McArthur v. The Rock Wood Fired Pizza & Spirits et al

Filing 110

ORDER granting in part and denying in part defendants' 98 Motions in Limine by Judge Ricardo S Martinez.(RS)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 9 JENNIFER McARTHUR, 10 Plaintiff, 11 v. 12 13 THE ROCK WOODFIRED PIZZA & SPIRITS, et al., 14 Defendants. 15 16 17 I. ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. C14-0770 RSM ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS IN LIMINE INTRODUCTION This matter comes before the Court on Defendants’ Motions In Limine. Dkt. #98. 18 Plaintiff does not oppose several of Defendants’ motions, but opposes others. Dkt. #100. For 19 20 the reasons set forth herein, the Court now GRANTS IN PART AND DENIES IN PART 21 Defendants’ Motions In Limine. 22 II. LEGAL STANDARD 23 Parties may file motions in limine before or during trial “to exclude anticipated 24 25 prejudicial evidence before the evidence is actually offered.” Luce v. United States, 469 U.S. 26 38, 40 n.2, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984). To resolve such motions, the Court is 27 guided by Fed. R. Evid. 401 and 403. Specifically, the Court considers whether evidence “has 28 any tendency to make a fact more or less probable than it would be without the evidence,” and ORDER PAGE - 1 1 whether “the fact is of consequence in determining the action.” Fed. R. Evid. 401. But the 2 Court may exclude relevant evidence if “its probative value is substantially outweighed by a 3 danger of one or more of the following: unfair prejudice, confusing the issues, misleading the 4 jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 5 403. 6 7 III. 8 A. Motions In Limine 1, 4, 5, 6, 8, 9 9 10 DISCUSSION Defendants have proposed a number of standard Motions In Limine which Plaintiff does not oppose. Dkts. #98 at 2-5 and #100 at 1-2. Accordingly, the following Motions In 11 Limine will be GRANTED: 12 13 1. Exclusion of Non-Party Witnesses from Courtroom 14 4. References to Cost of Litigation 15 5. References to Defendants’ Financial Status or Ability to Pay a Judgment 16 6. Golden Rule Arguments 17 18 8. Written Experts’ Curricula Vitae 19 9. Written Experts’ Reports 20 B. Motions In Limine 2 and 3 21 Defendants have proposed a number of additional standard Motions In Limine, to which 22 Plaintiff has objected on the basis that they are “not appropriate motions in limine.” Dkts. #98 23 24 at 2 and 6. The Court has reviewed Motions In Limine 2 (references to offers to settle or 25 compromise) and 3 (references to insurance), and finds that these motions are appropriate and 26 have a valid legal basis. Accordingly the Court will GRANT those motions. 27 C. Motion In Limine 7 28 ORDER PAGE - 2 1 Defendant asks the Court to exclude the offering of any evidence, the making of any 2 comments or arguments, or the asking of any questions relating to sending a message, 3 punishing, or deterring the Defendants. Dkt. #98 at 4. Plaintiff responds that she is seeking 4 punitive damages in this lawsuit, and therefore argument related to such damages is proper. 5 Dkt. #100 at 2. 6 7 The Ninth Circuit has not yet settled the availability of punitive damages in cases 8 asserted under the FLSA. See Lambert v. Ackerley, 180 F.3d 997, 1011 (9th Cir. 1999) (“[W]e 9 do not reach the question because the defendants have waived the issue of the availability of 10 punitive damages by failing to raise it below.”). Only two circuits have addressed the 11 availability of punitive damages and those circuits are split. See Snapp v. Unlimited Concepts, 12 13 Inc., 208 F.3d 928, 933-34 (11th Cir. 2000) (holding that punitive damages are not available 14 under the FLSA); Travis v. Gary Comm. Mental Health Ctr., Inc., 921 F.2d 108, 112 (7th Cir. 15 1990) (holding that punitive damages are available under the FLSA). District Courts in the 16 Ninth Circuit have likewise split on the availability of punitive damages. See, e.g., Campbell17 18 Thomson v. Cox Communs., No. CV-08-1656-PHX-GMS, 2010 U.S. Dist. LEXIS 43977, 2010 19 WL 1814844, at *10-11 (D. Ariz. May 5, 2010) (punitive damages available); Tumulty v. 20 FedEx Ground Package Sys., Inc., No. C04-1425P, 2005 U.S. Dist. LEXIS 25997, 2005 WL 21 1979104, at *10-11 (W.D. Wash. Aug. 16, 2005) (Pechman, J.) (punitive damages 22 unavailable). Given the absence of authority in the Ninth Circuit on this issue, the Court will 23 24 DENY Defendants’ Motion In Limine to the extent that it seeks to limit Plaintiff to asking for 25 compensatory damages only, unless or until the Court determines that such damages are not 26 available. 27 D. Motion In Limine 10 28 ORDER PAGE - 3 1 Defendants next seek an Order excluding lay witness opinion testimony except as 2 provided by Federal Rule of Evidence 701. Dkt. #98 at 5. Specifically, Defendants seek to 3 preclude Plaintiff from testifying that she had to stop breastfeeding when her child was 11 4 months old due to a lack of milk production that resulted from Defendants alleged failure to 5 provide her with breaks for pumping. Dkt. #98 at 5. Defendants argue that such testimony is 6 7 not supported by credible, contemporaneous medical testimony, and can only be provided by a 8 qualified expert in the field. Id. Plaintiff argues that her opinion is relevant to her alleged 9 emotional distress, and that she can testify as to her own decrease in milk, and her own beliefs 10 as to why her milk production decreased. Dkt. #100 at 2-3. 11 The Court agrees with Plaintiff. At this point in time, it does not appear that she seeks 12 13 to testify to improper expert opinions as to the reasons for her decrease in milk production. 14 Any objections to specific testimony may be raised at the time of such testimony at trial. 15 Further, Defendants may cross-examine Plaintiff as to any medical evidence she may have (or 16 not have) supporting her beliefs. Accordingly, the Court DENIES Defendants’ Motion In 17 18 19 Limine. E. Motion In Limine 11 20 Defendants request 24-hour notice of each witness and exhibit to be called or used at 21 trial. Dkt. #98 at 5. Plaintiff does not agree to provide prior notice of any exhibits she intends 22 to introduce, and only agrees to disclose next day witnesses within one hour after court has 23 24 adjourned or by 1:00 p.m. on the next business day, whichever is later. Dkt. #100 at 3. 25 With respect to witnesses, the Court notes that regardless of what the parties request, the 26 Court requires 24 hour notice of witnesses to be called, and will typically ask the parties to 27 identify next day witnesses prior to convening court each day. 28 ORDER PAGE - 4 Accordingly, the Court 1 2 3 4 GRANTS that part of Defendants’ motion in limine and expects all parties to be prepared to tell the Court and each other which next day witnesses will be presented. With respect to exhibits, the Court will not require any party to provide notice of exhibits they expect to present, as those decisions are often made during trial based on 5 testimony of the witnesses. Further, the parties have already identified exhibits they plan to use 6 7 in their proposed Pretrial Order, and no party is required to disclose exhibits used for 8 impeachment purposes only prior to using such exhibits. 9 Defendants’ motion is DENIED. 10 Accordingly, that portion of F. Motion In Limine 12 11 Defendants next seek an Order precluding Plaintiff from testifying that other people told 12 13 her they were asked to work off the clock without pay and that they were compensated in other 14 ways. Dkt. #98 at 6. Defendants assert that Plaintiff has no personal knowledge of such 15 requests, and that such unsupported testimony would be too prejudicial to Defendants. Id. 16 Plaintiff responds that she has personal knowledge of what she was told. Dkt. #100 at 3. 17 18 The Court DENIES Defendants’ motion as premature, and on the basis that the more 19 appropriate objection may be grounded in hearsay. Until such testimony arises, and the Court 20 can evaluate the context in which such testimony is offered, the Court cannot grant any motion 21 to exclude such testimony. 22 G. Motion In Limine 13 23 24 Defendants seek an Order prohibiting any counsel from expressing personal opinions 25 regarding the validity of their clients’ contentions and testimony or other witnesses’ contentions 26 and testimony. Dkt. #98 at 6. Plaintiff opposes this motion on the basis that it is really a 27 motion for summary judgment made under the guise of a motion in limine. Dkt. #100 at 3-4. 28 ORDER PAGE - 5 1 The Court DENIES Defendants’ motion as premature. Until such situation arises, and 2 the Court can evaluate the context in which any comments or argument are made, the Court 3 cannot grant such a motion. 4 H. Motion In Limine 14 5 Defendants next move to require Plaintiff to provide supplemental information about 6 7 the damages she plans to request. Dkt. #98 at 6-7. Although brought as a Motion In Limine, 8 the Court notes that Defendants have not actually asked the Court to preclude any specific 9 evidence, and instead simply complain that Plaintiff has failed to provide adequate damages 10 calculations. Id. This is not a proper Motion In Limine. Therefore, the Court DENIES the 11 motion. 12 13 I. Motion In Limine 15 14 Defendants seek an Order precluding Plaintiff’s economic expert from testifying as to 15 his opinions on restaurant profitability and labor costs on the basis that such opinions are 16 irrelevant and misleading. Dkt. #98 at 7-8. Defendants also move to preclude Plaintiff’s 17 18 economic expert from testifying to any opinions beyond those disclosed in his written report(s). 19 Id. Plaintiff argues that the opinions offered by her expert are relevant, and that Defendants 20 have not claimed her expert is not qualified. Dkt. #100 at 13-14. 21 The Court is not convinced at this time that Plaintiff’s expert economist’s opinions are 22 irrelevant or misleading. Further, the Court finds Defendants’ motion to be premature. Until 23 24 Plaintiff’s expert economist is offered to testify, and the Court can evaluate the context in 25 which any such testimony is offered, as well as other evidence presented at that point in time, 26 the Court cannot grant such a motion. Accordingly, Defendants’ motion is DENIED. 27 J. Motion In Limine 16 28 ORDER PAGE - 6 Defendants next move to exclude witnesses for which Plaintiff has failed to provide 1 2 contact information prior to the presentation of the Pretrial Order. Dkt. #98 at 8-9. Plaintiff 3 asks the Court to apply a “principled approach” to the exclusion of witnesses. Dkt. #100 at 14. 4 No party identifies any specific witnesses, or presents any evidence that there are witnesses 5 who will be presented that either party was unable to contact. Accordingly, this motion is 6 7 8 9 DENIED. Any issues involving specific witnesses can be more fully addressed during the parties’ pretrial conference with the Court. K. Motion In Limine 17 10 Finally, Defendants move to exclude Plaintiff’s proposed lactation specialist Cynthia 11 Good Mojab. Dkt. #98 at 9-18. For a number of reasons, Defendants argue that her opinions 12 13 are inadmissible, including that she is not qualified to provide certain opinions, some of her 14 opinions are unfairly prejudicial, and they are not based on reliable methodology. Id. Plaintiff 15 responds that her expert’s opinions are both reliable and relevant. Dkts. #100 at 14-15 and 16 #106. 17 18 The Court has reviewed Defendants’ motion and Plaintiff’s opposition thereto, along 19 with the expert report provided by Ms. Mojab and Ms. Mojab’s Declaration in opposition to 20 Defendants’ motion. Dkts. #98, #99, Ex. 5, #100 and #106. Having conducted this review, the 21 Court agrees with Defendants, for the reasons stated in their motion, that Ms. Mojab is not 22 qualified to provide medical opinions regarding alleged physical harms suffered by Plaintiff, 23 24 and that none of her opinions with respect to alleged physical and psychological harms to 25 Plaintiff and her child are reliable, particularly given that she did not review Plaintiff’s medical 26 records. In addition, the Court agrees that Ms. Mojab’s general opinions about what harms 27 could be suffered by a mother who could not express milk or a child who could not receive 28 ORDER PAGE - 7 1 expressed milk, are irrelevant and/or more prejudicial than probative. Finally, the Court notes 2 that Ms. Mojab has never testified as an expert witness either in deposition or at trial in any 3 court prior to this case. 4 Accordingly, the Court GRANTS Defendants’ motion and EXCLUDES Ms. Mojab as an expert witness in this matter. 5 6 IV. 7 CONCLUSION 8 Having reviewed Defendants’ motions in limine, the opposition thereto, and the 9 remainder of the record, the Court hereby ORDERS that Defendants’ motions (Dkt. #98) are 10 GRANTED IN PART AND DENIED IN PART as set forth above. Counsel shall inform the 11 parties and their witnesses of the Courts rulings on these matters, and everyone shall abide by 12 13 14 them when presenting evidence and testimony during trial. DATED this 14th day of April 2017. 15 16 A 17 RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 ORDER PAGE - 8

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