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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

 

SONIA LEE NETTLES,

Plaintiff,

v.

FARMERS INSURANCE EXCHANGE and

FARMERS GROUP, INC.,

Defendants.

Case No. C06-5164RJB

ORDER ON 

MOTIONS IN LIMINE

This matter comes before the court on Defendants’ Motions in Limine (Dkt. 62), and on

Plaintiff’s Motion in Limine Re: Preclusion of Expert Testimony (Dkt. 61). The court is familiar

with the records and files herein, and all documents filed in support of and in opposition to said

motions. 

Counsel should be aware that the denial of a motion in limine does not mean that the

questioned evidence is admissible. It only means that the court will resolve the issue at trial. 

Defendants’ Motions in Limine

A. Motion One. The court can better determine the relevance of offered

evidence at trial, and therefore Defendants’ Motion One should be denied. 

B. Motion Two. As reflected in Plaintiff’s Response to Defendants’ Motion in

Limine (Dkt. 63), Motion Two is moot. The court notes that should evidence related to punitive

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ORDER

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damages becomes relative, appropriate financial statements from the defendants, with brief

explanation, should be sufficient. The parties are urged to consider stipulation with regard to

such evidence. 

C. Motion Three. This motion should be denied for the reasons stated in

Plaintiff’s Response to Defendants’ Motions in Limine (Dkt. 63).

D. Motion Four. Again, the court can better determine admissibility of the

subject testimony at trial than pretrial. Accordingly, this motion should be denied. 

E. Motion Five. The court is not clear, at this point, as to the employment

relationships between plaintiff and the two named defendants. This issue involves the question of

not only who employed plaintiff, but who employed those who made the relative employment

decisions about her. The presence of two defendants in the case may well be overkill, and may

well be confusing to the jury, and, accordingly, the parties are encouraged to share information

about these employment relationships and consider stipulating to dismissal of any corporate party

that is not directly involved issues in this case. 

Plaintiff’s Motion in Limine Re: Preclusion of Expert Testimony

Rehabilitation Counselor Carl Gann may have some admissible testimony to offer on

issues of mitigation in regard to statistical evidence from reliable governmental sources. The

admissibility of such statistical evidence must rely on foundational evidence of the reliability such

statistics. Generalized opinions, however, as expressed in Mr. Gann’s report such as “in my

opinion, there were a significant number of job openings for customer service representatives in

the Vancouver, Washington - Portland, Oregon area in 2003 and 2004 for Ms. Nettles to have

applied for and become employed” and “in my opinion, Ms. Nettles could have found numerous

job openings for which she could have applied following her layoff” and “in my opinion, had she

performed a broader job search based on her skills, her opportunities for success would have been

much greater” and “in my opinion, a reasonable job finding time for Ms. Nettles would be up to

six months” are conclusions that would not assist the jury. Such testimony as to unknown job

openings that plaintiff could have applied for or received, and opinions as to the reasonableness of

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ORDER

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plaintiff’s efforts, go beyond the requirements of Federal Rule of Evidence 702. 

To quote from Defendants’ Motion:

The employer has the burden, however, of proving that the employee failed to

mitigate his or her damages. . . . To satisfy this burden, the employer has to prove

“that, based on undisputed facts in the record, during the time in question there

were substantially equivalent jobs available, which [the plaintiff] could have

obtained, and that [the plaintiff] failed to use reasonable diligence in seeking one.” 

Dkt. 61, at page 4 (citations omitted). Mr. Gann’s report indicates to the court that he may be

able to testify that statistically there were substantially equivalent jobs available, but there is no

basis in his report from which he could further testify that the plaintiff could have obtained any

particular job or that she failed to use reasonable diligence in seeking a job.

To the foregoing extent, Plaintiff’s Motion in Limine Re: Preclusion of Expert Testimony

(Dkt. 61) should be granted in part and denied in part. 

ORDER

IT IS ORDERED that the aforementioned motions are granted and denied to the extent

stated above. 

The Clerk of the Court is directed to send uncertified copies of this Order to all counsel of

record and to any party appearing pro se at said party’s last known address.

DATED this 11th day of May, 2007.

ARobert J. Bryan

United States District Judge 

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