Goldstine v. FedEx Freight, Inc.
Opinion
1 THE HONORABLE MARSHA J. PECHMAN
6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE
8 DAVID GOLDSTINE,
9 Plaintiff, Case No. 2:18-cv-01164-MJP 10 v. FOURTH AMENDED PRETRIAL 11 FEDEX FREIGHT, INC., ORDER
12 Defendant.
13 14 Pursuant to LCR 16(h)-(i), Plaintiff David Goldstine and Defendant FedEx Freight, 15 Inc. (hereinafter “FedEx Freight”)1 jointly submit this Proposed Pre-Trial Order. 16 I. JURISDICTION 17 Jurisdiction is vested in this Court by virtue of: This Court has subject matter 18 jurisdiction over this case under 28 U.S.C. § 1331, through which district courts have 19 jurisdiction over all civil actions arising under the Constitution, laws, and treaties of the United 20 States. Plaintiff brings several claims against Defendant under the Americans with Disabilities 21 Act of 1990, § 2 et seq., 42 U.S.C. § 12101 et seq. (“ADA”). 22
23 1 By submitting this Pretrial Order, Defendant FedEx Freight does not waive any objections to the remote jury proceeding proposed by the Court. 1 Additionally, this Court has subject matter jurisdiction over this case under 28 U.S.C. 2 § 1332. Complete diversity of citizenship exists between the parties: (a) Plaintiff David 3 Goldstine is a citizen of the United States and of the State of Washington; (b) Defendant FedEx 4 Freight is a corporation incorporated under the laws of Arkansas, with its principal place of 5 business in Arkansas. Defendant FedEx Freight is therefore a citizen of a foreign state.
6 Defendant disputes that Plaintiff is entitled to any damages. Plaintiff contends the amount in 7 controversy exceeds $75,000.00. 8 Alternatively, this Court has supplemental jurisdiction over Plaintiff’s state law claims 9 under 28 U.S.C. § 1367 because the state law claims are so closely related to the federal law 10 claims as to form the same case or controversy under Article III of the U.S. Constitution. 11 Plaintiff’s state law claims brought under the Washington Law Against Discrimination, RCW 12 49.60 et seq. (“WLAD”) and his claims brought under the ADA arise from a common nucleus 13 of operative fact. 14 This Court has personal jurisdiction over Defendant FedEx Freight. Jurisdiction is
15 established because Defendant conducted business in the state of Washington, both generally 16 and particularly as it regards the acts and omissions at issue here, generating a sufficient nexus 17 between Defendant’s forum contacts and Plaintiff’s causes of action. 18 Venue is proper in the United States District Court, Western District of Washington, 19 under 28 U.S.C. § 1391(b)(2), because a substantial part of the events or omissions giving rise 20 to Plaintiff’s causes of action occurred within the Western District of Washington’s geographic 21 scope. 22 Defendant removed this case from the Superior Court of the State of Washington, 23 County of Snohomish to the Western District of Washington at Seattle. A substantial part of 1 the events from which Plaintiff’s causes of action arise occurred in Snohomish County, 2 Washington. As such, under LCR 3(e), Intradistrict Assignment to the Western District of 3 Washington at Seattle is proper. 4 II. CLAIMS AND DEFENSES 5 Plaintiff David Goldstine will pursue at trial the following claims:
6 1. Disability discrimination in violation of the WLAD; 7 2. Retaliation in violation of the WLAD; 8 3. Disability discrimination in violation of the ADA; and 9 4. Retaliation in violation of the ADA. 10 Defendant FedEx Freight will pursue the following affirmative defenses and/or claims: 11 1. Mr. Goldstine failed to mitigate his claimed damages. 12 III. ADMITTED FACTS 13 The following facts are admitted by the parties: 14 1. FedEx Freight employs more than 500 employees.
15 2. FedEx Freight provides less-than-truckload delivery choices to customers 16 shipping throughout the U.S., Canada, and Mexico. FedEx Freight operates approximately 17 30,000 vehicles from a network of 373 freight service centers and has approximately 44,000 18 employees. 19 3. David Goldstine began working as a full-time Road Driver for FedEx Freight 20 on February 18, 2015. 21 4. He typically drove roundtrip between Washington and Oregon on the graveyard 22 shift. 23 1 5. FedEx Freight is an interstate federal motor carrier regulated by the Federal 2 Motor Carrier Safety Act (FMCSA), 49 C.F.R. §300 et seq. 3 6. Commercial truck drivers must be qualified to operate a commercial vehicle in 4 accordance with the physical-qualification standards of the FMCSA. 5 7. Defendant FedEx Freight did nothing to cause or exacerbate any medical
6 condition of Mr. Goldstine. 7 8. On July 25, 2017, FedEx Freight authorized Mr. Goldstine to return to work. 8 9. Mr. Goldstine learned on August 3, 2017 that FedEx Freight had authorized 9 him to return to work. 10 III.A. PLAINTIFF’S ADDITIONAL PROPOSED FACTS2 11 10. FedEx Freight earned approximately $7.1 billion in annual revenue in 2020. 12 John A. Smith is the President and Chief Executive Officer of FedEx Freight, which is based 13 in Memphis, Tennessee. ADMISSIBILITY DISPUTED BY FEDEX FREIGHT. 14 11. The company is a subsidiary of the FedEx Corporation, a parent holding
15 company that provides strategic direction to the FedEx portfolio of companies, which also 16 includes FedEx Express, FedEx Ground, and FedEx Services. ADMISSIBILITY DISPUTED 17 BY FEDEX FREIGHT. 18 IV. ISSUES OF LAW 19 Plaintiff asserts the following issues of law to be determined by the Court: 20 21 2 Defendant objects to Plaintiff’s inclusion of “additional proposed facts” which Plaintiff gleaned from the internet 22 and which were not a topic of discovery; relate to information about Defendant’s parent and affiliate companies, apparently in an effort to seek to pierce the corporate veil of Defendant to try to admit into this trial information 23 about a different company involving a different lawsuit; attempt to unfairly prejudice Defendant based on such information; and the topics of which are the subject of a pending motion in limine. 1 Plaintiff’s Issue of Law No. 1: Does the FMCSA require a driver to be able to lower 2 a disabled trailer door? 3 Plaintiff’s Issue of Law No. 2: Does the FMCSA require a driver to be able to climb 4 into the back of a semi-trailer unassisted? 5 Plaintiff’s Issue of Law No. 3: Does the FMCSA require a carrier to disqualify a driver
6 upon disclosure of a pre-existing disability when the disability does not impair the driver’s 7 ability to perform his normal duties and when his current medical certificate has not expired? 8 Plaintiff’s Issue of Law Nos. 4 and 5: Does the FMCSA require a carrier to exercise 9 good faith and/or obtain a professional medical opinion before rejecting a medical certification 10 on the basis that it is “falsified” or “incomplete?” 11 Plaintiff’s Issue of Law No. 6: Does the FMCSA permit a person who is not a medical 12 examiner and has no personal knowledge of a driver's health conditions to determine that the 13 driver is not medically qualified under FMCSA standards? 14 Plaintiff’s Issue of Law Nos. 7 & 8. Whether Defendant discriminated against
Free access — add to your briefcase to read the full text and ask questions with AI
1 THE HONORABLE MARSHA J. PECHMAN
6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE
8 DAVID GOLDSTINE,
9 Plaintiff, Case No. 2:18-cv-01164-MJP 10 v. FOURTH AMENDED PRETRIAL 11 FEDEX FREIGHT, INC., ORDER
12 Defendant.
13 14 Pursuant to LCR 16(h)-(i), Plaintiff David Goldstine and Defendant FedEx Freight, 15 Inc. (hereinafter “FedEx Freight”)1 jointly submit this Proposed Pre-Trial Order. 16 I. JURISDICTION 17 Jurisdiction is vested in this Court by virtue of: This Court has subject matter 18 jurisdiction over this case under 28 U.S.C. § 1331, through which district courts have 19 jurisdiction over all civil actions arising under the Constitution, laws, and treaties of the United 20 States. Plaintiff brings several claims against Defendant under the Americans with Disabilities 21 Act of 1990, § 2 et seq., 42 U.S.C. § 12101 et seq. (“ADA”). 22
23 1 By submitting this Pretrial Order, Defendant FedEx Freight does not waive any objections to the remote jury proceeding proposed by the Court. 1 Additionally, this Court has subject matter jurisdiction over this case under 28 U.S.C. 2 § 1332. Complete diversity of citizenship exists between the parties: (a) Plaintiff David 3 Goldstine is a citizen of the United States and of the State of Washington; (b) Defendant FedEx 4 Freight is a corporation incorporated under the laws of Arkansas, with its principal place of 5 business in Arkansas. Defendant FedEx Freight is therefore a citizen of a foreign state.
6 Defendant disputes that Plaintiff is entitled to any damages. Plaintiff contends the amount in 7 controversy exceeds $75,000.00. 8 Alternatively, this Court has supplemental jurisdiction over Plaintiff’s state law claims 9 under 28 U.S.C. § 1367 because the state law claims are so closely related to the federal law 10 claims as to form the same case or controversy under Article III of the U.S. Constitution. 11 Plaintiff’s state law claims brought under the Washington Law Against Discrimination, RCW 12 49.60 et seq. (“WLAD”) and his claims brought under the ADA arise from a common nucleus 13 of operative fact. 14 This Court has personal jurisdiction over Defendant FedEx Freight. Jurisdiction is
15 established because Defendant conducted business in the state of Washington, both generally 16 and particularly as it regards the acts and omissions at issue here, generating a sufficient nexus 17 between Defendant’s forum contacts and Plaintiff’s causes of action. 18 Venue is proper in the United States District Court, Western District of Washington, 19 under 28 U.S.C. § 1391(b)(2), because a substantial part of the events or omissions giving rise 20 to Plaintiff’s causes of action occurred within the Western District of Washington’s geographic 21 scope. 22 Defendant removed this case from the Superior Court of the State of Washington, 23 County of Snohomish to the Western District of Washington at Seattle. A substantial part of 1 the events from which Plaintiff’s causes of action arise occurred in Snohomish County, 2 Washington. As such, under LCR 3(e), Intradistrict Assignment to the Western District of 3 Washington at Seattle is proper. 4 II. CLAIMS AND DEFENSES 5 Plaintiff David Goldstine will pursue at trial the following claims:
6 1. Disability discrimination in violation of the WLAD; 7 2. Retaliation in violation of the WLAD; 8 3. Disability discrimination in violation of the ADA; and 9 4. Retaliation in violation of the ADA. 10 Defendant FedEx Freight will pursue the following affirmative defenses and/or claims: 11 1. Mr. Goldstine failed to mitigate his claimed damages. 12 III. ADMITTED FACTS 13 The following facts are admitted by the parties: 14 1. FedEx Freight employs more than 500 employees.
15 2. FedEx Freight provides less-than-truckload delivery choices to customers 16 shipping throughout the U.S., Canada, and Mexico. FedEx Freight operates approximately 17 30,000 vehicles from a network of 373 freight service centers and has approximately 44,000 18 employees. 19 3. David Goldstine began working as a full-time Road Driver for FedEx Freight 20 on February 18, 2015. 21 4. He typically drove roundtrip between Washington and Oregon on the graveyard 22 shift. 23 1 5. FedEx Freight is an interstate federal motor carrier regulated by the Federal 2 Motor Carrier Safety Act (FMCSA), 49 C.F.R. §300 et seq. 3 6. Commercial truck drivers must be qualified to operate a commercial vehicle in 4 accordance with the physical-qualification standards of the FMCSA. 5 7. Defendant FedEx Freight did nothing to cause or exacerbate any medical
6 condition of Mr. Goldstine. 7 8. On July 25, 2017, FedEx Freight authorized Mr. Goldstine to return to work. 8 9. Mr. Goldstine learned on August 3, 2017 that FedEx Freight had authorized 9 him to return to work. 10 III.A. PLAINTIFF’S ADDITIONAL PROPOSED FACTS2 11 10. FedEx Freight earned approximately $7.1 billion in annual revenue in 2020. 12 John A. Smith is the President and Chief Executive Officer of FedEx Freight, which is based 13 in Memphis, Tennessee. ADMISSIBILITY DISPUTED BY FEDEX FREIGHT. 14 11. The company is a subsidiary of the FedEx Corporation, a parent holding
15 company that provides strategic direction to the FedEx portfolio of companies, which also 16 includes FedEx Express, FedEx Ground, and FedEx Services. ADMISSIBILITY DISPUTED 17 BY FEDEX FREIGHT. 18 IV. ISSUES OF LAW 19 Plaintiff asserts the following issues of law to be determined by the Court: 20 21 2 Defendant objects to Plaintiff’s inclusion of “additional proposed facts” which Plaintiff gleaned from the internet 22 and which were not a topic of discovery; relate to information about Defendant’s parent and affiliate companies, apparently in an effort to seek to pierce the corporate veil of Defendant to try to admit into this trial information 23 about a different company involving a different lawsuit; attempt to unfairly prejudice Defendant based on such information; and the topics of which are the subject of a pending motion in limine. 1 Plaintiff’s Issue of Law No. 1: Does the FMCSA require a driver to be able to lower 2 a disabled trailer door? 3 Plaintiff’s Issue of Law No. 2: Does the FMCSA require a driver to be able to climb 4 into the back of a semi-trailer unassisted? 5 Plaintiff’s Issue of Law No. 3: Does the FMCSA require a carrier to disqualify a driver
6 upon disclosure of a pre-existing disability when the disability does not impair the driver’s 7 ability to perform his normal duties and when his current medical certificate has not expired? 8 Plaintiff’s Issue of Law Nos. 4 and 5: Does the FMCSA require a carrier to exercise 9 good faith and/or obtain a professional medical opinion before rejecting a medical certification 10 on the basis that it is “falsified” or “incomplete?” 11 Plaintiff’s Issue of Law No. 6: Does the FMCSA permit a person who is not a medical 12 examiner and has no personal knowledge of a driver's health conditions to determine that the 13 driver is not medically qualified under FMCSA standards? 14 Plaintiff’s Issue of Law Nos. 7 & 8. Whether Defendant discriminated against
15 Plaintiff under the “actual disability” prong of the Americans with Disabilities Act as Amended 16 or the Washington Law Against Discrimination when it refused to allow him to work because 17 of his disclosure of a disability or physical limitation even after he returned a signed DOT 18 medical certification on April 13, 2017. 19 Plaintiff’s Issue of Law Nos. 9 & 10. Whether Defendant discriminated against 20 Plaintiff under the “regarded as disabled” prong of the Americans with Disabilities Act as 21 Amended or the Washington Law Against Discrimination when it refused to allow him to work 22 because of his disclosure of a disability or physical limitation even after he returned a signed 23 DOT medical certification on April 13, 2017. 1 Plaintiff’s Issue of Law Nos. 11 & 12. Whether Defendant discriminated against 2 Plaintiff under the “record of disability” prong of the Americans with Disabilities Act as 3 Amended or the Washington Law Against Discrimination when it refused to allow him to work 4 because of his disclosure of a disability or physical limitation even after he returned a signed 5 DOT medical certification on April 13, 2017.
6 Plaintiff’s Issue of Law No. 13: What equitable remedies should the Court allow under 7 the ADA retaliation claim should the jury find a violation of the law in an advisory opinion 8 pursuant to FRCP 39, if FedEx Freight will not consent to a jury trial on this claim. 9 Plaintiff’s Issue of Law No. 14: What amount of additional Blaney tax liability on any 10 award should be awarded to Plaintiff? 11 Plaintiff notes that there may be issues of law for the Court’s determination in 12 connection with jury instructions and motions in limine. 13 14 Defendant asserts the following issues of law to be determined by the Court:
15 Defendant’s Issue of Law No. 1: Whether the FMCSA regulations require that a 16 driver be physically qualified to perform normal tasks associated with operating a commercial 17 motor vehicle, including the ability to climb, bend, crawl, lift, twist, and turn to secure trailer 18 doors, perform pre-trip and post trip vehicle inspections, coupling and uncoupling trailers, and 19 various other nondriving DOT required tasks. 20 Defendant’s Issue of Law No. 2: Whether a federal motor carrier is required to ensure 21 its drivers are medically qualified to operate a commercial vehicle as required by the FMCSA, 22 including that the information the driver provides to the DOT medical examiners is truthful 23 and complete? 1 Defendant’s Issue of Law No. 3: Whether Plaintiff must prove his claimed loss of 2 damages would not have occurred “but for” Defendant’s alleged discrimination. 3 Defendant’s Issue of Law No. 4: Whether Plaintiff is prevented from “double 4 dipping” by seeking both equitable and legal remedies based on the same alleged harm? 5 V. EXPERT WITNESSES
6 Each party shall be limited to 1 expert witness on the issues of Plaintiff’s wage loss 7 damages. 8 (a) On behalf of Plaintiff: 9 Name and Address General Nature of Testimony Christina Tapia, Ph.D Christina Tapia, Ph.D is an economist who will 10 1416 NW 46th St., Ste. #105 – PMB testify regarding Plaintiff’s economic damages. 337 11 Seattle, WA 98107 Will testify.
12 (b) On behalf of Defendant: 13 Name and Address General Nature of Testimony 14 William Partin, William Partin is certified public accountant and CPA/ABV/MAFF/CFE forensic economist who will testify as a rebuttal 15 Mueller & Partin expert regarding Plaintiff’s economic loss 400 108th Ave NE damages. 16 Bellevue, WA 98004 Will testify. 17 18 VI. OTHER WITNESSES 19 The names and addresses of witnesses, other than experts, to be used by each party at 20 the time of trial and the general nature of the testimony of each are: 21 (a) On behalf of Plaintiff: 22 Name and Address General Nature of Testimony David Goldstine Mr. Goldstine is the plaintiff and will testify 23 c/o Ada K. Wong regarding the facts and circumstances 1 AKW LAW, P.C. surrounding his employment with Defendant, as 6100 219th St. SW, Suite 480 well as his job duties, the discrimination, 2 Mountlake Terrace, WA 98043 retaliation, and separation that he endured, and damages he sustained as a proximate cause of 3 Defendant’s violations of the law.
4 Will testify. Jon Feldheger, PA-C Jon Feldheger, PA-C was the medical examiner 5 c/o Eastside Family Medicine who examined Plaintiff on February 2, 2017, 1200 112th Ave. NE, C160 March 9, 2017, April 13, 2017, and June 15, 6 Bellevue, WA 98004 2017.
7 May testify. David Hoffman, M.D. Dr. Hoffman was the Regional Medical Director 8 17500 SE 392nd St for U.S. Healthworks (now Concentra) in April Auburn, WA 98092 2017 and discussed Plaintiff’s visits to U.S. 9 Healthworks on April 13, 2017 and April 20, 2017 with Defendant. 10 Will testify. 11 Aaron Jessen Mr. Jessen is an Operations Supervisor with c/o Medora Marisseau Defendant, he was present during the events of 12 Karr Tuttle Campbell April 6-7, 2017 that are the subject of Plaintiff’s 701 Fifth Avenue, Suite 3300 Amended Complaint. He’s been subpoenaed to 13 Seattle, WA 98104 the Seattle courthouse with Plaintiff offering to pay for reasonable costs. 14 c/o Sandra Isom FedEx Freight, Inc. Will testify. 15 1715 Aaron Brenner Drive, Ste 600 Memphis, TN 38120 16 David Appesland Mr. Appesland is the Service Center Manager of c/o Medora Marisseau Defendant’s Everett, Washington facility and 17 Karr Tuttle Campbell may testify regarding his knowledge of the 701 Fifth Avenue, Suite 3300 discrimination, retaliation, and separation that is 18 Seattle, WA 98104 the subject of this lawsuit.
19 c/o Sandra Isom Mr. Appesland also was designated as a Rule FedEx Freight, Inc. 30(b)(6) witness for Defendant.3 20 1715 Aaron Brenner Drive, Ste 600 Memphis, TN 38120 Will testify. 21 Christy Tayman Ms. Tayman is an Employee Relations Advisor c/o Medora Marisseau with Defendant and may testify regarding her 22 Karr Tuttle Campbell
23 3 The designation for purposes of deposition was only for specified topics. 1 701 Fifth Avenue, Suite 3300 knowledge of the discrimination, retaliation, and Seattle, WA 98104 separation that is the subject of this lawsuit. 2 c/o Sandra Isom Ms. Tayman was also designated as a Rule 3 FedEx Freight, Inc. 30(b)(6) witness for Defendant4 1715 Aaron Brenner Drive, Ste 600 4 Memphis, TN 38120 Will testify. Tammy Rogers Ms. Rogers is a Safety Assistant with Defendant 5 c/o Medora Marisseau and may testify regarding her knowledge of Karr Tuttle Campbell Plaintiff’s medical de-certification and re- 6 701 Fifth Avenue, Suite 3300 certification. Seattle, WA 98104 7 Ms. Rogers also was designated as a Rule c/o Sandra Isom 30(b)(6) witness for Defendant. 8 FedEx Freight, Inc. 1715 Aaron Brenner Drive, Ste 600 May testify. 9 Memphis, TN 38120 Craig Flick Mr. Flick is a Senior Security Specialist with 10 c/o Medora Marisseau Defendant and may testify regarding his Karr Tuttle Campbell investigation of the subject matters involving 11 701 Fifth Avenue, Suite 3300 Plaintiff. Seattle, WA 98104 12 Mr. Flick also was designated as a Rule 30(b)(6) c/o Sandra Isom witness for Defendant.5 13 FedEx Freight, Inc. 1715 Aaron Brenner Drive, Ste 600 Will testify. 14 Memphis, TN 38120 Katyna Naylor Ms. Naylor is an Employee Relations Manager 15 c/o Medora Marisseau for Defendant and may testify regarding her Karr Tuttle Campbell knowledge of the policies and procedures related 16 701 Fifth Avenue, Suite 3300 to FedEx Freight and as it applies to the Seattle, WA 98104 Operations Department. She was also 17 designated as a Rule 30(b)(6) witness for c/o Sandra Isom Defendant.6 18 FedEx Freight, Inc. 1715 Aaron Brenner Drive, Ste 600 Will testify. 19 Memphis, TN 38120 Dennis Raymond Mr. Raymond has knowledge of Plaintiff’s harms 20 5218 11th Ave NE and losses as a result of his employment and Seattle, WA 98105 separation from Defendant. 21 (206) 226-3868 22 4 The designation for purposes of deposition was only for specified topics. 23 5 The designation for purposes of deposition was only for specified topics. 6 The designation for purposes of deposition was only for specified topics. 1 Will testify. Randy Mott Mr. Mott is an Operations Supervisor and has 2 c/o Medora Marisseau knowledge about the facts and circumstances Karr Tuttle Campbell regarding Plaintiff’s employment, Plaintiff’s 3 701 Fifth Avenue, Suite 3300 statements with him, and Plaintiff’s claims and Seattle, WA 98104 FedEx Freight’s defenses in this case. 4 c/o Sandra Isom May testify. 5 FedEx Freight, Inc. 1715 Aaron Brenner Drive, Ste 600 6 Memphis, TN 38120
7 Ted Carlson Ted Carlson is a Field Safety Advisor and has c/o Medora Marisseau knowledge about the facts and circumstances 8 Karr Tuttle Campbell regarding Plaintiff’s employment, Plaintiff’s 701 Fifth Avenue, Suite 3300 statements with him, and Plaintiff’s claims and 9 Seattle, WA 98104 FedEx Freight’s defenses in this case.
10 c/o Sandra Isom May testify. FedEx Freight, Inc. 11 1715 Aaron Brenner Drive, Ste 600 Memphis, TN 38120 12 Kenny Cass Kenny Cass is a Road Driver Advisor and has c/o Medora Marisseau knowledge about the facts and circumstances 13 Karr Tuttle Campbell regarding Plaintiff’s employment, Plaintiff’s 701 Fifth Avenue, Suite 3300 statements with him, and Plaintiff’s claims and 14 Seattle, WA 98104 FedEx Freight’s defenses in this case.
15 c/o Sandra Isom May testify. FedEx Freight, Inc. 16 1715 Aaron Brenner Drive, Ste 600 Memphis, TN 38120 17 Kris Hoggatt Kris Hoggatt is an Operations Supervisor and c/o Medora Marisseau has knowledge about the facts and 18 Karr Tuttle Campbell circumstances regarding Plaintiff’s employment, 701 Fifth Avenue, Suite 3300 Plaintiff’s statements with him, and Plaintiff’s 19 Seattle, WA 98104 claims and FedEx Freight’s defenses in this case. 20 c/o Sandra Isom FedEx Freight, Inc. May testify. 21 1715 Aaron Brenner Drive, Ste 600 Memphis, TN 38120 22 23 1 Kaila Eckert, Paralegal to AKW7 Records Custodian may be called to authenticate LAW, P.C. certain website publications of FedEx Freight 2 c/o Ada K. Wong parent company FedEx Corporation, documents AKW LAW, P.C. produced to Plaintiff by FedEx Freight during 3 6100 219th St. SW, Suite 480 discovery, and/or website information published Mountlake Terrace, WA 98043 by the federal government. 4 May testify. 5
6 (b) On behalf of Defendant: 7 David Goldstine Mr. Goldstine is the plaintiff and has knowledge 8 c/o Ada K. Wong of his claims and the defenses in this lawsuit. AKW LAW, P.C. 9 6100 219th St. SW, Suite 480 May testify. Mountlake Terrace, WA 98043 10 David Appesland Mr. Appesland is the Everett service center 11 c/o Medora Marisseau manager and has knowledge about the facts and Karr Tuttle Campbell circumstances regarding Plaintiff’s employment, 12 701 Fifth Avenue, Suite 3300 including job duties and physical qualifications, Seattle, WA 98104 application for employment and performance 13 and Plaintiff’s statements to him and c/o Sandra Isom recertification issues, offers for reinstatement 14 FedEx Freight Freight, Inc. and job availability and Plaintiff’s claims and 1715 Aaron Brenner Drive, Ste 600 FedEx Freight’s defenses in this case. 15 Memphis, TN 38120 Will testify. 16 Christy Tayman Ms. Tayman is an employee relations advisor c/o Medora Marisseau and has knowledge of her communications with 17 Karr Tuttle Campbell Plaintiff, FedEx Freight’s engagement in the 701 Fifth Avenue, Suite 3300 interactive process, offers for reinstatement, and 18 Seattle, WA 98104 Plaintiff’s claims and FedEx Freight’s defenses in this case. 19
20 7 Defendant objects to this witness who was not timely disclosed and was added as witness in this case for the first time today – October 28, 2020; was not disclosed in any initial disclosures as a witness and has no personal knowledge, so may not authenticate any documents of FedEx Corporation (or its subsidiaries). Plaintiff 21 contends Ms. Eckert is a paralegal and record custodian who may be called to testify that the websites and online resources are what is claimed to be (i.e. statements by the authorized agent of FedEx Freight and 22 government documents). See ER 901. This witness is necessitated per Defendant’s objection to FRE 902 disclosure served on October 26, 2020. If Defendant stipulates to the authenticity of the following public 23 records, Ms. Eckert’s testimony is not required: 129, 130, 131, 132, 146, 155, 183, 184, 194, and 196. 1 c/o Sandra Isom Will testify FedEx Freight Freight, Inc. 2 1715 Aaron Brenner Drive, Ste 600 Memphis, TN 38120 3 Randy Mott Mr. Mott is an operations supervisor and has 4 c/o Medora Marisseau knowledge about the facts and circumstances Karr Tuttle Campbell regarding Plaintiff’s employment, including 5 701 Fifth Avenue, Suite 3300 Plaintiff’s statements to him and, and Plaintiff’s Seattle, WA 98104 claims and FedEx Freight’s defenses in this case. 6 Will testify c/o Sandra Isom 7 FedEx Freight Freight, Inc. 1715 Aaron Brenner Drive, Ste 600 8 Memphis, TN 38120
9 Aaron Jessen Mr. Jessen is an operations supervisor and has c/o Medora Marisseau knowledge about Plaintiff’s employment, 10 Karr Tuttle Campbell including the facts and circumstances regarding 701 Fifth Avenue, Suite 3300 Mr. Goldstine’s statements to him and Mr. Mott 11 Seattle, WA 98104 on April 6 and 7, 2017.
12 c/o Sandra Isom Will testify. FedEx Freight Freight, Inc. 13 1715 Aaron Brenner Drive, Ste 600 Memphis, TN 38120 14 Tammy Rogers Ms. Rogers is a safety assistant and has 15 c/o Medora Marisseau knowledge about FedEx Freight’s and the Karr Tuttle Campbell drivers’ obligations regarding the Federal Motor 16 701 Fifth Avenue, Suite 3300 Carrier Safety Act for driver medical Seattle, WA 98104 certification, and facts and circumstances 17 regarding Mr. Goldstine’s medical examination c/o Sandra Isom forms and de-activation and eventual 18 FedEx Freight Freight, Inc. recertification and her actions regarding the 1715 Aaron Brenner Drive, Ste 600 same. 19 Memphis, TN 38120 Will testify. 20 Ted Carlson Mr. Carlson was a regional safety advisor and c/o Medora Marisseau has knowledge about FedEx Freight’s and 21 Karr Tuttle Campbell drivers’ obligations for performing specified 701 Fifth Avenue, Suite 3300 tasks required by the Federal Motor Carrier 22 Seattle, WA 98104 Safety Act and job duties and facts and circumstances regarding Mr. Goldstine’s 23 c/o Sandra Isom 1 FedEx Freight Freight, Inc. deactivation including statements by Goldstine 1715 Aaron Brenner Drive, Ste 600 to Carlson. 2 Memphis, TN 38120 Will testify. 3 Craig Flick Mr. Flick is a security specialist and has c/o Medora Marisseau knowledge of the investigation relating to Mr. 4 Karr Tuttle Campbell Goldstine. 701 Fifth Avenue, Suite 3300 5 Seattle, WA 98104 Will testify.
6 c/o Sandra Isom FedEx Freight Freight, Inc. 7 1715 Aaron Brenner Drive, Ste 600 Memphis, TN 38120 8 Katyna Naylor Ms. Naylor is an employee relations manager 9 c/o Medora Marisseau and has knowledge about FedEx Freight’s Karr Tuttle Campbell policies and procedures regarding disability 10 701 Fifth Avenue, Suite 3300 discrimination, and medical disqualification and Seattle, WA 98104 stand down, and FedEx Freight’s self-disclosure 11 process, and FedEx Freight’s business records c/o Sandra Isom relating to Plaintiff and job availability and the 12 FedEx Freight Freight, Inc. role and responsibility of the employee relations 1715 Aaron Brenner Drive, Ste 600 advisor. 13 Memphis, TN 38120 Will testify. 14 Tamara Turner re: selected benefit May testify – Rebuttal; has knowledge re: select topics, c/o Karr Tuttle Campbell, benefit topics relating to Plaintiff’s damage 15 Seattle, WA 98104 claims Any other of Defendant’s Have knowledge about Plaintiff’s claims and 16 employees that plaintiff calls and FedEx Freight’s defenses in this case. examines in his case in chief and 17 any of Plaintiff’s witnesses. May testify.
18 19 VII. EXHIBITS 20 (a) Plaintiff’s Exhibits 21 Plaintiff intends to present all exhibits in electronic format to jurors. 22 Plaintiff’s Exhibits Ex. # Description Authenticity Admissibility Objection Admitted 23 1 001 2017-04-11 Email from No No Hearsay, Goldstine to Cass and Carlson Relevance, 2 403 007 2017-01-09 Letter from Yes No Relevance, 3 FedEx Freight to Goldstine re 404 Award 4 009 2017-03-27 Accommodation Yes no Relevance and Nondiscrimination Policy to the 5 extent this exhibit 6 contains Transfer 7 policy 012 2017-04-10 @ 11:21 p.m. yes Yes Duplicate 8 PST Email from Appesland to of D’s 316 Tayman which is a 9 better copy 013 2017-04-11 @ 8:05 a.m. PST yes No Includes 10 Email from Appesland to inadmissibl Appesland e hearsay 11 017 2017-04-11 @ 1:32 p.m. PST Yes No Inadmissibl Email from Flick to Tayman e Hearsay 12 018 2017-04-11 @ 11:48 a.m. Yes Yes (duplicate PST Email from Tammy of D’s 307) 13 Rogers to Appesland re DOT Physical required 14 019 2017-04-11 @ 12:28 p.m. Yes Yes (duplicate PST Email from Tayman to of D’s 354) 15 Carlson 020 2017-04-11 Goldstine N- unsigned No- Incomplete 16 Statement re 4-6-2017 and header 901. stripped out 17 021 2017-04-11 Goldstine Yes No - Inadmissibl Statement re 4-7-2017 e hearsay 18 022 2017-04-12 @ 12:57 p.m. Yes No Inadmissibl PST Email from Carlson to e hearsay 19 Tayman re FedEx Freight medical decertification 4-11- 20 2017 024 2017-04-12 @ 10:59 p.m. Yes No Inadmissibl 21 PST Email from Cass to e hearsay Tayman 22 23 1 025 2017-04-12 @ 4:55 p.m. PST Yes No Inadmissibl Email from Goldstine to e hearsay 2 Carlson 026 2017-04-13 @ 10:27 a.m. Yes Yes 3 PST Email from Goldstine to Appesland 4 028 2017-04-13 @ 5:48 p.m. PST Yes yes Email from Appesland to 5 Tayman 029 2017-04-13 @ 11 p.m. PST Yes No Inadmissibl 6 Email from Cass to Carlson e hearsay; duplicate 7 of P’s 24 030 2017-04-13 @ 8:43 p.m. PST Yes Yes 8 Email from Goldstine to Appesland and Mott 9 032 2017-04-13 @ 12:14 p.m. Yes Yes PST Email from Tayman to 10 Carlson 034 2017-04-16 @ 10:35 p.m. Yes No Inadmissibl 11 PST Email from Cass to e hearsay Appesland 12 035 2017-04-17 @ 5:32 p.m. PST Yes Yes Email from Appesland to 13 Tayman 036 2017-04-17 @ 2:25 p.m. PST Yes No Multiple 14 Email from Flick to Tayman levels of inadmissibl 15 e hearsay 037 2017-04-17 @ 2:50 p.m. PST Yes Yes- included 16 Email from Goldstine to in P’s 35 Appesland 17 038 2017-04-17 @ 6:32 a.m. PST Yes Yes- Email from Tammy Rogers to 18 Appesland re DOT Physical required 19 039 2017-04-17 @ 5 p.m. PST Yes Yes Email from Tayman to 20 Appesland 040 2017-04-18 @ 2:29 p.m. PST Yes No Multiple 21 Email from Flick to Tayman levels of inadmissibl 22 e hearsay 23 1 041 2017-04-18 Kris Hoggatt Yes No Hearsay Notes re 4-18-2017 meeting 2 042 2017-04-19 Email from Crow no No Relevance, to Appesland, Tayman, and Incomplete 3 Fredrick not the authentic 4 document; portions of 5 document removed 6 by counsel, Hearsay, 7 403 043 2017-04-20 @ 6:41 p.m. PST no no 901, 403, 8 Goldstine Request for & relevance, documents related to knee multiple 9 injury, etc. levels of inadmissibl 10 e hearsay, subject to 11 MIL 046 2017-04-24 @ 3:29 p.m. PST no no Redacted 12 Email from Flick to Tayman by P; (Redacted) hearsay 13 047 2017-04-24 @ 7:31 p.m. PST yes yes Email from Goldstine to 14 Rogers, Tayman, Appesland 050 2017-04-25 @ 1:41 p.m. PST yes yes 15 Email from Goldstine to Rogers, Tayman, and Ferrill 16 051 2017-04-25 @ 1:41 p.m. PST yes Duplicate of Email from Goldstine to P’s Ex. 50 17 Rogers, Tayman, Appesland 052 2017-04-27 @ 8:03 am Email yes no Hearsay, 18 from Crow to Appesland and relevance, Tayman 403 19 054 2017-04-27 @ 3:10 p.m. PST Yes No, pending 403; Email from Appesland to MIL relevance if 20 Goldstine and Tayman submitted by WPV P incidents 21 are excluded 22 056 2017-04-27 @ 12:18 p.m. Yes No, hearsay PST Email from Goldstine to 23 1 Ferrill, Appesland, Rogers, Starkey, and Tayman 2 057 2017-04-27 @ 2:09 p.m. PST yes No, pending 403, Email from Goldstine to MIL relevance if 3 Tayman submitted by WPV P incidents 4 are excluded 5 058 2017-04-28 @1:20 p.m. PST Yes No, pending 403, Email from Goldstine to MIL relevance if 6 Tayman submitted by WPV P incidents 7 are excluded 8 059 2017-04-28 @ 4:17 p.m. PST Yes No Hearsay Email from Goldstine to 9 Tayman, Ferrell, Starkey, Rogers, and Appesland 10 062 2017-05-01 @ 6:44 p.m. PST yes No Relevance Email from Tayman to and 11 Goldstine hearsay 063 2017-05-02 @ 4:40 p.m. PST yes no Multiple 12 Email from Flick to Tayman levels of inadmissibl 13 e hearsay, relevance, 14 403, in light of P’s 15 MIL 064 2017-05-02 @ 4:47 p.m. PST yes no Multiple 16 Email from Tayman to Flick levels of inadmissibl 17 e hearsay, relevance 18 & 403 in light of P’s 19 MIL 065 2017-05-03 Email from yes yes 20 Tayman to Goldstine 066 2017-05-08 Email from yes yes 21 Goldstine to Appesland 068 2017-05-22 @ 1:08 p.m. PST Yes No Hearsay, 22 Email from Goldstine to Flick relevance, 403 in light 23 of P’s MIL 1 073 2017-05-31 @ 553 am PST Yes No Hearsay Email from Goldstine to 2 Tayman, Rogers 076 2017-06-11 Email from yes no hearsay 3 Goldstine to Appesland 088 2017-07-10 Email from yes no hearsay 4 Goldstine to Appesland 089 2017-07-11 @ 939 a.m. PST yes no Hearsay; 5 Email from Appesland to Untimely- Barrett deadline to 6 disclose exhibits 7 was 10/5/20- 8 not part of disclosed 9 exhibits until 10 10/28/20;; Unredacted 11 Version Contains 12 Attorney- Client 13 Privileged Informatio 14 n8 090 2017-07-11 @ 6:27 p.m. PST yes no hearsay 15 Email from Goldstine to Appesland 16 091 2017-07-12 FedEx Freight no no 901, 403, Notified of Goldstine WHRC relevance, 17 Charge of Discrimination hearsay 092 2017-10-06 Email from Flick No No 403, 18 to Appesland and Tayman relevance, hearsay 19 096 2017-08-11 Email from yes no 403, in Tayman to Hoggatt, Mott, and light of P’s 20 Jessen MIL 21
22 8 Exhibit 89 was timely disclosed. Prior version that was withdrawn is the same as this current version except this current version does not have Christy Tayman’s handwritten notes. This was subsequently withdrawn in 23 error, and a clean version has been returned to this PTO without handwriting. There is no prejudice to Defendant. No attorney is part of this e-mail and it is not subject to attorney-client privilege. 1 098 FedEx’s contribution history yes yes for Goldstine’s fringe benefits 2 100 Driver Stand Down, yes yes Disqualification, and Re- 3 Qualification Procedures 101 Driver Stand Down, yes yes 4 Disqualification, and Re- qualification Procedures 5 105 2013-07-26 Driver Manual yes yes Lesson 3 - Vehicle Inspection 6 Procedures 107 2015-04-15 Pre-Shift Raising yes yes 7 and Lowering Trailer Doors 108 2015-07-15 Driver Manual yes yes 8 Lesson 2- Safety 109 2015-07-15 Driver Manual yes yes 9 Lesson 4 - Driver Review and Disqualification 10 110 2017 Accommodation and Yes Yes Nondiscrimination Policy 11 113 2018-05-02 Equal No No Juror Employment Opportunity- confusion; 12 Non-Discrimination Policy Untimely- deadline to 13 add exhibits 14 was 10/5/20-not 15 disclosed as an 16 exhibit until 17 10/28/20; Relevance 18 as this is a 2018 19 policy;: There was 20 an earlier EEO 21 policy; contains 22 two separate 23 documents; 1 901 as to last 3 2 pages.9 114 2016-02-12 Medical Exam yes yes 3 Report Form 116 2017-02-02 Medical Exam yes yes 4 Report Form 117 2017-02-02 US HealthWorks yes yes 5 Medical Group Treatment Authorization Form 6 118 2017-03-09 Medical yes yes Examiner Report Form 7 119 2017-03-09 thru 2017-04-20 No No 901, US HealthWorks Medical multiple 8 Group Notes levels of inadmissibl 9 e hearsay 121 2017-04-13 Medical Exam yes yes 10 Report Form 122 2017-04-18 US HealthWorks yes yes 11 Medical Group Treatment Authorization Form 12 123 2017-04-20 Medical Exam yes no Relevance, Report Form hearsay 13 124 2017-06-13 Treatment yes yes Authorization for Goldstine 14 signed by Appesland 125 2017-06-15 Medical Exam Yes Yes 15 Report Form 126 2017-06-15 Medical Exam 16 Report Form signature page 127 2018-05-18 Medical No No 901, 17 Examiner’s Certificate incomplete signature page document 18 129 Benefits Planner Retirement no no 901, Age Calculator SSA hearsay, 19 [wwwssagov] relevance, juror 20 confusion 130 Benefits Planner Retirement no no 901, 21 Age Calculator SSA hearsay, [wwwssagov] relevance, 22
23 9 Plaintiff substituted an earlier version to correct Defendant’s objection as to the year of the non-discrimination policy. 1 juror confusion 2 131 Delayed Retirement SSA no no 901, Benefit Maximum Reached hearsay, 3 relevance, juror 4 confusion 132 Full Retirement Age Reached no no 901, 5 (67) hearsay, relevance, 6 juror confusion 7 134 2015 Benefits Enrollment yes No (duplicate Relevance of 133) 8 136 2015-02-15 Benefits Offered Yes No Relevance by FedEx Freight, Inc. 9 137 2016 Benefits Enrollment yes No Relevance Confirmation 10 140 2016 New Hire Benefits Yes No Relevance Enrollment Guide 11 142 2017 New Hire Benefits Yes Yes Enrollment Guide 12 143 2017-05-15 COBRA Yes No Relevance Continuation Coverage 13 Election Notice 144 2017-10-26 FedEx Freight Yes Yes 14 Statement to Goldstine re Pension Plan 15 145 2020-01-01 Kaiser Permanent No No 901, Summary of Benefits and incomplete, 16 Coverage relevance, 403, 17 hearsay 146 2020-09-02 Average life no no 901, 18 expectancy for Dave is 82.3 hearsay, years 403 19 147 2016-09-04 Evergreen Radia no no 901, 403, Imaging Records multiple 20 levels of hearsay, 21 subject to D’s MIL 22 148 2016-09-04 EvergreenHealth no no 901, 403, Medical Records multiple 23 1 levels of hearsay, 2 subject to D’s MIL 3 149 2019-09-30 Urology Office no no 901, 403, Medical Records multiple 4 levels of hearsay, 5 subject to D’s MIL 6 150 2019-10-15 Halvorson Cancer no No 901, 403, Center letter multiple 7 levels of hearsay, 8 subject to D’s MIL 9 151 EVT - Dave Appesland Yes No Hearsay recording 10 152 EVT - David Goldstine Yes No Hearsay recording 11 153 2020-09-08 FINAL Tapia No- chart is No Hearsay, Report Chart contrary to 403 12 what was represented 13 would be provided 14 154 Outstanding RSI Performance Yes No Relevance Award from FedEx Freight to 15 Goldstine 155 2014-09-30 EEOC Files No-relates to No 901, 403, 16 Disability Discrimination a different hearsay, Complaint against FedEx company relevance,s 17 Ground ubject to D’s MIL 18 156 2015 thru 2017 Goldstine W- Yes No relevance 2s 19 157 2015-01-27 Driving Skills yes no relevance Observation Report for 20 Goldstine 158 2015-01-27 Voluntary Self- yes no Relevance, 21 Identification of Disability 403 165 2017-02-17 Certificate of yes no Hearsay, 22 Achievement Safety Award to relevance, Goldstine 403 23 1 168 2017-04-07 Photos of Vehicle no no 901, #2501926 relevance, 2 403 169 2017-04-13 5th wheel invoice yes no Relevance, 3 403 171 2017-06-05 Washington State no no 901, 4 Human Rights Commission relevance, Intake Questionnaire hearsay, 5 403 172 2017-07-25 Voicemail from no no 901, 6 Appesland to Goldstine hearsay, 403 7 173 2017-07-27 Voicemail from no no 901, Appesland to Goldstine hearsay, 8 403 175 2017-08-17 Voicemail from no no 901, 9 Flick to Goldstine hearsay, 403 10 176 2018 Goldstine’s 1040 yes no Relevance, 177 2018 Goldstine’s W-2 yes no relevance 11 178 2018 Goldstine’s W-2 short yes no relevance 12 179 2018-08-27 FedEx Freight's no no Improper Responses to Plaintiff's 1st use of 13 Requests for Admission RFAs; contains 14 legal opinions 15 and conclusions 16 ; Relevance, 17 overbroad, 403 18 182 2019-05-24 FedEx Freight's no no Improper Responses to Plaintiff's 2nd use of 19 Requests for Admission RFAs; contains 20 legal opinions 21 and conclusions 22 ; Relevance, 23 1 overbroad, 403 2 183 Certified Copy of FedEx no no 901, Corporation Annual Report hearsay, 3 2020 relevance, overbroad, 4 403, subject to 5 D’s MIL 184 FedEx Organizational Chart no no 901, 403, 6 relevance, hearsay, 7 subject to D’s MIL 8 185 Photo: Everett Service Center no no 901, FedEx Freight Truckyard relevance, 9 403 186 Photo Everett Service Center no no 901., 403, 10 FedEx Freight Truckyard II relevance 187 Photo Everett Service Center no no 901, 403, 11 FedEx Freight Trucks relevance 188 Photo Everett Service Center no no 901, 403, 12 Stairs relevance 189 Photo Everett Service Center no no 901, 403, 13 Loading Ramp relevance 190 Photo FedEx Freight Trailer no no 901,. 403, 14 to Dock relevance 191 Photo FedEx Freight Loading no no 901, 403, 15 Dock (Interior View) relevance 192 Photo FedEx Door Seal no no 901, 403, 16 relevance 193 Photo FedEx Door Seal II no no 901. 403, 17 relevance 194 2020-05-18 - Consent Decree No- relates to no 901, 403, 18 (Civil Action No. 15-cv- a different hearsay, 00256) company relevance, 19 subject to D’s MIL 20 196 FedEx Company Structure & No- relates to No 901, 403, Facts 10 different relevance, 21 companies hearsay, and subject 22 to D’s MIL
23 10 https://www.fedex.com/en-us/about/company-structure.html 1 197 Declaration of Randy Mott Yes No Objection: deadline to 2 identify exhibits 3 was 10/5/2020. 4 No new exhibits 5 may be added. 6 198 2017-06-15 – June No No Objection: Certification re No Signature untimely: 7 deadline to identify 8 exhibits was 9 10/5/2020. No new 10 exhibits may be 11 added; 901
12 (b) Defendants’ Exhibits 13 Exhibit Description Authenticity Admissibility Objection Admitted 14 No. 15 300 02-02-17 DOT Medical Y Y 16 Examination Report 17 301 02-02-17 Federal Medical Y Y Examiners Certificate 18 302 02-16-17 Dr Feldhegger Y Y 19 Note to Goldstine Re Diabetes 20 303 03-09-17 Addendum to 02- Y N Incomplete 02-17 Medical Report 21 304 03-09-17 Federal Medical Y Y 22 Examiners Certificate 23 1 305 04-13-17 DOT Medical Y Y Examination Report 2 306 06-15-17 DOT Medical Y Y Possibly 3 Examination Report Possibly incomplete incomplete 4 307 04-11-17 Rogers Email Y N 801, 802; String to Appesland Re Y with 105 5 DOT Physical Required11 limiting instruction 6 on non- hearsay 7 purpose 308 04-17-17 Rogers Email to Y N Hearsay; 8 Appesland Re 4-13 Medical Legal Exam conclusion; 9 Fed. R. Evid. 403; 10 subject to MIL 11 309 07-21-17 Rogers Email to Y N Hearsay; Appesland Re Unsigned Legal 12 Medical Certification conclusion; Fed. R. 13 Evid. 403; subject to 14 MIL 310 07-21-17 Rogers Email to Y N Hearsay; 15 Appesland Re Correcting Relevance; Report_Redacted Foundation 16 ; Legal 17 Conclusion ; Fed. R. 18 Evid. 403; subject to 19 MIL
20 21
22 11 Defendant’s descriptions are commentaries on the evidence, prejudicial, and should not be allowed. Plaintiff asked Defendant twice to provide a neutral description, to which the Defendant has refused. Plaintiff requests that any documents provided to the jury contain only neutral descriptions. 23 1 311 07-25-17 Rogers Email to Y N Hearsay; Appesland Re Receipt Of Legal 2 Compliant Medical conclusion; Certification_Redacted12 Fed. R. 3 Evid. 403; subject to 4 MIL 312 04-07-17 Mott Email to Y Y 5 Appesland Re Not Closing Trailer Door13 6 313 04-10-17 Jessen Email to Y Y Appesland Re Trailer Door 7 314 04-10-17 Appesland Email Y Y 8 to Tayman Re Requesting Statement 9 315 04-10-17 Appesland Email Y Y to Appesland Re Jessen 10 Recap Of 04-06-17 316 04-11-17 Tayman Notes Re Y Y 11 Call With Goldstine 12 317 05-03-17 Tayman Email to Y Y Goldstine Re Statement For 13 Doctor 318 04-12-17 Carlson Email to Y Y 14 Tayman Re 04-06-17 Incident 15 319 Withdrawn 16 320 Road Driver Job Description Y Y 17 18 321 Withdrawn
19 322 Withdrawn 20 21 22
23 12 See footnote 14. 13 See footnote 14. 1 325 Withdrawn 2 326 08-03-17 Dolan Email to Y N Hearsay; 3 Wong Re Return to Work Not 803(6) Authorization14 business 4 record b/c prepared in 5 subjective contemplati 6 on of litigation; 7 Legal Conclusion 8 s; “PRIVILE 9 GED AND CONFIDE 10 NTIAL” as marked by 11 attorney author; 12 subject to MIL; 13 relevance; Court’s 14 Prior Ruling on 15 Plaintiff’s MIL 16 327 08-03-17 Certified Letter to N N Hearsay Goldstine Re Return To Y, with 17 Work15 105 limiting 18 instruction 328 08-07-17 To 08-09-17 Y Y 19 Fedex Tracking Emails 20 329 08-18-17 Dolan Email to Y N Hearsay; Wong Re Goldstine Refusal Not 803(6) 21 business
22 14 See footnote 14. 15 See footnote 14. 23 1 to Communicate record b/c Communications16 prepared in 2 subjective contemplati 3 on of litigation; 4 Legal Conclusion 5 s; “PRIVILE 6 GED AND CONFIDE 7 NTIAL” as marked by 8 attorney author; 9 subject to MIL; 10 relevance; Court’s 11 Prior Ruling on 12 Plaintiff’s MIL 13 330 Receipts For Fedex Letter Y Y Delivery Attempts 14 331 Withdrawn 15 16 332 04-18-19 Tayman Notes Re N N Hearsay; Goldstine Communication 403, due to 17 (Dep Ex 7) Collateral Source 18 Rule; Refusal to 19 designate 30(b)(6) 20 representati ve on topic; 21 Relevance; Unredacted 22 SSN;
23 16 See footnote 14. 1 2 333 04-17-19 Tayman Notes Re Y Y 3 Changes to the Story (Dep Ex 9) 17 4 334 EVT- Aaron Jesson Y N Hearsay; Recording.MP3 Fed. R. 5 Evid. 403; lack of 6 personal knowledge 7 335 EVT - Randy Mott Y N Hearsay; Recording.MP3 Fed. R. 8 Evid. 403; lack of 9 personal knowledge 10 336 04-11-17 Mott Email to Y Y Appesland Re Requesting 11 Goldstine Statement 337 Withdrawn 12 13 338 04-19-17 Flick Email to Y N Hearsay; Tayman Re Witness lack of 14 Interviews personal knowledge; 15 Fed. R. Evid. 403 16 339 04-20-17 Flick Email to Y N Hearsay; Tayman Re Additional Mott lack of 17 Info personal knowledge; 18 Fed. R. Evid. 403 19 340 Withdrawn 20 341 Withdrawn 21
23 17 See footnote 14. 1 342 Withdrawn 2 343 04-20-17 Flick Memo to Y N Hearsay; 3 Moore Re Investigative Relevance; Summary_Redacted Fed. R. 4 Evid. 403; subject to 5 MIL regarding 6 firearm and past 7 unsubstanti ated 8 workplace violence 9 investigatio n. 10 Handwritte 11 n statement by Burger 12 regarding “gun” – 13 403, lack of personal 14 knowledge 344 Goldstine Job App with Y N 403 as to 15 Electronic Signature “accident records”; 16 relevance 345 FMSCA Medical Examiner Y N Hearsay, 17 Handbook (1-30) 403 juror confusion, 18 legal conclusion; 19 401 Relevance; 20 Statement of Law is 21 for the Court. 22 346 FMSCA Medical Examiner Y N Hearsay, Handbook (39-42) 403 juror 23 confusion, 1 legal conclusion; 2 401 Relevance; 3 Statement of Law is 4 for the Court. 5 347 FMSCA Medical Examiner Y N Hearsay, Handbook (51-52) 403 juror 6 confusion, legal 7 conclusion; 401 8 Relevance; Statement 9 of Law is for the 10 Court. 348 FMSCA Medical Examiner Y N Hearsay, 11 Handbook (167-173) 403 juror confusion, 12 legal conclusion; 13 401 Relevance; 14 Statement of Law is 15 for the Court 16 349 FMSCA Skill Perfomance Y N Hearsay, Evaluation Certification - 403 juror 17 Sample Initial Letter of confusion, Application legal 18 conclusion; 401 19 Relevance – this case 20 does not involve a 21 Skills Performanc 22 e Evaluation; 23 Statement 1 of Law is for the 2 Court 350 Withdrawn 3 4 351 Everett Service Center N N Hearsay, Medical Recertifications Relevance; 5 Fed. R. Evid. 403; 6 lack of personal 7 knowledge 352 06-06-17 Kingston Email to Y N Hearsay; 8 Goldstine Re Document and Request18 Hearsay 9 within HearsayFe 10 d. R. Evid. 403; lack 11 of personal knowledge; 12 reference to being 13 “banned” is subject of 14 MIL 353 Workplace Violence N N Hearsay; 15 Complaint Complaint re Relevance; Threat19 Fed. R. 16 Evid. 403; prior 17 unsubstanti ated 18 workplace violence 19 investigatio n is subject 20 to MIL 354 04-11-17 Tayman Email to Y Y 21 Carlson Re Goldstine Claim As Disabled American 22
23 18 See footnote 14. 19 See footnote 14. 1 355 Withdrawn 2 356 04-25-17 Appesland Email Y Y 3 to Appesland Re Goldstine Call 4 357 07-26-16 Appesland Email Y N Relevance; to Appesland Re Goldstine 403; 5 Late Departures20 405/608 Character 6 Evidence & 7 Improper Impeachme 8 nt by specific 9 instances of conduct 10 through extrinsic 11 evidence; subject of 12 Court MIL ruling 13 excluding conduct 14 unrelated to 15 termination ; 16 358 04-25-17 Flick Email to Y N Hearsay; Tayman Re Workplace Relevance; 17 Violence Fed. R. Investigation_Redacted21 Evid. 403; 18 subject to MIL 19 359 05-13-17 Tayman N N Hearsay; Handwritten Note Re Not 803(6) 20 Goldstine Canceled business Appointment22 record b/c 21 prepared in
22 20 See footnote 14. 23 21 See footnote 14. 22 See footnote 14. 1 subjective contemplati 2 on of litigation; 3 Legal Conclusion 4 s; Fed. R. Evid. 403 5 360 2015 And 2016 Medical Y N Private 6 Examination identificati Reports_Redacted on 7 information should be 8 redacted23 361 07-31-17 Appesland Email Y Y 9 to Tayman Re Goldstine Failure To Return 10 362 07-27-17 Appesland Email Y Y to Crow Re Goldstine Did 11 Not Call Back24 363 08-11-17 Tayman Email to Y Y 12 Arashiro Re Goldstine Failure To Return - 13 Termination25 364 Withdrawn 14 15 365 Withdrawn 16 366 04-20-17 Appesland Email Y N Hearsay; 17 to Tayman Re Goldstine Fed. R. Did Not Follow Up26 Evid. 403; 18 relevance 367 06-12-17 Goldstine Email to Y Y 19 Appesland Re Dot Permission Slip 20 21
22 23 This has been addressed 24 See footnote 14. 23 25 See footnote 14. 26 See footnote 14. 1 368 06-13-17 Goldstine Email to Y N Relevance; Appesland Re Treatment Fed. R. 2 Authorization Evid. 403 juror 3 confusion 369 Reasonable Accomodation Y N Relevance; 4 Review (RAR) Procedures Fed. R. Evid. 403 5 juror confusion 6 370 2017 Accomodation And Y Y Nondiscrimination Policy 7 371 04-11-17 US Healthworks Y Y 8 Medical Group Treatment Authorization Form 9 372 08-10-17 Corrective Action Y N Hearsay Recap Form - Termination 10 373 Attachment 1 to Partin Y N Violates 11 Report_Redacted collateral source rule 12 2728 374 FMSCA Medical Examiner Y N Hearsay; 13 Handbook - Complete Copy 403 juror confusion; 14 legal conclusion; 15 401 Relevance; 16 Statement of Law is 17 for the Court. 18 375 05-31-17 Tayman Email to Y N Hearsay; Goldstine Re Investigation Not 803(6) 19 Status_Redacted business record b/c 20 prepared in subjective 21 27 Unemployment compensation and workers' compensation benefits are not an offset against an award of 22 damages for economic loss because they come from a collateral source. Hayes v. Trulock, 51 Wn.App. 795, 803– 04, 755 P.2d 830 (1988); Johnson v. Weyerhaeuser Co.,134 Wn.2d 795, 799–800, 953 P.2d 800 (1998). 23 (COMMENT TO WPI 330.81). 28 This has been addressed in redacted document. 1 contemplati on of 2 litigation; Legal 3 Conclusion s; Fed. R. 4 Evid. 40329 376 04-11-17 Appesland Email Y N Hearsay30 5 to Appesland Re Goldstine Statement about Thurs 4-6 6 377 04-11-17 Appesland Email Y N Hearsay32 to Appesland Re Requesting 7 Goldstine Statement31
8 VIII. ACTION BY THE COURT 9 (a) This case is scheduled for trial before a jury on November 2, 2020, at 9:00 a.m.33 10 (b) Supplemental Trial briefs shall be submitted to the court on or before October 21, 2020. 11 (c) Suggested questions of either party to be asked of the jury by the court on voir dire shall 12 be submitted to the court on or before October 28, 2020. 13 (d) Plaintiff requests a Supplemental Jury Questionnaire to be provided to the jurors, which 14 will be filed with the court on October 28, 2020. 15 (e) The parties will be making further recommendation and seeking further guidance regarding 16 the processes for the remote jury trial. 17 18 19
20 29 Plaintiff has waived any objection to this exhibit. This was Plaintiff’s Exhibit 71 in the Pretrial Order filed on October 16, 2020. Dkt. # 268. 30 Plaintiff has waived any objection to this exhibit. This was Plaintiff’s Exhibit 14 in the Pretrial Order filed on 21 October 16,2020. Dkt. 268. 31 See footnote 14. 22 32 Plaintiff has waived any objection to this exhibit. This was Plaintiff’s Exhibit 14 in the Pretrial Order filed on October 16, 2020. Dkt. 268 23 33 Defendant FedEx Freight filed an objection to proceeding with the remote jury trial, which the Court has denied. Defendant does not waive its objection to the remote jury trial proceeding. 1 (f) This order has been approved by the parties as evidenced by the signatures of their counsel. 2 This order shall control the subsequent course of the action unless modified by a 3 subsequent order. This order shall not be amended except by order of the court pursuant 4 to agreement of the parties or to prevent manifest injustice. 5
6 DATED this 2nd day of November, 2020. 7 8 A 9 The Honorable Marsha J. Pechman 10 United States District Judge
11 FORM APPROVED: 12 AKW LAW, P.C. 13 14 /s/ Ada K. Wong___________ Ada K. Wong, WSBA #45936 15 Attorney for Plaintiff Goldstine
17 BLOOM LAW PLLC 18 /s/ Beth Bloom____________ 19 Beth Bloom, WSBA #31702 Attorney for Plaintiff Goldstine 20
21 KARR TUTTLE CAMPBELL
22 /s/ Medora A. Marisseau______________ 23 Medora A. Marisseau, WSBA #23114 1 Brett A. Elliott, WSBA #51157 Attorneys for Defendant 2
3 FEDEX FREIGHT, INC.
4 /s/ Sandra C. Isom_______________ 5 Sandra C. Isom, CA Bar #157374 Attorney for Defendant 6
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
Goldstine v. FedEx Freight, Inc. (Goldstine v. FedEx Freight, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.