Parker v. BNSF Railway Company

Opinion

1 HONORABLE RICHARD A. JONES

8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE

10 Paul W. Parker, Personal Representative of the 11 Estate of Curtis John Rookaird, Case No. 2:14-cv-00176-RAJ Plaintiff, 12 ORDER ON THE PARTIES’ v. 13 MOTIONS IN LIMINE

14 BNSF Railway Company, 15 Defendant. 16 I. INTRODUCTION 17 This matter comes before the Court on the parties’ motions in limine (or “MIL”). 18 Dkt. ## 348, 350, 377. Having reviewed the motions, the record, and files therein, the 19 Court finds that oral argument is unnecessary. The Court’s rulings on the motions are set 20 forth below. 21 II. LEGAL STANDARD 22 Parties may file motions in limine before or during trial “to exclude anticipated 23 prejudicial evidence before the evidence is actually offered.” Luce v. United States, 469 24 U.S. 38, 40 n.2 (1984). To decide motions in limine, the Court is generally guided by 25 Federal Rules of Evidence 401 and 403. Specifically, the Court considers whether 26 evidence “has any tendency to make a fact more or less probable than it would be without 27 1 the evidence” and whether “the fact is of consequence in determining the action.” Fed. 2 R. Evid. 401. However, the Court may exclude relevant evidence if “its probative value 3 is substantially outweighed by a danger of one or more of the following: unfair prejudice, 4 confusing the issues, misleading the jury, undue delay, wasting time, or needlessly 5 presenting cumulative evidence.” Fed. R. Evid. 403. 6 III. DISCUSSION 7 A. Preliminary Issues 8 i. Plaintiff’s Revisions to Motions in Limine 9 Initially, the parties submitted separate motions in limine. Dkt. ## 348, 350. The 10 Court struck those motions. Dkt. # 365 at 11-13. It explained that many of the motions 11 were “recycled from the first trial,” when this case was before Judge Lasnik. Id. at 11. 12 Presenting separate motions in limine, the Court explained, posed a problem: it made it 13 difficult both to determine which evidentiary issues were already decided by Judge 14 Lasnik and to determine “how trial, appeal, remand, and general changes in 15 circumstances have (or have not) affected [his] previous rulings.” Id. at 11. 16 In lieu of the stricken motions, the Court instructed the parties “to reformat and 17 resubmit their respective motions in a joint submission.” Id. at 12. The Court did not 18 invite revisions to the parties’ initial motions and responses. See id. Later, the parties 19 indeed filed that joint submission. Dkt. ## 377. 20 Plaintiff took the Court’s request for a joint submission as an opportunity to revise 21 his own motions in limine and his responses to BNSF’s motions in limine. Dkt. # 377 at 22 1-2. BNSF objects to Plaintiff’s revisions and represents that BNSF “has not changed the 23 arguments or even the wording” of its motions or responses. Id. 24 The Court will not consider Plaintiff’s revised arguments. The purpose of the joint 25 submission was to advise the Court of which motions in limine on retrial are repeats of 26 the first trial. Dkt. # 365 at 11-13. The parties’ initial motion in limine presentation was 27 “unworkable” because it required the Court to “sift through the motions, spot which ones 1 were already ruled on, determine to what extent the circumstances have changed, 2 determine to what extent the parties have changed their arguments on remand, and, given 3 the law of the case, rule on them accordingly.” Id. Plaintiff’s revisions make the process 4 even more unworkable. By revising his motions and responses, Plaintiff effectively asks 5 the Court to assess three versions of the same argument: the one he offered to Judge 6 Lasnik in the first trial, the one he offered to the undersigned on retrial, and the one he 7 offers in the joint submission. The Court will not countenance that process. 8 The Court thus only considers the merits of Plaintiff’s motions and responses as 9 they were initially submitted. Dkt. ## 348, 356. 10 ii. Withdrawn Motions in Limine 11 When preparing their joint statement, the parties each withdrew certain motions in 12 limine. Specifically, Plaintiff withdrew his first and second, and BNSF withdrew its 13 eleventh. Dkt. # 377 at 2. The Court will not address these motions. 14 B. Law of the Case and Bench Trial 15 In deciding the parties’ motions in limine, the Court keeps in mind two premises. 16 First, Judge Lasnik’s prior in limine rulings are law of the case. Second, now that the 17 parties have agreed to a bench trial, the need for in limine rulings has greatly diminished. 18 “[U]nder the law of the case doctrine as applied by this circuit it is error for a court 19 upon retrial to reverse an identical evidentiary ruling made during the first trial.” United 20 States v. Tham, 960 F.2d 1391, 1397 (9th Cir. 1991) (citing United States v. Estrada– 21 Lucas, 651 F.2d 1261, 1263-65 (9th Cir. 1980)). There are two exceptions to this rule: 22 “clear error” or “a change in circumstances.” Id. 23 This case was tried before. Before the first trial, both parties filed motions in 24 limine. Dkt. ## 123, 125. Judge Lasnik ruled on those motions. Dkt ## 167, 168, 201. 25 On remand from the Ninth Circuit, this case must be tried again. As explained above, the 26 parties on remand have again filed motions in limine, Dkt. ## 348, 350, 377. Many of 27 their motions are recycled from the first trial and have already been decided by Judge 1 Lasnik. Dkt. # 365 at 11-13. Judge Lasnik’s in limine rulings are law of the case and 2 binding on this Court, unless the parties can point to clear error or a change in 3 circumstances. 4 What is more, the parties have recently agreed to a bench trial, diminishing any 5 need for threshold evidentiary rulings. Dkt. # 412. “A motion in limine is a procedural 6 mechanism to limit in advance testimony or evidence in a particular area.” United States 7 v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009). In the case of a jury trial, a court’s in 8 limine ruling gives counsel advance notice of the admissibility of certain evidence before 9 counsel tries to use that evidence before a jury. Id. at 1111-12. In the case of a bench 10 trial, however, “any need for an advance ruling evaporate[s].” Id. “[A]sking [a] judge to 11 rule in advance on prejudicial evidence so that the judge w[ill] not hear the evidence,” is 12 “generally superfluous” or “coals to Newcastle.” Id. Now that this case is a bench trial, 13 the need to rule on the parties’ motions in limine is greatly reduced, even eliminated. 14 Taken together, these two premises—law of the case and the diminished need for 15 in limine rulings in a bench trial—sculpt the contours of this order. On remand, the 16 parties have advanced 43 motions in limine. Of those, Judge Lasnik already ruled on 28. 17 And most of the remaining 15 can be better handled in the context of trial, now that 18 prejudicing the jury is no longer a concern. 19 Still, the Court will rule on the following motions in limine: BNSF motion in 20 limine nos. 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 21 and 27, as well as Plaintiff’s motion in limine nos. 3, 5, 6, 7, 8, 9, 12, 13, and 14. The 22 Court finds that, although threshold evidentiary rulings in a bench trial are generally 23 superfluous, ruling on these motions will streamline the issues and save time. The 24 remaining motions in limine are reserved, and the parties will be free to make their 25 objections at trial. 26 C. Parties’ Motions in Limine 27 The Court divides its motion in limine rulings into four groups. First are the 1 motions that Judge Lasnik has already decided and that require no further explanation. 2 For this group, there has been no change in circumstance or error in the prior ruling, so 3 the Court expressly adopts Judge Lasnik’s rulings as law of the case. Second are the 4 motions that Judge Lasnik already decided but that require further elaboration or 5 modification. Next are new, not-yet-decided motions that the Court will decide to 6 streamline some issues at trial. Last are the motions that the Court expressly reserves. 7 The Court addresses each group of motions in limine in turn. 8 i. Previous Motion in Limine Rulings Expressly Adopted 9 Under the law of the case doctrine, “it is error for a court upon retrial to reverse an 10 identical evidentiary ruling made during the first trial.” Tham, 960 F.2d at 1397. There 11 are two exceptions to this rule: clear error or a change in circumstances. Id. 12 On remand, many of the parties’ motions in limine are identical to, or substantially 13 the same as, their previous motions. Judge Lasnik has already ruled on these motions. 14 For many, the circumstances are clearly the same as before, and there is no clear error. 15 The Court sets forth the instant motions and their corresponding Judge Lasnik rulings in 16 the table below: 17 18 Motion in limine on Remand Judge Lasnik’s Ruling 19 BNSF’s Motions in Limine 20 BNSF MIL No. 3 (Dkt. # 350 at 3-4) The Court will not admit media coverage 21 All media reports regarding Plaintiff’s regarding plaintiff’s claim or other 22 termination, the first trial and outcome, as investigations, but will reserve ruling on 23 well as media reports of other OSHA the admissibility of other investigations 24 investigations. and claims until evidence of that type is 25 presented in context. Dkt. # 167 at 1-2 26 (BNSF MIL No. 2). 27 BNSF MIL No. 5 (Dkt. # 350 at 5-6) The Court will instruct the jury on the 1 Any evidence or argument about relevant law and therefore will exclude 2 Congressional intent or Congressional argument or evidence regarding 3 hearing statements or testimony of any congressional intent. The congressional 4 person (including but not limited to, testimony of Mark Schultze or other 5 testimony of BNSF senior officer Mark railroad employees may, under limited 6 Schultze). circumstances, be admissible. See In re 7 Oil Spill by the Oil Rig DEEPWATER 8 HORIZON in the Gulf of Mexico, on Apr. 9 20, 2010, 2012 WL 425164, at *2 (E.D. 10 La. Feb. 9, 2012). The Court therefore 11 denies this aspect of defendant’s request 12 without prejudice to defendant raising 13 specific objections to specific prior 14 testimony offered by plaintiff at trial. 15 Dkt. # 167 at 2-3 (BNSF MIL No. 4). 16 BNSF MIL No. 12 (Dkt. # 350 at 10) There is no specific evidence that 17 Documents and photographs not identified defendant seeks to exclude at this time, so 18 in discovery. the Court will not rule on this motion 19 unless and until plaintiff seeks to 20 introduce previously undisclosed evidence 21 and the Court has an opportunity to assess 22 whether the failure to disclose the 23 evidence was substantially justified or 24 harmless. Dkt. # 167 at 5-6 (BNSF MIL 25 No. 13). 26 BNSF MIL No. 15 (Dkt. # 350 at 12) The jury will be generally aware of many 27 Reference to any railroad reasons why the safety of trains is 1 accidents/incidents, to “bomb trains,” or important. On the other hand, allowing 2 the fact that BNSF transports crude oil or plaintiff to introduce evidence of train 3 coal. cargo or incidents that have little, if any, 4 relevance to the incidents at issue creates a 5 substantial risk of unfair prejudice to 6 defendant. Dkt. # 167 at 6 (BNSF MIL 7 No. 15). 8 9 BNSF MIL No. 16 (Dkt. # 350 at 12) There appears to be no connection 10 Budget cuts made by BNSF, layoffs, or between any BNSF budget cuts and 11 furloughs. Rookaird’s claims. Therefore, not only is 12 the evidence irrelevant, any scant 13 relevance it may have is outweighed by 14 the risk to the defendant if plaintiff 15 introduces evidence that invites the jury to 16 speculate regarding the effect budget cuts 17 may have had on safety priorities. Dkt. 18 # 167 at 6-7 (BNSF MIL No. 16). 19 BNSF MIL No. 18 (Dkt. # 350 at 13) The Court has already dealt with the 20 Discovery orders or discovery issues. discovery issues that have arisen in this 21 case, and there is no legitimate reason that 22 the jury needs to be aware of them. Dkt. 23 # 167 at 7 (BNSF MIL No. 18). 24 25 BNSF MIL No. 20 (Dkt. # 350 at 14) The Court denied plaintiff’s motion to 26 Testimony of Greg Fox and other “apex” compel the deposition of BNSF COO Carl 27 level BNSF management personnel. Ice (Dkt. # 104), and the Court’s rationale 1 applies equally to Greg Fox. Plaintiff 2 offers no other reason for requiring their 3 testimony beyond the reasons plaintiff 4 already articulated in his unsuccessful 5 motion to compel Ice’s deposition. 6 Plaintiff also objects that the “apex” level 7 officials are insufficiently defined. To the 8 extent there is some question regarding 9 whether a potential witness is an “apex” 10 BNSF employee, the parties are directed 11 to confer and, in the event that there is a 12 dispute that cannot be resolved, seek the 13 guidance of the Court. Dkt. # 167 at 8 14 (BNSF MIL No. 20). 15 BNSF MIL No. 21 (Dkt. # 350 at 14) The parties agree that the emotional 16 Emotional Distress or Related Treatment distress of non-party members of 17 of Kelly Rookaird and their Children. Rookaird’s family is not compensable. 18 The Court will resolve disputes regarding 19 the appropriate scope of testimony 20 regarding plaintiff’s emotional distress in 21 the context of trial. Dkt. # 167 at 8 22 (BNSF MIL No. 21). 23 BNSF MIL No. 24 (Dkt. # 350 at 15-16) Because plaintiff has not identified the 24 References to BNSF’s “Northwest specific discovery requests that he claims 25 Division Investigation Log”. defendant failed to respond to, nor has he 26 identified a discovery ruling regarding the 27 logs that defendant has not complied with, 1 the Court will not allow any reference to 2 the fact that defendant did not produce the 3 Northwest Division Investigation Log. 4 Plaintiff’s opposition suggests that he does 5 have some logs in his possession, though 6 it is unclear which ones or how he 7 obtained them. To the extent that plaintiff 8 can lay a proper foundation for this 9 evidence, and to the extent that it is 10 otherwise admissible, the Court may allow 11 it. Dkt. # 167 at 9 (BNSF MIL No. 24). 12 BNSF MIL No. 25 (Dkt. # 350 at 16) Because the only allegedly protected 13 Testimony, references, or argument activities properly at issue are those 14 related to Ron Krich allegedly violating related to the air brake testing and 15 hours of service laws. Rookaird’s subsequent reports, evidence 16 or argument regarding Ron Krich and 17 hours of service laws is irrelevant. Dkt. 18 # 167 at 10 (BNSF MIL No. 25). 19 Plaintiff’s Motions in Limine 20 Plaintiff MIL No. 3 (Dkt. # 348 at 4-5) Plaintiff seeks to exclude the reports and 21 Testimony on Legal Conclusions testimony of defendant’s expert Brian 22 Keikkila, as well as any lay witness 23 testimony regarding a legal conclusion. 24 Plaintiff’s motion sweeps too broadly, and 25 the appropriate scope of both expert and 26 lay testimony is better addressed in 27 response to specific objections at trial. 1 Dkt. # 168 at 3-4 (Plaintiff MIL No. 8). 2 Plaintiff MIL No. 6 (Dkt. # 348 at 8) Plaintiff seeks to prevent argument 3 Comments as to Rookaird’s Motive and regarding Rookaird’s financial motivation 4 Effect on Railroad and Insurance Rates for bringing this lawsuit or the effect that 5 an award of damages would have on 6 BNSF’s rates. Defendant does not oppose 7 this motion in limine. Dkt. # 168 at 2 8 (Plaintiff MIL No. 4). 9 Plaintiff MIL No. 7 (Dkt. # 348 at 8-9) Plaintiff seeks to prevent defendant from 10 Character of the Defendant Railroad referring to itself “as a ‘family,’ a ‘good 11 corporate citizen,’ that its business is of 12 benefit to the public at large, or similar 13 flower[y] language.” Dkt. # 125 at 9. 14 Defendant does not object to this portion 15 of plaintiff’s motion. . . . BNSF’s ability 16 to defend itself depends upon presenting 17 evidence regarding its approach to safety, 18 particularly its response to plaintiff’s 19 actions. The Court will not exclude all 20 evidence regarding BNSF’s approach to 21 safety, and objections regarding the 22 relevance or admissibility of specific 23 safety-related information are better 24 addressed in the context of trial. Dkt. 25 # 168 at 2-3 (Plaintiff MIL No. 5). 26 Plaintiff MIL No. 8 (Dkt. # 348 at 9) Plaintiff seeks to exclude evidence 27 Kelly Rookaird’s Employment History or regarding Kelly Rookaird’s employment 1 Earning Capacity history, and defendant has represented that 2 it does not intend to introduce evidence or 3 argument on this topic in its case in chief. 4 Defendant, however, notes that Ms. 5 Rookaird’s direct testimony may make 6 information regarding her employment 7 history relevant on cross-examination. The 8 Court will grant this motion in limine but 9 will allow defendant to raise specific 10 arguments at trial regarding how 11 plaintiff’s direct examination opened the 12 door to make Ms. Rookaird’s employment 13 history relevant. Dkt. # 168 at 3 (Plaintiff 14 MIL No. 6). 15 Plaintiff MIL No. 9 (Dkt. # 348 at 9) The Court will grant this motion in limine 16 Any Delay in Filing Income Tax Returns but will allow defendant to make specific 17 arguments at trial regarding the relevance 18 of this evidence for damages calculations. 19 Dkt. # 168 at 3 (Plaintiff MIL No. 7). 20 For the above motions, the parties have not adequately explained how the 21 circumstances have changed on remand or how Judge Lasnik’s rulings clearly erred. 22 Thus, under the law of the case doctrine, the Court on retrial ADOPTS each of Judge 23 Lasnik’s rulings as its own. 24 ii. Previously Decided Motions in Limine 25 Like the motions in the previous group, the motions below have already been 26 decided by Judge Lasnik. But for these motions, the Court must elaborate further either 27 because doing so will provide extra clarity or because the circumstances have, in fact, 1 changed. 2 BNSF’s Motion in Limine No. 2 3 On summary judgment, this Court ruled that only three allegedly protected 4 activities under the Federal Railroad Safety Act (“FRSA”) could proceed to trial: Mr. 5 Rookaird’s refusal to stop the airbrake test, his contacting the Federal Railroad 6 Administration (“FRA”) about the test, and his contacting the BNSF rules hotline about 7 the test. Dkt. # 156 at 6-9. 8 Before the first trial, BNSF moved in limine to prevent Plaintiff from presenting 9 evidence of any other potentially alleged protected activities. Dkt. # 167 at 1 (BNSF 10 MIL No.1). Judge Lasnik granted the motion, holding that only the “air brake testing and 11 Rookaird’s subsequent reports” were at issue. Id. 12 Now, BNSF renews its initial motion. Dkt. # 350 at 2-3. On remand, it argues 13 that the Court should prohibit Plaintiff from raising any other allegedly protected 14 activities beyond the airbrake test. Id. Specifically, BNSF says that Plaintiff should not 15 be able to introduce evidence or argument about Plaintiff’s contacting of the FRA or of 16 the BNSF hotline. Id. For his part, Plaintiff says that he does not intend to argue other 17 protected activities besides the airbrake test. Dkt. # 356 at 2-3. 18 The Court finds that circumstances have changed since Judge Lasnik decided this 19 motion in limine. Judge Lasnik previously allowed three allegedly protected activities to 20 proceed to trial. After the first trial, however, the jury found that Plaintiff only proved 21 the necessary elements for one, the air brake test, not the other two allegedly protected 22 activities. Dkt. # 221. Thus, the other two activities are outside the scope of remand and 23 irrelevant, and the Court GRANTS the motion. 24 BNSF’s Motion in Limine No. 4 25 BNSF moves to exclude evidence or argument of “[a]lleged retaliatory 26 termination, dismissal or discipline of any other employee.” Dkt. # 350 at 4-5. The 27 company argues that the facts of this case are “patently unique” and thus “dismissals, 1 disciplines, lawsuits, or claims” regarding other employees are irrelevant. Id. This 2 motion is the same, or substantially the same, as a motion in limine that BNSF made 3 before the first trial. Dkt. # 123 at 4 (MIL No. 3). Judge Lasnik already ruled on that 4 motion. Dkt. # 167 at 2 (MIL No. 3). He reserved ruling on the motion and explained: 5 This request sweeps broadly, and the Court will not exclude all evidence that may fall into this category without the benefit of the context that would 6 be provided in trial. The Court is, however, sensitive to the defendant’s 7 concern that this type of evidence should generally be excluded under Federal Rules of Evidence 401-403 and 404(b). Therefore, to the extent 8 plaintiff wishes to introduce evidence in this category, he must identify the 9 employee with allegedly similar circumstances in advance, and defendant may object at that time. Until such time as the Court gives specific 10 authority for plaintiff to refer to a specific other matter, there should be no reference to this category of evidence in the trial, including jury selection 11 and opening statement. 12 Id. (emphasis added). 13 The circumstances have not changed, and the Court finds no error. Thus, the 14 Court ADOPTS Judge Lasnik’s ruling. The Court reiterates that any “comparator” 15 evidence—that is, evidence of treatment of other employees—must be identified in 16 advance of the witness’s testimony with a brief proffer by Plaintiff’s counsel, and BNSF 17 may object at that time. 18 BNSF’s Motion in Limine No. 6 19 BNSF moves to exclude evidence or argument about “Berkshire Hathaway, 20 Warren Buffet, and the financial condition of BNSF.” Dkt. # 350 at 6. This motion is the 21 same, or substantially the same, as a motion in limine that BNSF made before the first 22 trial. Dkt. # 123 at 6 (MIL No. 5). Judge Lasnik already ruled on that motion. Dkt. # 23 167 at 3 (MIL No. 5). 24 Previously, Plaintiff did not oppose BNSF’s motion to the extent it sought to 25 exclude evidence or argument about Berkshire Hathaway or Warren Buffet. Id. But now 26 Plaintiff suggests that Berkshire Hathaway is relevant because “BNSF management is 27 1 governed by the Berkshire Hathaway code of conduct.” Dkt. # 356 at 7. 2 The Court disagrees. Though Plaintiff suggests that the code of conduct would be 3 relevant, he does not explain why, and the Court sees almost no probative value in such 4 evidence or argument. In any event, the circumstances have not changed, and the Court 5 finds no error. Thus, the Court ADOPTS Judge Lasnik’s ruling. 6 BNSF’s Motion in Limine No. 7 7 BNSF moves to exclude testimony about its Personal Performance Index (“PPI”) 8 or ERP safety program. Dkt. # 350 at 6-7. This motion is the same, or substantially the 9 same, as a motion in limine that BNSF made before the first trial. Dkt. # 123 at 6-7 (MIL 10 No. 6). Judge Lasnik already ruled on that motion. Dkt. # 167 at 3 (MIL No. 6). 11 Circumstances have technically changed since then because Plaintiff no longer opposes 12 this motion. Dkt. # 356 at 7. But Judge Lasnik previously granted the motion over 13 Plaintiff’s previous objections anyway. Thus, despite the technical change in 14 circumstances, the Court ADOPTS Judge Lasnik’s ruling. 15 BNSF’s Motion in Limine No. 8 16 BNSF moves to exclude evidence or argument about “the threat of terrorism or 17 special safety concerns in the New Westminster Subdivision because of the 2010 Winter 18 Olympics.” Dkt. # 350 at 7. This motion is the same, or substantially the same, as a 19 motion in limine that BNSF made before the first trial. Dkt. # 123 at 7-8 (MIL No. 8). 20 Judge Lasnik already ruled on that motion. Dkt. # 167 at 4 (MIL No. 8). 21 Plaintiff asks the Court to revisit Judge Lasnik’s ruling. Dkt. # 356 at 7-8. He 22 says that “the Ninth Circuit’s mandate regarding Rookaird’s substantive case” makes this 23 evidence “of more significant relevance.” Id. He then makes the same argument as 24 before: this evidence is necessary to “contextualize the pressures that the railroad was 25 operating under” when Mr. Rookaird performed the air brake test. Id. 26 The Court has reviewed the Ninth Circuit’s decision and sees no reason why this 27 information has become relevant. Plaintiff’s conclusory arguments are no help. The 1 Court concludes that circumstances have not changed since Judge Lasnik’s previous 2 ruling, and the Court also finds no error. Thus, the Court ADOPTS Judge Lasnik’s 3 ruling. 4 BNSF’s Motion in Limine No. 9 5 BNSF moves to exclude evidence or argument of “[a]ny statistical analysis by any 6 expert or lay witness not based on railroad statistics.” Dkt. # 350 at 8. This motion is the 7 same, or substantially the same, as a motion in limine that BNSF made before the first 8 trial. Dkt. # 123 at 8 (MIL No. 9). Judge Lasnik already ruled on that motion. Dkt. # 9 167 at 4 (MIL No. 9). 10 Plaintiff raises new arguments. Dkt. # 356 at 8. For example, he says that such 11 information may be relevant to prove Mr. Rookaird’s damages since 2010. Id. 12 The Court need not address any new arguments, however, because Judge Lasnik 13 previously denied this motion in limine, explaining that cross examination could resolve 14 any relevance concerns. Given that the circumstances have not changed and that there is 15 no error, Plaintiff’s objections are academic. The Court ADOPTS Judge Lasnik’s ruling. 16 BNSF’s Motion in Limine No. 10 17 BNSF moves to exclude testimony or evidence of the loss of Mr. Rookaird’s home 18 to foreclosure or reference to his or his family’s financial condition. Dkt. # 350 at 8. 19 This motion is the same, or substantially the same, as a motion in limine that BNSF made 20 before the first trial. Dkt. # 123 at 8 (MIL No. 10). Judge Lasnik already ruled on that 21 motion. Dkt. # 167 at 4-5 (MIL No. 10). He held that this evidence is irrelevant because 22 consequential damages are not recoverable under the FRSA. Id. But he held that such 23 evidence may be relevant to prove emotional distress damages. Id. 24 The circumstances have not changed, and the Court finds no error. The Court 25 ADOPTS Judge Lasnik’s ruling. 26 BNSF’s Motion in Limine No. 13 27 BNSF moves to exclude evidence or argument of “[t]he January 10, 2013 Accord 1 between OSHA and BNSF or any negotiations regarding the same.” Dkt. # 350 at 10. 2 This motion is the same, or substantially the same, as a motion in limine that BNSF made 3 before the first trial. Dkt. # 123 at 11-12 (MIL No. 14). Judge Lasnik already decided 4 that motion. Dkt. # 167 at 6 (MIL No. 14). 5 He reserved ruling on the motion because the relevance of the Accord and other 6 lawsuits was uncertain without context. Id. He held, “To the extent plaintiff wishes to 7 introduce evidence in this category, he must identify the case with allegedly similar 8 circumstances in advance, and defendant may object at that time.” Id. 9 The circumstances have not changed, and the Court finds no error. The Court 10 ADOPTS Judge Lasnik’s ruling. 11 BNSF’s Motion in Limine No. 17 12 BNSF moves to exclude evidence or argument of “OSHA’s findings regarding 13 Plaintiff’s termination.” Dkt. # 350 at 12-13. After he was terminated, Mr. Rookaird 14 filed an OSHA complaint against BNSF. Id. OSHA later issued findings and a 15 preliminary order. Id. The parties objected to the findings, requesting review from an 16 administrative law judge. Id. The hearing never took place, however, because Plaintiff 17 filed the instant action. Id. 18 This motion is the same, or substantially the same, as a motion in limine that 19 BNSF made before the first trial. Dkt. # 123 at 13 (MIL No. 17). Judge Lasnik deferred 20 ruling on that motion, explaining that he would address the admissibility of the OSHA 21 findings before opening statements. Dkt. # 167 at 7 (MIL No. 17). 22 Circumstances have changed since Judge Lasnik delivered his in limine ruling. In 23 a later order, he excluded OSHA’s findings and preliminary order under Federal Rule of 24 Evidence 403. Dkt. # 201. On remand, Plaintiff only argues why the findings and order 25 are relevant, but he does not explain why they are not prejudicial. Dkt. # 356 at 13. 26 Given the change of circumstances, the Court GRANTS BNSF’s seventeenth 27 motion in limine. 1 BNSF’s Motion in Limine No. 19 2 BNSF moves to exclude evidence or argument of a March 17, 2020 report 3 rendered by FRA inspector James A. Kromwall. Dkt. # 350 at 13-14. Dkt. # 350 at 10. 4 The company explains that Mr. Kromwall issued the report weeks after Mr. Rookaird 5 conducted the air brake test and was fired. Id. This motion is the same, or substantially 6 the same, as a motion in limine that BNSF made before the first trial. Dkt. # 123 at 13-14 7 (MIL No. 19). Judge Lasnik already ruled on that motion. Dkt. # 167 at 7-8 (MIL No. 8 19). He explained that Plaintiff failed to show why the evidence was relevant and 9 granted BNSF’s motion. Id. 10 On remand, Plaintiff tries to argue relevance for the first time. Dkt. # 356 at 14. 11 He says that the report shows “the importance of air-brake testing” within the industry, 12 such as the attendant safety benefits. Id. 13 Plaintiff’s argument fails for two reasons. First, it fails to identify any change in 14 circumstance or clear error. Second, the importance of air-brake testing in the railroad 15 industry is hardly relevant—it has no consequence to the remaining issues on remand. 16 Dkt. # 365 at 5 (the contributing-factor element, BNSF’s affirmative defense, and 17 damages). And any relevance it may have is substantially outweighed by confusing the 18 issues. 19 The circumstances have not changed, and the Court finds no error. The Court 20 ADOPTS Judge Lasnik’s ruling. 21 BNSF’s Motion in Limine No. 22 22 BNSF moves to exclude evidence or argument of its Employee Performance 23 Tracking System (“EPTS”), a database “containing information regarding disciplinary 24 action imposed upon BNSF employees since late spring/early summer of 2011.” Dkt. 25 # 350 at 14-15. The company says that EPTS, created in “May or June of 2011” and 26 “well after the events giving rise to plaintiffs’ termination,” is irrelevant. Id. (emphasis 27 omitted). 1 This motion is the same, or substantially the same, as a motion in limine that 2 BNSF made before the first trial. Dkt. # 123 at 15-16 (MIL No. 22). In his previous 3 opposition to that motion, Plaintiff argued that BNSF failed to produce EPTS information 4 during discovery and argued that “the Jury should be allowed to infer that the evidence 5 would be unfavorable to the railroad’s position.” Dkt. # 136 at 14-15. Judge Lasnik 6 rejected Plaintiff’s argument and granted BNSF’s motion. Dkt. # 167 at 8-9 (MIL No. 7 22). He explained that Plaintiff failed to identify his specific discovery requests 8 concerning EPTS or any discovery order from the Court about EPTS. Id. 9 Since Judge Lasnik’s initial ruling, circumstances have changed. BNSF has since 10 produced some EPTS records to Plaintiff. Dkt. # 350 at 14-15; Dkt. # 377 at 5. 11 EPTS evidence in hand, Plaintiff now argues that evidence or argument 12 concerning the database should not be excluded. Dkt. # 356 at 15-16. He concedes that 13 the existence of the database and the date of its creation are unimportant. Id. But he 14 argues that “the comparators contained within the EPTS system” are relevant because 15 they reveal how BNSF disciplined other employees “similarly situated” to Mr. Rookaird. 16 Id. 17 Given the change in circumstances, the Court must rule on this motion anew. The 18 Court finds BNSF’s arguments unpersuasive. The database itself may have come into 19 existence after Mr. Rookaird was terminated. But the information within the database— 20 information about how BNSF disciplined its other employees—is relevant to the 21 remaining issues on remand, namely BNSF’s affirmative defense that it would have 22 terminated Mr. Rookaird despite his refusal to stop the airbrake test. That said, relevant 23 as such evidence may be, the Court echoes its ruling on BNSF’s fourth motion in limine: 24 “comparator” evidence is better dealt with in the context of trial. 25 Thus, the Court RESERVES ruling on BNSF’s twenty-second motion in limine. 26 Like its ruling on BNSF’s fourth motion in limine, Plaintiff must raise EPTS comparator 27 evidence in advance of the witness’s testimony with a brief proffer by Plaintiff’s counsel, 1 and BNSF may object at that time. 2 BNSF’s Motion in Limine No. 23 3 BNSF moves to exclude “[t]estimony of Andrea Smith or [r]eferences [t]hereto.” 4 Dkt. # 350 at 15. It anticipates that Plaintiff will call Ms. Smith “to manufacture 5 uncertainty about when the EPTS system went into effect.” Id. This motion is the same, 6 or substantially the same, as a motion in limine that BNSF made before the first trial. 7 Dkt. # 123 at 16-17 (MIL No. 23). Judge Lasnik already ruled on that motion. Dkt. # 8 167 at 9 (MIL No. 23). He reasoned that Ms. Smith would only be called to discuss the 9 EPTS database and that, given his exclusion of the EPTS database, her testimony would 10 no longer be relevant. Id. 11 Like BNSF’s twenty-second motion, circumstances have changed since Judge 12 Lasnik’s initial ruling. Plaintiff now has some EPTS records. Plaintiff argues that Ms. 13 Smith’s testimony may lay the foundation for those records because she “understands the 14 ETPS system and can testify as to the reports that the system can generate, who at BNSF 15 reviews those reports, and whether audits are done to ensure compliance and consistency 16 throughout the EPTS system.” Dkt. # 356 at 16. 17 Given the change in circumstances, the Court must rule anew. Plaintiff, 18 apparently, does not intend to illicit comparator evidence from Ms. Smith. He only 19 intends to call her so that she can lay foundation for the EPTS system. As the Court 20 explained in its previous ruling, now that the parties and the Court are aware of what kind 21 of data the database contains, the EPTS is no doubt relevant. 22 To the extent that Ms. Smith is called to lay foundation for the EPTS, the Court 23 DENIES BNSF’s twenty-third motion in limine. If Ms. Smith is asked to testify about 24 comparator evidence, the Court’s rulings on BNSF’s fourth and twenty-second motions 25 in limine apply. 26 Plaintiff’s Motion in Limine No. 5 27 Plaintiff moves to exclude evidence or argument of a Public Law Board decision 1 about Mr. Rookaird’s termination. Dkt. # 348 at 6-7. This motion is the same, or 2 substantially the same, as a motion in limine that Plaintiff made before the first trial. Dkt. 3 # 125 at 5-8 (MIL No. 3). Judge Lasnik deferred ruling on that motion, explaining that 4 he would address the admissibility of the Public Law Board’s findings before opening 5 statements. Dkt. # 168 at 2 (MIL No. 3). 6 Like BNSF’s seventeenth motion in limine, circumstances have changed since 7 Judge Lasnik delivered this in limine ruling. In a later order, he excluded the Public Law 8 Board’s decision under Federal Rule of Evidence 403. Dkt. # 201. 9 Given the change of circumstances, the Court GRANTS Plaintiff’s fifth motion in 10 limine. 11 iii. New Motions in Limine 12 The following motions in limine are new. The parties make them for the first time 13 on remand, and they were not decided by Judge Lasnik. The Court does not rule on 14 every new motion in limine, however, only the ones that it believes may streamline trial. 15 BNSF’s Motion in Limine No. 14 16 BNSF moves to exclude evidence or argument of “[a]ny other lawsuits or the 17 results thereof against BNSF based on the FRSA.” Dkt. # 350 at 11-12. It says that any 18 other claims or lawsuits against BNSF are irrelevant and unduly prejudicial because this 19 case is “patently unique.” Id. This motion in limine, at bottom, is about the use of 20 comparator evidence. The Court has already ruled on the admissibility of such evidence. 21 See supra BNSF Motion in Limine Nos. 4 & 22. The Court again echoes those rulings: 22 comparator evidence is best dealt with in the context of trial. 23 Thus, the Court RESERVES ruling on BNSF’s fourteenth motion in limine. 24 Plaintiff must raise comparator evidence in advance of the witness’s testimony with a 25 brief proffer by Plaintiff’s counsel, and BNSF may object at that time. 26 BNSF’s Motion in Limine No. 27 27 BNSF moves to exclude testimony from Plaintiff’s expert, Brandon Ogden. Dkt. 1 # 350 at 17. The company argues that Mr. Ogden’s expert report is untimely and 2 unreliable. Id. 3 This Court already struck Mr. Ogden’s expert report. Dkt. # 365 at 8-11. The 4 Court held that Plaintiff’s disclosure of the expert report was untimely and not 5 substantially justified or harmless. Id. Ultimately, the Court struck the report and 6 prohibited Mr. Ogden from testifying at trial. Id. 7 Opposing BNSF’s motion in limine, Plaintiff requests that the Court “reconsider” 8 its previous order striking Mr. Ogden’s report. Dkt. # 377 at 7. Plaintiff’s request is 9 improper. In this order, the Court is deciding the parties’ motions in limine. It is not 10 reconsidering past orders. The Court’s previous order striking Mr. Ogden’s report went 11 unchallenged; neither party moved to reconsider. The order stands. 12 Thus, the Court GRANTS BNSF’s twenty-seventh motion in limine. 13 Plaintiff’s Motion in Limine No. 12 14 Plaintiff moves to exclude any evidence or argument that Mr. Rookaird violated 15 BNSF policies, other than those violations that BNSF alleged during the first trial. Dkt. 16 # 348 at 12. BNSF does not oppose the motion. Dkt. # 354 at 12. 17 Given the lack of opposition, the Court GRANTS Plaintiffs’ twelfth motion in 18 limine. 19 Plaintiff’s Motion in Limine No. 13 20 Plaintiff moves to exclude BNSF’s evidence of “mitigation of damages.” Dkt. 21 # 348 at 12-13. He says that BNSF’s expert, Shelly Lewis, rendered an “unduly 22 speculative” report that should be excluded under Federal Rule of Evidence 403. Id. 23 According to Plaintiff, Ms. Lewis’s report was deficient for many reasons. Id. Among 24 them is that Ms. Lewis identified other positions that Mr. Rookaird could have obtained 25 after he was fired from BNSF, but she failed “to establish that Rookaird was qualified for 26 those positions.” Id. at 13. 27 BNSF argues that Ms. Lewis’s opinions are not speculative; they are “actual 1 railroad positions that were available between 2009 and 2019 that Plaintiff did not apply 2 for.” Dkt. # 354 at 12-13. 3 The Court begins by reaffirming its previous order striking Ms. Lewis’s expert 4 report “to the extent that [her] . . . report[] opine[s] on damages before May 2016.” Dkt. 5 # 395 at 5-6 (emphasis added). Next, because Plaintiff’s motion in limine is brought 6 under Rule 403 grounds and because this is a bench trial, the Court reserves ruling on the 7 motion. Without the benefit of context, the Court cannot weigh the prejudicial nature of 8 Ms. Lewis’s testimony against its probative value, and the Court need not protect the jury 9 from its disclosure. Plaintiff is free to make his objections at trial. 10 Thus, the Court RESERVES ruling on Plaintiff’s thirteenth motion in limine. 11 Plaintiff’s Motion in Limine No. 14 12 Plaintiff moves to exclude BNSF expert Mark Erwin. Dkt. # 348 at 14-17. He 13 claims that Mr. Erwin’s report, which employs a “cohort” approach to measure Mr. 14 Rookaird’s potential earning capacity, is “fundamentally inadequate.” Id. One reason it 15 is deficient, he says, is that Mr. Erwin “fails to account for the unique pay structure and 16 job bidding process” available to “veteran” railroad employees like Mr. Rookaird. Id. 17 Under what authority Plaintiff brings this motion in limine is unclear. He does not 18 cite any evidentiary rule. BNSF presumes that Plaintiff proceeds under Rule 702. Dkt. 19 # 354 at 13-18. 20 The Court reserves ruling on this motion in limine. Even if Plaintiff’s motion is 21 being brought under Daubert, the Court’s gatekeeping responsibilities are greatly 22 diminished in a bench trial. United States v. Flores, 901 F.3d 1150, 1165 (9th Cir. 2018) 23 (“In bench trials, the district court is able to make its reliability determination during, 24 rather than in advance of, trial.” (quoting In re Salem, 465 F.3d 767, 777 (7th Cir. 2006)) 25 (collecting cases). Plaintiff is free to make objections to Mr. Erwin’s testimony during 26 trial. Separately, the Court reaffirms its previous order striking Mr. Erwin’s report “to 27 the extent that [it] opine[s] on damages before May 2016.” Dkt. # 395 at 5-6 (emphasis 1 added). 2 Thus, the Court RESERVES ruling on Plaintiff’s fourteenth motion in limine. 3 iv. Reserved Motions in Limine 4 As explained above, once a case becomes a bench trial, the need for an advanced 5 evidentiary ruling generally “evaporate[s].” United States v. Heller, 551 F.3d 1108, 6 1111-12 (9th Cir. 2009). “In limine,” or “at the outset,” rulings enable a court to resolve 7 admissibility issues of certain evidence before counsel tries to use the evidence before a 8 jury. Id. When the judge is a factfinder, however, advanced rulings often become “coals 9 to Newcastle.” Id. 10 For that reason, the Court RESERVES ruling on the remaining motions in limine. 11 Specifically, the Court reserves ruling on BNSF motion in limine nos. 1, 26, 28, 29, 30, 12 31, and 32, as well as Plaintiff’s motion in limine nos. 4, 10, and 11. 13 IV. CONCLUSION 14 The Court rules on the parties’ motions in limine as set forth above. Dkt. ## 348, 15 350, 377. Counsel for both parties are instructed to admonish their witnesses to abide by 16 this Court’s order on the motions in limine. Failure to do so may result in sanctions. 17 18 DATED this 15th day of October, 2021. A 19

20 The Honorable Richard A. Jones 21 United States District Judge 22 23 24 25 26 27