                                     2017 IL App (1st) 160533

                                                                               FIRST DIVISION
                                                                               November 6, 2017
                                 No. 1-16-0533
______________________________________________________________________________

                                           IN THE
                                 APPELLATE COURT OF ILLINOIS
                                       FIRST DISTRICT

 GUISEPPINA DiFRANCO and EUGENIO                                )          Appeal from the
 DiFRANCO,                                                      )          Circuit Court of
                                                                )          Cook County
           Plaintiffs-Appellants,                               )
                                                                )
 v.                                                             )          No. 13 L 6288
                                                                )
 CONSTANCE KUSAR,                                               )          The Honorable
                                                                )          Edward S. Harmening,
           Defendant-Appellee.                                  )          Judge Presiding.

       PRESIDING JUSTICE PIERCE delivered the judgment of the court, with opinion.
       Justices Harris and Mikva concurred in the judgment and opinion.

                                             OPINION

¶1     Guiseppina DiFranco sued Constance Kusar to recover for injuries that plaintiff sustained

in a motor vehicle accident. 1 At the jury trial, defendant admitted negligence, and thus the only

issues at trial were whether defendant’s negligence was the proximate cause of plaintiff’s injuries

and the amount of damages, if any. The jury entered a verdict in favor of plaintiff, and awarded

her $1000 for the reasonable expense of necessary medical care, treatment, and services

received; $0 for the loss of normal life; and $0 for pain and suffering. The circuit court denied

plaintiff’s posttrial motion for a new trial. The circuit court also granted in part and denied in part
       1
         Although both Guiseppina and Eugenio DiFranco were plaintiffs below and are listed as
appellants, the jury found in favor of Kusar and against Eugenio. Eugenio does not advance any argument
on appeal with respect to any of his claims or the jury’s verdict against him.
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plaintiff’s posttrial motion for costs. On appeal, plaintiff contends that: (1) the jury’s damages

award is against the manifest weight of the evidence; (2) the circuit court erred in denying her

motion for a new trial; and (3) the circuit court erred in denying in part her posttrial motion for

costs. We find no error and affirm.

¶2                                      BACKGROUND

¶3     The following facts were presented at trial.

¶4     On June 9, 2011, plaintiff was driving in stop-and-go traffic, and while stopped, her

vehicle was struck from behind by a vehicle operated by defendant. The collision caused

plaintiff’s vehicle to hit the vehicle in front of hers. It also caused her body to move forward and

backward, and her knees struck the dashboard. Immediately following the collision, she

experienced pain in her neck, back, and arm. She was taken by ambulance to GlenOaks Hospital

(GlenOaks). She testified that while she was in the emergency room, her pain was a 9 on a scale

of 1 to 10. At GlenOaks, she was examined and instructed to follow up with her family

physician, Edwin W. Anderson, M.D. On June 13, 2011, plaintiff followed up with Dr.

Anderson.

¶5     Dr. Anderson’s evidence deposition was admitted into evidence at trial. He testified that

plaintiff told him that she had pain in her arm, neck, and back related to the June 9 collision. Dr.

Anderson examined plaintiff and found tenderness in her lower back, a normal range of motion

of the neck, a normal shoulder exam, a normal elbow exam, and tenderness in the right pelvis

area. He stated that plaintiff reported she felt “moderate pain.” He concluded that she sustained a

cervical strain, an arm strain, a forearm strain, and a back strain. Dr. Anderson recommended

that plaintiff undergo physical therapy and take over-the-counter pain relievers. According to

plaintiff, she performed her physical therapy at GlenOaks.

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¶6     Dr. Anderson examined plaintiff again on July 15, 2011. He stated that she complained of

pain radiating down from her neck into her right arm and lower back. Dr. Anderson determined

that this new complaint was related to the June 9 collision and that plaintiff sustained an injury to

her lower back and neck from the collision. He recommended that she continue with her physical

therapy and gave her prednisone for her inflammation and swelling. He also referred her to Dr.

Lawrence Frank, a nonsurgical back doctor, because her condition was “worsening with physical

therapy and not improving.”

¶7     According to plaintiff, Dr. Frank recommended that she undergo physical therapy at

GlenOaks, which she did for four months. After completing the physical therapy, Dr. Franks told

plaintiff to follow up with Dr. Anderson if her pain continued. Plaintiff testified that she was still

experiencing pain after January 12, 2012, and that her pain got worse.

¶8     Dr. Anderson examined plaintiff again on August 9, 2012, when she came in complaining

of right arm and hand numbness. Dr. Anderson concluded that the pain was possibly nerve

related, “either carpel tunnel or cervical radiculopathy,” and his “working assumption” was that

this was related to the June 9 collision. He recommended that plaintiff get an electromyelogram

(EMG), which was performed at Alexian Brothers Medical Center. Based on the results of the

EMG, Dr. Anderson concluded that plaintiff had “a pinched nerve in the cervical area as well as

a right carpal tunnel syndrome” and that the pinched nerve was due to the June 9 collision.

¶9     On August 20, 2012, Dr. Anderson recommended that plaintiff undergo an MRI, the

results of which demonstrated “multiple abnormalities in the cervical spine.” Dr. Anderson stated

that, based on his education and examinations of plaintiff, the course of treatment he

recommended was necessary as a result of the June 9 collision.

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¶ 10   Plaintiff testified that Dr. Anderson referred her to Dr. Rosenblatt, whom plaintiff

described as a “bone specialist.” Dr. Rosenblatt prescribed physical therapy, which plaintiff

underwent at Athletico.

¶ 11   At trial, plaintiff offered into evidence bills she had received for treatment following the

June 9, 2011, collision. In total, she was billed $29,331.88, which included amounts billed for the

emergency room visit on June 9, 2011, her follow-up visits with doctors Anderson, Frank, and

Rosenblatt, her physical therapy, all of her diagnostic testing, and her prescriptions.

¶ 12   Julie Johnson, a customer service supervisor from Adventist Midwest Health, with which

GlenOaks is affiliated, testified that GlenOaks’s bills reflected reasonable and customary charges

for services rendered in the GlenOaks emergency room, as well as for X-rays, labs, and physical

therapy. On cross-examination, Johnson stated that she did not know how much other hospitals

charged for similar services. She acknowledged that GlenOaks uses current procedural

terminology (CPT) codes, which were developed by the American Medical Association and

which are used by all medical providers to mean the same thing for a geographical location.

Johnson acknowledged that she would not know whether the CPT codes used on a GlenOaks bill

accurately reflected the actual clinical services provided. Plaintiff’s emergency room bills

reflected that she was billed twice for X-rays, and was billed under CPT code 99284, which

designates a level 4 severe condition. Johnson also could not say why plaintiff was charged

under CPT code 99288 for “direct advanced life support,” and acknowledged that she could not

say that such a charge was usual or customary under the circumstances.

¶ 13   Defendant presented the evidence deposition of Dr. Richard Rabinowitz, an orthopedic

surgeon, as her expert witness. Dr. Rabinowitz testified that he had reviewed plaintiff’s medical

records from both before and after the collision. Plaintiff’s records showed documented

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complaints dating back to 2003 that were similar to the complaints plaintiff had after the

collision. In 2003, she was diagnosed with cervical brachial syndrome, brachial neuralgia,

myofacial pain, and cervical region pain, which Dr. Rabinowitz described as “pain about the

neck and referred pain into the shoulder and arm.” Plaintiff also had pain between her shoulder

blades, as well as some finger numbness. In 2005, plaintiff presented to Dr. Anderson with

complaints of “numbness and pain and tingling in the right arm into the right hand and wrist,”

which resulted in plaintiff being restricted from repetitive motion activities. In February 2009,

plaintiff was seen by a Dr. Goldberg. Plaintiff presented with a collection of complaints,

including numbness in her right hand and pain in her thumb, index finger, and middle finger and

pain in her right shoulder, with no suggestion of trauma. Dr. Goldberg diagnosed plaintiff with

carpel tunnel syndrome. In October 2009, Dr. Anderson had a series of phone conversations with

plaintiff about an X-ray of her shoulder. He noted that she had neck pain near where her shoulder

and neck meet but in a different area than what was reflected on the X-ray. In Dr. Rabinowitz’s

opinion, plaintiff’s complaints from 2003 forward were part of the same continuum of

symptoms. In November 2009, plaintiff again complained of pain in her neck and upper arm.

Between June and August 2010, she again complained of pain in the neck and radiating into the

shoulder, and in August 2010, she still had symptoms in those areas. Dr. Rabinowitz described

plaintiff’s pain in her neck, shoulder, and arm as “chronic.”

¶ 14     Furthermore, on June 9, 2011, before the accident giving rise to the claims here, plaintiff

called Dr. Anderson’s office complaining about her right arm and hand falling asleep and having

a burning sensation that would wake her up while sleeping, accompanied by numbness and

tingling. Dr. Anderson’s office called her back later that day saying that it sounded like a pinched

nerve.

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¶ 15   Dr. Rabinowitz also reviewed plaintiff’s medical records from after the accident. In the

emergency room, plaintiff complained of pain in the back of her neck that radiated into her right

shoulder. The emergency room records did not reflect any prior history of neck, shoulder, or arm

pain. The records stated that plaintiff was alert with no acute distress. An examination suggested

a full range of motion in the upper extremities without pain or tenderness. An X-ray showed no

acute injury, although it did show some degenerative change. Dr. Rabinowitz acknowledged that

plaintiff was diagnosed in the emergency room as having a cervical strain and added that “the

most troubling part is that there aren’t the typical physical findings that we would see for [a

cervical strain], but given her complaints and her continuum of care, I felt it was reasonable to

assume based on her subjective complaints that she had a cervical strain.” He explained that

“there was no evidence of tenderness or spasm or significant restricted motion. There was no

evidence of contusion.” He agreed that “the treatment that she received relating to this cervical

strain was appropriate and fair from the time of the automobile collision through her release from

Dr. Frank in January of 2012.” Dr. Rabinowitz did not state that the treatment plaintiff received

was necessary.

¶ 16   On September 25, 2015, the jury found in favor of plaintiff and against defendant. The

jury awarded plaintiff $1000 for “the reasonable expenses of necessary medical care, treatment,

and services rendered.” The jury awarded plaintiff $0 for “pain and suffering experienced as a

result of the injuries,” and $0 for “loss of a normal life experienced.” Also on September 25,

2015, the circuit court entered a judgment in favor plaintiff on the jury’s verdict.

¶ 17   Plaintiff filed a timely motion for a new trial, arguing that the jury’s verdict was against

the manifest weight of the evidence. Plaintiff also filed a motion for costs. On January 20, 2016,

the circuit court denied the motion for a new trial and granted in part and denied in part

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plaintiff’s motion for costs. The circuit court awarded plaintiff $2264 in costs ($567 in filing

fees, $60 for service fees, and $1637 for the evidence deposition of Dr. Anderson) but did not

award plaintiff an additional $243.67 in requested “witness fees.” Plaintiff filed a timely notice

of appeal from the jury’s verdict, the denial of her motion for a new trial, and the partial denial of

her motion for costs.

¶ 18                                        ANALYSIS

¶ 19   On appeal, plaintiff argues that the jury’s verdict was against the manifest weight of the

evidence because the jury ignored “proven elements of damages.” She also argues that the circuit

court abused its discretion by denying her motion for a new trial. We address these arguments

together. She also argues that the circuit court abused its discretion by denying in part her

posttrial motion for costs. We address this argument in turn.

¶ 20   Plaintiff’s first argument on appeal is that the circuit court abused its discretion in

denying her motion for a new trial because the jury’s verdict was against the manifest weight of

the evidence. She contends that the jury ignored “proven elements of damages” because Dr.

Rabinowitz testified that the medical treatment she received from the date of the accident to her

discharge by Dr. Frank, totaling $15,770.88, was “necessary and reasonable.” According to

plaintiff, Dr. Rabinowitz testified that the treatment “was necessitated by the collision and was

reasonable and customary for the injuries she sustained.” She argues that Dr. Rabinowitz

testified that plaintiff sustained an “objective injury” as a result of the collision, specifically

tenderness in her back, and that the treatment she received in the emergency room at GlenOaks

was reasonable and necessary. She further contends that she received a medical bill from the

emergency room totaling $3742.75, and therefore, the jury ignored a proven element of damages

when it awarded her only $1000. Additionally, she argues that the jury’s award of $0 for pain

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and suffering was against the manifest weight of the evidence because it was “uncontroverted”

that she suffered an injury, and that the medical treatment she received for that injury was

“reasonable, customary, and necessary.”

¶ 21      When ruling on a motion for a new trial, the circuit court weighs the evidence and

determines if the jury’s verdict is contrary to the manifest weight of the evidence. Lawlor v.

North American Corp. of Illinois, 2012 IL 112530, ¶ 38. “A verdict is against the manifest

weight of the evidence only where the opposite result is clearly evident or where the jury’s

findings are unreasonable, arbitrary and not based upon any of the evidence.” (Internal quotation

marks omitted.) Young v. Alden Gardens of Waterford, LLC, 2015 IL App (1st) 131887, ¶ 46.

We will only reverse the circuit court’s ruling on a motion for a new trial where the moving party

affirmatively shows the circuit court abused its discretion. Velarde v. Illinois Central R.R. Co.,

354 Ill. App. 3d 523, 537-38 (2004). “In determining whether the trial court abused its discretion,

the reviewing court should consider whether the jury’s verdict was supported by the evidence

and whether the losing party was denied a fair trial.” Maple v. Gustafson, 151 Ill. 2d 445, 455

(1992).

¶ 22      The standard for an award of compensatory damages under Illinois law is whether a

reasonable jury could have awarded the damages it did. People ex rel. Department of

Transportation v. Smith, 258 Ill. App. 3d 710, 715-16 (1994). A reviewing court will overturn a

jury verdict when damages are manifestly inadequate because the proven elements of damages

were ignored, or if the amount awarded bears no reasonable relationship to the loss suffered by

the plaintiff. Id. Illinois courts have repeatedly held that the amount of damages to be assessed is

peculiarly a question of fact for the jury and that great weight must be given to the jury’s

decision. Snelson v. Kamm, 204 Ill. 2d 1, 36-37 (2003). “The mere fact that the verdict is less

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than the claimed damages does not necessarily mean the award is inadequate *** since the jury

is free to determine the credibility of the witnesses and to assess the weight accorded to their

testimony.” Montgomery v. City of Chicago, 134 Ill. App. 3d 499, 502 (1985).

¶ 23   We conclude that the circuit court did not abuse its discretion by denying plaintiff’s

motion for a new trial because the jury’s verdict was not against the manifest weight of the

evidence, since a reasonable jury could conclude that not all of the treatment plaintiff received

was reasonable and necessary, and that she was not entitled to compensation for the full amount

of the services for which she was billed. First, plaintiff’s argument that the jury ignored “proven

damages” is unfounded because the issues of whether the accident was the proximate cause of

her injuries and whether the treatment she received was necessary were disputed. She repeatedly

asserts that Dr. Rabinowitz testified that her treatment was “necessary,” but her assertion is not

supported by the record. Dr. Rabinowitz testified that, based on plaintiff’s subjective complaints,

he assumed that she suffered a cervical strain, although he qualified that assumption by stating

that the physical findings in the emergency room records were not typical of a cervical strain. He

further explained that GlenOaks’s emergency room records contained no evidence of the typical

signs associated with cervical strain, which include tenderness, spasm, significant restricted

motion, and contusion. Dr. Rabinowitz acknowledged that the treatment plaintiff received from

the time she went to the emergency room on the date of the accident to the time she was

discharged by Dr. Frank was appropriate, but he never agreed that it was necessary. The

questions of whether defendant’s negligence was the proximate cause of plaintiff’s injuries and

whether the treatment she received for those injuries was reasonable and necessary were disputed

at trial. We therefore reject plaintiff’s claim that the jury ignored “proven damages.”

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¶ 24   Furthermore, the jury heard testimony from which it could conclude that plaintiff lacked

credibility. The jury heard that plaintiff did not provide the GlenOaks emergency room

physicians with a history of her neck, back, and shoulder pain, including the numbness she

experienced immediately prior to the accident. Plaintiff testified that she experienced “minor

aches and pains” before the accident. But the jury also heard that plaintiff repeatedly sought

treatment for pain in those areas since 2003. Plaintiff testified that when she was in the

emergency room at GlenOaks, her pain was a 9 out of 10, but the GlenOaks emergency room

records stated that she was not in any acute distress following the accident. Here, the jury heard

all of the evidence and determined that plaintiff was entitled to compensation for some but not all

of the treatment she received for the injury she sustained in the accident.

¶ 25   Plaintiff relies on Anderson v. Zamir, 402 Ill. App. 3d 362 (2010), to support her

argument that she is entitled to a new trial. Anderson is distinguishable. There, the plaintiff sued

to recover for injuries she sustained to her neck and shoulder in a car accident. The defendants

admitted liability for the injury to plaintiff’s neck but contested liability as to the plaintiff’s

shoulder injury. Id. at 364-65. At trial, the plaintiff’s physicians testified that the plaintiff’s

shoulder injury was caused by the accident. Id. at 365-67. The defendants presented no evidence

to contradict the plaintiff’s evidence. Id. at 368. Despite the uncontested evidence related to

causation and uncontested evidence that the plaintiff’s nearly $29,000 in medical bills were

necessary and reasonable, the jury awarded the plaintiff only $5000 in damages. Id. We reversed

and remanded for a new trial on the issues of damages, finding that “the jury’s verdict simply

bears no reasonable relationship to the injuries established by [the plaintiff] at the trial, and

accordingly, the damages award must be reversed.” Id. Here, defendant presented contrary

evidence from which the jury could conclude that plaintiff had preexisting pain in her neck,

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shoulder, and back and that the accident was not the cause of all of plaintiff’s injuries.

Furthermore, the jury heard testimony that called into doubt whether all of the emergency room

charges were necessary or reasonable. We find that Anderson is factually distinguishable and

therefore does not control the outcome here.

¶ 26   We also find unpersuasive plaintiff’s reliance on Tipsword v. Johnson, 59 Ill. App. 3d

834 (1978). There, plaintiffs sued to recover for injuries sustained in an automobile accident. The

plaintiffs went to the emergency room, where they were diagnosed as having suffered “inertia

strain of the neck.” Id. at 835. The jury found that the defendants were liable for plaintiff’s

injuries but awarded the plaintiff $0 in damages. Id. We reversed because there was no dispute

that the plaintiffs had suffered injuries and incurred medical expenses as a result, and therefore

the jury’s award of no damages was erroneous. Id. at 837. Tipsword is distinguishable because

there, the jury awarded $0 in damages despite there being no dispute that the plaintiffs were

injured and incurred some medical expenses that were indisputably related to their injuries. Here,

the jury awarded plaintiff $1000 in damages for medical expenses, which suggests that the jury

believed that plaintiff incurred some medical expenses for injuries caused by defendant, but that

plaintiff was not entitled to the full measure of damages that she sought.

¶ 27   We also reject plaintiff’s argument that the jury’s verdict was against the manifest weight

of the evidence because she was awarded damages that were less than the emergency room bill

she received. The jury heard testimony from Julie Johnson that called into doubt whether

plaintiff was accurately billed for the emergency room services she received. There was evidence

that plaintiff may have been billed twice for X-rays, and that the coding of the medical services

did not objectively correspond to plaintiff’s condition as reflected in the emergency room

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records. A reasonable jury could conclude that not all of the emergency room services for which

plaintiff was billed were necessary or reasonable.

¶ 28   Next, plaintiff argues that the jury’s award of $0 for pain and suffering is against the

manifest weight of the evidence because the jury ignored “proven elements damages” related to

pain and suffering. She contends that there was no evidence to contradict Dr. Anderson’s

testimony that plaintiff suffered pain as a result of the injuries she sustained in the collision, or

Dr. Rabinowitz’s testimony that she suffered a cervical strain. But as discussed, Dr. Rabinowitz

testified that there were no objective signs of cervical strain, and that he assumed, based on

plaintiff’s subjective complaints, that plaintiff suffered a cervical strain. Our supreme court has

explained that “[a]n award for pain and suffering is especially difficult to quantify.” Snover v.

McGraw, 172 Ill. 2d 438, 448 (1996). We are to consider the distinction between subjective

complaints of pain and objective symptoms. Id. at 449. The court explained:

               “In cases in which a plaintiff’s evidence of injury is primarily subjective in nature

               and not accompanied by objective symptoms, the jury may choose to disbelieve

               the plaintiff’s testimony as to pain. In such a circumstance, the jury may

               reasonably find the plaintiff’s evidence of pain and suffering to be unconvincing.”

               Id.

¶ 29   Here, we find that the jury could reasonably conclude that plaintiff’s complaints of pain

and suffering were unconvincing and that she was not entitled to any damages for pain and

suffering. All of her complaints of pain were subjective. In June 2011, Dr. Anderson concluded

that plaintiff sustained a cervical strain, arm strain, forearm strain, and back strain based on his

evaluation of her as well as her subjective complaints of moderate pain. Likewise, Dr.

Rabinowitz testified that GlenOaks’s medical records on the date of the accident reflected no

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objective findings of cervical strain and stated that plaintiff was in no acute distress. The jury

heard conflicting evidence regarding the amount of pain plaintiff was in when she went to the

GlenOaks emergency room on June 11, and could reasonably conclude that plaintiff’s trial

testimony regarding her pain level affected her credibility regarding the amount of pain she

experienced. Furthermore, the jury heard testimony that plaintiff had a history of pain in her

neck, shoulder, and back, and could reasonably conclude that any pain she experienced following

the accident was not caused by the accident itself. We find that the jury did not ignore any

proven elements of damages, as defendant presented some evidence challenging the proximate

cause of plaintiff’s injuries, and the jury was free to make credibility determinations regarding

whether plaintiff was entitled to compensatory damages for her subjective complaints of pain.

¶ 30   In sum, we find that there was at least some evidence from which the jury could conclude

that not all of the medical treatment that plaintiff received was necessary and related to the

accident, and that not all of the bills for the medical treatment she received were for services that

that were necessary or reasonable. Furthermore, the jury was free to consider and reject

plaintiff’s subjective complaints of pain and suffering when determining whether to award

compensatory damages for pain and suffering. The jury did not ignore any proven elements of

damages, and therefore we conclude that the jury’s verdict awarding plaintiff $1000 in damages

was not against the manifest weight of the evidence. And, by default, the circuit court did not

abuse its discretion by denying plaintiff’s motion for a new trial.

¶ 31   Finally, we consider whether the circuit court abused its discretion by denying in part

plaintiff’s posttrial motion for costs. Plaintiff contends that the circuit court disallowed $243.67

in “witness fees,” which she argues are recoverable under section 5-108 of the Code of Civil

Procedure (Code) (735 ILCS 5/5-108 (West 2014)). She argues that these costs were for record

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requests for medical bills and that “because the records were introduced at trial and are witness

fees, the trial court abused its discretion when it denied [her] request for [costs] pursuant to

[section 5-108 of the Code].” We disagree.

¶ 32   Section 5-108 of the Code provides:

               “If any person sues in any court of this state in any action for damages personal to

               the plaintiff, and recovers in such action, then judgment shall be entered in favor

               of the plaintiff to recover costs against the defendant, to be taxed, and the same

               shall be recovered and enforced as other judgments for the payment of money,

               except in the cases hereinafter provided.” Id.

Although this provision entitling a plaintiff to costs is mandatory, the statutory mandate is to be

narrowly construed because statutes permitting recovery of costs are in derogation of the

common law. Moller v. Lipov, 368 Ill. App. 3d 333, 346-47 (2006). Our supreme court has

previously distinguished between taxable “court costs” and nontaxable “litigation costs.”

Vicencio v. Lincoln-Way Builders, Inc., 204 Ill. 2d 295, 302 (2003). “Court costs” are those

“charges or fees taxed by the court, such as filing fees, jury fees, courthouse fees, and reporter

fees,” whereas “litigation costs” are “the expenses of litigation, prosecution, or other legal

transaction, esp[ecially] those allowed in favor of one party against the other.” (Internal

quotation marks omitted.) Id. Section 5-108 of the Code “mandates the taxing of costs commonly

understood to be ‘court costs,’ such as filing fees, subpoena fees, and statutory witness fees, to

the losing party.” Id. Statutory witness fees include the “fees and mileage allowance provided by

statute for witnesses attending courts in this State.” (Internal quotation marks omitted.) Id. at

304. However, generally, a successful litigant is not entitled to recover the ordinary expenses of

litigation. Wiegman v. Hitch-Inn Post of Libertyville, Inc., 308 Ill. App. 3d 789, 804 (1999).

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¶ 33    The “witness fees” here are nontaxable litigation costs. Plaintiff fails to acknowledge the

distinction between a taxable court cost and a nontaxable litigation cost. She cites no authority to

support her claim that the costs she incurred to secure medical bills that were then introduced as

exhibits at trial constitute “court costs.” She makes no argument that the “witness fees” were for

statutory witness costs for transportation or attendance at court, as described in Vicencio. Instead,

the “witness fees” appear to be nothing more than the costs to secure medical bills, which are

costs that more closely resemble nontaxable litigation costs under section 5-108 of the Code.

Construing the statute narrowly, as we must, we decline to find that “witness fees” consisting of

record requests for medical bills later introduced as exhibits at trial amount to taxable court costs.

The circuit court did not abuse its discretion when it declined to award these expenses as costs to

plaintiff.

¶ 34                                      CONCLUSION

¶ 35    For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 36    Affirmed.

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56 Cal.App.4th 230 (1997)
In re CODY S., a Person Coming Under the Juvenile Court Law.
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
v.
RHONDA P., Defendant and Appellant.
Docket No. B105664.
Court of Appeals of California, Second District, Division Four.
June 18, 1997.
*231 COUNSEL
Jane Winer, under appointment by the Court of Appeal, for Defendant and Appellant.
De Witt W. Clinton, County Counsel, Auxiliary Legal Services, Holly R. Bryan and Kim D. Kedeshian for Plaintiff and Respondent.
OPINION
EPSTEIN, Acting P.J.
In this appeal, mother Rhonda P. challenges the juvenile court order terminating her parental rights. Her sole contention on appeal is that the court was not provided with adequate information and hence was unable to consider the minor's wishes regarding placement. We conclude that the department of children and family services (DCFS) provided sufficient information and affirm the order.

FACTUAL AND PROCEDURAL SUMMARY
Appellant is the mother of Cody S., born February 1, 1992. When Cody was two years old, he witnessed his father's murder. On February 16, 1995, Cody was declared a dependent child (Welf. & Inst. Code, § 300, subds. (b) and (j); all undesignated statutory references are to this code) based on sustained allegations that his home was in a filthy and unsanitary condition, and that his brother was a dependent child suitably placed in foster care. Appellant was ordered to participate in parenting and grief counseling, and conjoint counseling with Cody.
*232 At the six-month judicial review, the court continued jurisdiction over Cody, and continued the reunification services plan. At the 12-month judicial review, the court continued jurisdiction, terminated reunification services, and set the matter for a hearing pursuant to section 366.26.
Appellant challenged this order by writ petition, which was ultimately denied. (In re Cody S. (May 10, 1996) B099366 [nonpub. opn.].) Appellant also sought a change of order pursuant to section 388. That petition was denied on May 16, 1996.
At the section 366.26 hearing on September 9, 1996, the court terminated parental rights. This is an appeal from that order.

DISCUSSION
(1) Appellant claims the order terminating parental rights must be reversed because DCFS failed to provide the court with information regarding Cody's wishes as required under section 366.21, subdivision (i)(5) (hereafter section 366.21(i)(5)), thereby precluding the court from giving adequate consideration to Cody's wishes. Section 366.21(i)(5) requires preparation of an adoption assessment prior to a section 366.26 hearing, which "shall include" information addressing "The relationship of the minor to any identified prospective adoptive parent or guardian, the duration and character of the relationship, the motivation for seeking adoption or guardianship, and a statement from the minor concerning placement and the adoption or guardianship, unless the minor's age or physical, emotion, or other condition precludes his or her meaningful response, and if so, a description of the condition." (§ 366.21(i)(5), italics added.)
In this case, the adoption assessment did not include a statement from Cody. Instead, the report stated: "Cody, age 4 years, is too young to make a meaningful statement about adoption." Appellant argues this cannot be a valid basis to excuse compliance with the requirement of obtaining a statement where the child is age four or older. She relies on section 317, subdivision (e), which provides: "In any case in which the minor is four years of age or older, counsel [for the minor] shall interview the minor to determine the minor's wishes and to assess the minor's well-being, and shall advise the court of the minor's wishes." According to appellant, if the Legislature considers a four-year-old mature enough to be interviewed by counsel, then DCFS could not use the fact that Cody was only four years old as an excuse for failing to obtain his statement regarding adoption. We decline to graft the specific age requirement of section 317 onto section 366.21(i)(5).
*233 Prior to its amendment in 1993, section 366.21(i)(5) required DCFS to include a statement from the minor "if the minor is 10 years of age or older." In amending the statute, the Legislature expanded the opportunity for children of any age to express their feelings to the court regarding proposed placement, adoption, or guardianship. (Com. Analysis Statement of Assem. Com. on Judiciary, Sen. Bill No. 426 (July 7, 1993).) Rather than simply lower the age at which a statement must be obtained, the Legislature deleted the specific age requirement, instead requiring the statement "unless the minor's age or physical, emotional, or other condition precludes his or her meaningful response." By this choice, the Legislature rejected a purely chronological requirement in favor of a formulation which recognizes that children vary in their ability to provide a meaningful statement based on several different factors. There is no ambiguity in that formulation.
What is required under section 366.21(i)(5) is a statement from the minor concerning placement, adoption or guardianship, or an explanation as to why the child's physical, emotional or other condition precludes the child from making a meaningful statement on that subject. In this case, the explanation was that Cody was too young to provide a meaningful statement about adoption. The record bears that out.
Cody was four years, three months old at the time the initial assessment report was prepared, and four years, seven months old at the time of the section 366.26 hearing. At the hearing, the children's social worker (CSW) testified that she had discussed adoption with Cody, although she had not specifically explained that he would not see appellant anymore if he were adopted. According to the CSW, Cody's foster mother had many books on adoption and what it means to be adopted. The foster mother had been reading these books regularly to Cody, "[a]nd he's beginning to get an understanding of adoption and he seemed to relay that back to me." This evidence indicates that at the time of the hearing, four-year-old Cody had not yet grasped the full implications of adoption, and therefore would not be able to provide a meaningful statement about it to the CSW.
The court was provided with other information regarding Cody's wishes. In the September 1996 progress report, the CSW reported on the development of Cody's relationship with his prospective adoptive parents: "It does appear that at this time, Cody considers Mr. and Mrs. K. to be special friends with whom he would like to live; however, it is important that he also begin to see them in their parental roles." The report continued: "CSW has met with Cody on several occassions, and he has expressed a desire to live with Mr. and Mrs. K. In fact, [sic] he continually asks them when he can move into their house."
*234 While Cody's age and lack of understanding of adoption may have precluded him from making a meaningful statement about adoption, his wishes about placement were adequately reflected in the reports submitted to the trial court for the section 366.26 hearing.

DISPOSITION
The order terminating parental rights is affirmed.
Hastings, J., and Baron, J., concurred.


696 F.2d 985
Shambry, Appeal of
82-5313
UNITED STATES COURT OF APPEALS Third Circuit
11/9/82

1
D.N.J.

AFFIRMED


       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 In the Matter of the Estate of                 No. 80645-9-I

 CAROL L. WOOD                                  DIVISION ONE

 SUSAN M. GONZALES,                            UNPUBLISHED OPINION

                             Appellant,

               V.

 SECURITY STATE BANK, TRUSTEE
 DEPARTMENT,

                             Respondent,

 EDWARD JONES,

                             Other Party.      FILED: January 21, 2020

       CHUN, J.   —   Susan Gonzales appeals a trial court’s order requiring that an

individual retirement account (IRA) owned by decedent Carol Wood be liquidated

and transferred to Wood’s estate (Estate). Because the terms of the beneficiary

designation provide that Wood’s IRA passes directly to her children, we vacate

the court’s order and remand for further proceedings consistent with this opinion.

                                    BACKGROUND

      On May 7, 2014, Wood executed a will. The will stated that Wood was

unmarried and identified her two children as Susan Gonzales and Scott Wood.

Wood’s will made various cash bequests to Wood’s grandchildren and provided
No. 80645-9-1/2

that “[ajIl of the rest, residue and remainder of my estate” would go to Scott.’ To

aid the personal representative, the will noted that Wood’s “retirement savings

and account investments have been moved to the Edward Jones office in

Chehalis.”

          The will explicitly excluded Gonzales as a beneficiary except for a bequest

of photographs and other family memorabilia. It stated as follows:
                  I make no bequest, gift or devise to my children named in
          paragraph I, except as hereinafter provided. Due to circumstances
          that exist at this time, I am not making any provision for my daughter.
          I am hoping this situation may change but at the present time this is
          how I wish my estate to be handled.
          On April 28, 2016, Wood executed a codicil to the will modifying the

residuary provision; the codicil bequeathed “[ajIl of the rest, residue, and

remainder of my estate whether real or personal, and wheresoever situated” to

“the Security State Bank Trust Department, in Trust however, for my son,

Scott A. Wood.”

          The following day, April 29, 2016, Wood signed and dated a one-page

document entitled “Edward Jones Self-Directed Individual Retirement Account

Beneficiary Form.” The form provides as follows:
          By signing below:
          1. I designate as beneficiary(ies) of this account the individual(s) I
             have named on this Beneficiary Designation Form, which I have
             read and reviewed, and confirm the designation is complete and
             accurate.
      2. I acknowledge that any prior beneficiary designation for this
         account is hereby revoked.
      3. I acknowledge that I have the authority to designate, change or
         revoke the beneficiary(ies) for this account as the Account Holder

      1   We refer to Scott Wood by his first name to avoid confusion.

                                             2
No. 80645-9-1/3

            or an authorized representative of the Account Holder acting on
            specific authority to designate, change or revoke the
            beneficiary(ies).
Below these lines is Wood’s signature and date. Underneath is printed, in bold

type:
        NO BENEFICIARY DESIGNATION ON FILE, CUSTODIAL
        AGREEMENT DEFAULT APPLIES.
        Wood died on December 4, 2017, and her will was admitted to probate.

Security State Bank was appointed as the personal representative.

        On April 11, 2018, the Estate filed a motion for an order to show cause

“[w]hy the court should not issue an order requiring Edward Jones to process and

liquidate the IRA of Carol L. Wood as though it named “My Estate” as the

beneficiary of said account.” In support of the motion, the Estate filed a

declaration from Laurel Miller, the attorney for Security Street Bank and the

scrivener of Wood’s will and codicil. Miller stated that “Mrs. Wood was a strong

willed woman and knew her mind and her intent. I state unequivocally that on

May 7, 2014, the date of signing her will, that Mrs. Wood intended no part of her

estate to be received by her daughter.”

        Edward Jones filed a notice of non-opposition to the Estate’s motion,

stating that it was a neutral third party and took no position on the Estate’s

motion. It provided a copy of its IRA Custodial Agreement, a six-page document

listing the rules governing the IRA. The first paragraph of the Custodial

Agreement reads:
        This Custodial Agreement is incorporated into and is part of the
        Individual Retirement Account Authorization Form (collectively
        “Agreement”) signed by me (collectively “the Depositor,” “the Client,”
        “me,” “my,” and “I”) and constitutes a binding contract between

                                          3
 No. 80645-9-1/4

           Edward D. Jones & Co., L.P. (collectively, “Edward Jones” and
           “Custodian”), and me. I represent that I have read and understand
           the Agreement and agree to be bound by its terms as well as the
           separate disclosures and notices referenced in and/or provided with
           this Agreement.
 (Emphasis added).

           Under the section entitled “Designation of Beneficiaries” the Custodial

Agreement provides that the owner “may designate one or more beneficiaries of

my IRA.” The Agreement provides that, in the event that the owner does not

designate a beneficiary:
           [B]eneficiaries shall be deemed to be designated in the following
           order and priority: (1) my surviving spouse; or if none, then (2) my
           descendants, per stirpes, as defined under the laws of the State of
           Missouri;[21 or if none, then (3) my estate.
           Gonzales filed a response opposing the Estate’s motion and arguing that

the IRA’s default beneficiary provision required that the IRA pass in equal shares

to her and Scott.

       The trial court issued an order requiring that the IRA pass to the Estate.

In doing so, the trial court found that:
       [T]he overriding intent of the of the [sic] decedent to leave the
       residuary of her estate to the Trust created for her son is quite
       evident from the “four corners” of the will and codicil and that the
       evidence shown as to whether decedent knew of the custodial
       agreement terms and her intent in not naming a beneficiary are
       neither clear enough nor sufficient to overcome the clear showing as
       to her intentions as to the residue of the estate.
The trial court denied Gonzales’s motion for reconsideration. Gonzales appeals.

       2 Missouri law provides that if there is no surviving spouse, a decedent’s assets
pass to “the decedent’s children, or their descendants, in equal parts.” Mo. REV. STAT.
§ 474.010(2)(a).

                                            4
 No. 80645-9-115

                                   DISCUSSION

       Gonzales argues that the trial court erred in concluding that the IRA must

pass to the Estate to be distributed under the residue provision of Wood’s will.

We agree.

       In general, the standard of review is de novo in probate proceedings for

decisions based on declarations, affidavits, and written documents. In re Estate

of Bowers, 132 Wn. App. 334, 339-40, 131 P.3d 916 (2006).

       An IRA is a nonprobate asset subject to distribution outside a will.

RCW 11.02.005(10). While RCW 11.11.020 allows individuals to dispose of

certain types of nonprobate assets through a will, IRAs are specifically excluded

from this class. RCW 11.11.010(7)(a)(v). And even if RCW 11.11.020 permitted

Wood’s will to control the disposition of the IRA, nonprobate assets cannot be

disposed of by a general residuary provision. RCW 11.11.020(2); Manary v.

Anderson, 176 Wn.2d 342, 356-57, 292 P.3d 96, 103 (2013) (holding that a

testator who bequeathed “the ‘rest, residue and remainder of [his] estate” to two

testamentary beneficiaries had not changed the beneficiary designations of his

nonprobate assets.). Thus, Wood’s IRA passes under the terms of the

beneficiary designation.

      The day after she executed a codicil to her will, Wood signed a beneficiary

designation form with Edward Jones that revoked all prior beneficiaries and

explicitly did not name a new beneficiary. With no named beneficiary, the default

provisions in the Custodial Agreement control how the IRA is distributed after

                                         5
 No. 80645-9-1/6

Wood’s death. The plain language of the Custodial Agreement provides that the

IRA is to be distributed to Wood’s children, not to the Estate.

        The Estate argues that there was no evidence that Wood intentionally

failed to designate a beneficiary, nor evidence that she was aware the Custodial

Agreement contained a default beneficiary designation provision.3 We agree

with the Estate that the beneficiary declaration form, puzzlingly, does not appear

to provide an opportunity to designate a beneficiary. But we disagree with the

Estate’s assertion that the burden to present this evidence rested with Gonzales.

There was no statutory authority for a show cause hearing under these

circumstances, and thus no statutory provision for which party bore the burden of

proof.4 And the trial court’s order, drafted by the Estate, required that Edward

Jones, not Gonzales, show cause as to why the IRA should not pass to the

Estate.5

       The Estate contends that the trial court was obligated to consider Wood’s

intent to leave her financial assets to Scott because the paramount function of

the court in interpreting a will is to carry out a testator’s intent. But the

interpretation of Wood’s will is not at issue here because the IRA was a

nonprobate asset that passed outside the will. The Estate asserts that the trial

        ~ The Estate also argues that it would be procedurally unconscionable to enforce
the default beneficiary provisions if Wood had no notice of them. Because the Estate did
not raise this argument below, we do not consider it. RAP 2.5(a).
        ~ The only provision for a show cause hearing in probate proceedings is
RCW 11.68.070, involving the removal of a personal representative.
        ~ The Estate provided Gonzales notice of its motion. But Gonzales’s status with
regard to the show cause motion was apparently unclear enough that Gonzales filed a
motion to intervene in the proceedings.

                                           6
 No. 80645-9-1/7

 court properly considered Wood’s will as extrinsic evidence in interpreting the

 beneficiary designation form or the Custodial Agreement. But while extrinsic

evidence may be examined to determine the meaning of specific words and

terms used, it cannot show “intention independent of the instrument” or “vary,

contradict or modify the written word.” Hollis v. Garwall, Inc., 137 Wn.2d 683,

695-96, 974 P.2d 836 (1999). In other words, “if the contract says blue, a person

can’t say but what I meant was not blue, I meant red.” Miller v. Kenny, 180 Wn.

App. 772, 793, 325 P.3d 278 (2014). The Custodial Agreement is clear. If the

owner does not designate a beneficiary, the beneficiary shall be determined in

accordance with the default beneficiary rules. In the case of Wood, who had no

surviving spouse, the default beneficiaries are her children. To the extent that

the trial court interpreted the beneficiary designation form using Wood’s will as

extrinsic evidence of Wood’s intent, it was error.

       Both parties request attorney fees and costs on appeal under RAP 18.1

and RCW 11.96A.150. RCW 11.96A.150(1) allows a court to award costs and

reasonable attorney fees to any party in trust and estate disputes “in such

amount and in such manner as the court determines to be equitable.” “In

exercising its discretion under this section, the court may consider any and all

factors that it deems to be relevant and appropriate.” RCW 11.96A.150(1).

Because Gonzales has prevailed in this appeal, we award her attorney fees,

subject to compliance with RAP 18.1(d). We also award Gonzales her costs

pursuant to RAP 14.2

                                         7
No. 80645-9-1/8

      We vacate the order and remand to the trial court for further proceedings,

at which time the parties may continue to address the disposition of Wood’s IRA.

WE CONCUR:


693 F.Supp. 851 (1988)
June E. PERFIT, Plaintiff,
v.
Martin J. PERFIT, Defendant.
No. CV 83-7916 AHS.
United States District Court, C.D. California.
August 25, 1988.
*852 Paul M. Hittelman, Hittelman & Pritikin, Los Angeles, Cal., for plaintiff.
Robert D. Brill, Bonne, Jones, Bridges, Mueller, O'Keefe & Hunt, Los Angeles, Cal., Jerry Miller, Schulman & Miller, Beverly Hills, Cal., for defendant.

OPINION ON ORDER GRANTING DIRECTED VERDICT IN FAVOR OF DEFENDANT
STOTLER, District Judge.
Plaintiff June E. Perfit brought this action seeking damages under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, on the basis of defendant Martin J. Perfit's installation of a recording device on a telephone in the marital home. A jury trial commenced on May 24, 1988. At the conclusion of plaintiff's case completed by an offer of proof, the Court granted a directed verdict in favor of defendant for the reasons set forth below.

FACTS AND PROCEDURAL BACKGROUND
Plaintiff and defendant were wife and husband. On or about August 30, 1983, plaintiff filed a petition for legal separation in Superior Court for the County of Los Angeles. The petition was subsequently amended to request dissolution of the marriage. After a three-week trial in April 1985, the Superior Court entered a judgment of dissolution of marriage on October 16, 1985. During the pendency of the dissolution proceedings, and throughout this entire action, the parties continued to reside together in their expansive marital home.
During the period following the filing of the petition for legal separation, defendant claimed that he was not receiving all his phone messages left at the home by his attorney and business associates. Supposedly to remedy this problem, in November 1983 he purchased and installed a voice-activated recording device on the telephone in a bedroom formerly occupied by one of the couple's children.
On or about November 22 or 23, 1983, plaintiff discovered the tape recorder and disconnected the unit. She removed a tape from the unit on which certain telephone conversations had been recorded. Plaintiff preserved both for use as evidence.
As a result of defendant's actions, plaintiff instituted this action on December 6, 1983. She alleged that defendant intercepted oral communications in violation of 18 U.S.C. § 2511, and invoked this Court's jurisdiction under 18 U.S.C. § 2520. Plaintiff added pendent state claims for invasion of privacy, intentional infliction of emotional distress, and negligent infliction of emotional distress. She sought relief in the form of compensatory and exemplary damages for all claims, and liquidated damages pursuant to 18 U.S.C. § 2520. Both parties filed jury demands.
Trial was initially scheduled to begin in July 1984, but was continued numerous times at the request of both parties as well as by the Court. On October 23, 1987, the Court dismissed the pendent state claims on its own motion following the issuance of an order to show cause and responses thereto.
On December 2, 1987, defendant filed a motion to dismiss the remaining claim for interception of oral communications on the basis that Title III does not apply to this case. Because the decisions of the Courts of Appeals are not uniform on the issue of the applicability of 18 U.S.C. § 2511 to electronic surveillance between spouses, because no Ninth Circuit opinion had been issued on the subject, and because the factual context might better frame the issue, the Court denied the motion.
Trial commenced on May 24, 1988. During plaintiff's testimony the jury listened to the tape which plaintiff removed from the recording device when she discovered it. Approximately six conversations were recorded on the tape. Plaintiff participated in none of the recorded conversations.
At the conclusion of plaintiff's testimony, defendant again moved for dismissal of the *853 action. The Court took the motion under submission, and the next morning requested that plaintiff set forth the remainder of her case through an offer of proof outside the presence of the jury. Following the offer of proof, the Court granted defendant's motion as one for a directed verdict, and excused the jury. Judgment was entered on May 31, 1988.

DISCUSSION

I.

Motion for Directed Verdict
Defendant made an oral motion for involuntary dismissal under Fed.R.Civ.P. 41(b). Although Rule 41(b) applies only to non-jury cases, the Court may treat the motion for dismissal as a motion for a directed verdict under Rule 50(a). Johnson v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co., 400 F.2d 968, 970 n. 1 (9th Cir.1968). While it is preferable that a motion for directed verdict be made in writing, the Court may consider an oral motion made during the course of a hearing or trial. U.S. Industries, Inc. v. Semco Manufacturing, Inc., 562 F.2d 1061, 1065 (8th Cir.), cert. denied, 434 U.S. 986, 98 S.Ct. 613, 54 L.Ed.2d 480 (1977).
A directed verdict is proper when the evidence allows only one reasonable conclusion as to the verdict. Lew v. Moss, 797 F.2d 747, 752 (9th Cir.1986). It is not proper if there is substantial evidence supporting a verdict in favor of the non-moving party. To determine whether there is substantial evidence to support such a finding, the Court must examine all evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Id.
It is within the power of the Court to "direct a verdict at any point in the trial where it is apparent that there is a complete absence of any question to send to the jury." United States v. Vahlco Corp., 720 F.2d 885, 889 (5th Cir.1983), citing Best v. District of Columbia, 291 U.S. 411, 54 S.Ct. 487, 78 L.Ed. 882 (1934). Accordingly, the Court has inherent power to grant a directed verdict at any time during trial. Oliver v. Southern Railway Co., 475 F.2d 895, 897 (D.C.Cir.1972), citing Best v. District of Columbia, 291 U.S. 411, 54 S.Ct. 487, 78 L.Ed. 882. It was therefore appropriate to consider and grant a directed verdict at the close of plaintiff's case, albeit completed through an offer of proof.

II.

Applicability of 18 U.S.C. §§ 2510-2520
The Court based its grant of a directed verdict on two grounds: (1) that the wiretap statute did not apply to the facts of this case, and (2) that even if the statute applied, the evidence did not support a reasonable inference that the statute had been violated.
The provisions of 18 U.S.C. § 2511[1] prohibit, with certain stated exceptions, the interception and disclosure of wire and oral communications.[2] Pursuant to 18 U.S.C. *854 § 2520,[3] a person whose communications are intercepted, disclosed, or used in violation of Title III may bring a civil action for damages. The principal issue here is whether Title III creates civil liability where one spouse installs a recording device on a telephone in the mutually occupied marital home without the other spouse's knowledge or consent.
The Ninth Circuit has rendered no opinion on the issue, while the Courts of Appeals which have considered the applicability of Title III to actions between spouses are split. The Fifth Circuit first examined the question in Simpson v. Simpson, 490 F.2d 803 (5th Cir.), cert. denied, 419 U.S. 897, 95 S.Ct. 176, 42 L.Ed.2d 141 (1974). In Simpson, the couple was residing together in the marital home at the time the husband attached a recording device to the phone lines in the home for the purpose of intercepting conversations between his wife and another man.
While conceding that the naked language of Title III applied, the Simpson court opined that "Congress did not intend such a far-reaching result, one extending into areas normally left to states, those of marital home and domestic conflicts." Id. at 805. After an exhaustive search of the legislative history of Title III, the court found no conclusive evidence that Congress intended the statute to invade and regulate the marital relationship within the marital home. Given such inconclusive legislative history, the court focused on two others factors in reaching its decision. First, the court observed that Congress specifically excepted interception of a conversation through the use of an extension phone within the family home. See 18 U.S.C. § 2510(5)(a)(i).[4] The Simpson court failed to see a difference between the overhear achieved by listening on an extension and that achieved by the husband's act. Second, in view of Title III's criminal sanctions, the court was guided by the principle that criminal statutes must be strictly construed. 490 F.2d at 809.
In its conclusion, although expressed with some hesitancy, the Simpson court held that "the statute is not sufficiently definite and specific to create a federal cause of action for the redress of appellant's grievances against her former husband." Id. at 810. However, the court limited its decision to the facts of the case, noting that no public official or any private person other than the husband was involved, and the locus in quo did not extend beyond the marital home. Id.
The Sixth Circuit reached a different conclusion in United States v. Jones, 542 F.2d 661 (6th Cir.1976). The Jones court distinguished Simpson on both the law and the facts. The court interpreted Title III's legislative *855 history as indicating that Congress was cognizant of and concerned by the use of electronic surveillance for the purpose of marital litigation. The court determined that the legislative history focusing on surveillance instigated by a spouse but conducted by a third party was applicable to interspousal surveillance. The court further reasoned that the extent of legislative attention to law enforcement surveillance, relative to that afforded private surveillance, likely indicated a Congressional consensus that private electronic surveillance is not justified. Finally, the court also observed as a matter of statutory construction that if Congress had intended otherwise, it could have provided for an express exception for interspousal wiretaps. Id. at 670-71.
Factually, the court distinguished Simpson on the basis that the husband and wife were separated at the time the surveillance took place. The husband had moved out of the house and was under a restraining order from the Chancery Court to prevent him from "coming about" his wife. Accordingly, there was no "marital home" as there had been in Simpson, and the husband conducted the surveillance from outside the home where the telephone was located. On those particular facts, the Jones court declined to imply an interspousal exception to the wiretap statute. Id. at 673.
In Anonymous v. Anonymous, 558 F.2d 677 (2d Cir.1977), the Second Circuit followed Simpson and declined to apply Title III to a husband's interception of telephone conversations between his wife and daughter. While the couple's daughter was residing with the husband, he installed a recording device on the telephone for the alleged purpose of avoiding contact with his wife when she called to speak with their daughter. The wife alleged that the husband intended to use the tapes against her in a later custody battle. In declining to apply Title III to this interspousal domestic conflict, the court was persuaded by the extension phone exception contained in 18 U.S.C. § 2510(5)(a)(i). The fact that the husband taped conversations which he could have permissibly overheard was found to be a distinction without a difference in terms of that exception. In addition, the court noted that the extension exception was unavailable in Jones since the parties had established separate residences. Id. at 679.
The Fourth Circuit evened the split in Pritchard v. Pritchard, 732 F.2d 372 (4th Cir.1984), finding that there is no express exception for willful, unconsented-to interspousal electronic surveillance, nor is there any indication in the statutory language or legislative history of Title III that Congress intended to imply such an exception. The Pritchard court relied on other courts' analyses of the legislative history of the statute, and sided with the Jones court, finding ample indications that Congress was aware that the statute's inclusive language might reach interspousal surveillance.
An analysis of the district court opinions on this issue provides no further guidance, given that the courts' holdings are similarly divided.[5]
After careful consideration of the differing interpretations of Title III as they apply to the facts of this case, the Court is persuaded by the rationale of both Simpson and Anonymous. Here, the interception took place entirely within the marital home where both parties resided. Although the legislative history of Title III addresses the use of such surveillance in domestic disputes, it is unlikely that Congress intended its regulations to extend to *856 such personal acts conducted within the marital home. Application of federal law to an interspousal domestic conflict would run counter to the tradition of leaving such matters to the realm of state courts.
The Court is particularly mindful of the reliance placed on the extension phone exception in Simpson and Anonymous. See Simpson, 490 F.2d at 809 n. 17; Anonymous, 558 F.2d at 678-679. What defendant accomplished in this case could have been accomplished just as easily by listening in on one of several extension phones described by plaintiff's evidence to be found in the home. Furthermore, the Court reads the extension exception as an expression of Congressional intent to exclude from Title III the interception of telephone conversations taking place within the marital home.
Finally, even if the Court were to conclude that Title III applies to this situation, defendant is entitled to a directed verdict because there is insufficient evidence to sustain plaintiff's case. There was no evidence, either from plaintiff's testimony or the tape removed from the recording device, that a conversation in which plaintiff participated was intercepted. As previously noted, the intercepted communication is one uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation. 18 U.S.C. § 2510(2). Plaintiff's offer of proof further indicated that no such evidence would be forthcoming.
Viewing the evidence in a light most favorable to plaintiff, no reasonable inference may be drawn which suggests that defendant intercepted any communication uttered by plaintiff. Lack of such a reasonable inference is fatal to plaintiff's case. While 18 U.S.C. § 2511(1)(a) forbids one from either intercepting or endeavoring to intercept any wire communication, 18 U.S. C. § 2520(a) provides relief through a civil action only to a person whose wire communication is actually intercepted. Because no evidence exists to establish that plaintiff's wire communications were ever intercepted, Title III affords her no remedy.
Accordingly, and in light of the foregoing, defendant is entitled to judgment.
NOTES
[1]  Title 18 U.S.C. § 2511 (West Supp.1988) provides in part:

"(1) Except as otherwise specifically provided in this chapter any person who
(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
(b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when
(i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; ... shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5)."
[2]  Title 18 U.S.C. § 2510 (West Supp.1988) provides in part:

"As used in this chapter
(1) `wire communication' means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception ...
(2) `oral communication' means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication; ...
(4) `intercept' means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device...."
[3]  Title 18 U.S.C. § 2520 (West Supp.1988) provides in part:

"(a) In general.Except as provided in section 2511(2)(a)(ii), any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity which engaged in that violation such relief as may be appropriate.
(b) Relief.In an action under this section, appropriate relief includes
(1) such preliminary and other equitable or declaratory relief as may be appropriate;
(2) damages under subsection (c) and punitive damages in appropriate cases; and
(3) a reasonable attorney's fee and other litigation costs reasonably incurred.
(c) Computation of damages. ... (2) In any other action under this section, the court may assess as damages whichever is the greater of
(A) the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation; or
(B) statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000."
[4]  Title 18 U.S.C. § 2510(5)(a)(i) (West Supp. 1988) provides:

"As used in this chapter ...
(5) `electronic, mechanical, or other device' means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than
(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business...."
[5]  See, e.g., Kempf v. Kempf, 677 F.Supp. 618 (E.D.Mo.1988) (holding Title III inapplicable to wife's claim against her husband who installed a cassette recorder to a telephone in the family home to intercept her calls where the parties were sharing a home and living together as husband and wife); Nations v. Nations, 670 F.Supp. 1432 (W.D.Ark.1987) (holding that wife stated a cause of action under Title III by alleging that her husband placed a recording device on a telephone in the marital home without her knowledge or consent); Lizza v. Lizza, 631 F.Supp. 529 (E.D.N.Y.1986) (holding that husband's placement of a recording device on the residential home telephone without the wife's knowledge or consent did not violate Title III and did not subject the husband to civil liability under that statute).


257 F.Supp.2d 768 (2003)
CARY OIL CO., INC., et al., Plaintiffs,
v.
MG REFINING & MARKETING, INC., et al., Defendants.
No. 99 CIV. 1725(VM).
United States District Court, S.D. New York.
April 28, 2003.
*771 Richard G. Tashjian, Tashjian & Padian, New York, NY, for plaintiffs.
Robert B. Bernstein, Kaye, Scholer, Fierman, Hays & Handler, L.L.P., New York, NY, for defendants.

DECISION AND ORDER
MARRERO, District Judge.
Before the Court are ten motions in limine (the "Motions") submitted by Plaintiffs in connection with the trial of this matter, scheduled to begin on May 5, 2003.
As discussed in the Statement of the Court Regarding Certain Motions in Limine of Plaintiffs, dated April 28, 2003, which is attached hereto and incorporated by reference herein, the Court denies five of the Motions, grants three of the Motions, and grants in part and denies in part two of the Motions. Accordingly, it is hereby
ORDERED that the Plaintiffs' Motion to Exclude Evidence and Argument Regarding MG's Illegality Defense or to Enforce the Flexie Without Paragraph 16 is denied; and it is further
ORDERED that the Plaintiffs' Motion to Exclude Evidence and Argument on the Beliefs and Statements of Salesmen is denied; and it is further
*772 ORDERED that the Plaintiffs' Motion to Exclude Evidence and Argument on the Motivations, Communications, and Reasons Behind Plaintiffs Filing the Instant Lawsuit is granted; and it is further
ORDERED that the Plaintiffs' Motion to Preclude Admission of Unrelated Arbitration Decision is granted in part and denied in part; and it is further
ORDERED that the Plaintiffs' Motion to Exclude Evidence and Argument Relating to Alleged Malfeasance and Unauthorized Acts of the Former President of MGRM is granted in part and denied in part; and it is further
ORDERED that the Plaintiffs' Motion to Exclude Evidence and Argument on the Statute of Frauds is denied; and it is further
ORDERED that the Plaintiffs' Motion to Exclude Evidence and Argument on Failure of Consideration is granted; and it is further
ORDERED that the Plaintiffs' Motion to Exclude Any Argument or Evidence That MGRM Did Not Breach the Flexies is denied; and it is further
ORDERED that the Plaintiffs' Motion to Exclude Evidence and Argument Concerning Former Plaintiffs or Other MG Customers is granted; and it is further
ORDERED that the Plaintiffs' Motion to Exclude Evidence of Plaintiffs' Accounting Practices and Whether Premiums Were Paid on the Flexies is denied; and it is finally
ORDERED that the parties shall initiate a conference call with the Court to discuss all outstanding pre-trial matters on Tuesday, April 29, 2003 at 1:15 p.m.
SO ORDERED.

ATTACHMENT

SUMMARY DECISIONS OF THE COURT REGARDING CERTAIN MOTIONS IN LIMINE OF PLAINTIFFS

I. MOTION TO EXCLUDE EVIDENCE AND ARGUMENT REGARDING MG'S ILLEGALITY DEFENSE OR TO ENFORCE THE FLEXIE WITHOUT PARAGRAPH 16

Plaintiffs' motion is denied.
With regard to MG's illegality defense, the Court notes two considerations. First, in In re: MG Ref. & Marketing, Inc., No. 94 Civ. 2512(SS), 1997 WL 23177 (S.D.N.Y.1997), 1997 U.S. Dist. LEXIS 444, Judge Sotomayor held that Paragraph 19(c) of the flexie contracts (the "Contracts") does not waive a claim of illegality because "public policy dictates that the Court refrain from enforcing [illegal] agreements." Id. at *8. Second, despite what Plaintiffs allege are changes to public policyas reflected by the enactment of the Commodity Futures Modernization Act ("CFMA")since Judge Sotomayor's ruling, this Court has already ruled in this case concerning a similar issue that the "presumption against retroactivity" applies to provisions of the CFMA that might "`eliminate a defense' to a breach of contract action and `therefore change[] the substance of the existing cause of action for ... defendants by attaching] a new disability, in respect to transactions or considerations already past.'" Cary Oil Co., Inc. v. MG Refin. & Marketing, Inc., 230 F.Supp.2d 439, 457 (S.D.N.Y.2002).
Concerning the severability of Paragraph 16, the Court finds the following points compelling. First, in determining whether a contract is severable or entire, "the primary factor to consider is the intent of the parties as determined by *773 a fair construction of the terms and provisions of the contract itself, by the subject matter to which it has reference, and by the circumstances existing at the time of contracting." Mun. Capital Appreciation Partners I, L.P., v. Page, 181 F.Supp.2d 379, 384 (S.D.N.Y.2002). Second, because intent of the parties is a crucial element, the Court does not feel that, on the eve of trial, it is appropriate for the Court to usurp the jury's role in evaluating the totality of the evidence and determining whether the parties intended, based on the circumstances existing at the time of contracting, to create a Contract that could exist despite the elimination of the blowout provision.
Indeed, one of the questions that the jury must answer is whether Plaintiffs viewed the Contracts as speculative instruments, or as fuel delivery contracts or risk management tools to hedge against possible problems with other fuel delivery contracts. The jury's answer will also allow it to determine whether the parties intended the Contracts to remain valid despite the loss of what could be viewed as a crucial provision of the Contract.

II. MOTION TO EXCLUDE EVIDENCE AND ARGUMENT ON THE BELIEFS AND STATEMENTS OF SALESMEN

Plaintiffs' motion is denied, for the reasons expressed by the Court in more detail at the pre-trial conference held on the record on April 23, 2003.

III. MOTION TO EXCLUDE EVIDENCE AND ARGUMENT ON THE MOTIVATIONS, COMMUNICATIONS, AND REASONS BEHIND PLAINTIFFS' FILING THE INSTANT LAWSUIT

Plaintiffs' motion is granted.
Defendants wish to introduce such evidence and argument to support certain affirmative defenses. The Court has barred three of these defenses (equitable estoppel, waiver and rescission) as a matter of law based on prior rulings in this matter at the summary judgment phase. With regard to the two remaining affirmative defenses (illegality and release), the Court is persuaded that Defendants will be able to argue these defenses without needing to introduce evidence and argument relating to the motivations of Plaintiffs in bringing the instant lawsuit.
Moreover, such evidence would be distracting to the jury, focusing them on the irrelevant issue of why the Plaintiffs may have filed the lawsuit. The Court is not persuaded that such an issue has a direct bearing on the illegality of the Contracts or whether or not Plaintiffs signed a release that barred their claims. Indeed, the Court believes the "probative value [of such evidence] is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury Fed.R.Evid. 403.

IV. MOTION TO PRECLUDE ADMISSION OF UNRELATED ARBITRATION DECISION

Plaintiffs' motion is granted in part, and denied in part.
The Court is persuaded that the decision issued by a panel of arbitrators in an employment dispute between Defendants and two of its former employees, W. Arthur Benson and William Benson (the "Arbitration Decision") could, if introduced in full to the jury, have a prejudicial effect on the jury's deliberations, creating an impression that an official decision-maker found the Bensons to be negligent in their fiduciary duties as employees. Such an impression could encourage the jury to make a decision on how much blame to *774 assign to Defendants based on the arbitration panel's findings, not on the jury's own deliberations. Therefore, Defendants will not be allowed to introduce the Decision as a trial exhibit, nor to introduce deposition testimony from cross-examination of the Bensons that essentially serves as a backdoor means to read the arbitration panel's hearsay and unduly prejudicial findings into the record of this case.
However, insofar as Defendants seek to introduce such deposition testimony, assuming a proper foundation for it exists, to demonstrate bias by any of the Bensons against Defendants or to raise questions of the Bensons' credibility in their testimony regarding Defendants, the evidence may be admitted. In addition, the Court will permit relevant discussion of the Decision only if Defendants lay the proper foundation to introduce any portion of the Arbitration Decision as it bears upon the bias or credibility of the Bensons.

V. MOTION TO EXCLUDE EVIDENCE AND ARGUMENT RELATING TO ALLEGED MALFEASANCE AND UNAUTHORIZED ACTS OF THE FORMER PRESIDENT OF MGRM

Plaintiffs' motion is granted in part, and denied in part.
The Court is not persuaded that all evidence and argument relating to the actions of Arthur Benson ("Benson") should be excluded. As Defendants note, certain elements of Plaintiffs' veil-piercing argument will require Plaintiffs to prove and the jury to find that MGAG controlled and dominated the decision by MGRM to enter into the Consent Order and that in doing so it employed improper means. This issue necessarily involves questions of what actions Benson took and whether those actions were known and approved of by executives of MGAG and/or MG Corp.
However, consistent with its ruling regarding the permissible use of portions of the Arbitration Decision for limited purposes, the Court is not persuaded that Defendants should be allowed to introduce any findings from that proceeding that show Benson was terminated by MGRM for gross negligence. Moreover, the Court is not inclined to permit Defendants to engage in a debate over whether Benson's business judgment was good or bad. Thus, the Court will limit any discussions of Benson's actions to those that directly involve the relationship between MGAG and MGRM as it pertains to and informs the veil-piercing test, as previously defined by this Court.

VI. MOTION TO EXCLUDE EVDENCE AND ARGUMENT ON THE STATUTE OF FRAUDS

Plaintiffs' motion is denied.
The Court is persuaded that Defendants should be permitted to argue that some Contracts with certain Plaintiffs were never binding because the Contracts were not signed and returned by the Plaintiffs. New York courts have consistently held that "if parties do not intend to be bound by an agreement until it is in writing and signed, then there is no contract until that event occurs." R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 74 (2d Cir.1984). To determine such intent, courts look to four factors: "(1) whether there has been an express reservation of the right not to be bound until a writing is executed; (2) whether there has been partial performance; (3) whether any terms of the alleged agreement remain to be negotiated; and (4) whether the disputed agreement is the type of contract that is ordinarily committed to writing." Stockalert, Inc. v. Nasdag Stock Market, Inc., No. 95 Civ. 9335(JFK), 1998 WL 556036, at *9 (S.D.N.Y. 1998). The Court is satisfied *775 that Defendants should be permitted to introduce evidence to the jury in order to prove that these factors demonstrated an intent by both parties not to be bound by the Contracts unless they were signed, and that some Plaintiffs did not sign the Contracts as necessary to manifest this intention, thus making any such Contracts invalid.

VII. MOTION TO EXCLUDE EVIDENCE AND ARGUMENT ON FAILURE OF CONSIDERATION

Plaintiffs' motion is granted.
The Court agrees with Judge Sotomayor that "§ 2 of [the flexie contracts] unambiguously places an obligation on each Customer to take delivery sometime within the five or ten year terms set by the individual instruments." MG Ref. & Marketing, Inc. v. Knight Enter., Inc., 25 F.Supp.2d 175, 181 (S.D.N.Y.1998). Thus, the Court is persuaded that when Plaintiffs entered into the Contracts, they assumed an irrevocable obligation to purchase petroleum products at some point, and that this obligation satisfies the legal requirement of consideration.
Defendants argue that this obligation was in fact "illusory" because (1) "it was a virtual certainty that futures prices would spike during the contract term" and allow Plaintiffs to blow out their contracts and (2) even if such a spike did not happen, MGRM had told Plaintiffs that it would roll over the Contracts so that Plaintiffs would never have to take delivery. (MG Defendants' Opposition to Plaintiffs' Motion in Limine to Exclude Evidence and Argument on Failure of Consideration, dated Apr. 11, 2003, at 2.) However, an oil price spike was an outside event uncontrollable by either party, and while it is possible that Plaintiffs may have thought that a price spike would happen, they had to enter into the Contracts with the knowledge that a spike in oil prices during the term of the Contracts was not an inevitable event. Thus, their promise to take delivery was not entirely illusory.
In addition, Defendants' purported promise to roll over the Contracts to prevent Plaintiffs from having to take delivery is speculative, unsupported by written documentation, and, even if it did exist, could have changed if the personnel that made the alleged promise left MGRM during the term of the Contracts. Thus, the Court is not persuaded that Defendants' alleged oral promises, which were supported only by the word of MGRM personnel who may not have been employed at MGRM long enough to enforce such promises, are sufficient to demonstrate an illusory promise as a matter of law.

VIII. MOTION TO EXCLUDE ANY ARGUMENT OR EVIDENCE THAT MGRM DID NOT BREACH THE FLEXIES

Plaintiffs' motion is denied.
The Court has already ruled that the Consent Order may be introduced at the trial to enable the jury to understand why Defendants entered into the Consent Order and what the Consent Order meant to the future of the Contracts. In the same ruling, the Court noted that for Plaintiffs to prove their veil-piercing argument, they will have to show both domination by MGAG and/or MG Corp. of MGRM's decision to enter into the Consent Order and that such domination was used to commit a fraud or wrong, such as a breach of a legal duty, that injured Plaintiffs.
To instruct the jury at the outset that MGRM's entry into the Consent Order constituted a breach of the Contracts would disrupt the Court's prior ruling and deny Defendants the opportunity to argue *776 that their inability to perform was forced upon them by order of a governmental entity and that therefore they did not intentionally breach a legal duty or commit a wrong, fraud or dishonest and unjust act. As the Court previously ruled on summary judgment, the record presents a genuine issue of material fact as to whether MGAG or MG Corp. used its alleged domination to cause MGRM to breach the Contracts, and the Court is not inclined to usurp the jury's role in evaluating Defendants' motivations in entering into the Consent Order and deciding whether or not such an entry constituted a legal breach.
The Court notes that in a previous ruling, it precluded Defendants from offering an affirmative defense of agreement to rescind. Thus, Defendants will be unable to assert that certain Contracts implicated in their proposed affirmative defense were rescinded and that no breach occurred as a result.

IX. MOTION TO EXCLUDE EVIDENCE AND ARGUMENT CONCERNING FORMER

PLAINTIFFS OR OTHER MG CUSTOMERS
Plaintiffs' motion is granted.
The Court is persuaded that evidence concerning statements made by former plaintiffs or other MGRM flexie customers who are not a party to the instant lawsuit is inadmissible both because of the nature of the statements Defendants seek to introduce and the manner in which they were procured. While the Court has ruled that certain statements made directly by the MGRM salesmen to their customers, including former plaintiffs in this action, are admissible, the Court is persuaded that statements made by former plaintiffs themselves or other such customers, in affidavits given in connection with other proceedings, about what the MGRM salesmen may have said in marketing the Contracts constitute inadmissible hearsay.
Defendants contend that these statements are admissible as statements against pecuniary interest, but the Court is not satisfied that the record is sufficiently clear as to why the former plaintiffs or customers made such statements in prior proceedings or whether they then reasonably contemplated that such statements would adversely affect their pecuniary interests. This lack of clarity is worsened by the fact that Defendants intend to introduce such statements via affidavits and/or deposition testimony, which makes it nearly impossible to fully understand the declarants' state of mind or to ascertain their purpose at the time they made the statements.
The Court notes that this ruling does not alter its previous ruling allowing statements made directly by the MGRM salesmen themselves as evidence of a consistent MGRM business policy or practice carried out by the Company's employees, even if such statements were made to former plaintiffs or other MGRM flexie customers who are not parties to the instant lawsuit.

X. MOTION TO EXCLUDE EVIDENCE OF PLAINTIFFS' ACCOUNTING PRACTICES AND WHETHER PREMIUMS WERE PAID ON THE FLEXIES

Plaintiffs' motion is denied.
With regard to whether or not Defendants should be allowed to introduce evidence that Plaintiffs failed to list the Contracts as contingent liabilities on their financial statements, the Court is persuaded that Defendants should be permitted to elicit testimony from certain Plaintiffs that they understood that the Contracts represented contingent purchase obligations, that they had been told by their accountants that the Contracts should be recorded *777 in their respective company's financial statements as contingent liabilities, and that they never so recorded the Contracts. Such evidence could provide the jury with insight into certain Plaintiffs' intentions regarding the Contracts, one of the central factual issues in dispute in this litigation that the jury will be called to resolve. The fact that Plaintiffs had been appraised by outside counsel that the Contracts should be accounted for in a specific way, and yet did not follow that advice, may provide evidence of whether Plaintiffs actually anticipated utilizing the Contracts in a certain manner.
The Court is not persuaded that expert testimony on this point is necessary as long as Defendants plan to elicit such evidence through questioning of employees of the Plaintiffs who were in charge of or worked on the Plaintiffs' financial statements. Most if not all such employees, by virtue of their corporate duties, will be familiar with standard accounting practices in the Plaintiffs' field, and can testify as to typical practice for their employer or in the industryinsofar as they may qualify by training or experience to do soin accounting for certain liabilities. Through cross-examination, Plaintiffs can rebut Defendants' line of questioning by eliciting testimony from the employees that standard practice did not require the Contracts to be accounted for as contingent liabilities, nor were the Plaintiffs required by law or custom to follow all of their accountants' advice.
With regard to whether or not Defendants should be allowed to introduce evidence concerning whether Plaintiffs paid premiums on the Contracts, the Court previously ruled that evidence and argument on failure of consideration should be excluded. As a result, evidence on premiums is unnecessary for the purpose of arguing about the issue of failure of consideration. Moreover, the Court is not persuaded that the lack of any payment by Plaintiffs on the Contracts is relevant to Plaintiffs' damages. The Court is satisfied that the Contracts had value for the Plaintiffs, either in the fuel delivery option or the blowout option, although the question of how that value should be measured if damages are to be awarded to Plaintiffs will be left to the jury to decide based on the testimony and evidence that it considers. Thus, Defendants will not be permitted to introduce evidence, for purposes of damages determination, concerning whether premiums were paid by Plaintiffs on the Contracts.