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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Gary Despain, 

Plaintiff, 

v. 

BNSF Railway Company, 

Defendant.

No. CV-15-08294-PCT-NVW

ORDER 

 Before the Court are Plaintiff’s Motions In Limine Nos. 1-8 (Doc. 97) and the 

Response (Doc. 110.) Also before the Court are Defendant’s Motions In Limine Nos. 1-

15 (Doc. 98) and the Response (Doc. 112.) The rulings, where they can be made at this 

stage of the proceedings, are as follows. 

 Plaintiff’s Motions In Limine Nos. 1-8 

No. 1. The Public Law Board award is excluded as evidence that Plaintiff was 

untruthful, except as it may be admissible on punitive damages, which is reserved for 

decision at trial. The finding merely concluded there was evidence, not that Plaintiff was 

untruthful. Like the preliminary findings in these OSHA proceedings on de novo review, 

the PLB finding has no legal effect in this proceeding and is just a third person’s opinion 

about some of the matters committed to the jury’s decision. It does not matter what other 

people think on those questions. Defendant’s concern about “completeness” can be met 

with an instruction that does not include the prejudicial and irrelevant (to the jury’s task) 

opinion about evidence about untruthfulness. The Motion is granted. 

 No. 2. Whether Plaintiff’s termination was retaliatory, pretextual, or even 
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reasonable is grounded in the evidence and circumstances of this case. The “comparator” 

opinions of Ms. Maglisceau will be excluded for multiple reasons. First, the evidence is 

not focused on the only probative comparators, workers who were terminated for 

untruthfulness in reporting a safety problem. She encompasses anyone who was 

disciplined within six months of an injury, not just terminated, for any violation, 

including untruthfulness, in Plaintiff’s division. Her separate data for workers dismissed 

for untruthful conduct is not connected to untruthfulness in making the injury claim. 

 These data do not meet the tests of helpfulness to the jury and reliability in the 

circumstances of this inquiry. They will greatly multiply the proceedings with dissimilar 

cases with an unwarranted appearance of statistical value, expanding the trial to 

numerous other dissimilar cases. Maglisceau does not offer any specific comparator as to 

the nature and circumstances of the alleged untruthfulness in connection with the 

injury/safety report itself with similar discipline. In this case the Court is familiar with 

the weakness of the evidence of alleged untruthfulness from the proceedings on summary 

judgment, and a true comparator should have similarity to those circumstances. A true 

comparator may well be admissible, but none is offered. The Motion is granted. 

 No. 3. If there is proper foundation for the exhibit, the train sheet is relevant and 

admissible, and the motion to exclude it is denied. Defendant may attempt to show that 

error in Plaintiff’s recollection and report was lying, and Plaintiff may attempt to show 

that, if mistaken, it was unintentional, inconsequential, and suggestive of retaliation to 

terminate Plaintiff for that. 

 No. 4. Defendant offers its Code of Conduct with its prohibition of retaliation 

only as to punitive damages. The Code of Conduct is admissible for that purpose. 

Contrary to Defendant’s suggestion, it does not insulate Defendant from liability for 

punitive damages. The Motion to exclude is denied. 

 No. 5. Defendant’s Workplace Harassment Policy is not relevant and is excluded. 

To the extent that Policy also mentions non-retaliation, it is about retaliation concerning 

employment discrimination, not retaliation concerning safety. If it has any arguable 
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reference to safety retaliation, is it also excluded as cumulative. The Motion to exclude is 

granted. 

 No. 6. Evidence of the amount of Plaintiff’s pension is inadmissible as irrelevant 

and alternatively as collateral source. It will be excluded, but not the fact the Plaintiff is 

in retirement and on pension. This will be managed at trial in the admission of evidence 

of what damages Plaintiff is entitled to. Plaintiff will not suggest that his emotional 

suffering is affected by lack of retirement income. That would open the door. 

 No. 7. Evidence of Plaintiff’s prior work injuries is irrelevant and will be 

excluded. Plaintiff does not contend the Defendant retaliates against workers for every 

injury, so Defendant does not need to rebut that. Such evidence would also fail the test of 

Rule 403, as it would be very confusing as to the issues and a waste of time. 

 No. 8. Plaintiff may try to prove damages and that he adequately mitigated 

damages. It cannot be known in advance of trial whether he will do so. The motion does 

not address Defendant’s vocational expert’s testimony. Whether the evidence is 

sufficient to excuse mitigation of damages or sufficient to allow a finding of mitigation 

cannot be determined until the close of evidence. Plaintiff’s Motion No. 8 to exclude 

evidence and argument of failure to mitigate damages is denied. 

Defendant’s Motions In Limine Nos. 1-15 

 No. 1. Plaintiff does not oppose the motion, and Defendant’s motion to exclude 

the preliminary OSHA finds is granted. 

 No. 2. Defendant’s motion to exclude argument and evidence that Plaintiff was 

dishonest is denied. The jury instructions will address what Plaintiff may or must prove. 

But Plaintiff may argue and present evidence that he was truthful, that Defendant knew or 

believed he was truthful, that a contrary conclusion was unreasonable, that any error was 

not intentional, and that any error was so unreasonable or insignificant as to exclude an 

inference of lying and sufficient to support an inference of retaliation in any event. 

 In this objection as in others, Defendant does not say what specifically Plaintiff 

was found to be lying about—the injury, the timing of his trip and of the injury, his 
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medical treatment, the advice of his medical providers, or other details. Rather, 

Defendant sweeps everything into unarticulated untruthfulness, though the 

reasonableness, believability, and accuracy of such conclusions would vary. 

 No. 3. Evidence of retaliatory motive or conduct by persons who recommended 

the termination is admissible. The responsibility of Defendant’s decision-makers is not 

absolved because someone agreed with the decision or recommended it. But retaliatory 

motive of a recommender is relevant and admissible even if conjoined with a personal 

grudge. Plaintiff is not prohibited from trying to prove that. Cat’s paw retaliation taints 

later decision-makers’ reliance on the recommendation. The motion will be denied. 

 No. 4. The motion concerning “evidence not available to the decision makers” is 

too vague and general to be considered in advance of trial. It is not clear what such a 

ruling in advance of trial would mean. Plaintiff does not suggest evidence that might 

warrant prohibition. The motion is denied at this time. 

 No. 5. Mr. Cunningham may testify to facts within his knowledge, such as that 

Plaintiff’s report broke an “injury free streak” in his division. But he may not opine that 

that was the motive for Plaintiff’s termination. The jury can weigh the persuasiveness of 

that inference without need for help from Mr. Cunningham. That is not the kind of lay 

opinion permitted by Rule 701. The motion is granted as to opinion of Mr. Cunningham. 

 No. 6. Evidence and argument that Plaintiff would not lie because of his religion 

is excluded as irrelevant, highly prejudicial, and confusing. The Motion to exclude is 

granted. 

 Nos. 7 and 8. Evidence of other claims and settlements, including the OSHA 

Accord, is not probative of intent or motive, and the existence of other claims is not 

relevant. The settlements are not admissions and would be confusing, unfairly 

prejudicial, and a waste of time under Rule 403. They are also propensity evidence, and 

disputed propensity evidence at that, and no exception allowing admission under Rule 

404(b) has been suggested. However, because of the general, non-specific nature of the 

objection, it cannot be decided in every possible particular before trial. If Ms. 
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Maglisceau’s testimony and charts were admitted, it would open the door to specific 

proof of other retaliation claims. The motions are denied at this time. 

 No. 9. Defendant’s contention and Plaintiff’s response are not explained well 

enough to resolve on these briefs. The motion may be renewed at trial. It is denied at 

this time. 

 No. 10. Plaintiff does not offer any relevance for OSHA and FRSA claims 

statistics, and they are not relevant. The motion is granted. The Court does not foreclose 

such evidence as relevant rebuttal. 

 No. 11. Legislative history and intent is inadmissible and will be excluded. The 

Court will instruct the jury on the applicable law. 

 No. 12. The timing, similarity, actors, and circumstances of other acts of 

retaliation will determine whether they are admissible in this trial. The motion to exclude 

them is denied at this time. If offered, they should first be presented out of the hearing of 

the jury to determine if they are admissible. 

 No. 13. It is efficient to seek pre-trial determination of permissible argument 

where it is feasible to do so. Plaintiff is precluded from arguing “delay of justice” since it 

was inherent in the OSHA process or brought on by Plaintiff’s last-minute election of de 

novo review. 

 No. 14. Financial condition is relevant to punitive damages if the trial proceeds 

that far. The financial condition of a shareholder of a corporation is not. The trial will be 

managed in such a way that financial condition evidence will not be admitted until after 

Plaintiff has made a sufficient showing of punitive damages. Evidence of the financial 

condition of Mr. Buffet is excluded. The motion is otherwise denied at this time. 

No. 15. The motion to exclude evidence of back pay damages is not a motion in 

limine. It is an unacknowledged motion for partial summary judgment. As such, it is 

denied. The time to assess the sufficiency of the evidence is at the close of the evidence, 

not before the beginning of the trial, regardless of who has the burden of proof. 

IT IS THEREFORE ORDERED that Plaintiff’s Motions In Limine Nos. 1, 2, 5, 6 
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and 7 (Doc. 97.) are granted. 

 IT IS FURTHER ORDERED that Plaintiff’s Motions In Limine Nos. 3, 4, and 8 

(Doc. 97.) are denied. 

 IT IS FURTHER ORDERED that Defendant’s Motions In Limine Nos. 1, 5 (as to 

Mr. Cunningham’s opinion), 6, 10, 11, 13, and 14 (as to the financial condition of Mr. 

Buffet) (Doc. 98) are granted. 

 IT IS FURTHER ORDERED that Defendant’s Motions In Limine Nos. 2, 3, 5 (as 

to Mr. Cunningham’s facts), and 15 (Doc. 98) are denied. 

 IT IS FURTHER ORDERED that Defendant’s Motions In Limine Nos. 4, 7, 8, 9, 

12, and 14 (Doc. 98) are denied at this time. 

 Dated this 30th day of May, 2018.