United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL J. McSHANE, District Judge.
Following the jury verdict for defendant, plaintiff moves for a new trial. Defendant moves for costs. Plaintiff's motion for a new trial is DENIED. Defendant's motion for costs is GRANTED.
I. MOTION FOR NEW TRIAL
Davtian argues the court erred in allowing evidence of the prior fire. For reasons discussed at the pretrial conference, the evidence of the prior fire was relevant to show the conspiracy and to show motive, plan, and lack of mistake under rule 404(b)(2). The similarities between the fire include: both fires occurred in the same area and involved properties sold by Papazyan to friends who lacked the means to afford the properties; both fires occurred shortly after the Papazyan-financed transactions, and shortly after insurance had been purchased; both fires occurred under unusual circumstances, in the middle of the night, when no one was home; both newly insured parties presented inflated requests for coverage to their insurers; and both fires involved rent payments made by the insurer to other members of the conspiracy.
Papazyan was directly involved in both instances and, based on all the evidence, actively directed Davtian in all of Davtian's dealings with the adjuster and the insurer. It is undisputed that Papazyan and his son acted as Davtian's agent when dealing with the insurance company. Papazyan's son obtained the policy, and Papazyan was largely responsible for interacting with the insurance company and adjuster after the fire. In short, there was compelling evidence that both fires were part of a conspiracy, directed and managed by Papazyan, to defraud insurance companies by intentionally burning homes and then presenting inflated insurance requests to the company.
Davtian also argues Ron Smith, defendant's expert, should not have been allowed to testify on the cause and origin of the second fire. Davtian waived this argument by not requesting a Daubert  motion before the trial. Three months before trial, both at oral argument on cross motions for summary judgment, and in my written opinion on those motions, I instructed plaintiff that should he seek to exclude Smith from testifying, a Daubert motion was the proper vehicle for challenging Smith's testimony. Rather than file a pretrial Daubert motion, Davtian waits until after a ten-day jury trial to, in effect, make his Daubert motion. This argument is waived.
Additionally, the jury heard extensive evidence regarding NFPA 921 and whether Smith did or did not follow it. The jury clearly weighed this evidence. By choosing not to file a pretrial Daubert motion, Davtian was entitled to nothing more.
It is clear that the jury reasonably concluded that, if nothing else, the odd rekindling of this fire led to the conclusion that Davtian and Papayzan intended to burn the home to the ground. That no one could point to the exact origin of the fire within the home, and that no one was there to see who struck the match, ultimately did not sway the jury to judge the facts in a manner favorable to Davtian.
Davtian argues the court erred in allowing Fire Chief Carriger to state his opinion on the cause of the fire. Chief Carriger had firsthand knowledge of the fires and many years of knowledge and experience in responding to fires. His testimony was admissible under rules 701 (allows witness to testify as to opinion based on firsthand knowledge) and rule 702 (allows witness to testify on area of specialized knowledge or fact).
Davtian also argues the jury verdict was not supported by the clear weight of the evidence. I strongly disagree. There was substantial-if not clear and convincing-evidence that Davtian and Papazyan conspired to intentionally burn the home and submit inflated requests to the insurer. There were numerous examples of material misstatements on the part of Davtain and Papazyan, who indisputably acted in concert in interactions with the insurer. Perhaps most significant was the request related to the piano Papazyan purchased at a garage sale. The piano submission, on its own, was enough to void the policy. The fact that Davtian submitted an inventory totaling nearly $350, 000 despite owning property worth, at most, $12, 000 is another issue altogether. Davtian's adjuster noted as much in her testimony.
Davtian's theory was that he made no misrepresentations, instead relying on his adjuster and others. Davtian also argued that because no one knew who started the fire, and because the total burn rendered finding the ignition point impossible, a finding of arson here was impossible. The jury roundly rejected those theories and the verdict was certainly supported by the clear weight of the evidence.
Davtian's motion for a new trial, ECF No. 206, is DENIED.
II. BILL OF COSTS
Defendant moves for $46, 199.14 in costs. See ECF No. 203, 1. Davtian objects ...