United States District Court, D. Arizona
V. Wake, Senior United States District Judge.
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
Motions In Limine Nos. 1-8
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.
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.
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.
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.
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.
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
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.
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.
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.
Motions In Limine Nos. 1-15
Plaintiff does not oppose the motion, and Defendant's
motion to exclude ...