Newton v. Equilon Enterprises LLC DBA Shell Oil Products US

Filing 219

AMENDED PRETRIAL ORDER NO. 2 RE MOTIONS IN LIMINE (correcting date for proffer on Defendant's MIL No. 2). Signed by Judge Yvonne Gonzalez Rogers on 12/05/2018. (ygrlc1S, COURT STAFF) (Filed on 12/5/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CIARA NEWTON,

Case No. 17-cv-3961 YGR

Plaintiff,
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v.
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EQUILON ENTERPRISES LLC, DBA SHELL
OIL PRODUCTS US,

AMENDED
PRETRIAL ORDER NO. 2 RE:
MOTIONS IN LIMINE

Defendant.

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United States District Court
Northern District of California

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The parties filed their motions in limine on September 28, 2018 (Dkt. Nos. 136, 137, 138,

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139, 140, 141, 142, 143, 144, 146, 147, 148, 150) and the Court heard arguments on November

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30, 2018. In addition, the parties filed supplemental briefing addressed to certain issues raised at

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the hearing. (Dkt. Nos. 205, 207.) Based on the filings in support and opposition thereto, and the

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arguments of the parties, the Court ORDERS as follows:

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Plaintiff’s Motions In Limine

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Plaintiff’s Motions In Limine Nos. 1-3 (Dkt. Nos. 142, 148, 150), to exclude percipient

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expert testimony by Cameron Curran, Jeffrey Fischer, and Richard Metcalf, respectively, are

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DENIED WITHOUT PREJUDICE to raising a more specific objection to testimony lacking in

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foundation. The witnesses are percipient witnesses and may testify as to the events in which they

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participated personally. However, none of these witnesses may not offer opinions based on facts

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as to which he lacks personal knowledge. Further, they may not use their specialized expertise to

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render an opinion independent from their percipient knowledge.

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Defendant’s Motions In Limine

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1.

Defendant’s Motion in Limine No. 1 (Dkt. No. 136) to Exclude Evidence of Events

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at the Martinez Refinery After Plaintiff's September 28, 2016 Termination is DENIED AS

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STIPULATED and accordingly evidence of investigations that took place after September 28, 2016

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is excluded. The parties have stipulated that the post-termination union investigation conducted

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by Ray Jones and Chris Palacio, and Shell's post-termination interviews with supervisors and male

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operators in Newton’s unit will be excluded. (Dkt. No. 207 at 2:5-7.) Based upon the proffer

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submitted with respect to the basis for anticipated testimony by Ray Jones, the Court DENIES the

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motion to exclude Jones’ testimony regarding: (a) the hiring process for the 2016 operator class;

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(b) opinions formed as a result of the August 2, 2016 meeting; and (3) his participation and

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opinions based upon the September 28, 2016 meeting.

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2.

On defendant’s Motion in Limine No. 2 (Dkt. No. 137) to exclude testimony by

Sheila Babot and any reference to litigation she has filed against defendant, the Court RESERVES

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its ruling. Plaintiff has indicated that she would call Ms. Babot as a rebuttal witness. Plaintiff is

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United States District Court
Northern District of California

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directed to file a proffer regarding Ms. Babot’s testimony by Monday, December 10, 2018.

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3.

Defendant’s Motion in Limine No. 3 (Dkt. No. 138) regarding parent entities is

DENIED AS WITHDRAWN by defendant at the hearing.
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Defendant’s Motion in Limine No. 4 was resolved prior to the conference and

withdrawn.
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Defendant’s Motion in Limine No. 5 (Dkt. No. 139) to exclude evidence of gender-

neutral coarse speech is DENIED.
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Defendant’s Motion in Limine No. 6 (Dkt. No. 140) to exclude direct or indirect

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evidence or mention of pretrial proceedings, prior rulings, and litigation techniques or tactics is

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DENIED AS STIPULATED. Such matters and evidence are excluded.

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7.

Defendant’s Motion in Limine No. 7 (Dkt. No. 141) to exclude all references to

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other suits or administrative actions is DENIED AS STIPULATED. Such matters and evidence are

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excluded.

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8.

Defendant’s Motion in Limine No. 8 (Dkt. No. 143) to exclude opinion evidence

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regarding justification for plaintiff's termination or her but-for tenure at Equilon, is DENIED as to

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Michael Joyce; defendant may cross-examine him regarding any opinions.

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With respect to Nora Ostrofe the motion is GRANTED to the extent Ostrofe would seek to
rely on statements of opinion regarding plaintiff’s qualifications and performance within Ostrofe’s
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report. However, plaintiff can reference testimony already in evidence to establish the foundation

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for Ostrofe’s opinions concerning projections for future wage loss.

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With respect to Ray Jones, based upon the proffer at Dkt. No. 207, the motion is DENIED.

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9.

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Defendant’s Motion in Limine No. 9 (Dkt. No. 144) to exclude statistical evidence

regarding the composition of the probationary class is DENIED.
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Defendant’s Motion in Limine No. 10 (Dkt. No. 146) to exclude speculative

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testimony regarding conduct and treatment of others is DENIED WITHOUT PREJUDICE as

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overbroad. To the extent the motion is directed at testimony of Ray Jones, the Court has ruled that

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he may testify consistent with the proffer as stated herein with respect to Defendant’s Motion in

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United States District Court
Northern District of California

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Limine No. 1.
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Defendant’s Motion in Limine No. 11 (Dkt. No. 147) to exclude evidence of

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misconduct not suffered or witnessed by plaintiff is DENIED WITHOUT PREJUDICE as overbroad;

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defendant may offer more specific objections in advance of plaintiff’s testimony, if necessary. To

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the extent this motion is directed at testimony by Sheila Babot, plaintiff has indicated Ms. Babot

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will testify in rebuttal only and, as stated above, plaintiff is directed to submit a proffer on the

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testimony she would offer in rebuttal.

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IT IS SO ORDERED.

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Dated: December 5, 2018

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______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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