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Despain v. BNSF Railway Co.

United States District Court, D. Arizona

May 30, 2018

Gary Despain, Plaintiff,
v.
BNSF Railway Company, Defendant.

          ORDER

          Neil V. Wake, Senior United States District Judge.

         Before the Court are Plaintiff's Motions In Limine Nos. 1-8 (Doc. 97) and the Response (Doc. 110.) Also before the Court are Defendant's Motions In Limine Nos. 1-15 (Doc. 98) and the Response (Doc. 112.) The rulings, where they can be made at this stage of the proceedings, are as follows.

         Plaintiff's Motions In Limine Nos. 1-8

         No. 1. The Public Law Board award is excluded as evidence that Plaintiff was untruthful, except as it may be admissible on punitive damages, which is reserved for decision at trial. The finding merely concluded there was evidence, not that Plaintiff was untruthful. Like the preliminary findings in these OSHA proceedings on de novo review, the PLB finding has no legal effect in this proceeding and is just a third person's opinion about some of the matters committed to the jury's decision. It does not matter what other people think on those questions. Defendant's concern about “completeness” can be met with an instruction that does not include the prejudicial and irrelevant (to the jury's task) opinion about evidence about untruthfulness. The Motion is granted.

         No. 2. Whether Plaintiff's termination was retaliatory, pretextual, or even reasonable is grounded in the evidence and circumstances of this case. The “comparator” opinions of Ms. Maglisceau will be excluded for multiple reasons. First, the evidence is not focused on the only probative comparators, workers who were terminated for untruthfulness in reporting a safety problem. She encompasses anyone who was disciplined within six months of an injury, not just terminated, for any violation, including untruthfulness, in Plaintiff's division. Her separate data for workers dismissed for untruthful conduct is not connected to untruthfulness in making the injury claim.

         These data do not meet the tests of helpfulness to the jury and reliability in the circumstances of this inquiry. They will greatly multiply the proceedings with dissimilar cases with an unwarranted appearance of statistical value, expanding the trial to numerous other dissimilar cases. Maglisceau does not offer any specific comparator as to the nature and circumstances of the alleged untruthfulness in connection with the injury/safety report itself with similar discipline. In this case the Court is familiar with the weakness of the evidence of alleged untruthfulness from the proceedings on summary judgment, and a true comparator should have similarity to those circumstances. A true comparator may well be admissible, but none is offered. The Motion is granted.

         No. 3. If there is proper foundation for the exhibit, the train sheet is relevant and admissible, and the motion to exclude it is denied. Defendant may attempt to show that error in Plaintiff's recollection and report was lying, and Plaintiff may attempt to show that, if mistaken, it was unintentional, inconsequential, and suggestive of retaliation to terminate Plaintiff for that.

         No. 4. Defendant offers its Code of Conduct with its prohibition of retaliation only as to punitive damages. The Code of Conduct is admissible for that purpose. Contrary to Defendant's suggestion, it does not insulate Defendant from liability for punitive damages. The Motion to exclude is denied.

         No. 5. Defendant's Workplace Harassment Policy is not relevant and is excluded. To the extent that Policy also mentions non-retaliation, it is about retaliation concerning employment discrimination, not retaliation concerning safety. If it has any arguable reference to safety retaliation, is it also excluded as cumulative. The Motion to exclude is granted.

         No. 6. Evidence of the amount of Plaintiff's pension is inadmissible as irrelevant and alternatively as collateral source. It will be excluded, but not the fact the Plaintiff is in retirement and on pension. This will be managed at trial in the admission of evidence of what damages Plaintiff is entitled to. Plaintiff will not suggest that his emotional suffering is affected by lack of retirement income. That would open the door.

         No. 7. Evidence of Plaintiff's prior work injuries is irrelevant and will be excluded. Plaintiff does not contend the Defendant retaliates against workers for every injury, so Defendant does not need to rebut that. Such evidence would also fail the test of Rule 403, as it would be very confusing as to the issues and a waste of time.

         No. 8. Plaintiff may try to prove damages and that he adequately mitigated damages. It cannot be known in advance of trial whether he will do so. The motion does not address Defendant's vocational expert's testimony. Whether the evidence is sufficient to excuse mitigation of damages or sufficient to allow a finding of mitigation cannot be determined until the close of evidence. Plaintiff's Motion No. 8 to exclude evidence and argument of failure to mitigate damages is denied.

         Defendant's Motions In Limine Nos. 1-15

         No. 1. Plaintiff does not oppose the motion, and Defendant's motion to exclude ...


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