Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING THE PARTIES’ MOTIONS IN LIMINE BENNETT, Chief Judge. TABLE OF CONTENTS I. INTRODUCTION..........................................................971 A. Factual Background...................................................971 B. Procedural Background ...............................................973 II. LEGAL ANALYSIS........................................................975 A. Travelers’s Amended And Substituted Motion In Limine..................975 1. Records of other lawsuits against Travelers.........................976 a. Arguments of the parties.......................................976 b. Analysis.......................................................977 i. The proper context for admissibility.........................977 ii. Admissibility of the evidence................................978 2. Incentive plans and programs......................................980 a. Arguments of the parties............. 980 b. Analysis.......................................................981 3. The “Dr. Long report”............................................982 4. Evidence of damages other than emotional distress..................983 a. Arguments of the parties.......................................983 b. Analysis.......................................................985 B. Niver’s Motion In Limine..............................................987 1. Travelers’s untimely response......................................987 2. Travelers’s conduct in dealing with Niver’s prior workers compensation claims............................................988 a. Arguments of the parties.......................................988 b. Analysis.......................................................989 3. Evidence of Niver’s sexual activities................................989 a. Arguments of the parties.......................................989 b. Analysis.......................................................990 4. References to penalty benefits.....................................991 a. Arguments of the parties.......................................991 b. Analysis.......................................................991 5. Niver’s disciplinary record.........................................992 6. Niver’s receipt of government benefits..............................992 7. Settlement negotiations...........................................993 a. Arguments of the parties.......................................993 b. Analysis.......................................................994 8. Evidence of someone else’s “fault”.................................994 9. “Windfall” arguments ............................................994 10. “Good” or “charitable” acts by Travelers...........................994 11. The meaning of “clear, convincing, and satisfactory evidence”........995 12. Advice of counsel.................................................996 13. Evidence acquired after October 11, 2002............................996 a. Arguments of the parties.......................................996 b. Analysis.......................................................997 14. “Golden Rule” arguments.........................................998 15. “Money Tree” arguments .........................................998 16. References to Niver’s motion in limine.............................998 III.CONCLUSION............................................................999 In this action for first-party bad faith for failure to pay workers compensation benefits, the court entered summary judgment in the plaintiffs favor on liability issues, leaving only damages issues for trial to a jury. After the court’s summary judgment ruling, the court denied all pending motions in limine without prejudice to amendment in light of the narrowing of the issues for trial. The court thereafter resolved one set of pretrial evidentiary questions presented by a trial on damages issues only, but the parties have now filed renewed and amended motions in limine, purportedly tailored to the damages issues now set for trial. In the interest of an efficient and fair trial on damages issues, the court will attempt to resolve the issues presented in the parties’ renewed and amended motions in limine, to the extent that the court is able to do so pretrial. I. INTRODUCTION A. Factual Background As in its previous ruling on pretrial evi-dentiary questions, see Niver v. Travelers Indem. Co. of IL, 430 F.Supp.2d 852 (N.D.Iowa May 3, 2006) (order, docket no. 206) (memorandum opinion and order regarding the plaintiffs motion for advance evidentiary ruling and defendant’s motion to bifurcate trial), the court will not attempt here a detailed dissertation of all of the facts, disputed and undisputed, in this case. Rather, most of the factual background of importance here is set forth in the court’s ruling on the parties’ motions for summary judgment. See Niver v. Travelers Indem. Co. of Illinois, 412 F.Supp.2d 966, 968-72 (N.D.Iowa 2006). Nevertheless, the court will set forth sufficient facts to provide some context for the present ruling. For present purposes, suffice it to say that plaintiff Scott Niver was formerly employed by Curries Manufacturing (Curries) in Mason City, Iowa. Defendant Travelers Indemnity Company of Illinois (Travelers) was and is the workers compensation insurance carrier for Curries. However, Curries itself had authority to decide whether to pay workers compensation claims up to a certain dollar amount, because of its “retention,” i.e., deductible. At the time giving rise to Niver’s claim of bad faith failure to pay workers compensation benefits, Niver had already made and received benefits pursuant to workers compensation claims for, among other things, a hernia in 1995 and a knee injury in 1999. The central issue in the present dispute, however, was the compensability of a workers compensation claim for groin problems that Niver reported to Curries on October 12, 2000, just shortly after his return to work after his knee problems. The parties agree that Niver did not report a new injury on October 12, 2000; rather, he asserted that the groin problem was related to one or more of his prior workers compensation claims. Nevertheless, the report of his complaint about groin pain that Curries made to Travelers indicated a “date of injury” of October 12, 2000. Niver also demanded benefits, including weekly benefits, medical benefits, and, eventually, penalty benefits, that would only have been available for a new injury claim. Travelers denied Niver’s claim for groin pain for the first time by letter dated October 26, 2000. The parties then engaged in an extended dispute over the compensability of the claim. Eventually, on June 28, 2001, Niver filed three petitions for workers compensation benefits with the Iowa Workers Compensation Commission, one asserting that Travelers should have paid workers compensation benefits for the groin problem in October 2000 under the 1995 “hernia” claim, one asserting that Travelers should have paid benefits for the groin problem under the 1999 “knee” claim, and one asserting that Travelers should have paid benefits for the groin problem under a claim for a “new injury” on October 12, 2000. On July 2, 2001, Niver also filed a petition in Iowa District Court for Cerro Gordo County alleging Travelers’s bad faith failure to pay his workers compensation claim for the October 2000 groin problem. Travelers subsequently removed that action to this court. This action was stayed, however, pending resolution of claims in front of the Iowa Workers Compensation Commission. Although Travelers’s adjustors eventually recognized that all of the record evidence was relating the October 2000 groin problem to the 1995 “hernia” claim, and that medical benefits for that problem should have been paid pursuant to the “lifetime benefits” available on the 1995 “hernia” claim, Travelers continued to dispute the claim, in large part because Niver had filed three separate workers compensation petitions and his bad faith action. By decision dated November 20, 2002, the Iowa Workers Compensation Commission ordered Travelers to pay past and future medical benefits, mileage, and costs for the October 2000 groin problem pursuant to the 1995 “hernia” claim. Although Travelers pursued an administrative appeal, Travelers also lost that appeal, and ultimately paid the administrative award on November 26, 2003. Notwithstanding resolution of the workers compensation claims before the Commission, Niver’s lawsuit asserting Travelers’s bad faith failure to pay workers compensation benefits continued in this court. B. Procedural Background Much of the extensive procedural background in this case is also detailed in the court’s summary judgment ruling. See Niver, 412 F.Supp.2d at 972-73. However, the pertinent part of that background for present purposes relates to the claims asserted in Niver’s bad faith action and this court’s ruling on the final round of summary judgment motions addressing Niver’s bad faith claims. In its form at the time of the final round of dispositive motions, Niver’s Complaint alleged, in Count I, a claim of first-party bad faith for failure to pay workers compensation benefits for the groin pain that Niver reported in October 2000 pursuant to the 1995 “hernia” claim; in Count II, a claim for exemplary damages for the intentional, reckless or willful and wanton disregard of Niver’s rights under the Workers’ Compensation Act; and in Count III, a claim of first-party bad faith for pursuing an administrative appeal of the November 20, 2002, arbitration decision awarding Niver benefits for medical bills and expenses for the October 2000 groin problem pursuant to the 1995 “hernia” claim. See Fourth Amended Petition At Law (docket no. 79). Travelers denied these claims and asserted various affirmative defenses. See Answer (docket no. 80). - Travelers filed its Second Amended And Substituted Motion For Summary Judgment on November 23, 2005 (docket no. 163), which asserted that Travelers was entitled to summary judgment in its favor on all counts in Niver’s action for bad faith. On December 15, 2005, Niver resisted Travelers’s motion (docket no. 164), and also filed his own Motion For Summary Judgment (docket no. 165), which if granted, instead of Travelers’s motion, would have left only damages issues for trial. Travelers filed a resistance to Niver’s motion for summary judgment on January 6, 2006 (docket no. 168). In a Memorandum Opinion filed February 6, 2006 (docket no. 176), see Niver v. Travelers Indem. Co. of Illinois, 412 F.Supp.2d 966, 968-72 (N.D.Iowa 2006), the court denied Travelers’s November 23, 2005, Second Amended And Substituted Motion For Summary Judgment. However, the court granted Niver’s December 15, 2005, Motion For Summary Judgment (docket no. 165) on liability issues, leaving only damages issues for trial. Somewhat more specifically, on the “objective” element of Niver’s bad faith claim — that is, that the insurer had no reasonable basis for denying the plaintiff’s claim — the court found unpersuasive as a matter of law Travelers’s contention that Niver’s claim for workers compensation benefits was “fairly debatable” simply because Niver initially asserted that he was entitled to benefits under one or more of three different workers compensation claims. Instead, the court held that the pertinent question was whether there was a point at which Travelers no longer had a reasonable basis to deny Niver’s claim for benefits pursuant to any of Niver’s workers compensation claims. The court also found that the notes from Niver’s groin surgery in December 2000, which were provided to Travelers in March 2001, demonstrated that the most likely cause of the groin pain was the apparent neuroma and scar tissue resulting from the 1995 hernia surgery, that the post-surgery pathology report confirmed the neuroma, and that subsequent medical records, all of which were also provided to Travelers, focused on the 1995 hernia surgery as the cause or primary cause of the October 2000 groin pain. The court also found that, as a matter of law, these surgery and post-surgery records and other medical records available to Travelers by July 2001 rendered the compensability issue “undebata-ble,” because Travelers could no longer “dispute on any logical basis” that a proximate cause of Niver’s October 2000 groin pain was the neuroma and scar tissue from the 1995 hernia surgery, even if the medical records recognized other possible causes as well. Thus, as a matter of law, there was no reasonable basis for Travelers’s denial of that claim. Id. at 988-92. As to the “subjective” element — that the insurer knew or had reason to know that its denial was without reasonable basis— the court held that, as a matter of law, adjustors for Travelers knew by July 2001 that Niver’s claim for groin pain in October 2000 should have been paid under the 1995 “hernia” claim, i.e., that Travelers’s continued denial of the claim after July 2001 was without reasonable basis. Id. at 992. In short, the court held that, as a matter of law, Travelers’s continued denial of Niver’s claim during and after July 2001 had been in bad faith. The court found that these determinations left for trial the question of damages on Niver’s bad faith claim in Count I of his Complaint, which alleges Travelers’s bad faith failure to pay workers compensation benefits for the October 2000 groin pain pursuant to the 1995 “hernia” claim. The court also held Count III, which alleges Travelers’s bad faith appeal of the administrative decision, involved an allegation of subsequent bad faith, such that it was mooted or subsumed by summary judgment in Niver’s favor on his bad faith claim in Count I. Therefore, because the court granted Niver’s motion for summary judgment on Count I of his Complaint, and denied Travelers’s motion for summary judgment, the court directed that this matter proceed to jury trial only on the issue of Niver’s damages, including his claim for exemplary damages in Count II, from Travelers’s bad faith failure to pay his claim for medical benefits for his October 2000 groin pain pursuant to the 1995 “hernia” claim. Id. at 992-93. By order dated February 15, 2006 (docket no. 189), the court certified its summary judgment ruling for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), cancelled the March 6, 2006, trial date for the remaining claims, and stayed all proceedings in this case pending disposition of any interlocutory appeal. In addition, the February 15, 2006, order denied all pending motions in limine without prejudice to reassertion pursuant to the terms of a subsequent order setting a “back up” trial date. Pursuant to the order staying the case, the court entered an order on February 24, 2006 (docket no. 193), setting a “back up” trial date for June 5, 2006. Notwithstanding the stay, by order dated February 17, 2006 (docket no. 191), the court did permit Niver to file a Fifth Amended Complaint. In that Fifth Amended Complaint, Niver amended his Complaint only to change the name of the defendant to “Travelers Indemnity Company of Illinois n/k/a Travelers Property Casualty Company of America” to reflect a change made by the defendant in January 2004. The amendment did not change the claims asserted in the previous version of the Complaint. Indeed, it did not even reflect the court’s conclusion in its summary judgment ruling that Count III, which alleged bad faith in Travelers’s appeal of the administrative decision of the Iowa Workers Compensation Commission, was subsumed and mooted by the court’s grant of summary judgment in Niver’s favor on liability on his bad faith claim in Count I. See Niver, 412 F.Supp.2d at 992-93. Travelers did seek leave of the Eighth Circuit Court of Appeals to pursue an interlocutory appeal of the court’s summary judgment ruling. However, on March 9, 2006, the court received a copy of the March 2, 2006, order of the Eighth Circuit Court of Appeals denying Travelers’s petition for writ to file interlocutory appeal. See docket no. 195. Thus, the way was cleared for trial on damages on the “back up” trial date of June 5, 2006. On March 14, 2006, shortly after the Eighth Circuit Court of Appeals denied Travelers’s petition for leave to pursue an interlocutory appeal, Niver filed his Motion For Advanced Ruling On Limited Evi-dentiary Issues Prior To Final Pretrial Conference (docket no. 196). On May 2, 2006, Travelers filed a Motion To Bifurcate Compensatory And Punitive Damages Issues For Trial (docket no. 203). The court ruled on those motions on May 3, 2006. See Niver v. Travelers Indem. Co. of IL, 430 F.Supp.2d 852 (N.D.Iowa 2006) (order, docket no. 206). However, that ruling did not resolve all of the pretrial evidentiary disputes between the parties, because the parties have now renewed and amended their motions in limine filed before the March 2006 trial date, which the court had denied without prejudice to refiling in light of the narrowing of the issues for trial to damages issues. See Expedited Order Certifying February 6, 2006, Summary Judgment Ruling For Interlocutory Appeal, February 15, 2006 (docket no. 189) (among other things, denying all pending motions in limine without prejudice to reassertion pursuant to the terms of the order setting a “back up” trial date). Thus, the motions in limine now pending before the court are Travelers’s May 10, 2006, Amended And Substituted Motion In Limine (docket no. 210), and Niver’s May 10, 2006, Motion In Limine (docket no. 211). Niver resisted Travelers’s motion on May 17, 2006 (docket no. 220), but Travelers did not resist Niver’s motion until May 25, 2006 (docket no. 234). On May 25, 2006, Niver filed a motion (docket no. 235) to strike Travelers’s resistance to his motion in limine on the ground that Travelers’s resistance was untimely. The court has found it unnecessary to set oral arguments on the motions now before the court. Therefore, the court will consider those motions on the basis of the parties’ written submissions. II. LEGAL ANALYSIS Rule 104 of the Federal Rules of Evidence provides, generally, that “[preliminary questions concerning ... the admissibility of evidence shall be determined by the court....” Fed.R.Evid. 104. Such preliminary questions may depend upon such things as whether the factual conditions or legal standards for the admission of certain evidence have been met. See id., Advisory Committee Notes, 1972 Proposed Rule. This rule, like the other rules of evidence, must be “construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that truth may be ascertained and proceedings justly determined.” Fed.R.Evid. 102. The court concludes that preliminary determination of some or all of the evidentiary questions presented in the parties’ renewed and amended motions in limine will likely serve the ends of a fair and expeditious presentation of the damages issues to the jury. Therefore, the court turns to consideration of those motions, beginning with Travelers’s motion. A. Travelers’s Amended And Substituted Motion In Limine In its Amended And Substituted Motion In Limine, Travelers seeks an order ex-eluding from trial the following categories of evidence: (1) evidence of any records or other information generated during the course of any other first-party bad faith or other case filed or tried against a St. Paul Travelers company; (2) evidence regarding or in any way referring to the programs, methods, plans, or manner in which Travelers compensates its employees, including its adjustors and managers; (3) evidence regarding what has come to be known as the “Dr. Long report”; and (4) evidence regarding or any claim for compensatory damages for anything other than emotional distress directly and proximately caused by Travelers’s denial of Niver’s workers compensation claim. The court will consider the admissibility of each category of evidence in turn. 2. Records of other lawsuits against Travelers The first category of evidence that Travelers seeks to exclude is evidence that Travelers describes as any records or other information generated during the course of any other first-party bad faith or other case filed or tried against a St. Paul Travelers company as well as evidence of judgments or verdicts entered against any such company in any such other case(s), whether offered in support of Niver’s “institutional bad faith” theory of liability or otherwise. It is clear that the centerpiece, but not necessarily the entirety, of the evidence that Travelers seeks to exclude concerns a South Dakota case captioned Torres v. Travelers Insurance Company. Niver contends that all of the evidence in question is admissible. a. Arguments of the parties Travelers contends that Niver has obtained documents from some source connected with the Torres litigation and has used those documents, for example, in support of his motion to compel discovery in support of a claim of “institutional bad faith,” which is a claim to the effect that Travelers, as an institution, has policies, programs, and/or procedures in place that have as their goal wrongfully denying workers compensation claims across the board. However, Travelers argues that the fact that a jury returned a verdict against a Travelers affiliate or company in one case is no more relevant to or disposi-tive of any issues in this case than the fact that Travelers has successfully defended against many other bad faith claims. Thus, Travelers contends that it is unfair and prejudicial to Travelers to allow Niver to use in this case documents derived from other sources in an attempt to persuade a jury in this case that Travelers intentionally and wrongfully denied Niver’s claim for workers compensation benefits. Travelers also contends that such evidence falls outside the scope of admissible evidence of “reprehensibility” of a defendant’s conduct, for punitive damages purposes, even if “recidivism” is relevant to “reprehensibility,” because there is no evidence that Travelers harms individuals intentionally as an institution. Travelers contends that Niver’s arguments to the contrary are based on mere speculation. Thus, Travelers contends that this evidence should be excluded pursuant to Rules 401 and 402 of the Federal Rules of Evidence as irrelevant, pursuant to Rule 403 as prejudicial to an extent that outweighs any probative value, and pursuant to Rule 404 as inadmissible “bad acts” evidence. Travelers contends that this case should be decided on the basis of whether Niver has proved, by substantial evidence, that Travelers denied his claim for workers compensation benefits knowing full well that the claim was not fairly debatable as submitted and knowing full well that the denial was intentionally wrongful and would harm Niver. Thus, Travelers contends that only documents generated in this case are relevant to Niver’s claim. Niver, however, contends that the evidence in question is relevant to the “reprehensibility” of Travelers’s conduct for purposes of the jury’s determination of whether to award punitive damages, and if so, in what amount. Niver asserts that “reprehensibility” of the defendant’s conduct is the most important indicium of the reasonableness of a punitive damages award under United States Supreme Court precedent. Niver contends, further, that, contrary to Travelers’s contentions, he can show that the behavior of Travelers in the Torres case was replicated in the present case, so that evidence from the Toms case is relevant and admissible on punitive damages issues as evidence of “recidivism” and “reprehensibility.” Specifically, he explains that Travelers raised in the Toms case three of the same reasons it later used for asserting that Niver’s claim was “fairly debatable.” Niver also contends that the same Claims Professional Incentive Program produced in discovery in this case, which ties Travelers’s employees’ bonuses to overall claim payouts, was also in evidence in Torres. Thus, Niver contends that this evidence from the Torres case should be admissible so that the jury can understand that his case is not a one-time or isolated instance, but an example of “recidivist” conduct showing the “reprehensibility” of Travelers’s acts. Niver contends, further, that the court can instruct the jury that it must not award punitive damages in this case to punish Travelers for its conduct in Torres or any other case, but can award punitive damages in this case to punish Travelers for replicating previous wrongful conduct. Niver also contends that Travelers is ignoring the extent to which the relevance of this evidence outweighs any potential for prejudice, as well as ignoring the admissibility of prior “bad acts” for proper purposes, which Niver contends include showing the “reprehensibility” of the defendant’s conduct for purposes of determining the proper amount of punitive damages. b. Analysis i. The proper context for admissibility. Travelers’s arguments on this category of evidence reflect, in part, precisely the confusion that the court had hoped to avoid by denying all pending motions in limine without prejudice to renewal in light of the court’s ruling granting summary judgment in Niver’s favor on liability issues. That confusion arises from the fact that many of Travelers’s arguments are still framed in terms of the admissibility or inadmissibility of the evidence on liability issues, which have been decided by the court, instead of in terms of the admissibility or inadmissibility of the evidence on the damages issues, which are all that remain for the jury to decide. For example, Travelers misses the point when it argues that this case should be decided on the basis of whether Niver has proved, by substantial evidence, that Travelers denied his claim for workers compensation benefits knowing full well that the claim was, not fairly debatable as submitted and knowing full well that the denial was intentionally wrongful and would harm Niver, because such an argument is no longer apposite. While it is true that, to establish the insurer’s liability for bad faith, the plaintiff was required to prove (1) that the insurer had no reasonable basis for denying the plaintiffs claim, and (2) that the insurer knew or had reason to know that its denial or refusal was without reasonable basis, see, e.g., Bellville v. Farm Bureau Mutual Insurance Company, 702 N.W.2d 468, 473 (Iowa 2005) (elements for liability for bad faith); Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 397 (Iowa 2001) (same), this court has concluded, as a matter of law, that Niver has made these showings. See Niver, 412 F.Supp.2d at 988-92. What Niver must prove to recover actual damages, which are still at issue, is that Travelers’s bad faith was a proximate cause of damage to Niver and the nature and extent of that damage. Gibson, 621 N.W.2d at 397 (elements for damages for bad faith). Furthermore, what he must prove to recover punitive damages, which are also still at issue, is that Travelers’s bad faith conduct constituted willful and wanton disregard for the rights or safety of another. Id. at 395 (citing Iowa Code § 668A.l(l)(a) for the standards for punitive damages). It is within the context of these requirements for proof of the remaining damages issues that the court must evaluate the admissibility of the evidence each party seeks to exclude at trial. Because Travelers has not tailored its arguments for exclusion of the evidence about or from other bad faith cases against Travelers to the proper context of the issues that actually remain for trial in this case, the court must now try to pick out from Travelers’s many arguments those that remain relevant. ii. Admissibility of the evidence. Turning to the admissibility, in this trial only on damages issues, of evidence about or from other bad faith cases against Travelers, the court has considerable doubt that such evidence has any tendency whatsoever to prove that Travelers’s bad faith proximately caused damage to Niver or the extent of that damage, for purposes of proving actual damages. See Fed.R.Evid. 401 (defining relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”). Thus, were the only issues remaining for trial “actual damages” issues, the evidence about or from other bad faith cases would likely be excludable as either irrelevant, see Fed. R. Evid. 402 (irrelevant evidence should be excluded), or of such marginal relevance that its potential for prejudice or confusion of the issues would exceed its probative value. Fed.R.Evid. 403 (relevant evidence may be excluded if its probative value is outweighed by its potential for, inter alia, confusion of the issues or prejudice). However, the issues of whether and what amount of punitive damages to award also remain for trial, and the court finds that the admissibility of this evidence as to those punitive damages issues is a different matter. Both parties cite State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003), for the proposition that “[t]he most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.’ ” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 420, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003) (quoting BMW of North Am., Inc. v. Gore, 517 U.S. 559, 575, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996)). Both parties also acknowledge that, in Campbell, the United States Supreme Court noted that its “ ‘holdings that a recidivist may be punished more severely than a first offender recognize that repeated misconduct is more reprehensible than an individual instance of malfeasance.’ ” Id. at 423, 123 S.Ct. 1513 (again quoting Gore, 517 U.S. at 577, 116 S.Ct. 1589). However, in Campbell, the Court also warned that a court cannot award punitive damages “to punish and deter conduct that bore no relation to the [current plaintiffs] harm,” and that “[a] defendant’s dissimilar acts, independent from the acts upon which liability was premised [in the case before the court], may not serve as the basis for punitive damages.” Id. at 422,123 S.Ct. 1513. More specifically, A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business. Due process does not permit courts, in the calculation of punitive damages, to adjudicate the merits of other parties’ hypothetical claims against a defendant under the guise of the reprehensibility analysis.... Punishment on these bases creates the possibility of multiple punitive damages awards for the same conduct; for in the usual case nonparties are not bound by the judgment some other plaintiff obtains. Gore, supra, at 593, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (BREYER, J., concurring) (“Larger damages might also ‘double count’ by including in the punitive damages award some of the compensatory, or punitive, damages that subsequent plaintiffs would also recover”). Campbell, 538 U.S. at 423, 123 S.Ct. 1513. Consequently, “in the context of civil actions courts must ensure the conduct in question replicates the prior transgressions.” Id. To that end, the Court considered whether the evidence of misconduct in another case or other cases is “of the sort that injured [the plaintiff].” Id. The Court explained that, “[although evidence of other acts need not be identical to have relevance to the calculation of punitive damages,” it is error to introduce “evidence that ha[s] nothing to do with” the dispute presently before the court. Id. at 423-24, 123 S.Ct. 1513. Here, Travelers asserts that, as in Campbell, there is scant or no evidence that Travelers’s bad faith conduct toward Niver “replicates prior transgressions,” while Niver contends that the “replication” of misconduct between the Torres case and the present case is apparent from evidence that he has gathered. More specifically, Niver contends that he has evidence that Travelers raised in the Torres case three of the same reasons it later used for asserting that Niver’s claim was “fairly debatable,” and that the same Claims Professional Incentive Program produced in discovery in this case, which ties Travelers’s employees’ bonuses to overall claim payouts, was also in evidence in Torres. The apparent “replication” of conduct between the Torres case and the conduct on which this court concluded that Travelers had acted in bad faith in this case appears to be close enough — at least as the evidence is characterized by Niver — for the evidence from the prior case to have some tendency to make the existence of “recidivism” in this case more probable. See Fed.R.Evid. 401 (defining relevant evidence). Again, the prior misconduct need not be “identical” to be relevant to the calculation of punitive damages in this case, and it cannot reasonably be said that if the evidence is as Niver characterizes it that it has “nothing to do with” Niver’s claims. Campbell, 538 U.S. at 423-24, 123 S.Ct. 1513. Hence, that evidence is sufficiently likely to be admissible at trial that Travelers is not.entitled to a blanket exclusion. See Fed.R.Evid. 402 (relevant evidence is generally admissible). Therefore, Travelers’s motion to exclude this first category of evidence will be denied. While this court must “ensure that the conduct in question replicates the prior transgressions,” Campbell, 538 U.S. at 423, 123 S.Ct. 1513, for the evidence to be admissible, and must exclude evidence that has “nothing to do with” the dispute presently before the court, id. at 423-24, 123 S.Ct. 1513, this court believes that it is ultimately for a jury to decide whether the evidence of prior misconduct is sufficiently like the misconduct at issue here to warrant punishing Travelers for “recidivism” in an award of punitive damages. Thus, consistent with Campbell, jurors must be instructed that they cannot award punitive damages to punish or deter conduct that bore no relation to Niver’s harm, and that they may not consider the merits of other parties’ claims, real or hypothetical, against Travelers in determining whether or not to award punitive damages against Travelers in this case, but may only award punitive damages to punish Travelers for repeated “bad faith” conduct if this case repeats prior “bad faith” conduct of the same sort that injured Niver. See id. at 422-24, 123 S.Ct. 1513. 2. Incentive plans and programs Next, Travelers seeks to exclude any reference to, testimony about, or documents regarding Travelers’s compensation and/or bonus programs, including, but not limited to, critical success factors program documents, claim incentive plan documents, workers compensation scorecard documents, documents from the personnel files of employees of Travelers, and/or other such similar documents. Niver also resists exclusion of such evidence. a. Arguments of the parties Travelers contends that the evidence in this category should be excluded, because there is no evidence in this case that any compensation, bonuses, or incentives were given to any of the employees involved in Niver’s case on the basis of reducing the payout on his or any other claims. Travelers asserts that the circumstances in this case bear no similarity to the conduct in cases involving other insurers on which Niver has relied to seek discovery of this information. Indeed, Travelers contends that the adjustors who worked on Niver’s case testified in deposition either that they had never heard of the programs, plans, or incentives identified by Niver’s counsel, or did not know what the programs, plans, or incentives were if they had heard of them, and that their decisions in Niver’s case and other cases were not affected by any such programs, plans, or incentives. Travelers also contends that production of personnel files of its employees would violate such employees’ privacy with no compelling justification. In short, Travelers contends that this category of evidence should be excluded pursuant to Rules 401, 402, 403, and 404 of the Federal Rules of Evidence. Niver, however, asserts that he has no intention of using exhibits from Torres or other cases concerning compensation, bonuses, or incentives to employees of Travelers or other insurers to deny or minimize the payout on claims, because such evidence exists in this case. He contends that he has and intends to present documents that reveal that Travelers has in place a program that provides bonuses or “incentives” to its employees that are tied directly to the payout on claims they handle. These programs, Niver asserts, are called the Claim Property Casualty Incentive Program (CIP) and the Claim Professional Incentive Plan (CP). More specifically, he contends that he will offer exhibits that show the amount of bonuses that the employees who were involved in Niver’s workers compensation claim received during the years that they were handling Niver’s claim, as well as performance reviews that tie their compensation and performance to the “average paid” on claims, as well as documents that explain the “Critical Success Factor” program used in employee reviews. Niver contends that these documents will be offered to show the goals set for “average paid value” on a claim and the comparison of the actual results against those goals. Niver contends that these documents are clearly relevant to punitive damages, because they tend to make more probable that Travelers acted willfully and wantonly and that its conduct was reprehensible by showing how and why Travelers acted with reckless disregard of Niver’s rights. Niver argues that denials by Travelers’s employees that any plans, programs, or incentives influenced their treatment of his claim raise only credibility issues for a jury to decide. Far from a wide-ranging violation of employee privacy, Niver contends that he seeks to admit into evidence only documents that set forth two employees’ performance reviews, compensation, and incentives (Linda Nutting’s and Tim Lefler’s), and that there is nothing embarrassing about these documents, because they do not reveal any personal information. b. Analysis While the analysis of this issue might be different if Niver intended to offer evidence of incentive plans and programs of other insurers or even of Travelers’s personnel and offices not involved in the handling of his claim, Niver represents that the evidence of incentive plans and programs that he intends to present will be limited to evidence developed in this case concerning adjustors and Travelers’s offices directly involved in the handling of Niver’s claims. As so limited, the court concludes that such evidence does not implicate the general prohibition on “other bad acts” evidence in Rule 404(b) of the Federal Rules of Evidence, because such evidence relates to the “bad acts” actually at issue in this case. See Fed.R.Evid. 404(b) (“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.”). Rather, the issues relating to the evidence in this category that Niver actually intends to present appear to the court to be limited to the admissibility of the evidence under Rules 401, 402, and 403. As to relevance and admissibility under Rules 401 and 402, the court agrees with Niver that evidence suggesting why Travelers’s adjustors may have handled Niver’s claim in a certain way, particularly where that evidence suggests that the adjustors may have received compensation or incentives for minimizing payouts on claims, is relevant, at a minimum, to the issue of whether Travelers acted in willful and wanton disregard of Niver’s right to fair compensation for his work-related groin injury. See Gibson, 621 N.W.2d at 395 (the issue for punitive damages is whether the defendant’s conduct constituted willful and wanton disregard for the rights or safety of another, citing Iowa Code § 668A.l(l)(a)). While the court is, perhaps, not convinced itself that the deposition testimony cited by Niver in this portion of his resistance to Travelers’s motion in limine is the “smoking gun” that any decision in Niver’s case was impacted by any plan or incentive program to minimize claims payouts, the court is no more convinced that Travelers has established as a matter of law that there was no such impact, rendering any such evidence irrelevant, see Fed. R. Evid. 402, or that Travelers has shown that the evidence in question is so marginally relevant or speculative that its potential for prejudice outweighs its probative value. See Fed.R.Evid. 403 (relevant evidence may be excluded if its probative value is outweighed by its potential for, inter alia, confusion of the issues or prejudice). Rather, the court finds that there are jury questions, concerning both facts and credibility, raised by the parties, such that the jury should be allowed to consider this evidence, in the limited form that Niver represents that he intends to offer it. Finally, the court cannot find privacy issues warrant excluding the limited information from personnel files of only two employees that Niver represents that he intends to present. However, to minimize any potential imposition on the privacy of those employees, the court cautions Niver that any evidence relating to a particular employee should be purged of any personal identification information other than the employee’s name, and that any evidence of bonuses or incentives purportedly received by that employee for minimizing claim payouts should be in terms of percentage of total compensation, rather than in terms of actual dollar amounts. Therefore, this portion of Travelers’s motion in limine will also be denied. 3. The “Dr. Long report” The third item of evidence that Travelers seeks to exclude is evidence regarding what has come to be known as the “Dr. Long report.” The issue of the discovera-bility of this document was litigated on more than one occasion, most recently on appeal of a magistrate judge’s decision denying Niver’s renewed motion to compel production of the report. See Order of March 11, 2005 (docket no. 149). The continuing controversy concerns a letter by Dr. Long, an in-house doctor for Travelers, which was included in Travelers’s adjustor’s claims notes. When the issue first arose, Niver asserted that the claims adjustor testified that the letter was at least part of the basis for the denial of Niver’s workers compensation claims. However, Travelers asserted that the letter was not written until six months after Travelers first denied the workers compensation claim in question; the letter was prepared at the request of Travelers’s in-house attorney for purposes of litigation of Niver’s claims; and Travelers did not rely on the letter, in any way, in denying Niver’s claim for workers compensation benefits, and did not rely in any way, attempt to use, or make reference to Dr. Long’s letter during agency proceedings on Niver’s various claims. Consequently, Travelers contended that the letter is protected by attorney-client and work-product privileges. After separate in camera reviews of the letter, both the magistrate judge and the undersigned concluded that the letter should not be produced to Niver. The court found that the letter is subject to work-product protection, because it was prepared in anticipation of litigation, not merely in the ordinary course of Travelers’s business. Gagnon v. Sprint Corp., 284 F.3d 839, 855 (8th Cir.2002); Petersen v. Douglas County Bank & Trust Co., 967 F.2d 1186, 1189 (8th Cir.1992). The court also found that there is no sufficient basis to conclude that Travelers actually relied on the letter in initially denying or continuing to deny Niver’s workers compensation claim for his groin problems arising in October 2000. Travelers now contends that the court should exclude any reference whatsoever to Dr. Long, including, but not limited to, the solicitation and/or production of a report from and/or by Dr. Long. Niver contends that the letter from Dr. Long is a “piece of the puzzle” in the handling of his claim and that he should be allowed to make the simple inquiry as to whether Travelers has any medical opinions that support its denial of his claim and/or whether it had the medical records reviewed by any other doctor. The court concludes that Niver has presented nothing in his resistance to Travelers’s motion to exclude evidence of Dr. Long’s report that convinces the court that the letter or any reference to it is admissible, where the letter was subject to work-product protection, because it was prepared in anticipation of litigation, and not merely in the ordinary course of Travelers’s business. Id.; Petersen, 967 F.2d at 1189. Thus, this part of Travelers’s motion in limine will be granted. On the other hand, Niver is entitled to inquire whether Travelers had any medical opinions that supported its denial of his claim and/or whether it had the medical records reviewed by any other doctor in the ordinary course of handling his claim, because neither that question nor the answer to it would relate to Dr. Long or his report, and the question and answer are relevant to whether Travelers acted in willful and wanton disregard of Niver’s right to fair compensation for a work-related injury. 4. Evidence of damages other than emotional distress The last category of evidence that Travelers seeks to exclude is any evidence, testimony, documents, and the like related to any item of damages other than compensatory damages for Niver’s alleged emotional distress directly and proximately caused by Travelers’s denial of his claim for workers compensation benefits. Niver also resists exclusion of this evidence. a. Arguments of the parties Travelers contends that, in addition to damages for emotional distress, Niver has expressed an intention to claim compensatory damages for such things as lost income, bodily injury, damage to reputation, damage to credit rating, depletion of financial resources, and other such items. Travelers recognizes that, in his proposed Juiy Instructions, Niver seeks compensatory damages only for emotional distress and monetary losses and expenses for, but not limited to, the following items: past and future lost wages and benefits from the date he was released to return to work by his doctors to the present; COBRA payments for health insurance coverage after he was terminated from his job; the amount of funds withdrawn from his retirement account; the income taxes and penalties that were required to be paid because of the withdrawal from his retirement account; and the interest and dividends or other earnings that would have accrued to his retirement account had the withdrawal not been made. Travelers contends that Niver has never disputed that his medical bills were paid and that he was not denied access to health care. Travelers asserts that Niver had the right to make a claim before the Workers Compensation Commission for past and future lost wages, past and future damage to his body and mind, and past pain and suffering (ie., emotional distress), and then either to accept the award of the Commission or to seek further review of that award. To the extent that Niver did not seek to recover such compensation, Travelers argues, he has waived a claim for it. Travelers points out that, because Niver ultimately pursued only a claim based on the 1995 “hernia” claim, on which the statute of limitations had run, he could only recover medical benefits under the “lifetime” benefits portion of that claim, but not other kinds of benefits or compensation that he now seeks in this bad faith action. Travelers argues that, had Niver pursued his other claims, based on the 1999 “knee” claim or the 2000 “new injury” claim, on which the statute of hmitations had not yet run, he could have recovered penalty and indemnity benefits to compensate him for the lost income, depletion of other financial resources, and other economic damages he now seeks from Travelers. Travelers argues that to award Niver such economic damages based on the 1995 “hernia” claim, however, would violate the legislative intent behind the statute of limitations for workers compensation claims, and as such, is highly prejudicial to Travelers and violates Travelers’s right to due process of law. Travelers contends, further, that Iowa law authorizes only emotional distress damages for a first-party bad faith claim, because tort law does not provide recovery for purely economic loss. Travelers asserts that Niver does not fall within the one case in which the Iowa Supreme Court allowed damages for economic loss for first-party bad faith, Nassen v. National States Ins. Co., 494 N.W.2d 231 (Iowa 1992), because Niver was not suffering out-of-pocket losses where his own insurance was paying his medical bills while the workers compensation coverage was disputed. Travelers also rejects Niver’s contention that Curries terminated his employment as a proximate result of Travelers’s denial of his workers compensation claim, so Travelers rejects Niver’s argument that Travelers is also responsible for damages flowing from the loss of his employment. Travelers argues that it had no contact with Curries concerning the status or continuation of Niver’s employment and that it is undisputed that Niver took no action against Curries for terminating his employment. Travelers also argues that there is absolutely no evidence that Niver’s depletion of his financial resources was proximately caused by Travelers’s denial of his claim, because even if Travelers had accepted Niver’s claim, Niver would have been off work from Curries, because Curries had no work within Niver’s restrictions. Thus, Travelers argues, the same depletion of financial resources would have occurred whether Travelers denied Niver’s claim or not. In short, Travelers asserts that Niver’s economic losses were because he had no job, not because Travelers denied his workers compensation claim. Niver, however, takes a very different view. He points out, first, that he has narrowed his claim for compensatory damages to a claim for emotional distress and specific kinds of monetary losses. Specifically, he asserts that he is only seeking emotional distress damages for the emotional distress resulting from the denial of his claim and the emotional and financial strains from the mounting medical bills and the loss of his job. He also asserts that he is only seeking monetary loss damages for loss of income and employment benefits, depletion of financial resources, including his 401K plan, and COBRA payments made after termination of his job. He asserts that these damages were proximately caused by Travelers’s bad faith denial of his claim. He argues that loss of his job was a direct result of Travelers’s denial of his workers compensation claim, because Curries fired him when Travelers concluded that his injury was not work-related and he had exceeded his available sick leave for non-work-related injury or illness. Thus, he contends that his financial losses resulting from his termination do result from Travelers’s actions. Niver also points out that, when he was physically able to return to work and was released by his doctor to do so, he no longer had a job at Curries, and that the loss of his job was a direct result of Travelers’s denial of his compensation claim. Niver also contends that he did not waive any remedies when he dismissed two of his workers compensation petitions, because the Workers Compensation Commission determined that the groin pain problems related back to the 1995 “hernia” claim, so that the other petitions would not have provided any remedy at all. He also contends that the damages he is seeking are not damages for the physical injury he sustained, but for the bad faith denial of his workers compensation claim, so that the scope of his possible workers compensation recovery is not the measure of his damages for Travelers’s bad faith. Niver also argues that Iowa courts have recognized that the remedy for bad faith by an insurer is supposed to put the injured party in as favorable a position as he would have enjoyed, had no bad faith occurred. He contends that there is no limitation under Iowa law to recovery only for emotional distress damages for bad faith conduct. He reiterates that his monetary losses and expenses were not proximately caused by his work-related injury itself, but by Travelers’s bad faith denial of his workers compensation claim, which in turn resulted in the loss of his job. Thus, he argues that he is entitled to claim past and future loss of earnings based upon the earnings he lost when he was released to return to work, but had no job to which he could return, and when he did find another job, he was unable to earn the same wages and benefits that he was earning after nine years working for Curries. b. Analysis The court finds several fundamental flaws in Travelers’s arguments concerning evidence of economic damages, which require the court to deny Travelers’s motion to exclude such evidence. First, the court cannot accept Travelers’s argument that Niver could have recovered some or all of the economic damages that he now seeks, if Niver had not abandoned his workers compensation petitions seeking benefits for his groin pain under the 1999 “knee” claim and the 2000 “new injury” claim. This court concluded, as a matter of law, that Travelers acted in bad faith in failing to pay the claim for groin pain under the 1995 “hernia” claim. Thus, for Travelers to argue that some other claim for workers compensation benefits would have afforded Niver recovery for other losses is simply wrong; only Travelers’s failure to pay benefits pursuant to the 1995 “hernia” claim was in bad faith, and the question is what damages were proximately caused by that bad faith. To put it another way, the question is not whether Niver could have recovered some of the damages he seeks here on some other claim, or even what damages were caused by the underlying work-related injury, but what damages can be deemed to be proximately caused by Travelers’s bad faith denial of Niver’s claim for workers compensation benefits for his groin pain pursuant to the 1995 “hernia” claim. Gibson, 621 N.W.2d at 397 (the elements for damages for bad faith are proof that the insurer’s bad faith was a proximate cause of damage to the plaintiff and the nature and extent of that damage). One of the reasons that the Iowa Supreme Court has recognized a claim of bad faith against an insurer is that traditional breach-of-contract damages would “not always compensate an insured for an insurer’s bad faith conduct.” Dolan v. Aid Ins. Co., 431 N.W.2d 790, 794 (Iowa 1988); accord Stahl v. Preston Mut. Ins. Ass’n, 517 N.W.2d 201, 203 (Iowa 1994). It is true that the primary example of such extra-contractual damages for first-party bad faith identified in Dolan was damages for ordinary emotional distress caused by the insurer’s bad faith. Id. However, courts have also contemplated that other extra-contractual damages may be appropriate. For example, in Nassen v. National States Ins. Co., 494 N.W.2d 231 (Iowa 1992), the Iowa Supreme Court upheld a jury verdict awarding damages for “economic loss arising from the premature dissipation of the plaintiffs assets,” as well as for “emotional distress,” on a plaintiffs claim against her insurer for bad faith rescission of a nursing home insurance policy, although the precise nature of the insurer’s challenge to this award was the amount of the emotional distress damages. Nassen, 494 N.W.2d at 237-38. Other courts have addressed more directly the matter of the kinds of damages available for bad faith failure to pay workers compensation benefits. For example, the Texas Court of Appeals stated the principle succinctly, as follows: [T]he successful bad faith claimant [asserting bad faith failure to pay workers compensation benefits] does not receive a double recovery on the original claim. A bad faith recovery includes damages not for the original injury or disease and its resulting incapacity, but only for the damages resulting from the bad faith acts; not for the loss of earning capacity, but for the additional costs, economic hardship, or losses due to nonpayment of amounts owed; and not for the mental anguish of originally suffering the injury, but for being subjected to the bad faith acts. Additionally, upon proper proof, a bad faith claimant can recover punitive damages. Izaguirre v. Texas Employers’ Ins. Ass’n, 749 S.W.2d 550, 553 (Tex.App.1988). Similarly, in a case apparently involving an affiliate of the present defendant, the Colorado Supreme Court concluded that the injuries complained of in an action for bad faith failure to pay workers compensation benefits, including loss of income, mental distress, and loss of attorneys fees for prosecution of the case, were injuries not covered or redressed by any portion of the state’s workers compensation act, so that the act did not bar a tort action for such damages arising from the insurer’s bad faith in processing a workers compensation claim. Travelers Ins. Co. v. Savio, 706 P.2d 1258, 1270-71 (Colo.1985). Thus, a bad faith action opens the door to damages proximately caused by the bad faith, although it does not open the door to damages for the underlying injury. Nor is the court persuaded by Travelers’s assertion of the “economic loss rule” as a bar to Niver’s recovery of economic damages in this ease. As this court recently explained in Conveyor Company v. Sunsource Technology Services, Inc., 398 F.Supp.2d 992 (N.D.Iowa 2005), the Iowa Supreme Court made a comprehensive review of the “economic loss doctrine” for damages in tort in Determan v. Johnson, 613 N.W.2d 259 (Iowa 2000). See Convey- or Co., 398 F.Supp.2d at 1006. This court noted that the Iowa Supreme Court had recounted how the rule was adopted to bar a claim for purely economic damages arising out of a defendant’s alleged negligence, extended to claims based on strict liability in tort for a defective product that caused no physical injury to person or property, then formulated as a rule that stands as a bar to economic damages unless the damage for which recovery is sought extends beyond the allegedly defective product itself. See id. at 1006-07 (citing Determan, 613 N.W.2d at 261-62). Travelers has cited no case applying the “economic loss rule” outside of the context of commercial relations or products liability, and the court finds nothing in the rationale for the rule that applies to a claim for insurer bad faith. See, e.g., Nebraska Innkeepers, Inc. v. Pittsburgh-Des Moines Corp., 345 N.W.2d 124, 127 (Iowa 1984) (noting that the rationale for the “economic loss rule” is the concern that a contrary rule would open the door to virtually limitless suits, often of a highly speculative and remote nature, thus exposing negligent defendants to a severe penalty and producing serious problems in litigation, particularly in the areas of proof and apportionment of damages). Also, the court has found no Iowa cases applying the “economic loss rule” to “intentional torts,” such as bad faith failure to pay an insurance claim, see Tallman v. Hanssen, 427 N.W.2d 868, 871 (Iowa 1988) (recognizing that bad faith by an insurer is an intentional tort), as opposed to the negligence and strict liability contexts in which it has been recognized. See Conveyor Co., 398 F.Supp.2d at 1006 (the rule was first recognized in negligence actions and then extended to strict liability actions). Thus, the court finds that the “economic loss rule” stands as no bar to N