Polskie Linie Lotnicze Lot SA v. The Boeing Company

Opinion

2 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 3 AT SEATTLE

5 POLSKIE LINIE LOTNICZE LOT S.A., Case No. C21-1449RSM

6 Plaintiff, ORDER RE: MOTIONS IN LIMINE

7 v. 8 THE BOEING COMPANY, 9 Defendant. 10

11 I. INTRODUCTION 12 This matter comes before the Court on Plaintiff Polskie Linie Lotnicze LOT S.A. 13 14 (“LOT”)’s Motions in Limine, Dkt. #196, and Defendant the Boeing Company’s (“Boeing”)’s 15 Motions in Limine, Dkt. #200. The Court has determined it can rule on these Motions without 16 oral argument. For the reasons below, these Motions are GRANTED, DENIED, and 17 DEFERRED as stated below. 18 19 II. PLAINTIFF’S MOTIONS IN LIMINE 20 1. LOT first moves to preclude Boeing from offering evidence or argument that the Covid- 21 19 pandemic entitles Boeing to “offset” LOT’s damages. Dkt. #196 at 4. More 22 specifically, LOT asks to preclude the argument that “LOT did not have to make lease 23 payments or incur other costs for the ten MAX aircraft that Boeing was unable to 24 25 deliver due to the MAX grounding” and that LOT thus saved money because its fleet 26 was grounded due to the pandemic. Id. The parties appear to dispute what Boeing 27 intends to argue. If Boeing intends to argue only that LOT’s unpaid lease payments 28 should be factored into the damages calculation, this is a benefit received by the injured party due to the wrongdoers’ conduct and permissible under Washington’s collateral 1 2 source rule. See Gilmore v. Jefferson Cnty. Pub. Transportation Benefit Area, 190 3 Wn.2d 483, 498–99 (2018). If Boeing strays into arguing that LOT could not have 4 profited from the use of functional 737 MAX planes during the pandemic, it may 5 violate this rule. In any event, LOT is free to argue to the jury that the facts do not 6 support an offset of damages under the above law; Boeing is free to argue that an offset 7 8 is permitted, so long as the law is correctly stated in the jury instructions. LOT also 9 argues that the damages calculation of Boeing’s expert witnesses is speculative; this 10 goes to the weight of the evidence and/or should have been included in a prior Daubert 11 motion. Accordingly, this Motion is DENIED. 12 13 2. LOT next moves to preclude Boeing from introducing evidence of the parties’ 14 settlement negotiations, “including LOT’s internal preliminary and partial damages 15 calculations.” Dkt. #196 at 6. FRE 408 expressly prohibits evidence of compromise 16 offers and negotiations. Boeing says it does not intend to offer settlement 17 communications. The parties appear to be talking past each other. If LOT can 18 19 demonstrate that some specific evidence being offered by Boeing was revealed only in 20 settlement talks, it will be excluded under FRE 408. However, if Boeing can show that 21 the evidence came from outside settlement talks, it will not be excluded under this rule. 22 Specifics are not discussed, and the Court cannot rule in a vacuum. This Motion is thus 23 DEFERRED. 24 25 3. LOT’s third Motion seeks to preclude Boeing from discussing the termination of LOT’s 26 former CEO, Rafal Milczarski, who will be testifying as a witness. LOT provides no 27 details, other than to say that his departure as CEO may be used to portray him in a 28 negative light, which is impermissible under FRE 403 and FRE 611(a)(3). Boeing 1 2 responds without details, hinting only that evidence about Milczarski’s departure “may 3 be necessary” because it may, for example, bear on his “character for truthfulness” or 4 his “potential bias,” or it may somehow be used for impeachment. Dkt. #210 at 11–12. 5 As far as the Court can tell, the circumstances of Milczarski’s termination were not a 6 part of summary judgment briefing or the pleadings. This topic, on its face, is irrelevant 7 8 and likely more prejudicial than probative. Boeing offers nothing to the contrary. 9 Accordingly, this Motion is GRANTED. 10 4. LOT seeks permission to introduce into evidence the 2021 Deferred Prosecution 11 Agreement and 2025 Non-Prosecution Agreement related to the Department of Justice’s 12 13 criminal investigation against Boeing for the 737 MAX. Both agreements attach and 14 incorporate a Statement of Facts setting forth the criminal acts committed by Boeing 15 employees in connection with the MAX, for which Boeing expressly accepts 16 responsibility and admits are true and accurate. These agreements provide: 17 [Boeing] expressly agrees that it shall not, through present or 18 future attorneys, officers, directors, employees, agents or any other 19 person authorized to speak for the Company make any public statement, in litigation or otherwise, contradicting the acceptance 20 of responsibility by the Company set forth above or the facts described in the Statement of Facts and admits, accepts, and 21 acknowledges that it is responsible under United States law for the 22 acts of its officers, directors, employees, and agents as set forth in the Statement of Facts … [Boeing] shall be permitted to raise 23 defenses and to assert affirmative claims in other proceedings relating to matters set forth in the Statement of Facts, provided that 24 such defenses and claims do not contradict, in whole or in part, a 25 statement contained in the Statement of Facts.

26 Dkt. #197-3 at 21–22. The way the Court reads this, Boeing can be impeached if it 27 makes a statement contrary to the Deferred Prosecution Agreement and Non- 28 Prosecution Agreement or the associated Statements of Facts. However, to introduce 1 2 into evidence these entire documents will be confusing to the jury, cumulative, or 3 unnecessary. Certainly LOT can refer to the existence of the 2021 Deferred Prosecution 4 Agreement and 2025 Non-Prosecution Agreement. The Court will address the 5 introduction of excerpts of these agreements on a case-by-case basis. If any specific 6 statement of a witness is objectionable at trial, Boeing is free to so object. If Boeing 7 8 takes issue with LOT’s reliance on this type of evidence to prove fraud, it is free to 9 point that out to the jury in closing argument. This Motion is thus GRANTED IN 10 PART AND DENIED IN PART. 11 5. LOT moves for permission to introduce evidence of the MAX accidents, including the 12 13 factual findings contained in the final accident reports. Boeing opposes, arguing that 14 such is more prejudicial than probative under FRE 403. Specifically, Boeing argues 15 that its admission that the MCAS system caused these accidents “has no bearing on 16 what Boeing did or did not tell LOT about MCAS, pilot training, or any other topic that 17 LOT now asserts is relevant to its claims.” Dkt. #210 at 14. Boeing sums it up by 18 19 saying “this is not a wrongful-death case.” Id. The Court agrees that there is a real risk 20 of undue prejudice in diving into the details of the October 29, 2018, Lion Air crash and 21 the March 10, 2019, Ethiopian Airlines crash. This Motion is thus DENIED under FRE 22 403. LOT is free to reference these accidents and the MCAS system but not to cite 23 specific factual findings of the accident reports. 24 25 6. LOT next moves for permission to introduce into evidence all or portions of the 238- 26 page U.S. House Committee on Transportation and Infrastructure Report and the 71- 27 page FAA-commissioned Joint Authorities Technical Review (“JATR”) Report without 28 identifying any specific passages. Boeing argues that these reports are hearsay, 1 2 untrustworthy, and cumulative. The Court disagrees that these reports are entirely 3 excludable as hearsay as the public records exception applies. See FRE 803(8). The 4 Court is not convinced that these reports demonstrate a lack of trustworthiness. To 5 measure trustworthiness, courts typically consider four non-exclusive factors: “(1) the 6 timeliness of the investigation; (2) the investigator’s skill or experience; (3) whether a 7 8 hearing was held; and (4) possible bias when reports are prepared with a view to 9 possible litigation.” Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770, 778 (9th Cir. 10 2010). “A party opposing the introduction of a public record bears the burden of coming 11 forward with enough negative factors to persuade a court that a report should not be 12 13 admitted.” Johnson v. City of Pleasanton, 982 F.2d 350, 352 (9th Cir. 1992). Boeing 14 fails to meaningfully engage with these factors, instead chiding the House Committee 15 report for citing to news articles, stating that the investigators lacked skill or experience 16 without further argument, questioning the due process of the Congressional hearings, 17 and accusing the Committee of “partisan” and “political” bias without further details. 18 19 See Dkt. #200 at 9–10. Boeing gives even less, and essentially no argument for the 20 JATR report. Boeing is nevertheless free to attack the findings in these reports through 21 evidence, fact testimony, or expert testimony, and to object to portions under FRE 402 22 and 403. The Court cannot rule on relevancy and 403 issues in a vacuum. This Motion 23 is GRANTED IN PART and DEFERRED IN PART. 24 25 7. LOT moves for permission to introduce the congressional testimony of Boeing 26 Executives regarding the 737 MAX. In connection with the U.S. House Committee’s 27 investigation, Boeing’s former CEO, Dennis Muilenberg, and Chief Engineer, John 28 Hamilton, gave testimony before Congress, during which they made public admissions 1 2 about MCAS’s role in the MAX accidents and the economic harm suffered by Boeing’s 3 customers as a direct result of the MAX grounding. LOT argues these statements are 4 admissible under 801(d)(2). Boeing argues this testimony should be excluded under 5 402 and 403 because the testimony focuses on the Ethiopian and Lion Air crashes and 6 does not mention LOT. Boeing is also concerned that an admission from its CEO to 7 8 Congress that Boeing made “mistakes” will be unduly prejudicial and confusing to the 9 jury. The Court disagrees; it will be clear to the jury that Boeing made mistakes with 10 regard to the 737 MAX and that such a statement to Congress does not determine 11 Boeing’s liability in this case. The Court finds that this congressional testimony is 12 13 generally admissible but that specific objections under 402 and 403 may be upheld. 14 The jury does not need to review the entire testimony as an exhibit and LOT should 15 endeavor to excerpt portions as an exhibit. GRANTED. 16 8. LOT moves to introduce “cloned discovery” Boeing produced in this case that comes 17 from prior 737 MAX actions including In re Ethiopian Airlines Flight ET 302 Crash, 18 19 No. 19-cv-2170 (N.D. Ill.); Earl v. Boeing Co., No. 4:19-cv-507 (E.D. Tex.); and 20 Comair Ltd. v. Boeing Co., No. C23-176 RSM (W.D. Wash.). LOT highlights its plan 21 to use portions of videotaped depositions of current and former Boeing employees 22 deposed in these other cases. Dkt. #196 at 11–12 (citing FRE 801(d)(2)(D); United 23 States v. Bonds, 608 F.3d 495, 500 (9th Cir. 2010); United States v. Agne, 214 F.3d 47, 24 25 54 (1st Cir. 2000); Fed. R. Civ. P. 32(a)(8); Hub v. Sun Valley Co., 682 F.2d 776, 778 26 (9th Cir. 1982)). The Court finds that Boeing’s cloned discovery is generally 27 28 admissible but will permit Boeing to make 402 and 403 objections at trial. 1 2 DEFERRED. 3 9. LOT seeks a ruling on the sequence and manner of its evidence. This issue was 4 discussed at the pretrial conference. DENIED AS MOOT. The Court clarifies now that 5 it intends the parties to present video depositions designations in the order in which they 6 occurred, back and forth, rather than all of the designations of one party followed by all 7 8 of the designations of the other. 9 10. LOT seeks a ruling that all documents produced by either party are deemed 10 authenticated. Documents produced in discovery are deemed authenticated when 11 offered by the opposing party. See Alcantar v. City of Centralia, No. 3:21-CV-05458- 12 13 DGE, 2023 WL 6389339, at *3 (W.D. Wash. Oct. 2, 2023). The Court declines to rule 14 now that all documents produced in discovery are deemed authenticated when offered 15 by the same party that produced the document. Boeing disputes the authenticity of 16 many of LOT’s exhibits. The authenticity of individual exhibits will be dealt with at 17 trial. DENIED. 18 19 11. LOT moves to prohibit Boeing from sealing trial exhibits, closing the courtroom, or 20 restricting media access to the trial. This issue was addressed at the pretrial conference. 21 The Court will not seal the courtroom but will turn off the video monitor facing the 22 gallery for certain exhibits after hearing legal arguments. GRANTED IN PART AND 23 DENIED IN PART. 24 25 III. DEFENDANT’S MOTIONS IN LIMINE 26 1. Boeing first moves to exclude third party reports, including the U.S. House Committee 27 on Transportation and Infrastructure Report, as well as “reports—in both preliminary 28 and final form—from at least six third parties: the Joint Authorities Technical Review, 1 2 the U.S. Department of Transportation’s Office of the Inspector General, the Indonesia 3 National Transportation Safety Committee, the Ethiopia Ministry of Transport and 4 Logistics, the U.S. National Transportation Safety Board, and the FAA.” The Court 5 finds that these reports are public records and not inadmissible hearsay. Any flaws in 6 the reports can be addressed by Boeing through testimony, exhibits, or argument, as 7 8 stated above. DENIED. 9 2. Boeing next moves to exclude evidence about the 2021 Deferred Prosecution Agreement 10 and 2025 Non-Prosecution Agreement related to the Department of Justice’s criminal 11 investigation against Boeing for the 737 MAX. GRANTED IN PART AND DENIED 12 13 IN PART as stated above. 14 3. Boeing’s third motion seeks to exclude evidence about the two 737 MAX crashes under 15 402 and 403. The Court has addressed this issue above. GRANTED. 16 4. Boeing moves to exclude testimony from FAA accident investigator David Gerlach 17 under FRE 402, 701, and 702. First, Boeing alleges that Mr. Gerlach lacks personal 18 19 knowledge about Boeing’s interactions with the FAA relating to the MAX’s certification 20 or pilot training requirements and cannot testify as an expert witness because he was not 21 disclosed as such. Second, Boeing argues that any testimony about its interactions with 22 the FAA during the MAX’s certification is irrelevant and more prejudicial than 23 probative under FRE 403. LOT responds that Boeing has no basis to know the extent of 24 25 Mr. Gerlach’s personal knowledge or potential testimony because it failed to depose 26 him. The Court agrees with LOT. Boeing can raise these issues via objection at trial. 27 DENIED. 28 5. Boeing argues that the Court should “limit evidence about the MAX’s design.” In a 1 2 nutshell, Boeing believes that this case deals only with a limited time frame of 3 communications between the parties, while LOT’s pretrial disclosures reveal “around 4 100 potential trial exhibits related to the MAX’s development prior to 2016, and around 5 20 from the date of the Lion Air accident in October 2018 or later.” The Court shares 6 Boeing’s concern that LOT will present cumulative or irrelevant exhibits. However, the 7 8 Court declines at this time to issue Boeing’s requested “clear requirement that, for any 9 design information LOT seeks to introduce from before or after the relevant period in 10 2016, LOT must demonstrate the relevance and materiality of that information to actual 11 statements or purported omissions by specific Boeing individuals.” The Court will 12 13 entertain appropriate objections at trial for cumulative or irrelevant exhibits or 14 testimony. DENIED. 15 6. Boeing moves to exclude evidence regarding or prepared by Curtis Ewbank, a former 16 Boeing engineer involved in the design of the MAX flight deck. After the second 17 accident, Ewbank created an internal ethics complaint raising concerns about the MAX 18 19 development process. Boeing argues that this should be excluded as hearsay. LOT 20 argues that it is a business record and thus an exception to hearsay under FRE 803(6). 21 The Court agrees with LOT that the ethics complaint is an internal business record and 22 subject to an exception from the hearsay rule. The truth of the matters asserted in the 23 ethics complaint can be discussed by live witnesses. Ewbank’s deposition testimony in 24 25 a related 737 MAX case is also admissible under FRE 804(b)(1), which permits former 26 testimony if the declarant is unavailable, and the opponent of the testimony had the same 27 “fundamental objective” to cross-examine. U.S. v. McFall, 558 F.3d 951, 963 (9th Cir. 28 2009). The testimony is also permissible under Rule 32(a)(8) and Hub v. Sun Valley 1 2 Co., 682 F.2d 776, 778 (9th Cir. 1982). The Court finds that 403 is not triggered by this 3 evidence. DENIED. 4 7. Finally, Boeing asks the Court to direct LOT to limit its 2,025 exhibits and 30 hours of 5 deposition designations. The Court dealt with this issue at the pretrial conference and 6 will not issue a ruling here limiting exhibits or deposition designations. DENIED. 7 8 IV. CONCLUSION 9 Having reviewed the relevant briefing and the remainder of the record, the Court hereby 10 finds and ORDERS that Plaintiff LOT’s Motions in Limine, Dkt. #196, and Defendant 11 Boeing’s Motions in Limine, Dkt. #200, are GRANTED, DENIED, AND DEFERRED as 12 13 stated above. 14 DATED this 9th day of October, 2025. 15 A 16 17 RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE 18

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