Sussman

MEMORANDUM *

Plaintiff-Appellant Barry J. Sussman, M.D., brought this diversity action against Defendant-Appellee Provident Life and Accident Insurance Co. for failure to pay benefits under his disability insurance policy. On appeal, he challenges the “total disability” jury instruction, two evidentiary rulings, and the denial of his motion for a new trial. Because the parties are familiar with the facts, we do not recite them unless necessary. We affirm.

The challenged instruction was not inconsistent with California law. Sussman *124 contends that the entire excerpt from Erreca v. Western States Life Ins. Co., 19 Cal.2d 388, 396 , 121 P.2d 689 (1942), has never been used in a jury instruction on total disability, noting that subsequent case law defines “total disability” without reference to the “substantial portion” sentence. But the cases he directs us to only omitted the third sentence, never specifically overruling its use or even discussing it, and other cases have continued to recite the “substantial portion” sentence in defining total disability. Moreover, because Sussman failed to present a proper and clear objection to this jury instruction below, this argument is…