Allen v. Barratt

Opinion

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5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 11 MIRANDA ALLEN, an individual; and CASE NO. 2:23-cv-00474-TL J.M., a minor child, by and through his 12 parent, MIRANDA ALLEN, ORDER ON MOTIONS IN LIMINE 13 Plaintiffs, v. 14 MARTIN BARRATT and J. DOE 15 BARRATT, husband and spouse and marital community composed thereof, 16 Defendants. 17

18 19 This matter is before the Court on the Parties’ motions in limine. Dkt. Nos. 38, 40. 20 Having considered the Parties responses (Dkt. Nos. 47, 48) and the relevant record, the Court 21 GRANTS in part, DENIES in part, and RESERVES RULING in part on the motions in limine as 22 explained below. 23 24 1 I. BACKGROUND 2 This is a personal injury case arising out of a rear-end, chain-reaction vehicle accident in 3 2019. See Dkt. No. 101 ¶¶ 3.1–3.5. Plaintiffs allege that, on or about June 16, 2019, Plaintiff 4 Allen was driving northbound on Interstate 5 in Skagit County, Washington, with Plaintiff J.M.

5 as a passenger in her vehicle. See id. While Plaintiff’s vehicle was stopped in traffic, Defendant 6 Martin Barratt, also driving northbound on Interstate 5, rear-ended Plaintiff Allen’s vehicle, 7 “caus[ing] Plaintiff Allen’s vehicle to crash into the rear of the vehicle directly in front of them.” 8 Id. ¶ 3.5. As a result of the accident, Plaintiff Allen allegedly sustained substantial and 9 permanent injuries, and Plaintiff J.M. also sustained injuries. Id. ¶¶ 6.2, 6.6. 10 Defendant removed this case to federal court on the basis of diversity jurisdiction. Dkt. 11 No. 1. This case is scheduled for a jury trial on the issue of damages arising from Plaintiff 12 Allen’s injuries beginning on June 2, 2025. Dkt. No. 16 (order setting jury trial date). In advance 13 of trial, the Parties filed their respective motions in limine (Dkt. Nos. 38, 40) and have responded 14 to each other’s motions (Dkt. Nos. 47, 48). The Court shared its preliminary rulings on the

15 motions in limine and heard the Parties’ oral argument during the pre-trial conference held on 16 May 23, 2025. Dkt. No. 54. The motions are now fully briefed, argued, and before the Court for 17 its consideration. 18 II. LEGAL STANDARD 19 “A motion in limine is a procedural mechanism to limit in advance testimony or evidence 20 in a particular area . . . so that admissibility is settled before attempted use of the evidence before 21 the jury.” United States v. Heller, 551 F.3d 1108, 1111–12 (9th Cir. 2009) (citation omitted). 22 While the Federal Rules of Evidence (“FRE”) do not explicitly permit motions in limine, they are 23 a part of a “district court’s inherent authority to manage the course of trials.” Luce v. United

24 States, 469 U.S. 38, 41 n.4 (1984). A motion in limine is ordinarily granted only if the evidence 1 at issue is inadmissible on all potential grounds; if not, the evidentiary ruling is better deferred 2 until trial, to allow for questions of foundation, relevancy, and prejudice to be resolved with the 3 appropriate context. E.g., United States v. Sims, 550 F. Supp. 3d 907, 912 (D. Nev. 2021). A 4 motion in limine should not be used to resolve factual disputes or weigh evidence. E.g.,

5 Westboro Condo. Ass’n v. Country Cas. Ins. Co., No. C21-685, 2023 WL 1928170, at *1 (W.D. 6 Wash. Feb. 10, 2023). A court’s ruling on a pre-trial motion in limine is preliminary and can be 7 revisited at trial based on the facts and evidence as they are actually presented. See, e.g., City of 8 Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1070 (9th Cir. 2017) (noting a court may change 9 its in limine ruling at trial if testimony brings unanticipated facts to the court’s attention). 10 III. DISCUSSION 11 Because many of the Parties’ motions in limine reference Federal Rules of Evidence 12 (“FRE”) 401, 402, and 403, the Court lays out the three rules here: 13 FRE 401. Test for Relevant Evidence Evidence is relevant if: 14 (a) it has any tendency to make a fact more or less probable than it would be without the evidence; 15 and (b) the fact is of consequence in determining the 16 action.

17 FRE 402. General Admissibility of Relevant Evidence Relevant evidence is admissible unless any of the following 18 provides otherwise: • the United States Constitution; 19 • a federal statute; • these rules; or 20 • other rules prescribed by the Supreme Court. Irrelevant evidence is not admissible. 21 FRE 403. Excluding Relevant Evidence for Prejudice, 22 Confusion, Waste of Time, or Other Reasons The court may exclude relevant evidence if its probative value is 23 substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the 24 1 jury, undue delay, wasting time, or needlessly presenting cumulative evidence. 2

3 In short, evidence is generally admissible at trial if it is relevant, unless the probative 4 value of such evidence is substantially outweighed by such unwanted dangers as unfair prejudice 5 or misleading the jury. “Unfair prejudice” means “the possibility that the evidence will excite the 6 jury to make a decision on the basis of a factor unrelated to the issues properly before it.” Heyne 7 v. Caruso, 69 F.3d 1475, 1481 (9th Cir. 1995) (quoting Mullen v. Princess Anne Volunteer Fire 8 Co., 853 F.2d 1130, 1134 (4th Cir. 1988)). 9 A. Plaintiff’s Motions in Limine 10 Plaintiff Allen brings 27 motions in limine. Dkt. No. 38. The Court’s ruling on Plaintiff’s 11 motions are as follows: 12 # Motion Ruling Reasoning 13 1 Exclusion of evidence, Granted in Defendant represents he has no intention of argument, inference, or part / arguing that Plaintiff had an “advantage” in 14 suggestion concerning Denied in being able to speak with her treatment the right of Plaintiff’s part providers while Defendant did not. Dkt. No. 47 15 counsel to meet with at 2. The motion is therefore stipulated and treating providers granted to this extent. 16 Defendant argues that the substance of 17 Plaintiff’s counsel’s communications with Plaintiff’s treating providers, along with any 18 potential biases they might reflect, are relevant and admissible in helping the jury determine 19 these witnesses’ credibility. Dkt. No. 47 at 2. The Court agrees that evidence suggesting bias 20 by a treating physician is relevant and admissible under FRE 401, 403. 21 However, the Court is prepared to restrict the scope of such questioning during trial, if 22 needed. 23 2 Exclusion of reference Granted Stipulated. See Dkt. Nos. 41, 47. to discovery disputes 24 1 3 Limitation on expert Granted Stipulated. See Dkt. Nos. 41, 47. witness testimony to 2 conform to their opinions as disclosed 3 during discovery and to conform to each 4 expert’s area of expertise 5 4 Exclusion of Granted Stipulated with the exception of impeachment 6 undisclosed or newly evidence. See Dkt. Nos. 41, 47. disclosed evidence 7 5 Exclusion of evidence, Granted in Defendant represents that he does not intend to 8 argument, suggestion, part / offer any testimony or evidence specifically or inference regarding Reserved in regarding how he “feels” about the incident. 9 how any of the part Dkt. No. 47 at 3. The motion is therefore Defendant or its stipulated and granted to this extent. 10 counsel “feel” about Plaintiff further seeks an order “prohibiting this incident or the 11 Plaintiff’s injuries testimony, or offering evidence, of statements of witnesses concerning how the [D]efendants 12 or their attorneys feel or how they have been emotionally affected by this incident or the 13 Plaintiff’s injuries,” as such comments “would be designed only to create sympathy for the 14 [D]efendant.” Dkt. No. 38 at 4. To the extent that this motion seeks to exclude any evidence 15 regarding how Defendant’s counsel “feels” about the incident, it is granted, as such 16 evidence is irrelevant. As the jury will be instructed not to make a 17 decision based on sympathy, see Manual of Model Civil Jury Instructions 1.2 (9th Cir. 18 2017), comments “solely designed to evoke sympathy” for the defendant will be irrelevant 19 under FRE 401. However, as the “suggestion” or “inference” of Defendant’s feelings about 20 the incident or Plaintiff’s injuries may naturally arise over the course of any 21 testimony by Defendant, the Court will reserve ruling as to any specific questions or argument, 22 which will be addressed on a case-by-case basis as raised. 23 6 Order that general Granted Stipulated. See Dkt. Nos. 41, 47. 24 damages are not to be 1 reduced to present value 2 7 Exclusion of collateral Granted Stipulated. See Dkt. Nos. 41, 47. 3 sources 4 8 Exclusion of discussion Granted Stipulated. See Dkt. Nos. 41, 47. juxtaposing the 5 Plaintiff’s request for damages and a 6 “windfall,” “winning the lottery,” “getting 7 rich,” “hitting the jackpot,” or similar 8 politically charged terminology 9 9 Exclusion of any Granted Stipulated. See Dkt. Nos. 41, 47. 10 discussion, inference, suggestion, argument, 11 or evidence regarding employment of 12 attorneys or the terms of engagement of 13 attorneys 14 10 Exclusion of any Granted Defendant represents that he does not intend to evidence, argument, or introduce evidence or argument that Plaintiff’s 15 suggestion concerning claimed symptoms are attributable to this the emotional impact of litigation. Dkt. No. 47 at 3. The motion is 16 this litigation on the therefore stipulated and granted to this extent Plaintiff’s medical 17 condition 11 Order precluding cross- Denied Plaintiff seeks an order “prohibiting the asking 18 examination questions of questions on cross-examination that lack a lacking foundation foundation,” and requesting that the Court 19 implement a procedure for resolving such objections: “the court should require counsel 20 questioning the witness to immediately identify the foundation for that question and, if 21 counsel is unable to do so, that the court immediately instruct the jury that the objection 22 is sustained and to disregard any inference from the nature of the question.” Dkt. No. 38 23 at 8. 24 1 “The purpose of a motion in limine is not to obtain a generic ruling that the parties must 2 follow the rules of evidence and civil procedure,” or that they must abide by well- 3 established precedent. Droplets, Inc. v. Yahoo! Inc., No. C12-03733, 2022 WL 2670188, at *5 4 (N.D. Cal. Feb. 28, 2022); see also United States v. Pilisuk, No. CR22-001, 2023 WL 5 576523, at *5 (W.D. Wash. Jan. 27, 2023) (striking defendant’s motion in limine “as 6 unnecessary, as it simply asks the Government to follow the rules of evidence, which all 7 counsel are expected to do as officers of the Court”). 8 To the extent that Plaintiff wishes to challenge specific questions or testimony as lacking 9 foundation during trial, she may do so. 10 12 Order precluding Granted Stipulated. See Dkt. Nos. 41, 47. parties, counsel, and 11 their agents or representatives from 12 providing the text or content of the trial 13 transcripts to any non- party lay witnesses 14 until after the close of trial 15 13 Exclusion of reference Granted Stipulated. See Dkt. Nos. 41, 47. 16 to motions in limine 17 14 Exclusion of any Granted in Defendant represents that he does not intend to argument or reference part / offer evidence or testimony regarding 18 to medical conditions Reserved in reproductive issues. Dkt. No. 47 at 3. The not in controversy part motion is therefore stipulated and granted to 19 that extent. To the extent that Plaintiff wishes to exclude 20 argument or reference to additional medical conditions, the Court reserves ruling. It is 21 possible that medical conditions not in controversy may be relevant, such as if they 22 exacerbate or influence symptoms of medical conditions that are in controversy. 23 24 1 15 Exclusion of reference Granted Defendant represents that he does not intend to to Plaintiff’s tax return offer tax returns as evidence. Dkt. No. 47 at 4. 2 schedules The motion is therefore stipulated and granted. 3 16 Exclusion of reference Granted Stipulated. See Dkt. Nos. 41, 47. to insurance rates 4 17 Exclusion of reference Denied Plaintiff argues that Defendant failed to plead 5 to intervening / intervening/superseding cause as an superseding causes affirmative defense to this matter, and 6 therefore should not be permitted to allege that Plaintiff’s post-collision conditions were 7 caused by anything other than the subject condition. Dkt. No. 37 at 9. Other courts have 8 held that even where a defendant does not plead the affirmative defense of superseding 9 cause, he or she may present other “possible” causes of the plaintiff’s injury in order to 10 attempt to convince the trier of fact that he or she was not the cause of the plaintiff’s injury. 11 See, e.g., Johnson v. Carbon, 63 Wn. App. 294, 296–97 (Wash. Ct. App. 1991); Kline v. 12 Zimmer, Inc., 79 Cal. App. 5th 123, 133 (Cal. Ct. App. 2022) (relying on Wilder v. Eberhart, 13 977 F.2d 673, 677 (1st Cir. 1992)). 14 Accordingly, while Defendant will not be permitted to argue an intervening/superseding 15 cause, he will be permitted to offer testimony as to other possible causes of Plaintiff’s injury. 16 Plaintiff’s motion is therefore denied. 18 Exclusion of reference Granted Stipulated. See Dkt. Nos. 41, 47. 17 to taxation 18 19 Exclusion of opinions Granted It is the exclusive function of the jury to weigh or belief that expert and evidence and determine credibility. See State v. 19 lay witnesses are lying, Alexander, 64 Wn. App. 147, 154 (Wash. Ct. or that their testimony App. 1992). Accordingly, testimony or 20 is untruthful argument regarding whether witnesses are lying or being untruthful will not be permitted. 21 Defendant argues that his medical expert 22 “must be allowed to testify regarding his medical opinions, including whether Plaintiff’s 23 testimony is unsupported by established medical principles and Plaintiff’s own medical 24 records.” Dkt. No. 47 at 6. While Defendant’s 1 expert witness may testify as to whether he believes Plaintiff’s testimony is supported by 2 established medical principles and her own medical records, he will not be permitted to 3 testify as to his belief regarding the truthfulness of Plaintiff’s testimony. 4 20 Exclusion of reference Granted Stipulated. See Dkt. Nos. 41, 47. 5 to judgment 6 21 Exclusion of failure to Granted Stipulated. See Dkt. Nos. 41, 47. call a witness 7 22 Exclusion of reference Granted in As written, Plaintiff’s requested order is overly 8 to fault on behalf of part / broad: it seeks to prohibit Defendants from Plaintiff Denied in “referencing, suggesting, arguing, eliciting 9 part testimony or offering evidence concerning the fault of, or contributing fault to, Plaintiff, 10 including that Plaintiff breached a duty to herself and/or caused delay.” Dkt. No. 37 at 11 11. Plaintiff argues that such evidence would amount to an attempt to show contributory 12 negligence. Defendant represents that he “does not intend to argue plaintiff bears any fault for 13 being rear-ended.” Dkt. No. 47 at 7. The motion is therefore stipulated and granted to 14 that extent. To the extent that Plaintiff seeks to preclude 15 Defendant from offering argument or testimony regarding, for example, other 16 possible causes of Plaintiff’s injury unrelated to the actual collision but which may be 17 attributable to Plaintiff or that Plaintiff failed to mitigate her damages (see Dkt. No. 42 at 2), 18 the motion is denied. See supra Plaintiff’s #17. 19 23 Exclusion of any Granted Stipulated. See Dkt. Nos. 41, 47. evidence, argument, 20 inference or suggestion concerning Plaintiff’s 21 religious beliefs or lack thereof 22 24 Exclusion of expert Denied Plaintiff seeks an order excluding “‘expert’ 23 testimony lacking testimony that does not first have a proper proper medical medical foundation for that opinion.” Dkt. No. 24 foundation 37 at 14. 1 Motions challenging expert witness testimony were due on February 3, 2025. Dkt. No. 16. 2 Further, the Court declines to issue an order reiterating what is already required of the 3 Parties: that expert witnesses be qualified by knowledge, skill, experience, training, or 4 education. Fed. R. Evid. 703; see also Judge Tana Lin, Standing Order for All Civil Cases, 5 Section III.H (last updated Nov. 1, 2024) (“Parties are discouraged from filing motions 6 in limine that . . . merely ask the Court to apply the Federal Rules of Evidence in the absence 7 of an unusual issue.”). See also Plaintiff’s MIL 11. 8 To the extent that Plaintiff wishes to challenge 9 specific expert testimony as lacking foundation during trial, she may do so. 10 25 Exclusion of Plaintiff’s Granted Stipulated. See Dkt. Nos. 41, 47. 11 sexual history, including pregnancy 12 and related health issues or procedures 13 26 Exclusion of reference Denied Plaintiff asserts that “Defendants have 14 to failure to mitigate admitted at this time there is no basis in fact for [an allegation that Plaintiff failed to 15 mitigate her damages].” Dkt. No. 37 at 16. But Defendant explicitly “reserve[d] the right to 16 introduce evidence to establish plaintiff failed to mitigate her damages.” Dkt. No. 42 at 2. 17 Plaintiff’s cited authority, Cox v. Keg Restaurants U.S. Inc., 86 Wn. App. 239, 244, 18 935 P.2d 1377 (Wash. Ct. App. 1997), does not support barring Defendant from 19 introducing evidence as to mitigation. As Plaintiff herself points out, the error in that 20 case was submitting the mitigation issue to the jury, not allowing the evidence to be 21 introduced to the jury. Dkt. No. 38 at 17 (“The court therefore erred in submitting the 22 mitigation issue to the jury.”) (quoting Cox, 86 Wn. App. at 246) (boldface in Plaintiff’s 23 briefing). 24 1 27 Order prohibiting Granted Stipulated. See Dkt. Nos. 41, 47. attempts to pass blame 2 to empty chair parties 3 4 B. Defendant’s Motions in Limine 5 Defendant brings 30 motions in limine. Dkt. No. 40. The Court’s ruling on Plaintiff’s 6 motions are as follows: 7 # Motion Ruling Reasoning 8 1 Exclusion of Granted. Stipulated, with the exception that it will references to litigation need to be addressed to the jury that minor 9 settlement discussions plaintiff J.M.’s claims have been resolved prior to trial. See Dkt. No. 41. 10 2 Exclusion of Granted Plaintiff represents that she “does not intend 11 references to other to introduce any evidence of other lawsuits, lawsuits, claims, or claims or actions against Defendants except 12 actions against for the purpose of impeachment during Defendant Defendants’ testimony.” The motion is 13 therefore stipulated and granted to that extent. 14 Plaintiff may be permitted to respond 15 appropriately if Defendant “opens the door” to references to other lawsuits, claims, or 16 actions against Defendant or affiliated entities. 17 3 Exclusion of Granted Stipulated and applied to all Parties. See Dkt. 18 undisclosed witness Nos. 41, 48. testimony 19 4 Exclusion of Granted Stipulated and applied to all Parties. See Dkt. undisclosed evidence Nos. 41, 48. 20 5 Exclusion of Granted Stipulated and applied to all Parties. See Dkt. 21 undisclosed expert Nos. 41, 48. opinions 22 6 Exclusion of Granted Stipulated. See Dkt. Nos. 41, 48. 23 arguments, suggestions, 24 1 references, or inferences to the effect 2 that the jury should punish, “send a 3 message,” or “make an example” of Defendant 4 7 Exclusion of Granted Stipulated and applied to all Parties. See Dkt. 5 references to discovery Nos. 41, 48. disputes 6 8 Exclusion of Granted Stipulated. See Dkt. Nos. 41, 48; see also 7 references to witnesses Plaintiff’s #21. who are absent, 8 unavailable, not called to testify or otherwise 9 not participating in the trial 10 9 Exclusion of Granted Stipulated and applied to all Parties. See Dkt. 11 references to motions Nos. 41, 48. in limine 12 10 Exclusion of Granted Stipulated. See Dkt. Nos. 41, 48. 13 references to Defendant’s financial 14 status 11 Exclusion of reference Granted Stipulated and applied to all Parties. See Dkt. 15 to Plaintiff’s “good Nos. 41, 48. character” 16 The Court clarifies that testimony regarding Plaintiff’s personality, work ethic and ability 17 to work prior to the collision, will be permitted. 18 12 Exclusion of reference Granted Stipulated and applied to all Parties. See Dkt. 19 to the expenses of Nos. 41, 48. litigation 20 13 Exclusion of testimony Granted in The Parties agree that lay witnesses in the 21 constituting medical part / instant case may describe their first-hand conditions by lay Reserved in observations of Plaintiff’s behavior and 22 witnesses part appearance. See Dkt. No. 40 at 6; Dkt. No. 48 at 5. The motion is therefore stipulated 23 and granted to that extent. While Washington courts have permitted 24 testimony regarding observations of others’ 1 pain and suffering, testimony as to the causation of a physical injury or condition is 2 limited to expert witnesses. See Bitzan v. Parisi, 88 Wn.2d 116, 121–22, 558 P.2d 775 3 (1977); Harris v. Groth, 99 Wn.2d 438, 663 P.2d 113 (1983). Accordingly, lay witnesses 4 will be permitted to testify regarding their observations of Plaintiff’s pain and suffering, 5 but may not label observations with any diagnoses or opine as to the causes of those 6 conditions. The Court reserves ruling to the extent that 7 specific rulings are needed during trial, if raised. 8 14 Exclusion of Granted in Plaintiff represents that she “will make no 9 arguments that the jury part / attempt to tell the jury they should not follow should use any Reserved in the damages instructions as given by this 10 standard other than part Court.” The motion is therefore stipulated what is instructed by and granted to that extent. 11 the Court to decide Defendant argues that the Court should damages 12 prohibit any argument or inference that “ask[s] jurors to act as the community’s 13 conscience and use their verdict to send a message.” Dkt. No. 40 at 7. Plaintiff argues 14 that this motion attempts to prevent her from arguing her case, and that Washington tort 15 law seeks to prevent future harm to others. See Dkt. No. 48 at 8. 16 Washington courts allow appeals to the community conscience “unless the 17 statement[s are] designed to inflame the jury.” Univ. of Wash. v. Gov’t Employees 18 Ins. Co., 200 Wn. App. 455, 480, 404 P.3d 559 (2017). However, “golden rule” 19 arguments, which “encourage[] the jury to ‘depart from neutrality and to decide the case 20 on the basis of personal interest and bias rather than on the evidence,’” are not 21 permitted. Miller v. Kenny, 180 Wn. App. 772, 817, 325 P.3d 278 (Wash. Ct. App. 22 2014) (emphasis in original) (quoting Adkins v. Alum. Co. of Am., 110 Wn.2d 128, 139, 23 750 P.2d 1257 (1988)). In Miller, for example, the Court noted that an attorney’s 24 argument about “how we, as a community, 1 want to be treated” was close to the line separating community conscience 2 arguments, which are permitted, and golden rule arguments, which are not, but ultimately 3 determined that the argument “did not appeal to juror self-interest; rather, [it] appealed to 4 the jurors’ interest as members of the public.” Id. 5 Accordingly, the Court declines to bar “community conscience” arguments by 6 Plaintiff, but cautions Plaintiff that in doing so, she may not make arguments appealing 7 to juror self-interest. The Court reserves ruling to the extent that specific rulings are 8 needed during trial, if raised. 9 15 Exclusion of Denied as Defendant seeks an order prohibiting “any references to the moot argument or suggestion from Plaintiff’s 10 economic value of Counsel referencing the economic value of tangible objects various tangible objects not at issue in this 11 case.” Dkt. No. 40 at 11. Plaintiff argues that the Parties’ agreed voir dire questions 12 “directly ask jurors to wrestle with economic values of items.” Dkt. No. 48 at 10. 13 As the Court discussed above, Washington 14 courts do not permit arguments that appeal to juror self-interest. See supra Defendant’s 15 #14. Relatedly, arguments “which appeal[] to the jurors to place themselves in the 16 position of a litigant and to decide the case based upon what they would then want under 17 the circumstances” are not permitted. Adkins, 110 Wn.2d at 140. However, Defendant 18 presents no case law, indicating that Washington courts wholly bar arguments 19 referencing the economic value of tangible objects. 20 Accordingly, the Court declines to bar “stealth bomber” arguments by Plaintiff, but 21 cautions Plaintiff that in doing so, she may not make arguments appealing to juror self- 22 interest. The Court reserves ruling to the extent that specific rulings are needed during 23 trial, if raised. 24 1 For the reasons discussed at the pretrial conference, this motion is denied as moot. 2 16 Exclusion of attorneys’ Denied Defendant seeks to prohibit Plaintiff’s 3 personal beliefs counsel from making argument “based on personal beliefs.” Dkt. No. 40 at 12. Plaintiff 4 argues that this is an improper attempt to control the manner in which Plaintiff’s 5 counsel conducts argument. Dkt. No. 48 at 10. 6 The Washington Rules of Professional Conduct prohibit attorneys from “assert[ing] 7 personal knowledge of facts in issue except when testifying as a witness, or stat[ing] 8 personal opinion as to the justness of a cause, the credibility of a witness, the 9 culpability of a civil litigant or the guilt or innocence of an accused.” RPC 3.4(e); see 10 also State v. Reed, 102 Wn.2d 140, 145, 684 F.2d 699 (1984). 11 The Court declines to issue an order 12 reiterating what is already required of the Parties: that counsel not improperly assert 13 personal knowledge of facts or their personal opinion as to the credibility of witnesses, 14 witnesses’ veracity, or the culpability of Defendant. To the extent that Defendant 15 wishes to challenge specific questions or argument as improperly asserting personal 16 beliefs, he may do so. 17 17 Limit Plaintiff’s Granted in Defendant seeks an order limiting Plaintiff’s rebuttal case to a “true part / rebuttal case to a “true rebuttal.” Dkt. No. 40 18 rebuttal” Reserved in at 12–13. Plaintiff represents that she “has no part intention of attempting to lay her case in 19 chief somewhere in a ‘surprise’ rebuttal.” Dkt. No. 48 at 12. The motion is therefore 20 stipulated and granted to that extent. To the extent that Defendant seeks to limit 21 Plaintiff’s ability to re-call expert witnesses on rebuttal, the Court declines to issue such 22 an order. As the Parties are aware, “[g]enuine rebuttal evidence is not simply a 23 reiteration of evidence in chief but consists of evidence offered in reply to new matters,” 24 although it will frequently, to some degree, 1 “overlap or coalesce with the evidence in chief.” State v. White, 74 Wn.2d 386, 394– 2 95, 444 P.2d 661 (1968). In the absence of any specific evidence Defendant seeks to 3 prohibit, the Court declines to issue Defendant’s requested order. See Judge Tana 4 Lin, Standing Order for All Civil Cases, Section III.H (last updated Nov. 1, 2024) 5 (“Parties are discouraged from filing motions in limine that do not identify specific 6 evidence or exhibits to be excluded [and] that request relief at a high level of 7 generality.”). To the extent that Defendant wishes to 8 challenge specific evidence or argument made on rebuttal as improperly reiterating 9 the case-in-chief, he may do so. 10 18 Exclude non-party Granted Stipulated and applied to all Parties. See Dkt. witnesses before Nos. 41, 48. 11 testifying 12 19 Provide 24-hour notice Denied Defendant requests that “the parties should of witnesses to be be required to advise opposing counsel of 13 called at trial witnesses who will be called, by the end of the preceding court day.” Dkt. No. 40 at 14. 14 While Plaintiff does not oppose prior notice, Plaintiff requests that the Parties provide 15 notice of the next day’s witnesses no later than 8:00 p.m. the night before, consistent 16 with the Court’s Trial Procedures for All Civil Cases, Section I.F. 17 In the absence of an agreement among the 18 Parties, the Court declines to depart from its standard trial procedures. 19 20 Prohibit voir dire Granted in Defendant seeks to prohibit Plaintiff from questioning regarding part / asking questions in voir dire regarding 20 the ability to award a Denied in jurors’ ability to award a specific dollar specific amount of or part amount or whether they can commit to a 21 commit to Plaintiff’s particular view of the case. Dkt. No. 40 at view of the case 14. This is not a proper motion in limine, but 22 an objection to potential questioning on voir dire. 23 Nonetheless, the Court appreciates 24 Defendant raising an issue in advance to 1 avoid potentially prejudicing a jury pool and to expedite the voir dire process. 2 The Court notes that “parties do not commit potential jurors to a verdict by presenting 3 hypothetical facts and asking general hypothetical questions without implicating 4 the unique facts of the case.” State v. Heeren, 20 Wn. App. 2d 1078, 2022 WL 5 456172, at *5 (Wash. Ct. App. Feb. 15, 2022). 6 As discussed at the pretrial conference, the 7 Court will allow Plaintiff to ask one question that raises a specific amount that Plaintiff 8 believes will be proven by the evidence in this case. 9 21 Exclude testimony or Granted Stipulated and applied to all Parties. See Dkt. 10 arguments about the Nos. 41, 48. retention of counsel or 11 the size of defense counsels’ law firms 12 22 Exclude “hometown” Granted Stipulated and applied to all Parties. See Dkt. 13 arguments Nos. 41, 48. 23 Exclude specific Reserved The Court reserves ruling on this motion 14 evidence that is until after the Parties have submitted their irrelevant or that proposed exhibits. However, the Court 15 contains hearsay and points the parties to her procedure for unduly cumulative disputed exhibits in the Court’s Trial 16 evidence (Ex. Nos. 1, Procedures for All Civil Cases, Section 2, 3, 4, 5, 6, 7, 8, 9, 22, I.D.2. 17 23, 24, 25, 26, 27, 28, The Court also notes that as a general matter, 29, 30 and 31) 18 written reports of experts are generally considered hearsay and will likely be 19 considered largely cumulative of the expert’s trial testimony See Hunt v. City of Portland, 20 599 F. App’x 620, 621 (9th Cir. 2013) (“[w]ith respect to the expert's written report, 21 we conclude that the report is hearsay to which no hearsay exception applies … and 22 the written report was largely cumulative of the expert’s trial testimony”). 23 24 Exclusion of fact that Granted in Defendant seeks to exclude the fact that his 24 Defendant’s expert part / expert witness, Michael Hatzakis, performs 1 witness works for Denied in forensic work for insurance companies. Dkt. insurance companies part No. 40 at 20. Plaintiff represents that she 2 does not intend to offer evidence that an insurance company retained Dr. Hatzakis in 3 this matter. Dkt. No. 48 at 15. The motion is therefore stipulated and granted to that 4 extent. However, other inquiry into Dr. Hatzakis’s 5 former work as an expert witness for insurance companies may be relevant to, for 6 example, show a witness’s bias or prejudice. See Fed. R. Evid. 411. Accordingly, such 7 inquiry will be permitted. 8 25 Prohibit voir dire Denied as Defendant seeks to prohibit Plaintiff from questioning regarding moot asking questions in voir dire regarding 9 insurance companies jurors’ experiences with insurance companies. Dkt. No. 40 at 20. This is not a 10 proper motion in limine, but an objection to potential questioning on voir dire. 11 Again, the Court appreciates Defendant 12 raising an issue in advance to avoid potentially prejudicing a jury pool and to 13 expedite the voir dire process. Further, prospective jurors’ experiences with 14 insurance will likely be relevant to this case, as the Parties’ agreed voir dire questions 15 indicate. See Dkt. No. 44 at 2. Accordingly, the parties will be permitted to ask 16 prospective jurors questions about their own experiences with insurance companies. 17 For the reasons discussed at the pretrial 18 conference, this motion is denied as moot. 26 Exclusion of Granted / Defendant requests that Plaintiff be 19 Defendant’s driving Reserved precluded from “making any mention [of] record defendant’s driving experience and/or record 20 which should include but not be limited to any moving traffic violations and any prior 21 or subsequent car collisions that may have involved the defendant.” Dkt. No. 40 at 20. 22 Plaintiff represents that she “does not intend to introduce any evidence of Defendant’s 23 driving record, except for the purpose of impeachment during Defendant’s 24 1 testimony.” Dkt. No. 48 at 16. The motion is therefore stipulated and granted to that 2 extent. The Court reserves ruling to the extent that 3 specific rulings are needed during trial, if raised. 4 27 Exclusion of Plaintiff’s Granted in Defendant seeks to exclude “any testimony 5 testimony regarding part / by Plaintiff on impact severity, vehicle speed the severity of the Denied in or any other testimony outside of her 6 impact part expertise.” Dkt. No. 40 at 20. While Plaintiff’s testimony as a lay witness will be 7 limited by Federal Rule of Evidence 701. However, Plaintiff will be permitted to 8 testify as to her personal perception of the accident, including her perception of the 9 impact or other aspects of which she has personal knowledge. However, Plaintiff will 10 not be permitted to testify to aspects of the accident which would require technical or 11 specialized knowledge—such as, for example, an estimate of vehicle speeds. 12 The Court reserves ruling to the extent that 13 specific rulings are needed during trial, if raised. 14 28 Prohibition on requests Granted Defendant requests that Plaintiff be 15 or demands for prohibited from requesting documents or production or other evidence be produced by Defendant or 16 stipulation in the that Defendant make any stipulations in front presence of the jury of the jury. The Parties have already agreed 17 not to reference discovery disputes in front of the jury. See supra Plaintiff’s #2; 18 Defendant’s #7. Neither Party will be permitted to request 19 productions or stipulations before the jury. Such requests may be made at sidebar or 20 during a recess. 21 29 Exclusion of Granted Stipulated and applied to all Parties. See Dkt. statements by counsel Nos. 41, 48. 22 about verdicts in other cases 23 30 Exclusion of testimony Reserved Defendant requests that Plaintiff, her 24 or other evidence counsel, and her witnesses should be 1 characterizing Dr. “precluded from characterizing Dr. Hatzakis Hatzakis as a “defense as a ‘defense doctor’ or ‘defense physician.’” 2 doctor” Dkt. No. 40 at 21. However, the Court lacks the context to make a ruling before trial on 3 the relevance and risks of such testimony and will make a case-by-case determination 4 during trial, if raised.

5 6 IV. CONCLUSION 7 Accordingly, the Parties’ motions in limine (Dkt. Nos. 38, 40) are GRANTED in part, 8 DENIED in part, and RESERVED in part, as set forth in this order. 9 For the avoidance of doubt, the Court has reserved ruling on a number of motions in 10 limine, largely due to the lack of context that would allow for a determination. Failure of a party 11 to raise such motions again during trial for a ruling will result in the motion being deemed denied 12 as abandoned and moot. 13 14 Dated this 23rd day of May 2025. 15 A 16 Tana Lin United States District Judge 17

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