendants in the Georgia Action, to preclude various evidence at trial in this dispute concerning an insurance coverage dispute arising out of the importation of frozen beef livers into Egypt.
For the reasons set forth below, Mirasco's motion is granted in part and denied in part.
PRIOR PROCEEDINGS
The parties and prior proceedings have been described in greater detail in Am. Nat'l Fire Ins. Co. v. Mirasco, Inc., 249 F. Supp. 2d 303 (S.D.N.Y. 2003) ("Mirasco I"), familiarity with which is presumed. On May 26, 2003, the motions for reconsideration of Mirasco I from both parties were denied inAm. Nat'l Fire Ins. Co. v. Mirasco, Inc., 265 F. Supp. 2d 240 (S.D.N.Y. 2003) ("Mirasco II"). Prior to trial, two further reconsideration motions were decided on September 30, 2003, see Am. Nat'l Fire Ins. Co. v. Mirasco, Inc., Nos. 99 Civ. 12405, 00 Civ. 5098, 2003 U.S. Dist. LEXIS 17370, 2003 WL 22271226 (S.D.N.Y. Sept. 30, 2003) ("Mirasco III"), and on October 15, 2003, see Am. Nat'l Fire Ins. Co. v. Mirasco, Inc., 265 F. Supp. 2d 240 (S.D.N.Y. 2003) ("Mirasco IV").
A jury trial was held between October 20 and October 30, 2003. The Insurers moved for judgment as a matter of law under Fed.R.Civ.P. 50(a) at the close of Mirasco's case and again at the close of the Insurers' case, both of which motions were denied. The jury returned a verdict, finding in favor of Mirasco, and the Insurers sought post-trial relief. The Insurers moved for judgment as matter of law pursuant to Fed.R.Civ.P. 50 (b) and, in the alternative, for a new trial pursuant to Fed.R.Civ.P. 59, both of which motions were denied by the Court in Am. Nat'l Fire Ins. Co. v. Mirasco, Inc., Nos. 99 Civ. 12405, 00 Civ. 5098, 2004 U.S. Dist. LEXIS 8803 (S.D.N.Y. May 24, 2004) ("Mirasco V").
The Insurers appealed to the Second Circuit, arguing that this Court erred in ruling on summary judgment that "1) the policy's rejection clause was not ambiguous; 2) `rejection' meant a refusal to grant entry to goods; and 3) the entire cargo had been rejected." Mirasco v. Am. Nat'l Ins. Co., 2005 U.S. App. LEXIS 17475, at *3 (2d Cir. Aug. 15, 2005) ("Mirasco VI"). The Second Circuit rejected the Insurers first two challenges and ordered a remand with respect to the third.
In accordance with the Second Circuit's directive, this case is now being retried on the third issue challenged by the Insurers. The trial is set to begin on March 13, 2006.
Mirasco moved in limine on March 1, 2006 to preclude various evidence. The motion was heard and marked fully submitted on March 8, 2006.
DISCUSSION
Mirasco has moved in limine to preclude the following evidence: (1) testimony of the Insurers' experts, William Rodgers ("Rodgers") and Aly Abdel Elrazak Bahgat Hassan ("Aly") concerning issues beyond their expertise and/or that have been previously considered and rejected by this Court and the Second Circuit; (2) testimony by the Insurers' experts, Bernard Haykel, James Mintert, Captain Assem Elbendary, Ramadan Youssef Mohammed, and James Horan, that exceeds the limitations previously placed on their testimony in Mirasco II, 265 F. Supp. 2d 240, 253-54 (S.D.N.Y. 2003); (3) a duplicate of the letter dated March, 1999 from El Shafy to the "Manager of Food Imports Control"; and (4) any evidence or arguments regarding their previously rejected defenses.
As Mirasco has correctly pointed out, in view of the Second Circuit's decisions and the decisions of this Court, there are only two remaining issues to be resolved at trial: (1) was the non-IBP (Excel and Monfort) cargo rejected, and (2) what was the proximate cause of the IBP rejection. See Mirasco VI, 2005 U.S. App. LEXIS 17475. In light of this, evidence will be limited to that which is relevant to one or both of these issues. Evidence that bears only on issues previously resolved shall be precluded as beyond the scope of the trial.
I. Expert Testimony of Rodgers and Aly
The admissibility of expert testimony is governed by Fed.R.Evid. 702, which provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed.R.Evid. 702. The party seeking to introduce expert testimony "bears the burden of establishing its admissibility."Baker v. Urban Outfitters, Inc., 254 F. Supp. 2d 346, 353 (S.D.N.Y. 2003).
As this Court previously has noted, "the use of expert testimony `must be carefully circumscribed to assure that the expert does not usurp either the role of the trial judge as to the applicable law or the role of the jury in applying that law to the facts before it.'" Mirasco II, 265 F. Supp. 2d at 253 (quotingUnited States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991)).
A. Rodgers
1. Testimony Regarding Arbitrary Rejections and Miscarriage of Administrative Determinations
Plaintiffs argue that to the extent that Rodgers intends to testify that "arbitrary rejections" or "miscarriage of administrative determinations" are not covered by the Policy, he should be precluded from so doing.
As this Court previously held, arbitrary rejections are covered by the Policy. See Mirasco I, 249 F. Supp. 2d at 319 (a "restrictive definition would undermine the purpose of rejection insurance, which is a type of political risks insurance that insures against the arbitrary acts of a government, including arbitrary rejection or detention or miscarriage of administrative determination."). This ruling was not disturbed on appeal. See Mirasco VI, 2005 U.S. App. LEXIS 17475. Indeed, the Insurers directly challenged this holding to the Second Circuit, which rejected their argument that this Court "erred in finding coverage for arbitrary action despite the clear embargo prohibition." See [Defendant's Appeal to the Second Circuit — Table of Contents]. As noted, the Second Circuit remanded this case for resolution of two issues only. See Mirasco VI, 2005 U.S. App. LEXIS 17475, at *7 ("We have considered the other claims of the parties and conclude that they are without merit."). The Insurers' have not demonstrated and this Court fails to see how Rodgers' testimony regarding the Policy's coverage of "arbitrary rejections" or "miscarriage of administrative determinations" is relevant to whether the non-IBP cargo was rejected or what proximately caused the IBP rejection.
Additionally, the Insurers' have contended that there is an exception to the rule that the Policy covers arbitrary rejections, namely that rejections resulting from embargoes put into effect for purely arbitrary reasons are not covered. While they are correct that rejections resulting from embargoes are not covered by the Policy, if a shipment is rejected on account of an embargo — whether the embargo was implemented for arbitrary reasons or not — the rejection was by definition not the result of arbitrary or capricious action. It is the application of an embargo that renders it arbitrary and capricious, not the underlying rationale for the embargo. It confuses the issues to characterize rejections resulting from embargoes that were passed for arbitrary reasons as an exception to the rule that arbitrary action is covered by the rejection insurance coverage.
Further, to the extent that Rodgers' testimony in this regard is consistent with the Court's previous ruling, it constitutes an explanation of the applicable law to the jury for which the trial judge is responsible. Accordingly, Rodgers is precluded from testifying regarding "arbitrary rejections" and "miscarriage of administrative determinations."
2. Testimony Regarding the Loss of Market Exclusion
Plaintiffs also argue that Rodgers should be precluded from testifying that, in his opinion, the loss of market exclusion bars Mirasco's claim.
As with the above testimony regarding the Policy's coverage of losses resulting from "arbitrary rejections" and "miscarriage of administrative determinations," this testimony too relates to a legal issue that has previously been decided. This Court considered the Insurers' arguments with respect to the applicability of the loss of market exclusion at summary judgment and expressly held that "the loss of market exclusion does not apply." Mirasco I, 249 F. Supp. 2d at 322. As with above, this holding was challenged by the Insurers on appeal and upheld by the Second Circuit.
The Insurers argue that even though the loss of market exclusion is not at issue at trial with respect to the IBP cargo, this evidence is relevant in that the loss of the beef liver market shows Mirasco's motive for withdrawing the Excel and Montfort brands from importation into Egypt. According to the Insurers, this evidence demonstrates that insurance coverage for the insurance policy's declared value would compensate Mirasco for its financial losses from the collapse of the beef liver market, while merely selling the beef livers would not.
The applicability of the loss of market exclusion is not at issue in this trial, and evidence concerning the loss of market exclusion is irrelevant to the proximate cause of the IBP rejection as well as to the issue as to whether the non-IBP cargo was rejected, the two issues remanded for trial. Accordingly the Insurers are precluded from introducing evidence of the loss of market exclusion.
3. Testimony Concerning the Sue and Labor Clause
Plaintiffs also move to preclude any testimony by Rodgers concerning the applicability of the Policy's "Sue and Labor" clause. In support of their position, Plaintiffs argue that the jury in the first trial expressly found by a preponderance of the evidence that Mirasco satisfied its "sue and labor" obligations. The Insurers argue in a different portion of their brief that the "sue and labor" obligations must be litigated anew with respect to whether the Excel and Montfort cargo was rejected or Mirasco voluntarily returned it to Houston.
The jury in the first trial answered "No" to the following inquiry on the verdict form:
5. Have the Insurance Companies proved by a preponderance of the evidence that Mirasco and/or its agents breached its duty under the "sue and labor" clause to exercise the care which a prudent uninsured owner would take under similar circumstances to protect insured property in order to minimize or prevent the loss from occurrence?
The Insurers are correct that in the first trial, the question of whether the Excel and Montfort cargo was rejected was decided as a matter of law by the Court on summary judgment. While the question of whether the non-IBP was rejected was not put before the jury, the jury did consider a number of defenses put forth by the Insurers, including the defense that the "sue and labor" clause of the policy precluded coverage. As noted, the jury in the first trial found that with respect to all of the cargo, both IBP and non-IBP, Mirasco had discharged its obligations under the "sue and labor" clause. The fact that this Court erred in its ruling that the non-IBP was rejected as a matter of law does not disturb this finding.
The "sue and labor" defense is not a defense to whether or not a shipment was rejected. In other words, a demonstration that an insured failed to exercise its obligations to "sue and labor" does not amount to a showing that the goods at issue were not rejected. Rather, the "sue and labor" clause applies irrespective of whether or not the goods at issue were rejected.See Mirasco I, 249 F. Supp. 2d at 326 ("While there is at least one case that suggests that a `sue and labor' clause should not apply in the context of rejection coverage, it appears that the parties have contractually agreed that it should apply." (citation omitted)).
Accordingly, relitigation of the rejection issue with respect to the non-IBP coverage does not warrant retrial on the issue of whether Mirasco fulfilled its duties under the "sue and labor" clause. The first jury determined that it did — with respect to all of the cargo aboard the Spero. The fact that the jury in this trial may determine that the non-IBP cargo was not rejected does not affect this finding.
4. Testimony Regarding the Ultimate Issue in Dispute
Finally, Mirasco argues that Rodgers should be precluded from testifying as to the ultimate issue in dispute — the proximate cause of the return of the IBP cargo — on the grounds that it would impermissibly usurp the role of the jury in applying the law to the facts before it.
According to Plaintiffs, Rodgers states in his report that: (1) "the ban of IBP cargo by Decree #6 is the proximate cause of the return of this portion of the cargo to the U.S." and (2) "[t]he ban on IBP and the mislabeling problem were the actual reasons for the returning of the cargo to the United States."
The fact that a witness's opinion testimony might go to an ultimate issue in this case does not, by itself, mean that it must be precluded. Under Rule 704(a) "testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." Fed.R.Evid. 704(a).
However, it is within the trial judge's discretion to exclude expert testimony on the ultimate issue if it is determined that it will not aide the trier of fact, as required by Rules 701 and 702. See Hygh v. Jacobs, 961 F.2d 359, 363-64 (2d Cir. 1992). As the Second Circuit has explained:
[U]nder Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in manner of the oath-helpers of an earlier day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria. Thus the question, "Did T have capacity to make a will?" would be excluded, while the question, "Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?" would be allowed.Hygh, 961 F.2d at 363-64 (quoting Fed.R.Evid. 704 advisory committee's note and adding emphasis).
It is determined that Rodgers' statements concerning the proximate cause of the return of the IBP cargo to the United States are conclusions that would not be helpful to the jury in its determination of the proximate cause issue. While the Insurers are correct that if Rodgers so testified, the jury would remain free to discount or reject Rodgers' opinion, his opinion on the ultimate issue of proximate cause would do nothing more than tell the jury how to decide this issue, the determination of which should be for it as the factfinder.
B. Aly
1. Testimony Regarding Decree 6
Mirasco has moved to preclude the Insurer expert Aly's testimony regarding Decree 6 on the grounds that he lacks sufficient expertise under Fed.R.Evid. 702.
The first step in determining the admissibility of expert testimony is determining "whether the proposed witness qualifies as an expert." Baker, 254 F. Supp. 2d at 352. The trial court is required to "decide whether the particular expert has specialized knowledge to assist jurors `in deciding the particular issue in the case.'" Kumho Tire Co. v. Carmichael, 526 U.S. 137, 157, 143 L. Ed. 2d 238, 119 S. Ct. 1167 (1999).
It is in this regard that Mirasco challenge's Aly's testimony. According to them, he is not qualified to offer an opinion on the applicability of Decree 6 because: (1) he is not a lawyer and does not consider himself a legal expert; (2) he had no role in drafting Decree 6, had no contact with the Minister who did, and had no knowledge of incidents in other parts of Egypt; (3) he does not have any experience in deciding if a decree applied to a shipment that was shipped before a decree was issued; and (4) he never made a decision or issued a direction with respect to the applicability of Decree 6 to the Spero.
The Insurers point out that Aly was the General Manager of the General Agency for Export and Import Control (the "GAEIC"), which performs technical and administrative functions for the Port of Alexandria. According to the Insurers, in this capacity, Aly was familiar with GAEIC policies and procedures, and his duties and responsibilities included the execution of Ministerial Decrees within his jurisdiction.
It is determined that Aly does possess specialized knowledge regarding the enforcement of Decree 6 and that his testimony in this regard shall not be precluded. While he is not an expert on the legal underpinnings of Decree 6 and its passage, he does have experience with the execution of such decrees. Because his testimony in this regard may aide the jury in its understanding of enforcement under Decree 6, it is admissible. Plaintiffs arguments go to the weight and not to the admissibility of Aly's testimony, and as such Plaintiffs are free to impeach Aly with questions pertaining to their above-mentioned concerns.
2. Testimony Regarding the Loss of Market Exclusion
For the reasons stated above supporting the preclusion of Rodgers' potential testimony regarding the applicability of the loss of market exclusion, Aly's testimony in this regard is also precluded.
In addition, with respect to the evidence the Insurers seek to introduce regarding the price of beef livers, we make only the following determinations. To the extent that evidence of the price of beef livers is introduced to support a loss of market defense, it will be precluded, as the loss of market defense may not be raised by the Insurers. On the other hand, to the extent that it is introduced as relevant to the credibility of Mirasco's representatives, determinations of admissibility shall be made at trial.
3. Aly's Testimony Regarding Conversations with Agents of Mirasco, MISR
Mirasco also seeks to preclude testimony by Aly regarding conversations he had with Ibrahim El Shaffey ("El Shaffey") of Mirasco, Misr ("Misr") as inadmissible hearsay statements prohibited under Fed.R.Evid. 801(c). The Insurer's argue that these conversations are admissible as party admissions pursuant to Fed.R.Evid. 801(d)(2).
Fed.R.Evid. 801(d) (2) (C) and (D) provide that admissions by a party opponent do not constitute hearsay. Pursuant to Rule 801(d)(2):
the statement is offered against a party and is . . . (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship[.]
Fed.R.Evid. 801(d) (2) (C), (D). In order to be admissible, the statements at issue must be made by a person who had an agency or employment relationship with Mirasco, the statement must have been made during the course of this relationship, and the statement must relate to a matter within the scope of the person's employment or agency. See Pappas v. Middle Earth Condo. Ass'n, 963 F.2d 534, 537 (2d Cir. 1992); Hillert v. Prona v. Ship Mgmt., Inc., No. 01 Civ. 7440 (HBP), 2004 U.S. Dist. LEXIS 12910 (S.D.N.Y. July 12, 2004).
The Insurers argue that testimony regarding these conversations is admissible as admissions of Mirasco because the individual with whom Aly conversed was an agent of Mirasco. According to the Insurers, El Shaffey acted as an agent for Misr, which in turn acted as an agent for Mirasco.
Misr is a proprietorship organized under the laws of the nation of Egypt and maintains its principal place of business in Alexandria, Egypt. Misr is managed by Dr. Fadi Rizk, Latif Rizk's nephew and the first cousin of Sami and Saher Rizk. Latif and Saher Rizk are two of the three officers and shareholders of Mirasco.
The Insurers argue that the claims herein being adjudicated originally belonged to Misr, who assigned these claims to Mirasco.
The evidence relating to the role of El Shaffey and Misr will be heard by the Court prior to Aly's testimony. At that time determinations will be made as to whether an agency relationship exists and whether the testimony constitutes inadmissible hearsay.
II. Expert Testimony of Bernard Haykel, James Mintert, Captain Assem Elbendary, Ramadan Youssef Mohammed, and James Horan
Mirasco has also moved to preclude any testimony by the Insurers' experts, Bernard Haykel, James Mintert, Captain Assem Elbendary, Ramadan Youssef Mohammed, and James Horan that exceeds the limitations placed on their testimony by the Court's ruling in the first trial. Mirasco III, No 99. Civ. 12405 (RWS), 2003 U.S. Dist. LEXIS 17370 (S.D.N.Y. Sept. 30, 2003). Since the Insurers have made no arguments nor demonstrated good cause why these rulings should be amended or vacated, it is determined that the testimony of these witnesses shall be precluded to the extent it it exceeds the Court's September 30, 2003 Order.
III. The March 1999 Letter
Mirasco also has moved to preclude admission of a copy of the March 1999 letter from El Shafey to Aly on the grounds that it violates the "best evidence rule." The "best evidence rule" is contained in Fed.R.Evid. 1002, which provides: "To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress." Pursuant to Fed.R.Evid. 1003, a duplicate may be admissible to the same extent as an original "unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original."
As there appears to be a dispute among the parties with regards to whether this letter was dated March 25, 1999 or March 15, 1999, the letter will be referred to simply as the "March 1999" letter.
With respect to the March 1999 Letter, it appears there is a genuine dispute as to the authenticity of the original letter. The fact that Mirasco refers to the document as the "March 25, 1999 letter" while the Insurers refer to it as the "March 15, 1999 letter" is evidence that the date of the letter is in dispute.
The Insurers argue that Fed.R.Evid. 1004 (3) permits them to use a copy of the original letter on the grounds that the original letter was in possession of Mirasco, not the Insurers.
A further factual determination on the authenticity of this letter will be made by the Court prior to ruling on its admissibility.
IV. Evidence and Arguments Regarding the Insurers' Previously Rejected Defenses
A. The IBP Cargo Was Not Rejected
As previously noted, the issue of whether or not the IBP cargo was rejected was litigated in the first trial and that determination was not disturbed on appeal. Therefore, the issue of whether the IBP cargo was rejected will not be a part of this retrial, evidence offered to support the theory that it was not rejected is precluded.
B. Arbitrary Action Is Not Covered by the Policy
For the reasons set forth above precluding the testimony of Rodgers regarding "arbitrary rejections" and "miscarriage of administrative determination," the Insurers are precluded from introducing any evidence offered to prove that arbitrary action is not covered by the Policy.
C. Mirasco's Losses are Due to a "Loss of Market"
For the reasons set forth above, any evidence introduced to show that Mirasco's losses are due to a loss of market is precluded.
D. The Price of Beef Livers in 1998-1999
The admissibility of any evidence regarding the price of beef livers will be in accordance with the Court's ruling above.
E. Mirasco Intended to Defraud the Insurers by Misstating Its Claim
Mirasco also argues that evidence of Mirasco's intent to defraud the insurers by misstating its claim is precluded by the Court's holding in Mirasco I. There the Court denied summary judgment to the Insurers on this issue, holding that:
[b]ecause the undisputed facts reveal that the Insurers cannot show that Mirasco had an intent to defraud them in misstating the amount of settlement in its formal claim, summary judgment may not be granted on this ground, and the claim is denied.Mirasco I, 249 F. Supp. 2d at 320.
The Insurers concede that the Court has ruled against them on this point and that they are precluded from introducing for its truth evidence that Mirasco intended to defraud the Insurers. They argue, however, that they should be permitted to introduce such evidence as relevant to the issue of Mirasco's credibility.
Assuming arguendo this were a permissible means of impeachment, an effort to impeach the credibility of the witnesses representing Mirasco with this evidence would both confuse the jury and be highly prejudicial to Mirasco. Moreover, an attempt to impeach Mirasco's representatives with such evidence would amount to an attempt to introduce it for its truth. In other words, in order for such evidence to prove effective at impeaching Mirasco's witnesses, the jury would presumably have to believe it was true.
F. The Factual Findings in the Egyptian Proceeding
With respect to the admissibility of evidence surrounding the Egyptian proceedings against Mirasco, the Court previously held that:
The Insurers also refer at great length to a legal proceeding allegedly initiated by Sea Horse in Alexandria in an attempt to clarify the documentation in connection with the return of the beef livers aboard the M/V Spero. Because Mirasco was not a party to that proceeding nor was it claimed to be, it cannot be estopped by any factual findings therein.Mirasco I, 249 F. Supp. 2d at 316.
Mirasco argues that the Insurers are precluded from introducing any testimony regarding the Egyptian proceedings because the Insurers did not challenge the above ruling on appeal and are therefore barred under the Waiver Doctrine. Since the Insurers have failed to demonstrate why this earlier ruling should be disturbed, they again are precluded from introducing evidence of factual findings in the Egyptian proceedings against Mirasco.
G. Mirasco's Sue and Labor Obligations
For the reasons set forth above precluding any testimony by Rodgers concerning the discharge of Mirasco's obligations under the Policy's "sue and labor" clause, the Insurers are also precluded from introducing any other evidence relating to this defense.
H. Evidence Regarding Paramount Warranty and the Act of State Doctrine
Mirasco has also moved to preclude evidence regarding the Act of State doctrine and the Paramount Warranty, but has not offered any arguments in support thereof. Because the Insurers also raise issues in their motion in limine surrounding the admissibility of evidence relating to the Act of State of doctrine and the Paramount Warranty, a ruling on the admissibility of this evidence shall issue upon further oral argument by the parties prior to trial.
J. Estoppel Based upon Mirasco's Acceptance of Return Freight
Finally, Mirasco seeks to preclude the Insurers from introducing evidence of estoppel based upon Mirasco's acceptance of return freight. This issue was raised on appeal to the Second Circuit, which did not disturb this Court's ruling dismissing the estoppel defense. Accordingly, this issue will not be re-litigated at trial, and evidence relating to this defense shall be precluded.
It is so ordered.