UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON EDGAR GUERRERO APODACA, CASE NO. 2:20-cv-01064-TL Plaintiff(s), ORDER REGARDING v. MOTIONS IN LIMINE EATON CORPORATION, Defendant(s).
This matter comes before the Court on the Parties’ motions in limine. Dkt. Nos. 101, 103. Having considered the relevant record and the Parties’ oral argument, the Court hereby GRANTS in part, DENIES in part, and RESERVES RULING in part the motions in limine as explained below. This is a product liability case arising out of injuries that Plaintiffs David Fitzpatrick and Ryan McDade sustained from a December 17, 2019, arc flash explosion from a bus plug, an industrial electrical equipment manufactured by Defendant Eaton Corporation. Dkt. No. 25 at 3– 5. Defendants removed the case to federal court on the basis of diversity jurisdiction. Dkt. No. 1. The case is scheduled for a jury trial beginning on March 6, 2023. Dkt. No. 41 (trial schedule order). In advance of trial, the Parties filed their respective motions in limine (Dkt. Nos. 101, 103) and have responded to each other’s motions (Dkt. Nos. 116, 118). The Court shared its preliminary rulings on the motions in limine and heard the Parties’ oral argument during the pre-
trial conference held on February 24, 2023. Dkt. No. 135. The motions are now fully briefed, argued, and before the Court for its consideration. “A motion in limine is a procedural mechanism to limit in advance testimony or evidence in a particular area . . . so that admissibility is settled before attempted use of the evidence before the jury.” United States v. Heller, 551 F.3d 1108, 1111–12 (9th Cir. 2009) (citation omitted). While the Federal Rules of Evidence (“FRE”) do not explicitly permit motions in limine, they are a part of a “district court’s inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1984). A motion in limine is ordinarily granted only if the evidence at issue is inadmissible on all potential grounds; if not, the evidentiary ruling is better deferred
until trial, to allow for questions of foundation, relevancy, and prejudice to be resolved with the appropriate context. E.g., United States v. Sims, 550 F. Supp. 3d 907, 912 (D. Nev. 2021). A motion in limine should not be used to resolve factual disputes or weigh evidence. E.g., Westboro Condo. Ass’n v. Country Cas. Ins. Co., No. C21-685, 2023 WL 1928170, at *1 (W.D. Wash. Feb. 10, 2023). A court’s ruling on a pre-trial motion in limine is preliminary and can be revisited at trial based on the facts and evidence as they are actually presented. See, e.g., City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1070 (9th Cir. 2017) (noting a court may change its in limine ruling at trial if testimony brings unanticipated facts to the court’s attention).
Because many of the Parties’ motions in limine reference Federal Rules of Evidence (“FRE”) 401, 402, and 403, the Court lays out the three rules here: FRE 401. Test for Relevant Evidence
Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. FRE 402. General Admissibility of Relevant Evidence Relevant evidence is admissible unless any of the following provides otherwise: • the United States Constitution; • a federal statute; • these rules; or • other rules prescribed by the Supreme Court. Irrelevant evidence is not admissible. FRE 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. In short, evidence is generally admissible at trial if it is relevant, unless the probative value of such evidence is substantially outweighed by such unwanted dangers as unfair prejudice or misleading the jury. “Unfair prejudice” means “the possibility that the evidence will excite the jury to make a decision on the basis of a factor unrelated to the issues properly before it.” Heyne v. Caruso, 69 F.3d 1475, 1481 (9th Cir. 1995) (quoting Mullen v. Princess Anne Volunteer Fire Co., 853 F.2d 1130, 1134 (4th Cir. 1988)). A. Plaintiffs’ Motions in Limine Plaintiffs bring 47 motions in limine. Dkt. No. 103. Defendant does not oppose 19 of the motions and opposes the rest. Dkt. No. 118. The Court’s ruling on Plaintiffs’ motions are as follows:
# Motion Ruling Reasoning 1 Exclusion of Evidence Granted Stipulated Regarding Insurance 2 All Parties Should be Granted Stipulated, with the clarification that all Required to Provide witnesses to be called must be disclosed to Twenty-Four Hours’ Notice opposing counsel at or before 9 a.m. the day to Opposing Counsel of before the witnesses are called. See also Their Intent to Call Defendants’ #8. Witnesses at the Time of Trial 3 Exclusion of All Non-Party Granted / Stipulated as to nonparty lay witnesses. Witnesses from the Denied1 Expert witnesses will be permitted to attend Courtroom During the as a general rule, but the Court is willing to Course of Trial entertain witness-specific motions at trial, if raised. See FRE 615(c); see also W. Towboat Co. v. Vigor Marine, LLC, No. C20-416, 2021 WL 2641521, at *8 (W.D. Wash. June 25, 2021) (noting the “low bar” for establishing the FRE 615(c) exemption for “expert witnesses that need to hear the testimony of factual witnesses in order to properly provide opinion evidence” (quoting Stevenson v. Holland, 504 F. Supp. 3d 1107 (E.D. Cal. 2020)). 4 Prohibition for a Witness to Granted Stipulated Comment on the Credibility of Other Witnesses
1 Granted in part and denied in part, as explained in the Reasoning column. 5 Prohibition of Display of Granted Stipulated Any Exhibit or Demonstrative Evidence until the Exhibit Has Been Shown to Opposing Counsel and Permission by the Court Has Been Obtained to Use Any Such Exhibit 6 Duty to Inform Witnesses of Granted Stipulated Motion In Limine Orders Relevant to Them 7 Exclusion of Non-Disclosed Granted Stipulated Witnesses 8 Prohibition of References to Granted Stipulated. See also Defendants’ #7. Litigation Strategy, Tactics, or Motions 9 Prohibition of Evidence Granted Stipulated Offered by Eaton To Support a “State of the Art” Defense 10 Exclusion of References to Granted Stipulated. See also Defendants’ #6. Settlement Negotiations 11 Prohibition of Evidence Granted Stipulated Offered by Eaton Relating to Plaintiff Apodaca’s Psychological Injuries (Or Lack Thereof) 12 Preclusion of Eaton’s Granted Stipulated Expert, Mr. Erga, Offering Medical Opinions 13 Eaton’s Expert, Mr. Erga, Granted / Stipulated as to the fact that no violation Lacks Foundation to Allege Denied notice was ultimately issued by L&I. That Washington State Granted as to L&I’s preliminary or draft Labor & Industries Issued a citation, but denied as to Mr. Erga’s opinion Violation Notice to Cochran as to whether a citation would have been appropriate, pursuant to FRE 403 balancing. 14 Prohibition of Any Granted Stipulated Evidence Concerning Intervention Plaintiff’s Immigration Status 15 Exclusion of Any Evidence Granted Stipulated Concerning Mr. Fitzpatrick’s Prior Marriages, Including The Number Of Past Marriages 16 Exclusion of Any Evidence Granted Stipulated Concerning Mr. Fitzpatrick’s Prior L&I Claims, Including Claim Regarding Knee Injury 17 Exclusion of Any Evidence Granted Stipulated. Concerning the Financial But Defendant may be permitted to respond Status of Any Party appropriately if Plaintiffs “open the door” to evidence of financial hardship or related worry or distress from the subject incident. 18 Prohibition of Any Granted Stipulated Evidence Concerning the Effect a Recovery Would Have On the Income Tax or Other Taxable Implications of Any Part 19 Exclusion of Any Argument Granted Stipulated That Noneconomic Damages Should be Discounted to Present Net Value 20 Exclusion of All Testimony Granted Stipulated or References to Available Witnesses Not Called to Testify at Trial 21 Exclusion of Any Expert Granted / Stipulated as to such materials being Report and/or File, Note, Reserved admitted as direct evidence. Memoranda, C.V., Reserved as to an expert’s reliance on such Deposition/Testimony List materials as illustrative exhibits. or Rate Sheet Being Admitted Into Evidence 22 Exclusion of Laws, Granted / Stipulated as to such materials being Regulations, Scholarly Reserved admitted as direct evidence. Journals/Articles, Secondary Reserved as to an expert’s reliance on such Sources materials. See, e.g., RCW 7.72.050(1) (“Evidence of custom in the product seller’s industry, technological feasibility or that the product was or was not, in compliance with nongovernmental standards or with legislative regulatory standards or administrative regulatory standards, whether relating to design, construction or performance of the product or to warnings or instructions as to its use may be considered by the trier of fact.”); RCW 5.40.050 (“A breach of a duty imposed by statute, ordinance, or administrative rule shall not be considered negligence per se, but may be considered by the trier of fact as evidence of negligence . . . .”). 23 Preclusion of Documents Granted / Unopposed as to documents. Not Produced In Discovery Denied Denied as to witnesses. Plaintiffs’ arguments and Witnesses Whose Scope mirror their motion for sanctions, which was of Testimony Was Not denied. Plaintiffs do not raise any new Disclosed grounds for excluding the allegedly late- disclosed Eaton employees on Defendant’s witness list. 24 Exclusion of Any And All Denied / Denied as to evidence relied on by experts or Evidence – Either Reserved relevant to a fact witness’s testimony Documentary or Via regarding WPLA defect claims or Witness Testimony – contributory negligence. See, e.g., RCW Purporting To State a Legal 7.72.050(1) (“Evidence of custom in the Requirement or Violation of product seller's industry, technological Any Government or Code feasibility or that the product was or was not, Requirement in compliance with nongovernmental standards or with legislative regulatory standards or administrative regulatory standards, whether relating to design, construction or performance of the product or to warnings or instructions as to its use may be considered by the trier of fact.”); RCW 5.40.050 (“A breach of a duty imposed by statute, ordinance, or administrative rule shall not be considered negligence per se, but may be considered by the trier of fact as evidence of negligence . . . .”). Reserved on whether specific evidence or testimony is presented in violation of the general prohibition against an expert opinion on an ultimate issue of law. See, e.g., Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004). 25 Exclusion of Any And All Granted / Stipulated as to arguments regarding the Evidence Offered For The Reserved apportionment of fault to nonparty Cochran. Purpose Of Establishing Reserved as to any testimony or other The Fault Of Cochran evidence. The Court lacks the context to make a ruling before trial on the relevance and risks of such evidence and will make a case-by-case determination during trial, if raised. 26 Prohibition of Evidence Reserved Plaintiffs fail to dispute that such evidence Offered by Eaton That may be relevant, but the Parties agree that Seeks To Demonstrate a admissibility rests on whether foundation can Lack of Prior Incidents be laid and the appropriate FRE 403 Involving the Product balancing, which is best left for ruling at trial. The Court will rule on a case-by-case basis during trial, if raised. See also Defendants’ #3. 27 Prohibition of Evidence Granted / Stipulated as to legal argument. Defendant Offered by Eaton That Reserved agrees to not argue “assumption of risk.” Seeks To Demonstrate That At oral argument, Plaintiffs failed to identify Plaintiffs “Assumed the any specific evidence (or type of evidence) Risk” When Performing the that would be relevant to an “assumption of Tasks Being Performed risk” argument but not Defendant’s When Incident Occurred contributory negligence argument. Both Parties essentially agree that “the line between contributory negligence and assumption of the risk is thin.” See Dkt. No. 118 at 13. That line of admissibility cannot be drawn at this stage. The Court will therefore consider the potential exclusion of any specific evidence on a case-by-case basis during trial, if raised. To the extent that Plaintiffs continue to argue that Defendant cannot show contributory negligence on the failure to warn claim, the Court rejected this argument at the summary judgment stage. The Court’s liability finding on the failure to warn claim does not affect Defendant’s ability to assert the affirmative defense of comparative fault with regard to the question of damages. 28 Prohibition of Evidence Granted / Stipulated as to legal argument. Defendant Offered by Eaton That Reserved agrees to not argue “sophisticated user.” Seeks To Support the The Court reserves ruling as to the “Sophisticated User” Doctrine admissibility of any evidence on this issue, and rule on a case-by-case basis as raised, on the same basis as Plaintiffs’ #27. 29 Eaton Shall Not Offer Reserved The Court will rule on a case-by-case basis, Witness Testimony if raised. The Court cannot rule on whether Contradicting the trial testimony directly conflicts with Deposition Testimony deposition testimony, or if the specific Offered During the allegedly contradictory testimony is simply Deposition of Eaton’s Fed. explanatory or providing context, for R. Civ. P. 30(b)(6) Witness example. See, e.g., Snapp v. United Transp. Union, 889 F.3d 1088, 1103–04 (holding that, while a corporation generally cannot present a theory of facts different from the Rule 30(b)(6) witness, “it applies only where the purportedly conflicting evidence truly, and without good reason or explanation, is in conflict, i.e., where it cannot be deemed as clarifying or simply providing full context”). The appropriate remedy for perceived conflict is often impeachment. Id. at 1104. “Finally, a Rule 30(b)(6) deponent’s own interpretation of the facts or legal conclusions do not bind the entity.” Id. (quoting James W. Moore et al., Moore’s Federal Practice § 30.25[3] (3d ed. 2016)). 30 Prohibition of Evidence Denied Plaintiffs fail to show why such evidence is Offered by Eaton In Support inadmissible on all grounds at this stage. of Argument that “Hi Pot They appear to argue that they do not expect Testing” Would Have Defendants to be able to establish that “Hi Caught Defect Pot” testing is determinative of any manufacturing or design defect. This is up to the jury to determine, after the evidence and opinions are presented by both sides and weighed. The Court trusts that Plaintiffs are prepared to show at trial whether “Hi Pot” testing would have caught the alleged defect. 31 Prohibition of Eaton’s Denied The Court has already denied this request in Argument Alleging That It its order regarding Plaintiffs’ motion for Was Improper For Certain sanctions, and Plaintiffs bring no new Evidence, Including The grounds for exclusion. This is an issue more Phase B Fuse, To Not Be appropriate addressed in cross-examination Preserved Given That Eaton during trial. Was Present During Initial Investigations And Eaton Had Every Opportunity to Ensure Any And All Evidence It Desired to Preserve Was Preserved 32 Eaton Shall Not Elicit From Denied This motion is denied as speculative. Any Witness Testimony Plaintiffs believe that there is a non- That Would Potentially disparagement agreement between Eaton and Lead A Witness to Testify Apodaca and seemingly seeks to prevent In A Manner That Would Apodaca from withholding any testimony on Violate Any Non- account of the non-disparagement Disparagement Clause Of agreement. As Defendant points out, Any Party’s (Or Former however, there is no evidence that such an Party’s) Settlement agreement exists, much less what the terms Agreement of such an agreement contain. Plaintiffs also do not point to any specific type of testimony that they fear would be limited or otherwise affected by such an agreement. The Court acknowledges the general and longstanding principle that “a non- disparagement clause in a contract cannot prevent a witness from testifying truthfully before a legal tribunal.” SurfCast, Inc. v. Microsoft Corp., No. C12-333, 2014 WL 12726543, at *4 (D. Me. Sept. 5, 2014) (“The freedom to contract is not so elastic as to permit witnesses to contract away their solemn obligation to provide truthful testimony under oath.”); see also Day v. Johns Hopkins Health Sys. Corp., 907 F.3d 766, 771 (4th Cir. 2018) (emphasizing the immunity of testifying witnesses from subsequent collateral damages); Briscoe v. Lahue, 460 U.S. 325, 331–32 (1983) (same). The Court trusts that Defendant will abide by this rule. However, the Court cannot rule on such a hypothetical and unspecified request at this time. The Court will reconsider on a case-by-case basis, if raised. 33 Prohibition of Evidence Denied The Court has already denied all Daubert Supporting Eaton’s motions (and a separate motion in limine to Argument That Intervention exclude Mr. Barovsky) on the same grounds. Plaintiffs’ Experts, Mr. Opinion testimony regarding opposing Barovsky and Mr. Way, methodologies is a battle-of-experts issue Failed to Perform Root that is up to the jury to determine the Cause Analysis appropriate evidentiary weight. 34 Prohibition of Testimony Denied Evidence of OSHA standards and Alleging Mandatory compliance may be relevant without Compliance with OSHA confusing the jury. When WISHA Actually Plaintiffs seek to bar evidence regarding Controls, Or About compliance with OSHA standards, arguing Violations of OSHA or that it is an irrelevant and potentially Other Regulations confusing set of standards because WISHA, the Washington State equivalent, is the governing set of standards. But OSHA and WISHA are not entirely separate, as Defendant points out, and Plaintiffs themselves acknowledge that WISHA must be “at least as effective as OSHA” (Dkt. No. 103 at 36). See, e.g., Afoa v. Port of Seattle, 296 P.3d 800, 807 (Wash. 2013) (citing 29 U.S.C. § 667(c)(2)) (“[A]s a matter of federal law, WISHA protections must equal or exceed OSHA standards.”); see also Dep’t of Labor & Indus. v. Tradesmen Int’l, LLC, 497 P.3d 353, 361 (Wash. 2021) (“Since WISHA is parallel to and supplements federal OSHA, we often look to federal cases interpreting OSHA as persuasive authority.”). In other words, OSHA compliance is a minimum requirement to WISHA compliance, and conversely, OSHA noncompliance is WISHA noncompliance. Any potential confusion to the jury can be easily remedied by clarifying the relationship between OSHA and WISHA, which the Court expects the Parties will do. 35 Eaton’s Expert, Dr. Ziegler, Granted In her report, Dr. Ziegler opined, to a May Not Opine That She reasonable degree of psychological certainty, “Suspects” Mr. Fitzpatrick that Mr. Fitzpatrick had a history of pre- Had a History of Pre- existing mental health symptoms, though she Existing Mental Health noted that it was difficult to get details due to Symptoms Mr. Fitzpatrick’s uncooperative posture during her examination. Dkt. No. 119-3 at 17. Plaintiffs essentially bring a belated Daubert motion, arguing that Dr. Ziegler’s opinion on Mr. Fitzpatrick’s mental health history is unreliable and should be excluded under FRE 702. Dkt. No. 103 at 35–36. Defendant argues Dr. Ziegler’s opinion is a permissible inference. Dkt. No. 118 at 25– 26. At oral argument, Plaintiffs also argued that, because pre-existing conditions are only admissible if they were symptomatic immediately prior to the incident in question and Defendant has failed to make such a showing, Dr. Ziegler’s opinion is inadmissible. Plaintiffs relied on two cases, Hoskins v. Reich, 174 P.3d 1250 (Wash. Ct. App. 2008) and Harris v. Drake, 99 P.3d 872 (Wash. 2004) (en banc). Defendant, in response, only pointed to its briefing (which did not touch this issue) and questioned whether the cited cases were directly on point to mental health symptoms. The Court rejects Plaintiffs’ attempt to exclude Dr. Ziegler’s opinion as unreliable under FRE 702. This is an untimely Daubert motion, and in any case Dr. Ziegler’s opinion, based on a direct evaluation of Mr. Fitzpatrick and inferences drawn from it, is within the permissible scope of an expert witness. However, Plaintiffs appear to be correct that Defendant has no evidence to show Mr. Fitzpatrick’s pre-accident mental health issues were symptomatic at or immediately before the 2019 accident. See Hoskins, 174 P.3d at 1256 (finding that plaintiff’s pre-accident need for chiropractic treatments should have been excluded because it was not shown to be symptomatic immediately before the accident); see also Saunders v. Thore, No. 77826-9, 2019 WL 2502395, at *9 (Wash. Ct. App. 2019) (affirming motion in limine ruling excluding preexisting condition due to insufficient evidence that it was symptomatic). The latest mental health symptom or treatment that Defendant has identified for Mr. Fitzpatrick is counseling that occurred in 2015 or 2016 (Dkt. No. 119-4 at 4), which is too remote in time. Given this lack of temporal evidence, Washington law requires that Mr. Fitzpatrick’s preexisting mental health issues be excluded on evidentiary grounds. However, the Court is willing to reconsider this motion, at Defendant’s request, prior to or during trial, as appropriate. 36 Exclusion of Any Granted / This motion is granted to the extent that, as a Testimony by Experts That Denied / general matter, expert opinion may not Exceed the Scope of Their Reserved exceed the scope of the experts’ prior Deposition Testimony and deposition testimony and reports. Produced Reports, Including However, this motion is denied to the extent Eaton’s Expert, Mr. that it seeks to exclude any opinions by Vasudevan, Who May not Mr. Vasudevan as to the cause of the arc Offer Any Opinion About flash. Plaintiffs are incorrect that “Mr. the Cause of the Arc Flash Vasudevan does not have an opinion regarding causation in this matter.” Dkt. No. 103 at 38. Mr. Vasudevan has opined that an exact root cause cannot be determined but also that a defect is not the likely cause and that other potential causes cannot be ruled out. The Court reserves ruling to the extent that specific rulings are needed during trial, if raised. 37 Exclusion of Any Evidence Granted Unopposed. Concerning Mr. Fitzpatrick’s 2009 and 2015 Reckless Driving Charges 38 Exclusion of Any Evidence Granted Plaintiffs argue that Mr. Fitzpatrick’s prior Concerning Mr. misdemeanor assault and domestic violence Fitzpatrick’s Prior charge fail the four-factor admissibility test Misdemeanor Assaults for character evidence under FRE 404(b), see and/or Domestic Violence United States v. Vo, 413 F.3d 1010, 1018 Charges (9th Cir. 2005) (material point, not too remote in time, sufficient evidence to show the other act, and similar to offense charged where knowledge/intent is at issue), and that, in any case, such evidence is not admissible under FRE 403 given its prejudicial value. Defendant argues that the criminal record is relevant because it shows consistency between Mr. Fitzpatrick’s pre- and post- incident mental health issues and therefore helps contradict Mr. Fitzpatrick’s assertion of psychological injury from the subject incident. The motion is granted. Defendant asserts that “[i]nstances of prior anger and violence . . . certainly speak to Mr. Fitzpatrick’s pre- incident mental condition.” Dkt. No. 118 at 29. But not all mental health issues are the same; it is not actually apparent that anger and violence are related to the subject incident, including Mr. Fitzpatrick’s injuries from it. The criminal records therefore have little to no demonstrated relevance to a material point in this case, while holding significant danger of unfairly prejudicing the jury. In any case, the latest charge appears to have occurred in 2015 (see Dkt. No. 103 at 41), which is too remote in time. To the extent that Defendant also wishes to use the criminal record as evidence of preexisting mental health conditions, Defendant has failed to show that any such conditions were symptomatic at or immediately prior to the 2019 accident. See Plaintiffs’ #35. But Defendant may present limited evidence to the extent that Plaintiffs “open the door” during trial. 39 Exclusion of Any Evidence Granted At oral argument, Plaintiffs argued this Concerning Mr. motion in conjunction with Plaintiffs’ motion Fitzpatrick’s Prior Check-In in limine #35, essentially arguing that for In-Patient Psychiatric evidence of Mr. Fitzpatrick’s preexisting Care mental health conditions is inadmissible because Defendant has failed to show that such conditions were symptomatic at or immediately prior to the 2019 accident. See Plaintiffs’ #35. The Court agrees (the psychiatric admission appear to have happened long before the 2019 accident, see Dkt. No. 119-3 at 6; Dkt. No. 119-4 at 5) and grants this motion for the same reasons. Again, the Court is willing to reconsider its decision if Defendant seeks it. 40 Exclusion of Any Evidence Granted Unopposed. Concerning Mr. McDade’s Prior Driving-Related Charges, Including Reckless Driving or DUI 41 Exclusion of Any Evidence Denied Plaintiffs’ case law and arguments are Offered by Any Doctor unpersuasive. Plaintiffs’ objections (work Associated with Washington product doctrine) were waived. Plaintiffs State Labor & Industries raise no evidentiary objections as to Concerning the Intervention admissibility, but may object to admission of Plaintiffs specific evidence at trial, if appropriate. At oral argument, Defendant clarified that it will not introduce any exhibits or witnesses from L&I, which Plaintiffs indicated makes their motion moot. Defendant seeks to ensure that the motion does not inadvertently exclude other evidence, such as certain medical records relied on by Dr. Ziegler, and so the Court denies the motion to avoid confusion on this issue. 42 Exclusion of Any Evidence Granted Plaintiffs’ prior medical bills have limited Concerning the Amount of probative value, especially as Plaintiffs do Intervention Plaintiffs’ not seek to recover past or future medical Medical Bills costs. As Plaintiffs’ cited cases note, the cost of medical care is not necessarily reflective of the nature and magnitude of an injury. Evidence of past medical bills would be cumulative to other evidence (such as, presumably, Plaintiffs’ own testimony) regarding the treatment that Plaintiffs received. There is also considerable risk of confusing or unfairly prejudicing the jury by biasing the jury to gravitate toward specific amounts for determining general damages. 43 Prohibition of Any Granted Granted to the extent that Plaintiffs seek to Evidence Concerning How prevent Defendant from arguing that Intervention Plaintiffs Might Plaintiffs would be receiving any type of Use Any Proceeds of Any windfall from an award of damages, which Judgment Defendant does not oppose. The Court otherwise trusts that the Parties will adhere closely to the general principle that any award will only reflect compensation for any injury that Defendant is liable for, and nothing more. 44 Exclusion of Any Argument Granted / The substantive law governing this case is Regarding the Failure to Reserved Washington law. E.g., Clark v. Eddie Bauer Mitigate if Treatment Was LLC, 30 F.4th 1151, 1154 (9th Cir. 2022). Rendered Sooner Under Washington law, “[e]xpert testimony is required in cases where a determination of causation turns on obscure medical factors.” Cox v. Keg Restaurants U.S., Inc., 935 P.2d 1377, 1380 (Wash. Ct. App. 1997). Whether Mr. Fitzpatrick’s PTSD symptoms would have improved with proper psychological treatment requires at least some medical expertise, because it would otherwise require a layperson to speculate as to the proper treatment (and its effect) for PTSD symptoms. See, e.g., Fox v. Evans, 111 P.3d 267, 271 (Wash. Ct. App. 2006) (“To support a mitigation instruction, expert testimony must establish that the alternative treatment would more likely than not improve or cure the plaintiff’s condition. . . . Here, the experts testified with sufficient precision that treating the depression would improve [plaintiff’s] condition.”); see also Salisbury v. City of Seattle, 522 P.3d 1019, 1028–30 (Wash. Ct. App. 2023) (explaining the relevant law as to failure to mitigate in medical treatment context). In its briefing and at oral argument, Defendant pointed to Dr. Ziegler’s report, which note instances where Mr. Fitzpatrick did not engage in therapy despite recommendations to do so and opine that Mr. Fitzpatrick’s mental health symptoms would improve from 10 to 20 therapy sessions. Notably, Dr. Ziegler never opined that Mr. Fitzpatrick would have mitigated his symptoms if he had engaged in therapy earlier—therefore, Defendant is excluded from introducing such an opinion from Dr. Ziegler during trial. At oral argument, Defendant also pointed to the deposition of Plaintiffs’ expert, Dr. Best, who opined that if Mr. Fitzpatrick had received psychological treatment after the 2019 accident, it would have mitigated or bettered his mental health symptoms. Defendant is free to cross-examine Dr. Best as appropriate. Plaintiffs’ motion is granted with respect to the scope of Dr. Ziegler’s opinion, as explained above. The Court will reserve ruling on any other experts and evidence. 45 Exclusion of Evidence of Denied Plaintiffs seek to exclude evidence or Subsequent Remedial arguments showing that Plaintiffs’ employer, Measures non-party Cochran, made or considered changes to its policies following the subject incident, citing FRE 407. As Defendant points out, however, FRE 407 only bars subsequent remedial measures taken by a party-defendant, as its purpose is to encourage defendants from remedying hazardous conditions without fear of it being used against them in court. See Pau v. Yosemite Park & Curry Co., 928 F.2d 880, 888 (9th Cir. 1991) (holding that FRE 407 did not exclude warning sign erected by nonparty after an accident). Cochran is a nonparty; therefore, FRE 407 does not apply. In any case, such evidence could be probative, while presenting limited risk of prejudice or confusion. FRE 401, 403. However, the Court is prepared to restrict the scope of such evidence during trial, if needed. 46 Exclusion of Expert Denied Same basis as prior Daubert rulings, as no Testimony by Mr. new grounds for exclusion are raised. Vasudevan and Mr. Erga 47 Exclusion of Any Inference Granted Defendant represents it has no intention of By Eaton That Plaintiff inferring that Mr. Apodaca never brought a Apodaca Did Not Bring a claim against Eaton. This is therefore Claim Against Eaton stipulated and granted. Plaintiffs also appear to request that the jury be affirmatively informed that Mr. Apodaca was a prior plaintiff in this case but has settled his claim on confidential terms. Defendant objects, arguing that the only reason to inform the jury of the settlement is “so that the jury will infer his claims have merit in direct violation of [FRE] 408.” Dkt. No. 118 at 38. FRE 408 does not bar the evidence because it would be introduced for a permissible purpose under FRE 408(b). Notably, the case caption appears to retain Mr. Apodaca’s name, which may confuse the jury. As Plaintiffs noted at oral argument, his presence as a witness and victim of the explosion may also lead the jury to make misleading and prejudicial inferences about his absence from the case. But, as there is a risk of prejudice and the relevance of the settlement to the case is questionable, the Court will err on the side of excluding mention of Mr. Apodaca’s settlement. Accordingly, the jury will be simply instructed that Mr. Apodaca was once a claimant but is no longer, and that no inferences as to the validity of Mr. Apodaca’s claim should be drawn from that fact.2 The Court believes the instruction will be sufficient to address any potential confusion of the jury. No reference or evidence regarding Mr. Apodaca’s settlement will be permitted without prior Court approval. See also Defendants’ #1. 2 Plaintiffs stated at the pretrial conference that they had no objection to this proposal while Defendant preferred no such instruction be given. B. Defendant’s Motions in Limine Defendant brings 14 motions in limine. Dkt. No. 101. Plaintiffs do not oppose eight of the motions and oppose the rest. Dkt. No. 116. The Court’s ruling on Defendant’s motions are as follows:
# Motion Ruling Reasoning 1 Exclude evidence of and Granted / The jury will be instructed that Mr. Apodaca reference to Mr. Apodaca’s Denied was previously a claimant in the case but is prior claims in this action no longer, and that no inferences as to his and settlement with Eaton claim should be drawn from that fact. No under FRE 408 and as other evidence or reference to Mr. Apodaca’s irrelevant and unfairly prior claim or settlement with Eaton is prejudicial permitted without prior Court approval. See also Plaintiffs’ #47. 2 Exclude post-accident Granted The photographs have limited probative photographs of value, as they do not depict Plaintiffs’ own Mr. Apodaca’s injuries as injuries. However, there is a high risk that irrelevant and prejudicial such photographs will be unfairly prejudicial and potentially confuse the jury as to the injuries they are evaluating, as well as cumulative of Plaintiffs’ testimony (or other evidence) regarding the subject incident. The Parties dispute to what extent Plaintiffs saw and interacted with Mr. Apodaca during and after the incident. But it seems apparent that Plaintiffs interacted with him enough to see his injuries, whether in the immediate aftermath or during treatment; it is also clear that Plaintiffs can testify to these details without the photographs. 3 Exclude speculation or Granted / Stipulated as to speculation or argument argument about other Reserved about other similar incidents (or lack similar incidents involving thereof). Eaton products as irrelevant Reserved as to any specific evidence, which and prejudicial will be ruled on a case-by-case basis as raised. See also Plaintiffs’ #26. 4 Exclude reference to the Denied Plaintiffs properly disclosed Mr. Barovsky as opinions of Mr. Apodaca’s a non-retained expert per FRCP 26(a)(2)(C), former testifying expert in relation to the post-incident investigation Mr. Barovsky as for Cochran prior to any retention by undisclosed, cumulative, Mr. Apodaca. and prejudicial Alternatively, any failure to timely disclose Mr. Barovsky as a retained expert is substantially justified, given the timing of Mr. Apodaca’s settlement, which occurred after disclosure deadlines and in close proximity to trial. Defendant also failed to demonstrate any real prejudice it suffers. Indeed, Defendant fully engaged in discovery regarding Mr. Barovsky, including by taking his deposition and preparing a rebuttal expert report responding to his report. His opinions also do not appear to be cumulative, as explained in the Court’s prior order denying the related Daubert motion. 5 Exclude evidence of or Granted Stipulated. As agreed to by the Parties, reference to Eaton’s size, specific aspects of Eaton’s corporate corporate structure, revenue, structure as it relates to the products at issue or ability to pay as may be introduced. irrelevant and unfairly prejudicial 6 Exclude evidence of or Granted Stipulated and applied to all Parties. See also reference to settlement Plaintiffs’ #10. negotiations between Mr. Fitzpatrick and/or Mr. McDade and Eaton under FRE 408 7 Exclude reference to Granted Stipulated and applied to all Parties. See also discovery disputes, pretrial Plaintiffs’ #8. motions, and these MILs 8 Require each party to Granted Stipulated. See also Plaintiffs’ #2. provide notice of next day’s trial witnesses prior to the start of each trial day 9 Exclude evidence that was Granted The Court is alarmed by the representation previously requested in that Plaintiffs have listed numerous exhibits discovery, but not produced, that appear to have been requested by under FRCP 37(c) Defendant during discovery but were not produced and grants the motion. However, the Court is willing to reconsider this ruling on a case-by-case basis, if raised. As Plaintiffs point out, Defendant’s motion is broad and fails to be specific. The Court agrees in principle that evidence that was requested and not produced during discovery generally cannot be introduced at trial. See FRCP 37(c). The Court will permit Plaintiffs to make arguments (on the basis of being “harmless” or “substantially justified,” see FRCP 37(c)(1)) during trial as to specific exhibits that were previously undisclosed to Defendant. 10 Prohibit non-party lay Granted Stipulated and applied to all Parties. witnesses from testifying The Parties agree that lay witnesses may regarding Plaintiffs’ medical testify as to their personal observations of and/or psychological Plaintiffs but may not offer medical conditions diagnoses or opinions. The Court clarifies, however, that lay witnesses may reference such terms as “anxiety” or “depression” in their colloquial, non-clinical connotation. 11 Exclude evidence of or Granted Stipulated and applied to all Parties. reference to Plaintiffs’ litigation expenses and stress 12 Exclude reference to the Granted Stipulated and applied to all Parties. size or location of the law firms representing Eaton 13 Exclude non-party lay Granted Stipulated. See also Plaintiffs’ #3. witnesses from the Counsel are officers of the Court and courtroom during the expected to comply with all Rules. Counsel presentation of evidence should instruct their witnesses with respect to their duties as well as all relevant court rulings. To the extent that Plaintiffs include a new request to exclude expert witnesses from the courtroom in their opposition brief, this is improper. In any case, this issue is addressed (and denied) in the Court’s ruling on Plaintiffs’ #3. * * * The Court has considered the remainder of the Parties’ arguments and finds them moot or unavailing. Accordingly, the Parties’ motions in limine (Dkt. Nos. 101, 103) are GRANTED in part, DENIED in part, and RESERVED in part, as set forth in this order. For the avoidance of doubt, the Court has reserved ruling on a number of motions in limine, largely due to the lack of context that would allow for a determination. Failure of a party to raise such motions again during trial for a ruling will result in the motion being deemed denied as abandoned and moot. Dated this 27th day of February 2023. A Tana Lin United States District Judge