United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. NYE CHIEF U.S. DISTRICT COURT JUDGE.
before the Court are Plaintiff Ross Hathaway's Motions in
Limine (Dkts. 156-59) and Defendant Idaho Pacific
Corporation's (“IPC”) Motions in Limine
(Dkts. 146, 149, 161-63, 167) and Motion for a Videoconference
Hearing (Dkt. 208).
reviewed the record and briefs, the Court finds that the
facts and legal arguments are adequately presented.
Accordingly, in the interest of avoiding further delay, and
because the Court finds that the decisional process would not
be significantly aided by oral argument, the Court will
decide the Motions without oral argument. Dist. Idaho Loc.
Civ. R. 7.1(d)(1)(B).
February 19, 2013, Hathaway claims to have slipped on potato
granules, causing him to fall and injure his left thumb,
hand, and shoulder. Hathaway reported the accident to Dwain
Gotch, IPC's Plant Safety Manager. Gotch prepared a
handwritten report detailing the accident, which Hathaway
reviewed and signed (“Handwritten Report”).
month later, on March 21, 2013, Hathaway went to Community
Care, IPC's workers' compensation provider, after he
experienced pain in his shoulders. This pain caused his arm
to seize up while he was at work. On March 22, 2013, Dr.
Larry Curtis informed Hathaway he had a shoulder strain from
the February 19, 2013, fall. Lorina Steele, IPC's human
resources administrator, received this information on the
same day but believed Hathaway's pain and arm-seizure
were caused by hyperglycemia. Because of this belief, she
responded by telling Community Care that this injury was not
workers' compensation related.
March 28, 2013, Dr. Curtis sent a letter to Steele stating he
“fe[lt] strongly that [Hathaway's injury] is work
comp related.” Dkt 145-8. The next day, Steele prepared
a workers' compensation report (“First
Report”) and sent it to Liberty Mutual, IPC's
insurer, along with the medical documentation she had
received from Community Care. In the First Report, Steele did
not include any information regarding Hathaway's shoulder
injury. In an email to Liberty Mutual, Steele stated she
didn't know how to complete a report for Hathaway because
she believed the March 21, 2013, arm seizure was not related
to his prior work injury.
mid-April of 2013, a co-worker informed Hathaway that IPC
omitted his shoulder injury from their records. When Hathaway
inquired about the omission, Gotch provided him a copy of an
unsigned, typed report in place of the Handwritten Report.
This typed report included only his thumb injury and did not
reference his shoulder. Gotch told Hathaway to see Mike
Willmore, another supervisor, about any concerns he had
regarding the shoulder injury or Handwritten Report. On April
17, Hathaway met with Willmore to discuss his concerns. On
April 18, IPC fired Hathaway, claiming he told another
employee he would intentionally hurt himself at work.
Hathaway was not given an opportunity to respond to those
filed his Complaint on March 12, 2015, and the first trial
commenced on December 11, 2017. The first trial resulted in a
hung jury, and the Court ordered a new trial on all of
Hathaway's claims. Dkt. 118. The second trial is
currently scheduled to begin on October 28, 2019.
anticipation of the upcoming trial, and pursuant to the
Court's trial order (Dkt. 141), both parties filed
motions in limine seeking to preclude certain evidence and
testimony at trial.
in limine are well-established devices that streamline trials
and settle evidentiary disputes in advance, so that trials
are not interrupted mid-course for the consideration of
lengthy and complex evidentiary issues.” Miller v.
Lemhi Cty., No. 4:15-CV-00156-DCN, 2018 WL 1144970, at
*1 (D. Idaho Mar. 2, 2018) (citing United States v.
Tokash, 282 F.3d 962, 968 (7th Cir. 2002)). “The
term ‘in limine' means ‘at the outset.' A
motion in limine is a procedural mechanism to limit in
advance testimony or evidence in a particular area.”
United States v. Heller, 551 F.3d 1108, 1111 (9th
Cir. 2009) (quoting Black's Law Dictionary 803 (8th ed.
“[a]n in limine order precluding the admission of
evidence or testimony is an evidentiary ruling, ”
United States v. Komisaruk, 885 F.2d 490, 493 (9th
Cir. 1989) (citation omitted), “a district court has
discretion in ruling on a motion in limine, ”
United States v. Ravel, 930 F.2d 721, 726 (9th Cir.
1991). Further, in limine rulings are preliminary and,
therefore, “are not binding on the trial judge [who]
may always change his mind during the course of a
trial.” Ohler v. United States, 529 U.S. 753,
758 n.3 (2000).
Hathaway's Motions in Limine
EEOC Letter (Dkt. 156)
first motion in limine, Hathaway moves to exclude a letter
from William Benedict, a former EEOC investigator, because he
believes it contains inadmissible hearsay and is inaccurate.
In response, IPC filed a Notice of Non-Opposition and Notice
of Withdrawal of their own motion in limine regarding
Benedict's letter. Dkt. 175. Thus, as this motion is
proper and unopposed, the Court grants it. Benedict's
letter will not be admissible at trial.
Steele's Notes (Dkt. 157)
(with withheld ruling on some issues).
motion, Hathaway makes a renewed motion to exclude certain
handwritten- and later typed-notes Steele
prepared. These notes summarize the events regarding
Hathaway's injuries and Steele's involvement in the
workers' compensation claim process. Hathaway asserts
that Steele's notes are foundationless hearsay because
Steele was not present for a number of the events she
describes in her notes, but instead relied on information
given to her from other employees. IPC argues that
Steele's notes meet the business records exception from
hearsay under Federal Rule of Evidence 803(6) and,
alternatively, that it offers the notes for non-hearsay
purposes. The Court addresses each theory in turn.
is an out of court statement offered to prove the truth of
the matter asserted and is generally inadmissible.
Fed.R.Evid. 801. Federal Rule of Evidence 803(6), however,
excludes a document from the rule against hearsay if it
qualifies as a business record. Id. at 803(6). A
document is considered a business record if:
(A) the record was made at or near the time by-or from
information transmitted by-someone with knowledge; (B) the
record was kept in the course of a regularly conducted
activity of a business, organization, occupation, or calling,
whether or not for profit; (C) making the record was a
regular practice of that activity; (D) all these conditions
are shown by the testimony of the custodian or another
qualified witness, or by a certification that complies with
Rule 902(11) or (12) or with a statute permitting
certification; and (E) the opponent does not show that the
source of information or the method or circumstances of
preparation indicate a lack of trustworthiness.
purpose behind this exception is that “business records
have a special indicia of reliability.” N.L.R.B. v.
First Termite Control Co., 646 F.2d 424, 427 (9th Cir.
1981). Further, a “district court has wide discretion
in determining whether a business record meets the
trustworthiness standard.” United States v.
Scholl, 166 F.3d 964, 978 (9th Cir. 1999) (internal
quotations omitted), as amended on denial of reh'g (Mar.
Hathaway contends that Steele's notes are hearsay and are
not sufficiently trustworthy to qualify as a business record.
He points out that there is no indication when the notes were
prepared and that it appears IPC is really trying to replace
its actual business records, such as the missing Handwritten
Report, with these notes. IPC counters that Steele regularly
prepares these notes in her capacity as the human resources
manager. IPC states that this allows her to gather the
necessary information to submit an injury report, which the
law requires IPC to do.
reviewing Steele's notes, the Court concludes that they
constitute hearsay and do not qualify as business records
under Rule 803(6). On its face, Steele's notes do not
qualify as a business record because IPC has not indicated
that Steele made her notes “at or near the time”
of the events. Additionally, Hathaway has shown that the
method or circumstances of preparation lack trustworthiness.
See Fed. R. Evid. 803(6). Thus, IPC may not utilize
them as business records under Rule 803(6).
further argues that it can use Steele's notes for
non-hearsay purposes, i.e. that it can offer them
for purposes other than to prove the truth of the matter
asserted. IPC contends that it is entitled to introduce
Steele's notes because Hathaway will argue that Steele
intentionally omitted information about his shoulder injury
when she reported the incident to Liberty Mutual. Because
Steele attached her notes to an email she sent to Liberty
Mutual, IPC believes they are entitled to use them to rebut
Court agrees that these notes could be used for non-hearsay
purposes, but under much narrower circumstances than IPC
desires. As stated above, Steele's notes are hearsay and
IPC cannot use them to prove the truth of what they assert.
IPC contends that it still may use them as non-hearsay to
counter Hathaway's argument that Steele withheld
information from Liberty Mutual. This is true only if
Hathaway first makes that argument. In other words, IPC may
not introduce Steele's notes unless Hathaway opens the
door by arguing that Steele withheld information from Liberty
Mutual. To allow IPC to introduce them prior to such an
argument would be to allow it to improperly sidestep the rule
against hearsay. If, at trial, IPC believes that Hathaway has
made this argument, it may make a showing outside the
presence of the jury that Hathaway has opened the door (and
that it can lay the appropriate foundation for Steele's
notes to come in).
the Court finds that Steele's notes include hearsay and
do not qualify as a business record under Rule 803(6).
Further, Hathaway must first argue that IPC withheld
information from Liberty Mutual before Steele's notes may
come in as non-hearsay evidence. In that event, the Court
reserves ruling on any foundation, additional hearsay, and
other applicable objections until trial.
Supplemental Document 21 (Dkt. 158)
next moves to exclude a document (“Doc. 21”)
attached to an email exchange between Steele and Todd
Higgins, a man who IPC supposedly employed in December of
2013, under Federal Rule of Civil Procedure 37(c)(1).
Hathaway bases this motion on the fact that IPC failed to
provide Doc. 21 during discovery as required by Federal Rule
of Civil Procedure 26. IPC argues that it promptly disclosed
Doc. 21 when it realized Doc. 21 was missing (two years after
discovery closed) and that it is Hathaway's fault for not
noticing that Doc. 21 was missing earlier.
Court recently stated in a different case, “information
not properly disclosed is inadmissible at trial-absent
substantial justification.” Williams v. Madison
Cty, Idaho, No. 4:12-CV-00561-DCN, 2019 WL 4007217, at
*12 (D. Idaho Aug. 23, 2019). The Court sees no reason to
take a different position here. Further, blaming the other
side for not catching one's own mistake is not an
appropriate defense. IPC may have immediately provided Doc.
21 to Hathaway when he notified IPC it was missing, but this
does not change the fact that IPC did not properly disclose
it during discovery in the first instance. Thus, IPC may not
use Doc. 21.
Table of Involuntary Terminations (Dkt. 159)
in PART, DENIED in PART.
Hathaway asserts that the Court should exclude IPC's use
of a Federal Rule of Evidence 1006 summary exhibit titled
“Table of Involuntary Terminations”
(“Table”). The proponent of a summary exhibit
“must establish a foundation that (1) the underlying
materials upon which the summary is based are admissible in
evidence; and (2) the underlying documents were made
available to the opposing party for inspection.”
Paddack v. Dave Christensen, Inc., 745 F.2d 1254,
argues that the Court should bar the Table because IPC never
made the underlying documents available to him. IPC is
cryptic in stating that it may or may not attempt to use the
Table at trial, but concedes that Hathaway's argument may
have merit. Despite this, IPC argues that it could still
utilize the Table for non-exhibit purposes, such as to
refresh a witnesses' recollection under Federal Rule of
there is no real disagreement over the Table, the answer is
fairly straightforward. IPC may not introduce the Table
as an exhibit because it never disclosed the
underlying documents to Hathaway. However, if IPC feels that
there is a purpose for the Table outside using it as an
exhibit, then it may make a showing to that effect outside
the presence of the jury. Such a showing must still comply
with the applicable Federal Rules of Evidence.