Bell et al v. The Boeing Company, No. 2:2020cv01716 - Document 62 (W.D. Wash. 2022)

Court Description: ORDER granting in part, denying in part, and deferring in part Parties' Motions in Limine dkt 53 , 54 . The Court also ORDERS the parties to submit a revised Proposed Pretrial Order by 5/25/2022. Signed by Judge Lauren King.(MW)

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Bell et al v. The Boeing Company Doc. 62 Case 2:20-cv-01716-LK Document 62 Filed 05/20/22 Page 1 of 15 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 11 ANDREW BELL and BECKY BELL, husband and wife, 12 13 14 15 16 17 18 19 20 21 Plaintiffs, v. CASE NO. 20-CV-01716-LK ORDER ON PARTIES’ MOTIONS IN LIMINE AND REGARDING PROPOSED PRETRIAL ORDER THE BOEING COMPANY, Defendant. This matter comes before the Court on the parties’ motions in limine, Dkt. Nos. 53–54, and the parties’ “Joint Pretrial Statement,” Dkt. No. 59. After review of the record, the Court grants in part, denies in part, and defers in part the parties’ motions in limine. The following rulings may be revisited during trial if necessary. The Court also orders the parties to file a revised Proposed Pretrial Order by May 25, 2022, for the reasons discussed below. 22 23 24 ORDER ON PARTIES’ MOTIONS IN LIMINE AND REGARDING PROPOSED PRETRIAL ORDER - 1 Dockets.Justia.com Case 2:20-cv-01716-LK Document 62 Filed 05/20/22 Page 2 of 15 1 I. INTRODUCTION 2 The Court has already provided a detailed factual background in its order on the parties’ 3 motions for summary judgment. See Dkt. No. 51 at 1–16. It therefore declines to reproduce that 4 summary here. Suffice it to say that only one issue remains in this case: whether Boeing’s 5 placement of Bell on unpaid medical leave was a reasonable accommodation. Id. at 22. The parties 6 are scheduled to try this lone survivor before a jury on June 6, 2022. Dkt. No. 45 at 2. 7 8 9 II. MOTIONS IN LIMINE The Court begins by setting forth a few guideposts. It then addresses the points on which the parties agree before resolving the disputed issues. 10 A. 11 Parties may move “to exclude anticipated prejudicial evidence before the evidence is 12 actually offered.” Luce v. United States, 469 U.S. 38, 40 n.2 (1984). But the Court enjoys “wide 13 discretion in determining the admissibility of evidence,” United States v. Abel, 469 U.S. 45, 54 14 (1984), and it may amend, renew, or reconsider its rulings in limine in response to developments 15 at trial, Luce, 469 U.S. at 41–42. Legal Standard 16 The Court is generally guided by Federal Rules of Evidence 401 and 403. See Houserman 17 v. Comtech Telecomms. Corp., 519 F. Supp. 3d 863, 867 (W.D. Wash. 2021). The Court must first 18 consider whether the evidence at issue “has any tendency to make a fact more or less probable than 19 it would be without the evidence,” and whether “the fact is of consequence in determining the 20 action.” Fed. R. Evid. 401. If so, the evidence is relevant and therefore generally admissible. See 21 Fed. R. Evid. 402. But there are many exceptions to this general rule. The Court may, for example, 22 exclude relevant evidence if “its probative value is substantially outweighed by a danger of . . . 23 unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or 24 needlessly presenting cumulative evidence.” Fed. R. Evid. 403. Relevance and prejudice “are ORDER ON PARTIES’ MOTIONS IN LIMINE AND REGARDING PROPOSED PRETRIAL ORDER - 2 Case 2:20-cv-01716-LK Document 62 Filed 05/20/22 Page 3 of 15 1 determined in the context of the facts and arguments in a particular case.” Sprint/United Mgmt. 2 Co. v. Mendelsohn, 552 U.S. 379, 387 (2008). 3 B. 4 The parties have submitted 15 agreed or uncontested motions in limine. They propose the 5 Uncontested Motions in Limine following evidentiary limitations: 1. Neither party, nor any witness, will discuss or offer testimony about Bell’s criminal history. Dkt. No. 54 at 2. 2. Neither party, nor any witness, will discuss or offer testimony about Bell’s “past creditworthiness.” Dkt. No. 54 at 2. 3. Boeing Medical representatives will not offer expert opinions; however, they may testify about their personal knowledge and experience. Dkt. No. 54 at 2; Dkt. No. 56 at 2; see Fed. R. Evid. 602, 702. 4. Boeing will not refer to any portion of Bell’s medical history that is unrelated to his reasonable accommodation claim. Dkt. No. 54 at 2; Dkt. No. 56 at 2. 5. Boeing will not engage in argument about what Bell might do with a jury award or describe Bell as “greedy”; “hitting the lottery”; “hitting the jackpot”; or any other similar characterization. Dkt. No. 54 at 2. Nor will Boeing engage in any argument expressing disdain for the civil justice system or invoking passion or prejudice against civil lawsuits. Id. 6. Counsel will provide the names of witnesses they intend to call the next trial day by the end of the immediately preceding trial day. Dkt. No. 54 at 2. 7. All non-party witnesses will be excluded from the courtroom before they are called to testify. Id.; see Fed. R. Evid. 615. However, Boeing’s representative may appear in the courtroom throughout trial and may be called as a witness. Dkt. No. 56 at 2; see Fed. R. Evid. 615(b). 8. The parties are responsible for instructing Zoom witnesses that they may not use their phones or other devices to text message, email, call, or otherwise communicate with anyone during their sworn testimony. Dkt. No. 54 at 3. 21 9. Neither party will reference attorney fees or fee structures. Id. 22 10. Neither party will offer evidence, testimony, or argument regarding claims dismissed on summary judgment. Dkt. No. 53 at 7–8; Dkt. No. 54 at 3; Dkt. No. 58 at 2; see Dkt. No. 51. 11. Neither party will assert or argue in the presence of the jury that the other 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 23 24 ORDER ON PARTIES’ MOTIONS IN LIMINE AND REGARDING PROPOSED PRETRIAL ORDER - 3 Case 2:20-cv-01716-LK Document 62 Filed 05/20/22 Page 4 of 15 1 party failed to call or should have called a witness when that witness is equally available to both parties. Dkt. No. 54 at 3. 2 3 12. Neither party will mention the parties’ motions in limine. Dkt. No. 54 at 3. 13. Bell will not offer evidence, testimony, or argument related to Boeing’s financial resources or size as a basis for a jury award. Dkt. No. 54 at 3. However, evidence of this nature is permissible if Boeing argues that it could not afford to reasonably accommodate Bell’s disability. Id. 14. Bell will not introduce social media posts made by Boeing employees, including Bill Watterson’s social media posts, unless Boeing opens the door to introduction of such evidence. Dkt. No. 53 at 6; Dkt. No. 56 at 2; Dkt. No. 58 at 2. 15. Neither party will introduce evidence, testimony, or argument related to Bell’s medical specials or medical expenses. Dkt. No. 54 at 4, 9; Dkt. No. 56 at 6. 4 5 6 7 8 9 10 Pursuant to the parties’ agreement and their arguments regarding the legal basis for 11 imposing the above evidentiary limitations, the Court grants their uncontested motions in limine. 12 The Court further clarifies that non-exempt witnesses subject to recall will be required to exit the 13 courtroom until called back or excused, while excused witnesses may exit or remain in the 14 courtroom following their testimony at their election. Counsel must ensure that there are no 15 prospective non-exempt witnesses in the courtroom during the testimony of another witness. 16 C. 17 Boeing seeks to exclude email correspondence between manufacturing managers “who 18 were not involved in and did not have authority to make decisions regarding [Bell’s] leave.” Dkt. 19 No. 53 at 5. According to Boeing, these emails are irrelevant to Bell’s reasonable accommodation 20 claim. Id. Boeing does not specify exactly which emails it wishes to keep from the jury. Boeing’s Contested Motion in Limine: Internal Boeing Emails 21 Bell contends that emails “surrounding Boeing’s decision to place Mr. Bell on an unpaid 22 medical leave . . . [are] admissible if [they are] probative of the facts in issue or show[] bias, 23 discriminatory animus or motive.” Dkt. No. 58 at 3. But emails introduced to show “bias, motive, 24 [or] discriminatory intent,” id. at 4, are irrelevant to the sole issue going to trial: whether Boeing ORDER ON PARTIES’ MOTIONS IN LIMINE AND REGARDING PROPOSED PRETRIAL ORDER - 4 Case 2:20-cv-01716-LK Document 62 Filed 05/20/22 Page 5 of 15 1 failed to reasonably accommodate Bell. See Dkt. No. 59 at 2; 6A Wash. Prac., Wash. Pattern Jury 2 Instr. Civ. WPI 330.33 (7th ed.). And even if such emails are tangentially relevant, it is likely that 3 their minimal probative value is substantially outweighed by a danger of unfair prejudice, 4 confusing the issues, wasting time, or needlessly presenting cumulative evidence. Fed. R. Evid. 5 403, 611(a). The Court will not allow Bell to backdoor evidence that relates to claims dismissed 6 on summary judgment; indeed, such evidence would violate the parties’ agreed motion in limine 7 prohibiting evidence, testimony, or argument regarding claims dismissed on summary judgment. 8 See, e.g., Dkt. No. 51 (dismissing Bell’s discriminatory discharge, disparate treatment, retaliation, 9 wrongful termination in violation of public policy, breach of contract, promissory estoppel, and 10 declaratory judgment claims). 11 Boeing’s motion in limine is granted to the extent that Bell seeks to introduce emails to 12 show “bias, motive, [or] discriminatory intent.” The Court denies the remainder of this motion in 13 limine without prejudice to Boeing reasserting objections to specific testimony or exhibits at trial. 14 See 15 https://www.wawd.uscourts.gov/sites/wawd/files/KingStandingOrderReCivilCases.pdf (“Parties 16 are discouraged from filing motions in limine which do not identify specific evidence or exhibits 17 to be excluded [or] which request relief at a high level of generality.”); Vincent v. Reyes, No. C19- 18 00329-RMI, 2021 WL 4262289, at *1 (N.D. Cal. Sept. 20, 2021) (“courts are better situated during 19 the actual trial to assess the value and utility of evidence, instead of tackling the matter in a 20 vacuum.”). 21 22 Standing D. Order for All Civil Cases, p. 5, available at Bell’s Contested Motions in Limine 1. Unemployment and Short-Term Disability Benefits 23 Bell first argues that any evidence of his “application for and/or receipt of unemployment 24 benefits or short-term disability insurance benefits is inadmissible under the collateral source rule ORDER ON PARTIES’ MOTIONS IN LIMINE AND REGARDING PROPOSED PRETRIAL ORDER - 5 Case 2:20-cv-01716-LK Document 62 Filed 05/20/22 Page 6 of 15 1 and under FRE 402 and 403.” Dkt. No. 54 at 4–5. Boeing counters that its short-term disability 2 plan “is a self-funded payroll policy” and therefore not derived from a collateral source. Dkt. No. 3 56 at 3. This, according to Boeing, means that it may offer evidence of Bell’s short-term disability 4 benefits to offset damages. Id. Boeing also argues that although unemployment benefits may not 5 be used to offset damages, such evidence is nevertheless admissible “to show whether [Bell] met 6 his obligation to mitigate damages[.]” Id. 7 “The collateral source rule provides that a tortfeasor may not reduce its liability due to 8 payments received by the injured party from a collateral source when that source is independent 9 of the tortfeasor.” Matsyuk v. State Farm Fire & Cas. Co., 272 P.3d 802, 809 (Wash. 2012) 10 (internal quotation marks and citation omitted); accord Lister v. Hyatt Corp., No. C18-0961JLR, 11 2019 WL 6701407, at *16 (W.D. Wash. Dec. 9, 2019). The rule “is designed to prevent the 12 wrongdoer from benefitting from third-party payments.” Cox v. Lewiston Grain Growers, Inc., 13 936 P.2d 1191, 1200 (Wash. Ct. App. 1997). Here, however, the source of Bell’s short-term 14 disability payments is not “independent of the tortfeasor.” Matsyuk, 272 P.3d at 809. Put 15 differently, Bell’s short-term disability benefits were “ultimately paid entirely by [Boeing] and 16 thus are not derived from a collateral source.” McLean v. Runyon, 222 F.3d 1150, 1156 (9th Cir. 17 2000); see Dkt. No. 56 at 3. 18 Nor do Rules 402 or 403 compel exclusion of this evidence. Bell’s receipt of short-term 19 benefits is relevant to the jury’s determination of appropriate damages (should Bell prevail on his 20 reasonable accommodation claim). See Dkt. No. 56 at 3. Bell’s argument that this evidence will 21 “only serve to confuse the fact finder” because it might “suggest or imply that [he] is a 22 malinger[er]” misses the point. Dkt. No. 54 at 5. Such a fear draws its strength from the false 23 predicate that the collateral source rule bars evidence of the short-term benefits at issue. See Cox 24 v. Spangler, 5 P.3d 1265, 1270 (Wash. 2000) (applying collateral source rule to conclude that, ORDER ON PARTIES’ MOTIONS IN LIMINE AND REGARDING PROPOSED PRETRIAL ORDER - 6 Case 2:20-cv-01716-LK Document 62 Filed 05/20/22 Page 7 of 15 1 while plaintiff’s receipt of industrial insurance benefits might show malingering, any “marginal 2 relevance” was outweighed by a danger of unfair influence on the jury). As noted, Boeing’s short- 3 term benefits fund is not a collateral source, so Boeing cannot benefit from third-party payments, 4 just as the jury will not “nullify the defendant’s responsibility” if it chooses to offset damages. 5 Johnson v. Weyerhaeuser Co., 953 P.2d 800, 804 (Wash. 1998); see also McLean, 222 F.3d at 6 1156 (“There is no windfall to USPS if McLean’s FECA benefits are offset from his damages 7 award because USPS pays both the damages award and the workers’ compensation benefits.”). 8 The probative value of Bell’s short-term disability benefits is not “substantially outweighed” by a 9 danger of unfair prejudice or confusing the issues. Fed. R. Evid. 403. 10 The Court reaches a different conclusion with respect to unemployment benefits. Boeing 11 essentially contends that, although it cannot offset damages with unemployment benefits, it should 12 still be permitted to introduce that evidence as proof that Bell failed to mitigate his damages. Dkt. 13 No. 56 at 3. In Boeing’s view, “[e]vidence related to how much [Bell] earned in unemployment 14 benefits is relevant because those payments may have affected the timing and scope of [his] job 15 search (i.e., disincentivized him from pursuing employment earlier or [employment] that paid 16 less).” Id. Although Bell’s unemployment benefits might be relevant to Boeing’s affirmative 17 defense that he failed to mitigate damages, relevance is not synonymous with admissibility. And 18 “[e]ven when it is otherwise relevant, proof of such collateral payments is usually excluded, lest it 19 be improperly used by the jury to reduce the plaintiff’s damage award.” Cox, 5 P.3d at 1270. The 20 “minimal probative value of this evidence is substantially outweighed by the danger of unfair 21 prejudice, confusing the issues, and/or misleading the jury,” including the risk that the jury will 22 “confuse the issue and amount of any damages with the amount Plaintiff received through 23 unemployment insurance,” and the risk of “a mini-trial over the speculative effect of 24 unemployment benefits on an unemployed individual’s willingness to work.” Gardner v. Fed. ORDER ON PARTIES’ MOTIONS IN LIMINE AND REGARDING PROPOSED PRETRIAL ORDER - 7 Case 2:20-cv-01716-LK Document 62 Filed 05/20/22 Page 8 of 15 1 2 3 4 Express Corp., No. 14-CV-01082-TEH, 2015 WL 5821428, at *3 (N.D. Cal. Oct. 6, 2015). This motion in limine is granted as to evidence of unemployment benefits and denied as to evidence of short-term disability benefits. 2. Bell’s Retention of Legal Counsel 5 Bell next urges the Court to exclude any testimony or argument “related to the timing and 6 circumstances of [his] retention of his legal counsel.” Dkt. No. 54 at 6. He claims that this evidence 7 has no probative value and, even if it does, it will “only distract the jury from the facts at issue.” 8 Id. Boeing does not intend to elicit testimony or otherwise offer evidence about attorney fees or 9 privileged communications. Dkt. No. 56 at 4. But it claims that it is impossible to try this case 10 without referencing Bell’s counsel, “who was actively involved in discussions with [Bell’s] 11 medical providers regarding [his] alleged disability and potential accommodations[.]” Id. 12 Specifically, Bell’s counsel is referenced in documents and correspondence that Boeing intends to 13 present regarding the “ongoing dialogue” among Boeing, Bell, and Bell’s medical providers. Id. 14 The parties are talking past each other on this issue. Bell does not seek to wholesale 15 preclude any and all reference to his counsel. Rather, he asks that the Court only prevent Boeing 16 from commenting on “the timing and circumstances” of his retention of counsel. Dkt. No. 54 at 6. 17 The Court agrees that any argument or testimony about this specific subject is irrelevant to whether 18 Boeing reasonably accommodated Bell’s disability. And even if it is marginally relevant, its 19 probative value is far outweighed by a risk of confusing the issues, misleading the jury, or wasting 20 time. Fed. R. Evid. 403. On the other hand, though, Boeing may present documents and 21 correspondence that reference Bell’s counsel so long as such evidence is offered to demonstrate 22 its engagement in the interactive process—the touchstone of reasonable accommodation. See 23 Goodman v. Boeing Co., 899 P.2d 1265, 1269–70 (Wash. 1995); Gibson v. Costco Wholesale, 24 Inc., 488 P.3d 869, 877 (Wash. Ct. App. 2021). ORDER ON PARTIES’ MOTIONS IN LIMINE AND REGARDING PROPOSED PRETRIAL ORDER - 8 Case 2:20-cv-01716-LK Document 62 Filed 05/20/22 Page 9 of 15 1 This motion in limine is granted to the extent it seeks to exclude testimony or argument 2 regarding the timing and circumstances of Bell’s retention of legal counsel that does not bear upon 3 Boeing’s accommodation of Bell or the interactive process. 4 3. Limitations on Direct and Cross-Examination of Witnesses 5 Bell seeks to preclude Boeing from conducting direct examination of its witnesses during 6 his case-in-chief. Dkt. No. 54 at 7. Boeing does not appear to object to this request. See Dkt. No. 7 56 at 5. However, Bell’s proposed approach threatens to waste the jury’s time by needlessly 8 recalling witnesses during Boeing’s case-in-chief. The Court defers this portion of the motion in 9 limine until the Pretrial Conference. 1 10 Along the same lines, Bell asks the Court to preclude Boeing’s witnesses from “expanding 11 their testimony beyond the scope of direct examination,” and requests “an advance ruling 12 permitting him to question [Boeing’s] FRCP 30(b)(6) representative and James Watterson and 13 other witnesses aligned with [Boeing] using leading questions.” Dkt. No. 54 at 7. Last, Bell wishes 14 to prevent Boeing from leading Watterson and Kaitlyn Parsons during cross-examination. Id. 15 Boeing does not mount a specific counter to these requests. It instead “presumes the Court will 16 apply the Federal Rules of Evidence at trial and will defer to those rulings[.]” Dkt. No. 56 at 5. 17 This presumption is well-founded. 18 In accordance with Federal Rule of Evidence 611(b), the Court will generally restrict cross- 19 examination to the “subject matter of the direct examination and matters affecting [a] witness’s 20 credibility,” but it “may allow inquiry into additional matters” depending on the circumstances of 21 trial. The Court will likewise limit the use of leading questions to cross-examination unless a party 22 calls “a hostile witness, an adverse party, or a witness identified with an adverse party.” Fed. R. 23 1 24 At the Pretrial Conference, the parties should be prepared to discuss what measures they will take to streamline the trial; if the parties cannot agree, the Court will decide for them. See Fed. R. Evid. 611(a)(2). ORDER ON PARTIES’ MOTIONS IN LIMINE AND REGARDING PROPOSED PRETRIAL ORDER - 9 Case 2:20-cv-01716-LK Document 62 Filed 05/20/22 Page 10 of 15 1 Evid. 611(c)(2). 2 Because the remainder of this motion in limine is just a make-work request to enforce the 3 Rules of Evidence, the Court denies it as unnecessary. See Standing Order, p. 5 (“Parties are 4 discouraged from filing motions in limine which . . . merely ask the Court to apply the Federal 5 Rules of Evidence.”). 4. 6 Boeing’s Rule 30(b)(6) Representative 7 There seems to be some confusion over Boeing’s Rule 30(b)(6) representative, Kaitlyn 8 Parsons. See Dkt. No. 59 at 8. Here again the parties partially miss each other. Bell contends that 9 he should be permitted to call Parsons in her Rule 30(b)(6) capacity during his case-in-chief. Dkt. 10 No. 54 at 7. He also argues that she “should be held to the four corners of [her] deposition 11 testimony.” Id. at 8. Boeing responds by asserting that, as a threshold matter, Bell cannot compel 12 Parsons’ testimony—at least not in her Rule 30(b)(6) capacity. Dkt. No. 56 at 5. And while Boeing 13 apparently plans to call Parsons in both her Rule 30(b)(6) and personal capacities, it “anticipates 14 [that] her testimony will comport with all applicable rules of evidence.” Dkt. No. 56 at 6; Dkt. No. 15 59 at 8. 16 During discovery, a party may “name as the deponent a public or private corporation,” and 17 the named organization—here, Boeing—“must designate one or more officers . . . or designate 18 other persons who consent to testify on its behalf[.]” Fed. R. Civ. P. 30(b)(6). As Boeing notes, 19 however, the duties of a Rule 30(b)(6) corporate deponent do not extend beyond discovery. See 20 Roundtree v. Chase Bank USA, N.A., No. 13-239-MJP, 2014 WL 2480259, at *1 (W.D. Wash. 21 June 3, 2014) (“[T]he rule contains no language compelling the corporate deponent’s testimony at 22 trial.”). Bell therefore cannot compel Parsons to testify during his case-in-chief. But this does not 23 prevent Bell from introducing her deposition testimony as substantive proof during his case-in- 24 chief. See Fed. R. Civ. P. 32(a)(3); McMann v. Crane Co., No. C14-5429-BHS, 2015 WL 3649180, ORDER ON PARTIES’ MOTIONS IN LIMINE AND REGARDING PROPOSED PRETRIAL ORDER - 10 Case 2:20-cv-01716-LK Document 62 Filed 05/20/22 Page 11 of 15 1 at *2 (W.D. Wash. June 11, 2015). 2 Although Bell acknowledges that a 30(b)(6) representative may correct, explain, or 3 supplement the topics discussed in the 30(b)(6) deposition, his request to limit Parsons “to the four 4 corners of [her] deposition testimony,” Dkt. No. 54 at 8–9, impermissibly stretches the “general 5 proposition” that a corporation “cannot present a theory of the facts that differs from that 6 articulated by the designated Rule 30(b)(6) representative,” Snapp v. United Transp. Union, 889 7 F.3d 1088, 1103 (9th Cir. 2018) (cleaned up). This rule applies “only where the purportedly 8 conflicting evidence [offered at trial] truly, and without good reason or explanation, is in conflict, 9 i.e., where it cannot be deemed as clarifying or simply providing full context for the Rule 30(b)(6) 10 deposition.” Id. Parsons can therefore correct, explain, and supplement her deposition testimony 11 with facts and “topics” that might not literally appear within “the four corners” of her deposition 12 transcript, as long as she does not alter or contradict the deposition testimony. Id. at 1103–04; see 13 also McFarland v. BNSF Ry. Co., No. 4:16-CV-05024-EFS, 2017 WL 5150794, at *2 (E.D. Wash. 14 Apr. 11, 2017). Furthermore, nothing in Boeing’s briefing suggests that it plans to present a new 15 theory of the case through Parsons’ trial testimony. See Dkt. No. 56 at 6; see also HSS Enters., 16 LLC v. AMCO Ins. Co., No. C06-1485-JPD, 2008 WL 11506715, at *1 (W.D. Wash. May 7, 2008) 17 (“[E]vidence generally should not be considered at trial if it raises new or different allegations that 18 could have been made at the time of the 30(b)(6) deposition.”) (cleaned up). 19 This motion in limine is denied. If Bell believes that Boeing is unfairly deviating from its 20 30(b)(6) testimony, Bell may object at trial. As a final matter, the Court clarifies that none of this 21 limits Parsons from testifying, in her personal capacity, about matters or information within her 22 personal knowledge. See Fed. R. Evid. 602. 23 24 ORDER ON PARTIES’ MOTIONS IN LIMINE AND REGARDING PROPOSED PRETRIAL ORDER - 11 Case 2:20-cv-01716-LK Document 62 Filed 05/20/22 Page 12 of 15 1 5. Rule 404 Character Evidence and Rule 608 Specific Instances of Conduct 2 Bell’s next motion in limine seeks to exclude any character evidence “as well as evidence 3 of specific instances of conduct.” Dkt. No. 54 at 8. For example, Bell wishes to preclude Boeing 4 from characterizing him as “being ‘combative’ when objecting to Defendant’s desire to move him 5 to the third shift.” Id.; see Dkt. No. 51 at 7–8, 29–30. Boeing again defers to the Court’s application 6 of the Federal Rules of Evidence in determining whether testimony at trial constitutes inadmissible 7 character evidence. Dkt. No. 56 at 5. It also disavows any intent to introduce evidence of Bell’s 8 behavior “outside his interactions with other Boeing employees[.]” Id. Boeing does, however, 9 argue that Watterson’s characterization of Bell as “combative”—among other descriptors—is 10 admissible. Id. 11 Character evidence is generally inadmissible “to prove that on a particular occasion the 12 person acted in accordance with the character or trait.” Fed. R. Evid. 404(a)(1). Nor may a party 13 introduce evidence of “a crime, wrong, or act . . . to prove a person’s character in order to show 14 that on a particular occasion the person acted in accordance with the character.” Fed. R. Evid. 15 404(b)(1). A party may, however, challenge a witness’s credibility with “testimony about the 16 witness’s reputation for having a character for . . . untruthfulness, or by testimony in the form of 17 an opinion about that character.” Fed. R. Evid. 608(a). And a witness may be cross-examined about 18 specific instances of conduct “if they are probative of the character for truthfulness or 19 untruthfulness of . . . the witness” or “another witness whose character the witness being cross- 20 examined has testified about.” Fed. R. Evid. 608(b)(1)–(2). Importantly, Rules 404 and 608 do not 21 govern whether specific instances of conduct are admissible for a non-character purpose. 22 Boeing submits that Bell’s “combative” behavior during meetings with Watterson “is 23 relevant evidence of [his] workplace behavior and his reaction to decisions at the heart of this 24 case.” Dkt. No. 56 at 5. Moreover, Boeing suggests that Watterson’s testimony about Bell’s ORDER ON PARTIES’ MOTIONS IN LIMINE AND REGARDING PROPOSED PRETRIAL ORDER - 12 Case 2:20-cv-01716-LK Document 62 Filed 05/20/22 Page 13 of 15 1 behavior is a “personal, first-hand description of his experience and observations,” and is therefore 2 “patently” relevant and admissible. Id. Although Bell’s specific actions relating to the interactive 3 process are relevant to the remaining claim in the case, his general workplace behavior is not. See 4 Point Ruston, LLC v. Pac. Nw. Reg’l Council, No. C09-5232-BHS, 2010 WL 3720277, at *1 (W.D. 5 Wash. Sept. 17, 2010) (evidence of party’s “aggressive” behavior in a case about an illegal boycott 6 and defamation was irrelevant and “meant to inflame the jury, which [was] more unfairly 7 prejudicial than probative”). 8 This motion in limine is granted with respect to evidence introduced for a character 9 purpose, and denied to the extent it seeks to exclude evidence of Bell’s actions with respect to the 10 11 interactive process. 6. Evidence About Bell’s Alleged Failure to Request an Accommodation While on Unpaid Medical Leave 12 Bell’s final motion in limine attempts to preclude evidence of his alleged failure to request 13 an accommodation once he was placed on unpaid medical leave. Dkt. No. 54 at 9. He claims that 14 argument or testimony on this issue will confuse the jury because it erroneously implies that 15 Boeing’s duty to accommodate was “only triggered if he had a permanent as opposed to a 16 temporary disability.” Id. at 13. As Boeing observes, Bell’s motion in limine mostly “rehashes 17 issues briefed at summary judgment and previews substantive arguments” appropriate for trial. 18 Dkt. No. 56 at 6; see Dkt. No. 54 at 9–13. And, more importantly, this evidence is relevant to 19 whether Boeing reasonably accommodated Bell’s disability. Dkt. No. 56 at 6–7. A brief recap of 20 the applicable law shows why. 21 “To accommodate, the employer must affirmatively take steps to help the disabled 22 employee continue working—either at their existing position or through attempts to find a position 23 compatible with their skills and limitations.” Gibson, 488 P.3d at 878. Washington courts have 24 ORDER ON PARTIES’ MOTIONS IN LIMINE AND REGARDING PROPOSED PRETRIAL ORDER - 13 Case 2:20-cv-01716-LK Document 62 Filed 05/20/22 Page 14 of 15 1 repeatedly characterized reasonable accommodation as a “flexible, interactive process,” Frisino v. 2 Seattle Sch. Dist. No. 1, 249 P.3d 1044, 1050 (Wash. Ct. App. 2011), and one that “envisions an 3 exchange between employer and employee where each seeks and shares information,” Goodman, 4 899 P.2d at 1269–70; see Wash. Rev. Code § 49.60.040(7)(d). The employee therefore “retains a 5 duty to cooperate with the employer’s efforts by explaining h[is] disability and qualifications.” 6 Goodman, 899 P.2d at 1269. 7 As particularly relevant here, the employee “has a duty to communicate to the employer 8 whether the accommodation was effective,” and must do so “while the employer still has an 9 opportunity to make further attempts at accommodation.” Frisino, 249 P.3d at 1052. This makes 10 sense, too. After all, the employer must be able to evaluate the efficacy of its accommodation 11 efforts so that it can “determine whether more is required to discharge its duty.” Id. If the first 12 mode of accommodation fails, the employer “may wish to . . . test another”; indeed, “one or more 13 additional attempts may be undertaken” because “previously unsuccessful attempts at 14 accommodation do not give rise to liability if the employer ultimately provides a reasonable 15 accommodation.” Id. at 1051. All of this makes clear that Bell’s alleged failure to request a 16 different accommodation or otherwise communicate with Boeing throughout the interactive 17 process is a key component of the jury’s inquiry. Contrary to Bell’s suggestion, then, it does not 18 risk confusing the issues. And he is free to challenge the significance of this evidence at trial. 19 20 This motion in limine is denied. III. PROPOSED PRETRIAL ORDER 21 The parties submitted a Proposed Pretrial Order on May 16, 2022. In contravention of the 22 Local Civil Rules, Bell failed to “identify the objection in the Objection column,” including 23 reference to the Federal Rule of Evidence upon which the objection is based, when applicable. See 24 Local Civ. R. 16(k), 16.1. Bell is ordered to correct these deficiencies in a revised Proposed Pretrial ORDER ON PARTIES’ MOTIONS IN LIMINE AND REGARDING PROPOSED PRETRIAL ORDER - 14 Case 2:20-cv-01716-LK Document 62 Filed 05/20/22 Page 15 of 15 1 Order to be submitted by May 25, 2022. 2 IV. 3 4 5 6 7 CONCLUSION For the reasons discussed above, the Court GRANTS IN PART, DENIES IN PART, and DEFERS IN PART the parties’ motions in limine. The Court also ORDERS the parties to submit a revised Proposed Pretrial Order by May 25, 2022. Dated this 20th day of May, 2022. 8 A 9 Lauren King United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER ON PARTIES’ MOTIONS IN LIMINE AND REGARDING PROPOSED PRETRIAL ORDER - 15

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