Palpallatoc v. The Boeing Company

1 The Honorable Barbara J. Rothstein

5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE 7 NO. 22-cv-5728 ARCHELINO T. PALPALLATOC, 8 INITIAL ORDER ON PARTIES’ Plaintiff, MOTIONS IN LIMINE v. THE BOEING COMPANY, et al., Defendants.

13 Currently pending before the Court are the parties’ motions in limine, ECF Nos. 89 and 94.

14 The Court has reviewed the filings, including the responses in opposition, together with exhibits, previous rulings, and relevant law, and rules in part, as follows: Motion in Limine Ruling Boeing 1. The Court Should Failure to timely disclose without substantial justification Preclude Plaintiff’s Late- requires exclusion. Fed. R. Civ. P. 37(c)(1).

Disclosed Expert Witnesses (a) Johnson – GRANTED. Plaintiff does not provide (a) Cloie Johnson substantial justification for late disclosure of Cloie Johnson as an expert vocational witness. Indeed, even in his response to 19 this motion, he states only that he “tentatively” intends to call her.

Boeing 3. The Court Should GRANTED.

Preclude All References to Claims the Court Rejected When it Denied His Motion for Leave to File a Second Amended Complaint INITIAL ORDER ON PARTIES’ MOTIONS IN LIMINE Motion in Limine Ruling Boeing 4. The Court Should GRANTED. However, the Court reiterates its decision on Preclude Testimony About or summary judgment that incidents of intimidating behavior by References to Claims the the team of new managers towards Mr. Palpallatoc, including Court Dismissed on Boeing’s the Kyle Churchill incident, may constitute a hostile work MSJ environment. ECF No. 82 at 4-8.

Boeing 5. The Court Should GRANTED. Plaintiff must prove unwelcome harassment was Preclude Testimony on sufficiently severe or pervasive, but not the reasons or motive Plaintiff’s Allegation that He for the harassment. See Faragher v. City of Boca Raton, 524 Complained about Airplane U.S. 775, 787–88 (1998); Glasgow v. Georgia–Pacific, Corp., or Workplace Safety Issues 103 Wn.2d 401, 406 (1985). Plaintiff’s retaliation claim has to Boeing been dismissed. ECF No. 82 at 10-13.

Boeing 6. The Court Should GRANTED. The Court dismissed Plaintiff’s retaliation claim, Preclude Testimony and determining that it was not an adverse employment action.

Evidence on Plaintiff’s ECF No. 82 at 12. Even if Plaintiff perceived the transfer as Allegedly Retaliatory harassing, the action did not objectively alter the conditions of Transfer to LRIP employment. See Clarke v. State Attorney Gen.’s Office, 133 Wn. App. 767, 787 (2006); Harris v. Forklift Sys., Inc., 510 10 U.S. 17, 21 (1993).

Boeing 7. The Court Should GRANTED.

Preclude Testimony and Assertions by Counsel Regarding Documents Not Produced in Discovery or Appropriately Supplemented Boeing 8. The Court Should GRANTED. The Court dismissed Plaintiff’s claim of racial Preclude Plaintiff or His discrimination related to any failure to promote. ECF No. 82 at Witnesses from Testifying, 9. or Counsel from Suggesting, Boeing’s Promotion Decisions Were Improper Boeing 12. The Court Should GRANTED. Plaintiff is limited to testimony based on personal Preclude Plaintiff from knowledge, and hearsay testimony is inadmissible. Fed. R. Testifying About the Evid. 602, 802.

Objectionable Assertions Contained in His Summary Judgment Declaration Boeing 13. The Court Should DENIED. However, co-worker testimony must be directly Preclude “Me Too” relevant to Defendant’s notice of improper conduct/harassment Testimony from Coworkers to which Plaintiff was allegedly subjected.

Regarding Their Alleged Experiences of Discrimination, Harassment, or Retaliation INITIAL ORDER ON PARTIES’ MOTIONS IN LIMINE Motion in Limine Ruling Boeing 17. The Court Should GRANTED.

2 Preclude Plaintiff from Calling Late-Disclosed Lay Witnesses and Introducing Evidence That He Failed to Produce or Supplement in Response to Boeing’s Discovery Requests Boeing 18. The Court Should GRANTED as unopposed.

Preclude Plaintiff from Introducing Evidence or Referencing Irrelevant and Inflammatory Press or News About Boeing Plaintiff A.1. Exclude DENIED. “The collateral source rule provides that a tortfeasor “Collateral Source – Past and may not reduce its liability due to payments received by the Future Benefits or injured party from a collateral source when that source is Assistance” and “IIA independent of the tortfeasor.” Matsyuk v. State Farm Fire & Benefits – Potential Post Cas. Co., 173 Wn.2d 643, 657 (2012). Because the workers’ Verdict Set Offs compensation benefits were paid by Boeing as a self-insurer, they are not derived from a collateral source. The collateral source rule does not apply to evidence of Plaintiff’s assets.

Plaintiff A.2. Exclude DENIED to the extent that Plaintiff seeks to prevent Boeing Absence of Prior Incidents from presenting a defense against evidence allowed to be introduced by Plaintiff. See Boeing No. 14, which the Court has DEFERRED for argument of counsel and proffer of evidence.

Plaintiff A.3. Exclude DENIED. “Evidence of a person’s habit or an organization’s Evidence of Defendant’s routine practice may be admitted to prove that on a particular Habit/Routine or Practice occasion the person or organization acted in accordance with 18 the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether 19 there was an eyewitness.” Fed. R. Evid. Rule 406.

Plaintiff A.6. Exclude Failure DENIED. This one sentence motion appears to simply refer to to Hire or Call Expert the rules of evidence. See Standing Order, ECF No. 11 (“The Witnesses or To Call a Court will not accept, and will not address, any Motions in Witness Limine . . . that merely repeat the requirements of the Federal Rules of Evidence.”)

24 INITIAL ORDER ON PARTIES’ MOTIONS IN LIMINE Motion in Limine Ruling Plaintiff A.7. Exclude DENIED. Fed. R. Evid. 404, 607, 608.

2 Circumstances of Hiring Counsel or Associating Counsel or Comments Disparaging Counsel Plaintiff A.8. Exclude DENIED to the extent that the evidence is admissible under Irrelevant and Decades-Old, the Federal Rules of Evidence as relevant to weight or Alleged ‘Wrongs or Acts’ to credibility, or for proving motive, opportunity, intent, etc. Attack Plaintiff’s Character or Credibility Plaintiff A.11. Exclude GRANTED as unopposed. The parties’ obligations will be Disclosure of Illustrative and further discussed at the Pretrial Conference.

Demonstrative Evidence Plaintiff A.12. Exclude DENIED. Dr. King may testify as a fact witness.

Plaintiff’s Motion to Exclude or Limit the Use of Deposition or Live Testimony of Dr. Irina King Plaintiff A.13. Exclude DENIED. The source of the image in the email is relevant and Calling the Offensive Email admissible. Fed. R. Evid. 401, 402.

12 ‘Disney’ or ‘Pirates of the Caribbean Plaintiff B.1. Plaintiff Should DENIED. The jury’s duty is communicated in the jury Be Permitted to Argue instructions.

14 Deterrence in Line with RCW 49.60, the WLAD Plaintiff B.2. Reference to DENIED. The jury’s duty is communicated in the jury the Jury as the Conscience of instructions.

16 the Community Should Be Permitted Plaintiff B.4. Testimony of GRANTED. See Boeing Motion 13. However, co-worker Other Employees Is testimony must be directly relevant to Defendant’s notice of Admissible to Prove Hostile improper conduct/harassment to which Plaintiff was subjected.

Work Environment”

24 INITIAL ORDER ON PARTIES’ MOTIONS IN LIMINE 1 The Court defers ruling and requests oral argument on the following motions at the hearing on Monday, July 8, 2024.

3 Motion in Limine Ruling Boeing 1. The Court Should Failure to timely disclose without substantial justification Preclude Plaintiff’s Late- requires exclusion. Fed. R. Civ. P. 37(c)(1).

Disclosed Expert Witnesses (b) Deborah Diamond (b) Diamond – DEFERRED for argument of counsel.

Boeing 2. The Court Should DEFERRED for argument of counsel.

Limit Testimony from Plaintiff’s Economic Expert Boeing 9. The Court Should DEFERRED for argument of counsel.

Limit Daniel Ramos’s Testimony.

Boeing 10. The Court Should DEFERRED for argument of counsel.

Limit Gustavo Martinez’s Testimony Boeing 11. The Court Should DEFERRED for argument of counsel.

Limit Robert Huss’s Testimony Boeing 14. The Court Should DEFERRED for argument of counsel.

13 Preclude Evidence Regarding Boeing’s Investigations into Other Employees’ Complaints about Kyle Churchill, Cary Fiske, or Other Boeing Managers Boeing 15. The Court Should “An adverse party may use for any purpose the deposition of a Preclude the Use of party or anyone who, when deposed, was the party's officer, Deposition Designations in director, managing agent, or designee under Rule 30(b)(6) or Lieu of Testimony Unless 31(a)(4).” Fed. R. Civ. P. Rule 32 (a)(3). Live testimony is Plaintiff Has Demonstrated preferred over recorded testimony. Beem v. Providence Health the Witness’s Unavailability & Svcs., No. 10-CV-0037-TOR, 2012 WL 13018728 (E.D.

19 Wash. Apr. 19, 2012).

GRANTED with regard to the use of video depositions during 20 opening statements. No video depositions will be allowed during opening statements.

21 DEFERRED for argument of counsel with regard to other deposition designations. The Court cannot rule without 22 knowing what depositions Plaintiff wishes to introduce for a party that is available to testify live before the Court.

24 INITIAL ORDER ON PARTIES’ MOTIONS IN LIMINE Motion in Limine Ruling Boeing 16. The Court Should DEFERRED for argument of counsel. See also Boeing Preclude Plaintiff From Motions 9-11, 14.

Introducing Evidence Regarding Discipline or Discharge of Other Boeing Employees Plaintiff A.4. Exclude DEFERRED for argument of counsel. The Court cannot rule Plaintiff’s Other Lawsuits or on this motion without knowing what lawsuits or claims are Claims sought to be excluded.

Plaintiff A.5. Exclude DEFERRED for argument of counsel. The Court cannot rule Financial Status of Parties on this motion without knowing what evidence Plaintiff seeks to exclude.

Plaintiff A.9. Exclude Any DEFERRED for argument of counsel. The Court cannot rule Reference to Non-Witness or on this motion without knowing what evidence Plaintiff seeks Non-Expert Medical to exclude.

Opinions, Reports or Records Plaintiff A.10. Exclude No DEFERRED for argument of counsel. The Court cannot rule References to How Plaintiff on this motion without knowing what evidence Plaintiff seeks Might Use the Proceeds of to exclude.

Any Judgment Plaintiff B.3. Allow DEFERRED for argument of counsel. See also Boeing Motion Testimony of Defendants’ 15.

13 ‘Speaking Agents’ 14 DATED this 5th day of July 2024.

A 17 B arbara Jacobs Rothstein U.S. District Court Judge INITIAL ORDER ON PARTIES’ MOTIONS IN LIMINE