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Hathaway v. Idaho Pacific Corporation

United States District Court, D. Idaho

October 21, 2019





         Pending 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)[1] and Motion for a Videoconference Hearing (Dkt. 208).[2]

         Having 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).


         On 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”).

         About a 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.

         On 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.

         Around 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 allegations.

         Hathaway 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.

         In 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.


         “Motions 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. 2004)).

         Because “[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).

         IV. ANALYSIS

         A. Hathaway's Motions in Limine[3]

         1. EEOC Letter (Dkt. 156)


         In his 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.

         2. Steele's Notes (Dkt. 157)

         GRANTED (with withheld ruling on some issues).

         In this motion, Hathaway makes a renewed motion to exclude certain handwritten- and later typed-notes Steele prepared.[4] 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.

         i. Business Records

         Hearsay 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.[5] 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.


         The 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. 17, 1999).

         Here, 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.

         After 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).

         ii. Non-hearsay

         IPC 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 Hathaway's allegation.

         The 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).

         In sum, 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.

         3. Supplemental Document 21 (Dkt. 158)


         Hathaway 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.

         As the 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.[6]

         4. Table of Involuntary Terminations (Dkt. 159)


         Finally, 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, 1259.

         Hathaway 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 Evidence 612.

         As 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.

         B. IPC's ...

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