Fox v. City of Bellingham

• Court: District Court, W.D. Washington
• Decided: January 23, 2023
• Docket: 2:19-cv-00955
• Status: Unknown

Opinion

4 UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 ROBERT FOX, Cause No. C19-0955RSL 8 Plaintiff, ORDER GRANTING IN 9 v. PART DEFENANT’S 10 MOTIONS IN LIMINE CITY OF BELLINGHAM, 11 Defendant. 12 13 This matter comes before the Court on “Defendant’s Motions in Limine.” Dkt. # 45. 14 15 Plaintiff opposes only one of the motions. Because these issues will have to be resolved at trial 16 regardless, the Court exercises its discretion to hear the motions in limine even though defendant 17 failed to confer with plaintiff in an effort to identify which matters were actually in dispute. 18 19 A. Motions in limine 1-9 and 11 20 The motions are unopposed and therefore GRANTED. The exclusionary rulings with 21 regards to motions in limine 2-5 and 7 apply to both parties. 22 23 B. Investigative Report 23 Following the incident at issue in this case, the City of Bellingham hired an attorney, 25 Sarah Hale, to investigate and provide a written report of her factual findings. In his pretrial 26 27 statement, plaintiff recounts the genesis of Ms. Hale’s report and identifies the individuals 28 1 describes the Fire Department’s conclusions regarding violations of Department policies and 2 practices as revealed by Ms. Hale’s investigation. Dkt. # 46-1 at 7. Plaintiff has listed Ms. 3 Hale’s report as a trial exhibit. Dkt. # 46-1 at 8. Defendant argues that the investigation and 4 5 report are irrelevant to the sole remaining issue of plaintiff’s damages,1 are inadmissible as 6 subsequent remedial measures under Fed. R. Ev. 407, and are unduly prejudicial under Fed. R. 7 Ev. 403.2 8 9 Plaintiff asserts that the investigation report was his first glimpse into what had happened 10 to his brother’s body while in defendant’s custody and argues that the jury needs to see the 11 report to fully understand defendant’s conduct as well as the depth and extent of the emotional 12 13 distress plaintiff suffered when he learned of that conduct. To the extent the report documents 14 what occurred on July 31, 2018, and informed plaintiff’s understanding of those events, it is 15 intimately connected to plaintiff’s reaction and therefore relevant to his claim of emotional 16 17 distress. The sterile and brief statement of facts to which defendant is willing to admit (Dkt. 18 # 49-1 at ¶¶ 13-19) does not preclude the admission of additional details and descriptions that 19 support plaintiff’s claim of emotional distress.3 Plaintiff agrees, however, that he will not argue 20 21 that the use of his brother’s body violated Fire Department policies or procedures or that 22 23 1 The City has admitted liability. 23 2 Defendant’s hearsay objection was raised for the first time in reply, depriving plaintiff of any 25 opportunity to respond. The objection has not been considered. 26 3 For example, the investigative report reveals that at least some of the participants were aware that their conduct might not stand up under scrutiny, that various individuals, including office staff, were 27 invited to participate, and that the decedent’s body was intubated in view of the public. Dkt. # 49-1 at 28 15-19. Defendant offers no legal authority that would bind or limit plaintiff to accept its admitted facts 1 defendants should be punished for its actions. Evidence and argument regarding violations of 2 policy or procedure and/or the need to punish defendant will be excluded.4 3 Defendant’s Rule 407 objection is overruled. The report documents witness statements 4 5 and the investigator’s conclusions regarding what happened on July 31, 2018. Defendant makes 6 no effort to explain how an investigative report is a subsequent remedial measure “that would 7 have made an earlier injury or harm less likely to occur.” Fed. R. Ev. 407. See Christopher 8 9 Mueller & Laird Kirkpatrick, 2 FEDERAL EVIDENCE § 4:50, at 77 (3d ed.2007) (post- 10 incident investigations are generally not excluded by Rule 407 because “such reports or 11 inspections are not themselves remedial measures, and do not themselves even reflect decisions 12 13 to take or implement such measures.”). In the circumstances presented here, there is no chance 14 that the admission of the report into evidence would “punish” defendant for its efforts to remedy 15 a practice or procedural failure where no such remedy is identified, discussed, or disclosed. See 16 17 In re Aircrash in Bali, Indonesia, 871 F.2d 812, 817 (9th Cir. 1989). 18 Defendant argues that any marginal relevance of the investigative report is outweighed by 19 the prejudice that will arise if additional details regarding its use of the decedent’s body are 20 21 presented to the jury. As discussed above, evidence that defendant violated its own policies and 22 procedures and argument regarding the need to punish defendant will be excluded as irrelevant. 23 That the remaining portions of the report may prompt the jury to award a greater sum in 23 25 26 27

28 4 This ruling is without prejudice to plaintiff’s ability to raise the issue again if defendant opens 1 emotional distress damages than if the evidence were limited to defendant’s admitted facts does 2 not make the award unfair or the evidence unfairly prejudicial. 3

4 5 For all of the foregoing reasons, defendant’s motions in limine are GRANTED in part 6 and DENIED in part. 7

8 9 Dated this 23rd day of January, 2023.

11 Robert S. Lasnik 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 23 25 26 27 28