Whittier v. Seattle Tunnel Partners

• Court: District Court, W.D. Washington
• Decided: May 23, 2022
• Docket: 2:17-cv-00751
• Status: Unknown

Opinion

4 UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 DEVIN A. WHITTIER, Cause No. C17-0751RSL 8 Plaintiff, ORDER GRANTING IN 9 v. PART SEATTLE TUNNEL 10 PARTNERS’ MOTIONS IN SEATTLE TUNNEL PARTNERS, et al., LIMINE 11

Defendants. 12 13 This matter comes before the Court on “Defendant Seattle Tunnel Partners’ Motions in 14 15 Limine.” Dkt. # 113. Having reviewed the memoranda, declarations, and exhibits submitted by 16 the parties, the Court rules as follows: 17 1. Untimely or Insufficiently Disclosed Testimony and Evidence 18 19 Seattle Tunnel Partners (“STP”) seeks exclusion of any evidence and witnesses that were 20 first disclosed in a pretrial statement provided to STP on April 29, 2019, as a sanction for failing 21 to meet the scheduling requirements of LCR 16(h). The pretrial order deadline (and the 22 23 corresponding deadlines for the exchange of pretrial statements) was continued after STP filed 24 its motions in limine. Plaintiff therefore has an opportunity to correct any defect in the timing of 25 the April 29, 2019, pretrial statement. 26 27 28 1 STP also asserts that plaintiff has failed to make comprehensive initial disclosures under 2 Fed. R. Civ. P. 26(a)(1)(A), failed to timely supplement prior disclosures under Fed. R. Civ. P. 3 26(e)(1)(A), and failed to make adequate expert disclosures under Fed. R. Civ. P. 26(a)(2). It 4 5 identifies three examples of such failure, but “does not intend to limit any exclusionary order [to 6 those examples]. All undisclosed evidence or damages, whether they are anticipated or not, 7 should be excluded.” Dkt. # 113 at 3 n.5. The Court will not make an abstract admissibility 8 9 determination: to the extent STP has not identified the testimony, documents, or other evidence 10 it seeks to exclude, the motion is DENIED. With regards to the examples provided, the motion 11 is GRANTED in part. The testimony and opinions of experts who were not properly disclosed 12 13 by the February 1, 2019, deadline, namely Steven W. Bechtold and Douglas McDaniel, will be 14 excluded. The Court takes the motion to exclude post-March 2018 medical records and the 15 testimony of Richard S. Adler, M.D., under advisement. 16 17 2. Certain Testimony from Mark Lawless

18 Mr. Lawless will be permitted to testify regarding construction safety standards and 19 practices (including his opinions regarding the industry standard for impalement protection), but 20 21 he will not be permitted to offer inadequately disclosed opinions regarding plaintiff’s medical 22 injuries or the cause thereof.1 This motion in limine is GRANTED. 23 24 25 1 STP’s objections to expert testimony regarding causation is overruled. Causation is an issue of 26 fact (Armstrong v. Burlington N. R. Co., 139 F.3d 1277, 1279 (9th Cir. 1998)), and there are numerous situations in which properly supported expert testimony would be helpful (if not essential) to the jury’s 27 understanding of the causal relationship between defendant’s conduct and plaintiff’s injury (Kennedy v. 28 Collagen Corp., 161 F.3d 1226, 1229-30 (9th Cir. 1998)). 1 3. Certain Testimony from Richard Gleason 2 Mr. Gleason is a safety expert who intends to opine that STP had a nondelegable duty to 3 ensure that the work area was safe prior to the start of work. Mr. Gleason asserts that, as part of 4 5 that duty, STP was obligated to review the safety and engineering plans for the site, ensure that 6 its subcontractors followed the plans, and to make sure that all rebar was capped. Mr. Gleason 7 further intends to testify that STP failed to comply with a Washington Administrative Code 8 9 requirement that the wall on which plaintiff was working be supported to prevent collapse (as 10 evidenced by the fact that the wall collapsed). STP has not shown that these opinions were not 11 adequately disclosed, that they are outside Mr. Gleason’s area of expertise, or that they would be 12 13 unhelpful to the jury. This motion in limine is DENIED. 14 4. Certain Testimony from Richard Seroussi, M.D. 15 Dr. Seroussi will be permitted to testify regarding the nature and extent of plaintiff’s left 16 17 elbow injury and that those injuries were consistent with impacting an exposed piece of rebar. 18 Whether plaintiff actually fell onto exposed rebar must be established through other witnesses 19 and evidence. This motion in limine is GRANTED in part. 20 21 5. Certain Testimony from Tobey Hayes 22 Mr. Hayes is an expert in biomechanics and has developed a free-body diagram 23 reconstruction of plaintiff’s fall, isolating plaintiff’s body and replacing the surrounding 24 25 environment with the forces that were applied at specific moments. The reconstruction is based 26 on evidence in the record. To the extent STP intends to challenge the underlying evidence, it is 27 free to do so on cross-examination or through the admission of contrary evidence. Mr. Hayes 28 1 will be permitted to testify regarding accident reconstruction, injury biomechanics, and the 2 forces that impacted plaintiff’s body in the fall and in hypothetical alternative situations (such as 3 if the rebar had been capped). He will not, however, be permitted to opine regarding industry 4 5 standards, medical causation, or medical record interpretation because those areas do not appear 6 to be within his areas of expertise. This motion in limine is GRANTED in part. 7 6. Testimony Regarding Career Prospects 8 9 In 2017 and 2018, Jeff Glockner, a superintendent and former business manager of Iron 10 Workers Local 86, provided three declarations regarding work prospects for ironworkers in the 11 Seattle area, the career options, pay, and benefits available to ironworkers in the area, and 12 13 plaintiff’s comparative positioning with regards to advancement in the trade. STP objects to 14 admission of this testimony2 on the following grounds: 15 a. Mr. Glockner lacks sufficient personal knowledge of plaintiff’s work ethic, leadership 16 17 skills, attitude, or job performance to justify his belief that plaintiff was a rising star and had 18 what it takes to advance in the industry; 19 b. The testimony that plaintiff was “awesome,” a “Shining Star,” and “was one of those 20 21 with the ‘it’ factor” constitutes improper character evidence under Fed. R. Evid. 608 and lacks a 22 proper foundation; and 23 24 25 26 2 STP also objects to admission of the declarations themselves as inadmissible hearsay. If Mr. 27 Glockner does not testify at trial, the declarations will not be admitted for the truth of the matters 28 asserted therein. 1 c. Mr. Glockner lacks personal knowledge regarding the work available to Central Steel 2 ironworkers on the tunnel project. 3 STP’s objections are overruled. Mr. Glockner states that he knows plaintiff “very well” 4 5 (Dkt. # 114-1 at 9), and STP’s citation to one page of deposition testimony recounting a 6 conversation between plaintiff and Mr. Glockner (Dkt. # 114-1 at 20) does not disprove his 7 assertion. STP makes no effort to explain how Mr. Glockner’s descriptions of plaintiff constitute 8 9 “testimony about [plaintiff’s] reputation for having a character for truthfulness or 10 untruthfulness” for purposes of Fed. R. of Evid. 608. Nor does Mr. Glockner offer any 11 testimony regarding the volume of work available to Central Steel ironworkers on the tunnel 12 13 project. Rather, Mr. Glockner will testify regarding the market for ironworker services in the 14 Seattle area, testimony that is based on his forty years in the industry, his familiarity with area 15 employers and the construction demands for the trade, and his roles in the union and on job 16 17 sites. This motion in limine is DENIED. 18 7. Certain Testimony from Bill Brandt 19 STP seeks to exclude certain opinions offered by plaintiff’s economist on the ground that 20 21 they are based on Mr. Glockner’s inadmissible testimony. STP’s objections to Mr. Glockner’s 22 testimony have been overruled, however, and STP offers no other reason to exclude the 23 economist’s calculations. This motion in limine is DENIED. 24 25 8. Negligence 26 STP, relying on the testimony of “the only individual deposed with personal knowledge 27 of the crane situation,” argues that its decision to not utilize the crane that was at the site of the 28 1 accident to extract plaintiff from the elevator shaft was reasonable and non-negligent because 2 the witness “[didn’t] think a crane could get in there because there were struts that were in that 3 area. You couldn’t get a basket or anything down inside.” Dkt. # 113 at 13; Dkt. # 114-2 at 28. 4 5 Plaintiff, on the other hand, asserts that he could and should have been extracted using the crane, 6 which would have reduced the pain and suffering he endured while he was slowly carried out on 7 a stretcher. The foundation for each side’s statements is unclear. The Court takes this matter 8 9 under advisement. 10 9. Cumulative Testimony and Witnesses 11 In an earlier version of his pretrial statement, plaintiff identified 74 witnesses. STP argues 12 13 that so many witnesses must be cumulative and that if they are all permitted to testify, the jury 14 will be overwhelmed and STP will be denied adequate time to present its defense. As a general 15 matter, unnecessarily cumulative evidence and testimony that is not based on personal 16 17 knowledge will be excluded. In addition, the parties will be expected to narrow their witness 18 lists to ensure the timely completion of trial and will be required to inform the other side in 19 advance of the identity and sequencing of witness to be called. The Court will not, however, 20 21 arbitrarily limit the number of co-workers or medical providers who will testify at this point. 22 This motion in limine is DENIED. 23 10. Settlement Negotiations 24 25 This motion in limine is unopposed and therefore GRANTED. Evidence and argument 26 related to settlement negotiations between the parties will be excluded. 27

28 1 11. Financial Position of the Parties 2 This motion in limine is unopposed and therefore GRANTED. Evidence and argument 3 regarding STP’s assets or the comparative wealth of the parties will be excluded. 4 5 12. Other Accidents, Lawsuits, or Claims 6 STP seeks to exclude evidence or argument regarding other accidents at the tunnel 7 project site and news reports of the accident at issue here. The two articles identified by the 8 9 parties, Exhibits G and H to the Declaration of Kevin M. Hastings, are not relevant to any claim 10 or defense in this lawsuit. Plaintiff acknowledges that evidence of other accidents would be 11 relevant only if it “goes to demonstrate the knowledge of the risks posed to ironworkers like” 12 13 him. Dkt. # 174 at 13-14. The identified articles reference idiosyncratic injuries to non- 14 ironworkers or post-date plaintiff’s injury. They are not, therefore, relevant and will not be 15 admitted into evidence. This motion in limine is GRANTED as to the two articles identified. 16 17 13. Arguments Designed to Inflame or Elicit an Emotional Response 18 STP seeks to exclude argument that is designed to elicit an emotional response from the 19 jury, specifically phrases such as “send a message” and the “golden rule.” 20 21 The biblical “golden rule” states a standard of conduct for individuals: do unto others as you would have them do unto you. Generally, reference by counsel to the 22 “golden rule” per se, or allusions to the rule such as “urging the jurors to place 23 themselves in the position of one of the parties to the litigation, or to grant a party the recovery they would wish themselves if they were in the same position” 24 constitutes an improper “golden rule” argument. Such an argument is “improper 25 because it encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence.” 26

27 28 1 Adkins v. Aluminum Co. of Am., 110 Wn.2d 128, 139 (1988) (internal footnotes and citations 2 omitted). The motion in limine is GRANTED as to these phrases. 3 4 STP also seeks to preclude plaintiff from suggesting that it is “without a heart or soul.” 5 This request is taken under advisement. If evidence is admitted which makes such an argument 6 plausible, the statement may be admissible as fair commentary on the evidence rather than an 7 8 improper expression of personal opinion. 9 14. Counsel’s Track Record 10 11 This trial has nothing to do with other cases filed by plaintiff’s counsel, and counsels’ 12 win-loss record and other verdicts/damage awards are irrelevant. This motion in limine is 13 GRANTED. 14 15 15. Use of the Word “Impale” 16 STP asserts that the word “impale” not only means pierced with a pointed instrument, but 17 is often used in the context of torture, murder, or mutilation. It seeks to prevent plaintiff from 18 19 using the word “impale” when describing the accident or his injuries. The Court declines to 20 police plaintiff’s word choice. “Impale” is a technically accurate description of what plaintiff 21 describes, the federal regulations regarding safety in construction sites use the term, and there is 22 23 no risk that the jury will be confused or prejudiced. See 29 C.F.R. § 1926.701 (“All protruding 24 reinforcing steel, onto and into which employees could fall, shall be guarded to eliminate the 25 hazard of impalement.”). This motion in limine is DENIED. 26 27 28 1 16. Subsequent Remedial Measures 2 Central Steel, plaintiff’s employer, developed an Activity Hazard Analysis (“AHA 3 0479”) following the accident in which plaintiff was injured in an effort to address issues 4 5 believed to have contributed to the wall collapse. STP would like AHA 0479 excluded from trial 6 under Fed. R. Evid. 407, which provides: 7 When measures are taken that would have made an earlier injury or harm less 8 likely to occur, evidence of the subsequent measures is not admissible to prove: 9 10 negligence; culpable conduct; 11 a defect in a product or its design; or 12 a need for a warning or instruction. 13 14 But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary 15 measures. 16 17 Plaintiff will not be permitted to use AHA 0479 to show or argue that STP was negligent or 18 culpable. If, however, STP takes the position that additional precautionary measures were not 19 feasible, that it had no ability to control Central Steel’s activities, or that the original AHA it 20 21 approved was adequate, AHA 0479 may be admissible for other purposes. This motion in limine 22 is taken under advisement. 23 17. Expert Reports 24 25 This motion in limine unopposed and therefore GRANTED. The curriculum vitae and 26 reports of expert witnesses will not be admitted into evidence. 27

28 1 18. Notice of Intent to Call Witnesses 2 This motion in limine is taken under advisement and will be discussed at the pretrial 3 conference. 4 5 19. Publication Before Admission or Agreement on Admissibility 6 This motion in limine is taken under advisement and will be discussed at the pretrial 7 conference. 8 9 10 For all of the foregoing reasons, STP’s motions in limine (Dkt. # 113) are GRANTED in 11 part. 12 13 14 Dated this 23rd day of May, 2022. 15

16 Robert S. Lasnik 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28