Easton v. Asplundh Tree Experts Co

Filing 66

ORDER granting in part and denying in part Plaintiff's 56 Motions in Limine. Signed by Judge Ricardo S Martinez. (PM)

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1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 5 6 7 BRITTANY EASTON, 8 Plaintiff, 9 10 11 v. ASPLUNDH TREE EXPERTS, CO., 12 Defendant. 13 ) ) ) ) ) ) ) ) ) ) ) CASE NO. C16-1694RSM ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTIONS IN LIMINE 14 I. INTRODUCTION 15 16 This matter comes before the Court on Plaintiff’s Motions In Limine. Dkt. #56. 17 Defendant does not oppose several of Plaintiff’s motions, but opposes others. Dkts. #56 and #58. 18 For the reasons set forth herein, the Court now GRANTS IN PART AND DENIES IN PART 19 Plaintiff’s Motions In Limine. 20 II. LEGAL STANDARD 21 22 Parties may file motions in limine before or during trial “to exclude anticipated prejudicial 23 evidence before the evidence is actually offered.” Luce v. United States, 469 U.S. 38, 40 n.2, 24 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984). To resolve such motions, the Court is guided by Fed. 25 R. Evid. 401 and 403. Specifically, the Court considers whether evidence “has any tendency to 26 27 28 make a fact more or less probable than it would be without the evidence,” and whether “the fact is of consequence in determining the action.” Fed. R. Evid. 401. But the Court may exclude ORDER PAGE - 1 1 relevant evidence if “its probative value is substantially outweighed by a danger of one or more 2 of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting 3 time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. 4 III. DISCUSSION 5 1. Attorney-Conducted Voir Dire 6 7 In her first Motion In Limine, Plaintiff seeks an Order allowing one hour of attorney- 8 conducted voir dire. Dkt. #56 at 2. As discussed at the Pretrial Conference, it is this Court’s 9 typical practice to allow attorneys to conduct voir dire. However, the Court will not allow an 10 hour for each party. Instead, the Court will allow the parties 30 minutes each. Accordingly, this 11 motion is DENIED AS MOOT. 12 13 2. Exclusion of Defense of Reasonable Reporting Policies and Failure to Report 14 Plaintiff next seeks an Order excluding any Faragher-Ellerth defense on the basis that 15 Defendant failed to plead such an affirmative defense in its Answer to the Complaint. Dkt. #56 16 at 2-3. Defendant asserts that it is not relying on such a defense; however, it asserts that the facts 17 18 underlying such a defense are relevant because they rebut claims of a hostile work environment. 19 Dkt. #58 at 2-4. The Court agrees that the subject testimony is relevant and probative to the issue 20 of vicarious liability. Accordingly, the Court DENIES this motion. 21 3. Evidence of Collective Bargaining Agreement 22 Plaintiff next moves to exclude the introduction of, or any reference to, a Collective 23 24 Bargaining Agreement (“CBA”) in this matter, on the basis that it is inadmissible hearsay and 25 irrelevant. Dkt. #56 at 4. Defendant responds that the CBA is relevant to explaining the 26 corrective action it took with respect to Mr. Mell, and that it should be allowed to reference the 27 CBA for that purpose. Dkt. #58 at 5-6. However, Defendant does not object to excluding the 28 ORDER PAGE - 2 1 CBA as an exhibit. Id. The Court agrees with Defendant that references to the CBA are relevant 2 to the issue of corrective action, and satisfy the governing Rules of Evidence. Accordingly, this 3 motion is DENIED, except to the extent that neither party will introduce the CBA as an exhibit. 4 4. Plaintiff’s Medical Bills and Records 5 Plaintiff next moves to exclude Plaintiff’s medical records and bills unless such evidence 6 7 is introduced through a competent medical expert. Dkt. #56 at 4-7. Defendant responds that the 8 records are relevant to its damages defense, that Plaintiff has put her mental health condition at 9 issue in this matter, and that both the medical and expert witnesses expected to testify at trial are 10 qualified to introduce and discuss the records. Dkt. #58 at 6-9. However, Defendant does not 11 object to the exclusion of medical bills. Id. at 9. For the reasons discussed by Defendant, the 12 13 Court agrees that Plaintiff’s medical records may be admissible through the identified witnesses 14 and under Rule of Evidence 803(4) and (6). Accordingly, this motion will be DENIED. 15 5. Prior Lawsuits and Complaints Against Asplundh 16 Plaintiff next seeks an Order allowing evidence of other lawsuits and complaints against 17 18 Defendant. Dkt. #56 at 7-8. This motion was addressed on Defendant’s Motions In Limine. See 19 Dkt. #54. As with Defendant’s motions, the Court does not have enough information to make a 20 determination with respect to the proffered testimony. Plaintiff has stated that she is willing to 21 make an offer of proof prior to such testimony. Dkt. #60 at 4. Accordingly, the Court GRANTS 22 this motion, subject to any objection raised by Defendant at the time the subject testimony is 23 24 offered. 25 6. Joe Mell Sr.’s Prior Policy Violations 26 Plaintiff next seeks an Order allowing the introduction of Mr. Mell’s prior policy 27 violations. Dkt. #56 at 8. This issue was addressed on Defendant’s Motions In Limine. See Dkt. 28 ORDER PAGE - 3 1 2 3 4 #54 at 5. The Court has already determined that it will not allow such evidence. Accordingly, this motion is DENIED. 7. Evidence of Lack of Prior Incidents Plaintiff next seeks an Order precluding evidence of a lack of similar incidents by Mr. 5 Mell prior to this lawsuit. Dkt. #56 at 8-9. Defendant responds that this type of information is 6 7 relevant to defend Plaintiff’s claims of negligent hiring, training, supervision and retention, as 8 well as to explain the corrective action taken. Dkt. #58 at 12-13. The Court agrees with 9 Defendant. Further, to the extent that Plaintiff seeks to introduce other purported victims’ 10 testimony, such testimony cannot be evaluated at this time due to insufficient information. 11 Accordingly, this motion is DENIED. 12 13 8. Apologies or Expression of Remorse 14 Plaintiff next moves for an Order excluding any reference to apologies or feelings of 15 remorse on the part of Defendant. Dkt. #56 at 9. Rather than oppose this motion, Defendant 16 responds by requesting evidence from Plaintiff of any such expressions not already produced by 17 18 Plaintiff. Dkt. #58 at 13. Accordingly, this motion is GRANTED. 19 9. Undisclosed Evidence 20 Plaintiff next seeks an Order precluding the introduction of any previously requested, but 21 undisclosed evidence. Dkt. #56 at 9. Defendant does not object as it does not plan to introduce 22 such evidence. Dkt. #58. Accordingly, this motion is MOOT. 23 24 10. Emails Between Rick Pitt and Shawn Shapiro 25 Plaintiff next asks the Court to exclude emails between Rick Pitt and Shawn Shapiro on 26 the basis that they are hearsay for which there are no exceptions in this context. Dkt. #56 at 9- 27 28 ORDER PAGE - 4 1 2 3 4 10. Defendant responds that the emails are relevant and admissible business records. Dkt. #58 at 13. The Court agrees with Defendant. Accordingly, this motion is DENIED. 11. Testimony Regarding Asplundh’s Justification for Plaintiff’s Termination Plaintiff next asks the Court to preclude any testimony regarding Defendant’s justification 5 for terminating Plaintiff. Dkt. #56 at 10. The Court addressed this issue on Defendant’s Motion 6 7 In Limine. See Dkt. #54 at 2. On that motion, the Court found that Plaintiff should not be 8 restricted from testifying about the circumstances of her termination from employment. Thus, 9 Defendant cannot be precluded from presenting testimony about the same issue. Accordingly, 10 this motion is DENIED. 11 12. Evidence of Convictions, Misdemeanors and Other Bad Acts 12 13 Plaintiff next seeks an Order excluding any evidence of her prior criminal convictions or 14 other misdeeds as irrelevant and more prejudicial than probative. Dkt. #56 at 10-12. Defendant 15 responds that this evidence is relevant to the determination of damages. Dkt. #58 at 14-15. The 16 Court disagrees with Defendant. Criminal history is not the same as a history of drug use, 17 18 particularly in this case where the conviction in question was for conspiracy to transport. The 19 Court GRANTS IN PART this motion and excludes any evidence of prior convictions or arrests. 20 With respect to Plaintiff’s history of drug dealing, the Court agrees that information may be 21 relevant to damages in the context of expert evaluations, and will reserve any specific ruling on 22 that history unless and until it is offered at trial. 23 24 13. Plaintiff’s Drug Use 25 Finally, Plaintiff asks the Court to exclude any evidence that she has used illicit drugs in 26 the past, and currently occasionally uses marijuana, on the basis that such evidence is unfairly 27 prejudicial. Dkt. #56 at 12. Defendant responds that such evidence is relevant to Plaintiff’s 28 ORDER PAGE - 5 1 ability to recover damages for the intentional infliction of emotional distress, and to the expert’s 2 opinions, which are based in part on this issue and an evaluation of Plaintiff’s mental health. Dkt. 3 #60 at 15-16. The Court agrees that Plaintiff’s drug use, unlike any prior conviction, goes directly 4 to her claim for damages and to her mental health, which she has put in issue in this case. 5 Accordingly, such evidence will not be excluded, and this motion is DENIED. 6 IV. 7 CONCLUSION 8 Having reviewed Plaintiff’s motions in limine, the opposition thereto, and the remainder 9 of the record, the Court hereby ORDERS that Plaintiff’s motions (Dkt. #56) are GRANTED IN 10 PART AND DENIED IN PART as set forth above. Counsel shall inform the parties and their 11 witnesses of the Courts rulings on these matters, and everyone shall abide by them when 12 13 presenting evidence and testimony during trial. 14 DATED this 13th day of March, 2018. 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 - 6

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