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3 4 5 UNITED STATES DISTRICT COURT AT SEATTLE 7 ENCOMPASS INSURANCE COMPANY, CASE NO. 2:23-cv-231 8 Plaintiff, ORDER 9 v. 10 NORCOLD INC., 11 Defendant. 12 14 Intervention Plaintiff, 15 v. 17 Intervention Defendant. 18
19 1. INTRODUCTION 20 Subrogation-Plaintiff Encompass Insurance Company (“Encompass”) and 21 Intervention-Plaintiff Essentia Insurance Company (“Essentia”) bring this product- 22 liability suit against Defendant Norcold, Inc. (“Norcold”), alleging that a Norcold 23 refrigerator caused a fire that destroyed their insureds’ garage, vehicles, and other 1 property. Trial is set to begin on September 8, 2025. This matter comes before the 2 Court on the parties’ motions in limine. Dkt. Nos. 72, 74. Having reviewed the
3 motions, the briefing, the record, and the law, and having heard oral argument, see 4 Dkt. No. 87, the Court, being fully informed, ORDERS as follows. 5 2. LEGAL STANDARD 6 “A motion in limine is a procedural mechanism to limit in advance [of trial] 7 testimony or evidence in a particular area.” United States v. Heller, 551 F.3d 1108, 8 1111 (9th Cir. 2009). Motions in limine must identify the specific evidence sought to
9 be excluded and detail the reasoning for inadmissibility. United States v. Lewis, 493 10 F. Supp. 3d 858, 861 (C.D. Cal. 2020). A motion devoid of specificity or merely 11 reminding the court to follow established rules will generally be denied. See id. 12 Trial courts need no reminder of their fundamental duty to enforce the federal rules 13 during trial—that much is self-evident and requires no motion to secure. 14 Trial courts possess broad discretion when ruling on motions in limine, Heller, 551 F.3d at 1111, though such decisions are not binding and may be reconsidered at 15 trial, Ohler v. United States, 529 U.S. 753, 758 n.3 (2000). Thus, denial of a motion in 16 limine does not guarantee admission of contested evidence, but merely indicates that 17 without trial context, the court will not order exclusion. See id. In other words, denials 18 are without prejudice. And if the court grants a motion in limine, it may still revisit its 19 earlier ruling based on the events at trial. 20 21 3. STIPULATED MOTIONS 22 The Court GRANTS the stipulated motions below: 23 1 MOTION 1: “Exclusion of Statements and Evidence About Norcold’s Plant 2 Closures.” See Dkt. No. 74 at 3.
3 MOTION 2: “Exclusion of Statements and Evidence About Norcold’s 4 Insurance.” See Dkt. No. 74 at 3. 5 MOTION 3: “Exclusion of Statements and Evidence of the Size, Revenue, 6 Financial Net Worth, or Wealth of the Parties.” See Dkt. No. 74 at 4. 7 MOTION 4: “Exclusion of Statements and Evidence Relating To Punitive 8 Damages.” See Dkt. No. 74 at 4.
9 MOTION 5: “Exclusion of ‘Golden Rule’ Arguments.” See Dkt. No. 74 at 4. 10 MOTION 6: “Exclusion of Statements that Norcold Can Better Afford to Pay 11 Damages or Expenses Incurred by Plaintiffs.” See Dkt. No. 74 at 4. 12 MOTION 7: “Exclusion of Evidence of Settlement Discussions.” See Dkt. No. 13 74 at 4. 14 MOTION 8: “Preclusion of Statements About Witnesses Not Called.” See 15 Dkt. No. 74 at 5.
16 MOTION 9: “Preclusion of Statements About the Probable Testimony of 17 Absent Witnesses.” See Dkt. No. 74 at 5. 18 MOTION 10: “Preclusion of Attempts to Have Any Party Stipulate to Facts 19 or Documents or to Agree to Produce Documents.” See Dkt. No. 74 at 5. 20 MOTION 11: “Preclusion of Statements About Discovery Disputes.” See Dkt. 21 No. 74 at 5.
22 MOTION 12: “Preclusion of Statements About Motions in Limine.” See Dkt. 23 No. 74 at 6. 1 MOTION 13: “Preclusion of Statements About Litigation Strategy.” See Dkt. 2 No. 74 at 6.
3 4. PLAINTIFFS’ CONTESTED MOTIONS 4 The Court RULES as follows on Plaintiffs’ contested motions in limine. 5 MOTION A: Plaintiffs move to exclude any evidence “refuting the value or 6 reasonableness of Plaintiffs’ damages” on the grounds that Norcold has not 7 disclosed any testimony on this issue. Dkt. No. 72 at 2–3. Plaintiffs fail to identify 8 what type of damages they claim requires expert testimony to challenge. Even more 9 to the point, Plaintiffs cite no authority establishing that expert testimony is 10 generally required to contest the reasonableness of damages. To the contrary, lay 11 witness testimony will often suffice to establish or challenge damages. See Salisbury 12 v. City of Seattle, 522 P.3d 1019, 1025 (Wash. Ct. App. 2023) (“[T]here is no reason 13 lay witnesses may not testify to their sensory perceptions, the weight of the 14 testimony to be determined by the trier of fact” to establish future damages). This 15 motion is DENIED. 16 MOTION B: Plaintiffs move to exclude any evidence of “Plaintiffs failing to 17 mitigate their damages” on the grounds that “none of the experts or lay witnesses 18 disclosed by Defendant presented any opinions regarding Plaintiffs failing to 19 mitigate their damages.” Dkt. No. 72 at 3–4. The Court will adhere to the Federal 20 Rules governing expert witness disclosures and opinion, as well as the rules 21 controlling opinion testimony by lay witnesses. This motion is DENIED. 22 23 1 MOTION C: Plaintiffs move to exclude any evidence that “[n]o safer, 2 alternative design for the subject Norcold refrigerator existed at the time the
3 refrigerator was manufactured that was technologically and economically feasible” 4 on the grounds that “[n]one of the experts disclosed by Defendant presented any 5 opinions regarding any alternative designs for the Norcold refrigerator.” Dkt. No. 72 6 at 4. Norcold counters that “[t]he fact Norcold’s experts did not provide any opinion 7 as to potential alternative designs does not preclude Norcold itself from testifying 8 regarding its own product.” Dkt. No. 78 at 4. Norcold is right. This motion is
10 MOTION D: Plaintiffs move to “admit other prior similar incidents identified 11 by Norcold in discovery.” Dkt. No. 72 at 4. Specifically, they seek to admit 12 “investigations and photographs” from twenty-three product-liability claims against 13 Norcold, and to elicit expert testimony about these claims. See Dkt. No. 79 at 8–19. 14 They also seek to exclude “any testimony that claims listed by Defendant in 15 response to Interrogatory No. 11 and contents of claim files produced by Defendant
16 in response to Interrogatory No. 14 do not involve the same Norcold Refrigerator as 17 is at issue in this case.” Dkt. No. 72 at 4. 18 “A showing of substantial similarity is required when a plaintiff attempts to 19 introduce evidence of other accidents as direct proof of negligence, a design defect, 20 or notice of the defect.” Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 21 (9th Cir. 1991). This rule “rests on the concern that evidence of dissimilar accidents
22 lacks the relevance required for admissibility under [Fed. R. Evid.] 401 and 402.” 23 Id. “Evidence proffered to illustrate the existence of a dangerous condition 1 necessitates a high degree of similarity because it weighs directly on the ultimate 2 issue to be decided by the jury.” Wheeler v. John Deere Co., 862 F.2d 1404, 1407
3 (10th Cir. 1988). “The burden is on the proponent of the evidence to demonstrate 4 substantial similarity.” Smith v. Beech Aircraft Corp., Case No. 97-17135, 1999 WL 5 274515, at *1 (9th Cir. April 29, 1999). 6 Plaintiffs surmise that the past claims must be substantially similar because 7 Norcold identified them in response to Encompass’s discovery requests targeting 8 “claims for property damage or personal injury involving the Norcold Refrigerator
9 model at issue in this litigation.” Dkt. No. 72 at 9. But this mere fact of production 10 proves only that the claims involved the same refrigerator model, not that they were 11 substantially similar. 12 Plaintiffs also point to their expert report, which states that their experts 13 “examined many other absorption refrigerators that have caused fires”; that 14 “several of them were manufactured by Norcold”; that “[t]he boiler tube on those 15 refrigerators were found to have been heavily corroded prior to the fire and led to a
16 premature leak of the contents of the refrigeration system into the area behind the 17 refrigerators, similar to the subject refrigerator of this investigation”; and that 18 “Norcold has conducted five recall campaigns on this model of refrigerator”—all of 19 which “involved leaks of the refrigerator boiler tubing and the risk of fire caused by 20 the leaks.” Dkt. No. 56-2 at 6. The problem, however, is that Plaintiffs’ expert report 21 does not indicate particularized knowledge about the claims that Norcold produced
22 in discovery and which Plaintiffs wish to present at trial. Nor could it have—as it 23 1 was written before Norcold produced the claim list. See Dkt. No. 73-2 (Interrogatory 2 Response, March 15, 2024); 56-2 (Jensen Hughes Report, March 4, 2024).
3 Thus, Plaintiffs are left with nothing to even proffer that “the circumstances 4 surrounding the other accidents were substantially similar to the accident involved 5 in the present case.” Wheeler, 862 F.2d at 1407. Without more, allowing Plaintiffs to 6 simply present evidence of other fires at trial, as they suggest, would violate Rule 7 403 in just about every way. 8 Thus, Plaintiffs’ prior-incident evidence is not admissible. The motion is
10 5. NORCOLD’S CONTESTED MOTIONS. 11 The Court RULES as follows on Norcold’s contested motions in limine. 12 MOTION 14: Norcold moves to exclude “any and all statements, argument, 13 or evidence of any other incidents, claims, and lawsuits allegedly involving a 14 Norcold refrigerator.” Dkt. No. 74 at 6. As discussed above (supra § 4, Motion D), 15 the Court will not admit evidence of past claims against Norcold because Plaintiffs
16 have not demonstrated substantial similarity. Thus, this motion is GRANTED IN 17 PART. But as explained below (see infra § 5, Motions 15, 16), the Court will admit 18 evidence of prior recalls. Thus, to the extent evidence of past recalls qualifies as 19 “evidence of any other incidents,” this motion is DENIED IN PART. 20 MOTION 15: Norcold moves to exclude under Fed. R. Evid 403 “any and all 21 references to, statements about, or evidence of any models of Norcold refrigerators
22 other than the Norcold 1210 model refrigerator alleged to be at issue in this suit.” 23 Dkt. No. 74 at 10. But as Plaintiffs argue, Norcold’s own recall notices expressly 1 indicate that different models of Norcold refrigerators exhibited the same defects 2 allegedly at issue here. See Dkt. No. 76 at 4 (quoting recall notification). Plaintiffs’
3 expert report adequately makes this point: “All five recalls cautioned that if a leak 4 occurred and the unit continued to operate, hydrogen and ammonia gases may be 5 expelled and could be ignited, resulting in a fire.” Dkt. No. 56-2 at 6. Plaintiffs have 6 met their burden of establishing the probative value of past-recall evidence 7 involving other Norcold refrigerators. Thus, this motion is DENIED. Nevertheless, 8 the Court will apply the Federal Rules and exclude any evidence about other
9 Norcold refrigerator models that is irrelevant or does not survive the Rule 403 10 balancing test. 11 MOTION 16: Norcold moves to exclude “all references to, statements about, 12 or evidence of any recalls because none applied to the Norcold refrigerator at issue 13 here.” Dkt. No. 74 at 10–11. As explained above (supra § 5, Motion 15), Encompass’s 14 expert report adequately establishes the relevance of Norcold’s past recalls. This 15 motion is therefore DENIED.
16 MOTION 17: Norcold moves to exclude “any and all references to, 17 statements about, or evidence of any deposition or trial testimony purportedly given 18 by any past or present employees, officers, directors, or representatives of Norcold 19 that was given in other lawsuits.” Dkt. No. 74 at 11–12. The ground for this motion 20 is that Plaintiffs disclosed no such evidence. Id. The Court will apply the Federal 21 Rules. This motion is DENIED.
22 MOTION 18: Norcold moves to exclude “all opinions from Plaintiffs’ expert 23 witnesses, and all bases and reasons for any opinions, that were not contained in 1 the expert’s Rule 26 expert report produced in this lawsuit.” Dkt. No. 74 at 12–13. 2 “Plaintiffs generally agree that all opinions not contained within an expert’s report
3 or deposition testimony should be excluded.” Dkt. No. 76 at 7. However, the parties 4 disagree about whether Plaintiffs’ expert Jeff Marsh’s disclosures adequately set 5 forth certain opinions and bases/reasons for opinions. 6 In his expert report, Marsh stated his conclusions that (i) the dehumidifier in 7 the RV did not cause the fire; (ii) the oil-filled radiant heater in the RV did not 8 cause the fire; and (iii) a leak of flammable refrigerant in the Norcold refrigerator
9 caused the fire. Dkt. No. 61-1 at 31–32. As for the dehumidifier and heater, he 10 provided as the bases/reasons for his opinions that (a) no electrical arcing was 11 identified in these products, and (b) radiographic examination revealed no evidence 12 of anomalous electrical activity. Id. Later, in a declaration relating to a Daubert 13 dispute, he explained that part of his basis/reason for ruling out the heater and 14 dehumidifier as ignition factors was that the insured allegedly never reported 15 smelling an unusual or bad odor from these units. Dkt. No. 62 at 3.
16 At issue is whether Marsh may testify at trial that (1) “the Norcold 17 refrigerator caused the fire”; (2) “the failure mode in the refrigerator could not have 18 been caused by an attacking fire”; (3) “malfunctioning electrical equipment often 19 emits distinct odors”; and (4) “at no time did Stephen Phillips report odors 20 emanating from the dehumidifier or heater.” Dkt. No. 74 at 12. As to (1) and (2), the 21 Court finds that Marsh’s report adequately discloses these opinions. As to (3) and
22 (4), the Court finds that it does not. The Court rejects Plaintiffs’ argument that the 23 lack of “malodorous symptoms” was “part and parcel” of Marsh’s assertion, in the 1 expert report, that a lack of evidence of electrical failure was found in the heater 2 and dehumidifier. See Dkt. No. 76 at 8. The report expressly stated the bases for
3 this conclusion as: (a) the lack of arcing, and (b) the radiographic examination. The 4 report did not mention smells, and Marsh may not testify at trial about this late- 5 disclosed basis for his conclusions. 6 As such, Marsh may not testify at trial that malfunctioning electrical 7 equipment often emits distinct odors, and that at no time did the insured report 8 odors emanating from the dehumidifier or heater. Thus, this motion is GRANTED
9 IN PART. It is DENIED IN PART to the extent it needlessly repeats the Court’s 10 general duties under the Federal Rules. 11 MOTION 19: Norcold moves to exclude “all statements or suggestions that 12 [Snohomish County Fire Marshal Daniel] Lorentzen is an expert or has expertise in 13 conducting fire investigations or fire origin and cause analysis” and to preclude 14 “Plaintiffs from attempting to elicit expert opinions from Mr. Lorentzen, including 15 any expert opinions regarding the area of origin of the subject fire.” Dkt. No. 74 at
16 13. The basis of this motion is that “Plaintiffs did not disclose Mr. Lorentzen as a 17 retained or non-retained expert in Plaintiffs’ Rule 26 Expert Disclosures served in 18 this lawsuit on March 4, 2024.” Id. 19 Plaintiffs counter that “Defendant has been provided all information required 20 by Fed. R. Civ. P. 26(a)(2)(C) and Mr. Lorentzen should be permitted to testimony 21 regarding the opinions and findings contained in his report and subsequent
22 deposition testimony.” Dkt. No. 76 at 8. 23 1 The Court agrees with Plaintiffs. To the extent Plaintiffs violated Fed. R. Civ. 2 P. 26(a)(2)(C) by failing to include Lorentzen in their Expert Disclosures, this
3 failure was harmless given that “Mr. Lorentzen was listed as a witness in response 4 to interrogatories and Initial Disclosures, his report was produced by Defendant, 5 and Defendant took Mr. Lorentzen’s deposition to further understand his opinions 6 and the basis thereof.” Id. at 11; see Lanard Toys Ltd. v. Novelty, Inc., 375 F. App’x 7 705, 713 (9th Cir. 2010) (laying out harmlessness factors under Fed. R. Civ. P. 8 37(c)(1)). This motion is DENIED.
9 MOTION 20: Norcold moves to preclude “all statements or suggestions that 10 Mr. [Brian] Hedberg is an expert or has any expertise in appraising the fair market 11 value of classic vehicles or appraising property damage” and to preclude “Plaintiffs 12 from attempting to elicit expert opinions from Mr. Hedberg at trial, including but 13 not limited to any expert opinions regarding the fair market value of any classic 14 vehicles destroyed in the fire[.]” Dkt. No. 74 at 13–14. The basis of this motion is 15 that Plaintiffs did not include Hedberg in their expert disclosures. Id.
16 Plaintiffs argue that the Court should allow Hedberg to testify about the 17 value of the insureds’ destroyed vehicles not as an expert, but as a lay witness. This 18 argument is unpersuasive. Lay testimony cannot be based on “scientific, technical, 19 or other specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701(c). A 20 party may not “evade the expert witness disclosure requirements… by simply 21 calling an expert witness in the guise of a layperson.” Fed. R. Civ. 701 (Advisory
22 Committee Notes); see Everest Stables, Inc. v. Canani, No. CV099446DSFVBKX, 23 2011 WL 13213657, at *3–4 (C.D. Cal. Oct. 6, 2011) (citing cases excluding expert 1 witnesses masquerading as lay witnesses). In Plaintiffs’ words, “Mr. Hedberg is an 2 appraiser with Ianet Accurate Nationwide Appraisals who completed the appraisals
3 for the vehicles lost in the fire and will testify to his investigation and appraisal 4 reports produced in discovery.” Dkt. No. 79 at 6. The appraisal of collectible 5 automobiles is a specialized, not lay, endeavor. As such, the Court will not permit 6 Hedberg to testify as a lay witness under Rule 701. And the Court rejects Plaintiffs’ 7 conclusory assertion that their failure to disclose Hedberg as an expert was 8 harmless. The motion is therefore GRANTED.
9 MOTION 21: Norcold moves to preclude any argument “that spoliation of 10 material evidence did not occur when the fire scene was destroyed.” Dkt. No. 74 at 11 14–15. The Court has already ruled that it will instruct the jury: “(1) Encompass 12 failed to preserve the fire scene, including the RV, and instead cleared all evidence 13 from the scene despite knowing it had a duty to preserve the evidence; (2) 14 Encompass failed to give Norcold notice of any fire scene inspections prior to 15 demolition, and (3) had Norcold been able to inspect the scene, the resulting
16 evidence would have been favorable to Norcold and unfavorable to Encompass.” 17 Dkt. No. 75 at 13–14. The Court has also ruled that Encompass “will remain free at 18 trial to explain why it failed to provide Norcold an opportunity to inspect the scene 19 prior to demolition.” Id. No further ruling is needed on this issue right now. The 20 motion is DENIED. 21 MOTION 22: Norcold moves to exclude “any and all statements, arguments,
22 or evidence regarding the purported cost to replace any property insured by 23 Plaintiffs that was destroyed in the fire.” Dkt. No. 74 at 15. The Court will address 1 the relevance, or lack thereof, of the replacement cost of insured property when it 2 finalizes jury instructions and, if needed, during trial. This motion is DENIED.
3 MOTION 23: Norcold moves to exclude “any and all references to, 4 statements about, or evidence of, any documents or tangible things (and the 5 contents thereof) that were not timely disclosed or produced by Plaintiffs in 6 discovery.” Dkt. No. 74 at 16–17. The Court will apply the Federal Rules. This 7 motion is DENIED. 8 MOTION 24: Norcold moves to exclude “any and all references to,
9 statements about, or evidence of any expert witnesses, or the opinions, testimony, or 10 work product of any expert witness, who was not timely disclosed by Plaintiffs in 11 this case.” Dkt. No. 74 at 16. Plaintiffs counter that “Federal Rules regarding non- 12 disclosed expert witnesses will also apply to Defendant as well. Specifically, to the 13 late disclosed witness, Pieter Berkhout, disclosed by Defendant in its Pretrial 14 Statement on January 24, 2025.” Dkt. No. 76 at 16. The Court does not construe 15 Plaintiffs’ response as an independent motion to exclude the testimony of Berkhout.
16 The Court will apply the Federal Rules. This motion is DENIED. 17 MOTION 25: Norcold moves to preclude “Plaintiffs from making statements 18 or arguments that Norcold is an ‘unsafe company,’ a ‘bad corporate actor,’ does not 19 care about the safety or welfare of end users or consumers of its refrigerators, or 20 any similar types of comments and any evidence offered in support of such 21 statements or arguments.” Dkt. No. 74 at 16–17. The Court will apply the Federal
22 Rules, including the rules that prohibit appeals to passion or prejudice. This motion 23 is DENIED. 1 MOTION 26: Norcold moves to preclude “Plaintiffs from making statements 2 or comments, directly or indirectly, that Plaintiffs ‘have waited a long time for this
3 day,’ ‘finally have their day in Court,’ or any suggestions or statements similar in 4 nature.” Dkt. No. 74 at 17. Plaintiffs “agree to not make any argument to the jury 5 that the trial date was scheduled as it is due to Norcold’s actions or inactions” but 6 object to the “blanket order” sought by Norcold as “overbroad.” Dkt. No. 76 at 16–17. 7 The Court will apply the Federal Rules. This motion is DENIED. 8 MOTION 27: Norcold moves to exclude “any and all statements or
9 suggestions, directly or indirectly, that this lawsuit and jury trial is necessary 10 because Norcold has not admitted responsibility, admitted liability, ‘done the right 11 thing,’ or any other similar words to that effect, and/or any statements or 12 suggestions, directly or indirectly, that Norcold’s failure or refusal to admit 13 responsibility or liability has wasted taxpayer dollars, wasted the jury’s or the 14 Court’s time, or any similar words to that effect.” Dkt. No. 74 at 17–18. 15 Plaintiffs stipulate “to not use the phrases ‘done the right thing’ or Norcold
16 ‘wasted taxpayer dollars, wasted the jury’s or the Court’s time’” but assert that “a 17 blanket order that precludes Plaintiffs from arguing that Norcold has not admitted 18 liability is too broad and limits Plaintiffs’ ability to argue its case.” Dkt. No. 76 at 19 17. Plaintiffs suggest that “should Defendant believe that Plaintiffs are making 20 improper jury arguments, Defendant should object at the time the argument is 21 made.” Id.
22 23 1 The Court agrees with Plaintiffs. This motion is GRANTED IN PART only to 2 the extent consistent with Plaintiffs’ stipulation and otherwise DENIED IN PART.
3 The Court will apply the Federal Rules. 4 MOTION 28: Norcold moves to exclude “any and all statements about or 5 evidence of any subsequent remedial measures taken by Norcold that allegedly 6 would have made Plaintiffs’ claimed injuries or harm less likely to occur, as such 7 statements, comments and/or evidence would be offered for the impermissible 8 purposes of proving Norcold’s negligence and culpable conduct, a defect in Norcold’s
9 refrigerator or its design, or a need for a warning or instruction.” Dkt. No. 74 at 18. 10 To the extent this motion merely reiterates Fed. R. Evid. 407, it is needless. The 11 Court will apply the Federal Rules. This motion is DENIED. 12 MOTION 29: Norcold moves to exclude “any and all statements about, 13 references to, or evidence of any personal habits, character traits, and/or any 14 crimes, arrests, convictions, wrongs, or acts of any witness called by Norcold.” Dkt. 15 No. 74 at 18–19. This motion is DENIED.
16 MOTION 30: Norcold moves to exclude “all statements about, or any 17 evidence of, any postings, blogs, pictures, videos, or other information from any 18 social media websites or sources pertaining to any of Norcold’s witnesses.” Dkt. No. 19 74 at 19. This motion is DENIED. 20 MOTION 31: Norcold moves to exclude “all statements or comments about 21 the law, made prior to the time the Court rules on the law applicable to this case
22 and instructs the jury regarding same, other than Plaintiffs’ burden of proof on 23 their claims.” Dkt. No. 74 at 19. This motion is DENIED. 1 MOTION 32: Norcold moves to preclude “the use of any sidebar remarks, 2 bolstering statements, opinions, or other argumentative comments in response to
3 answers from witnesses or when Norcold’s counsel is arguing a question to the 4 Court or addressing the jury.” Dkt. No. 74 at 20. The Court will address this issue 5 at the Pretrial Conference.1 This motion is DENIED. 6 MOTION 33: Norcold requests “all non-party lay witnesses be excluded from 7 the courtroom except for when they are testifying, consistent with Federal Rule of 8 Evidence 615.” Dkt. No. 74 at 20. The Court will address this issue at the Pretrial
9 Conference and will properly apply the Rules of Evidence, including Rule 615. This 10 motion is DENIED. 11 12 Dated this 2nd day of June, 2025. 13 a Jamal N. Whitehead 14 United States District Judge 15 16 17 18 19 20 21 1 The Court notes that it already held a Pretrial Conference on February 18, 2025, 22 before the trial date was moved from February 24, 2025, to September 8, 2025. See Dkt. No. 86. The Court intends to hold another Pretrial Conference closer to the 23 new trial date.