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Romero v. Helmerich & Payne International Drilling Co.

United States District Court, D. Colorado

August 1, 2017

SILO ROMERO, Plaintiff,


          Nina Y. Wang United States Magistrate Judge.

         This matter comes before the court on Plaintiff Silo Romero's ("Plaintiff or "Mr. Romero") Ominbus Motion in Limine, [#79, filed June 30, 2017] and Defendant Helmerich & Payne International Drilling Co.'s ("Defendant" or "H&P") Omnibus Motion in Limine [#78, filed June 30, 2017]. The Motions are before the court pursuant to the Order of Reference dated July 13, 2015 [#24], 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, and D.C.COLOLCivR 72.2. The court has carefully considered the Motions and related briefing, the entire case file, and the applicable case law. For the following reasons, both Motions in Limine are GRANTED IN PART and DENIED IN PART.


         Mr. Romero commenced this action on December 24, 2014, by filing a Complaint in the state District Court for Mesa County, Colorado. [#5] Plaintiff asserts one claim for wrongful discharge in violation of public policy, and alleges that he was terminated from his employment with H&P in retaliation for seeking workers' compensation benefits for lost wages incurred after an on-the-job injury. H&P contends that Mr. Romero voluntarily resigned.

         On April 7, 2015, H&P removed the action to this court asserting jurisdiction pursuant to 28 U.S.C. § 1332 on the basis that Plaintiff is a Colorado citizen, H&P is a citizen of Delaware, and the amount in controversy exceeds $75, 000. See [#\~\[1]H&P filed its Answer from the state court docket the same day. See [#7]. On July 16, 2015, the court held a Scheduling Conference and set various pre-trial dates. See [#25, #26].

         On June 6, 2016, H&P filed a Motion for Summary Judgment. [#38]. On August 5, 2016, after the Motion was fully briefed, the court held a hearing and took the matter under advisement. See [#47]. On October 13, 2016, the court denied the Motion for Summary Judgment. See [#54]. The court held a Final Pretrial Conference the same day and issued a Final Pretrial Order, setting a five-day jury trial to begin May 1, 2017. [#55, #56]. The court thereafter held a Status Conference to discuss Plaintiffs request that the trial be held in Grand Junction, Colorado or, in the alternative, that the court permit various treating medical providers located on Colorado's Western Slope to testify by video conference from the Grand Junction courthouse. See [#62, #67]. Upon request of the Parties, the court additionally vacated the May 1 start date and reset the trial for August 14, 2017. On April 3, 2017, the court entered an Amended Final Pretrial Order [#71] and a Trial Preparation Order [#72].

         On June 30, 2017, the Parties filed their respective Motions in Limine. [#78, #79]. The same day, Plaintiff filed his designation of deposition testimony. [#81]. On July 7, 2017, Defendant filed counter designations, [#81], and, on July 11, it filed a Response to the Motion in Limine. [#82]. On July 21, 2017, Plaintiff filed his Response to the Motion in Limine. [#98]. The Trial Preparation Conference is set for August 7, 2017.


         Motions in limine exist outside of the Federal Rules of Civil Procedure and Federal Rules of Evidence and serve to enable the court "to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial." United States v. Cline, 188 F.Supp.2d 1287, 1291 (D. Kan. 2002) (quoting Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (further citations omitted)). Pre-trial rulings issued in response to motions in limine can save time during trial as well as cost and effort for the parties as they prepare their cases. However, "a court is almost always better situated during the actual trial to assess the value and utility of evidence." Koch v. Koch Industries, Inc., 2 F.Supp.2d 1385, 1388 (D. Kan. 1998) (citing Hawthorne Partners v. AT & T Technologies, Inc., 831 F.Supp. 1398, 1400 (N.D. 111. 1993) ("Unless evidence meets this high standard [of clearly inadmissible], evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context.")).

         I. Mr. Romero's Motion in Limine

         Plaintiff asks the court to preclude during trial the admission of evidence, and associated argument, regarding the unemployment benefits he received under Colorado and Wyoming law. See [#79]. He also asks the court to exclude argument regarding or reference to redactions in his records. [Id.].

         A. Evidence of Unemployment Benefits

         Mr. Romero asks the court to exclude "evidence of, and argument regarding, the fact that [he] filed claims for unemployment benefits, had hearings on such claims, filed appeals regarding such claims, received unemployment benefits for certain time periods, and any other similar evidence which would notify the jury that [he] sought unemployment benefits" under the laws of Colorado and Wyoming. [#79 at 3]. Defendant concedes that "finding[s] of fact or law, judgment, conclusion, or final order" rendered in an unemployment proceeding are inadmissible as evidence, but argues that the simple fact that Mr. Romero filed for unemployment benefits is admissible. [#82 at 2-3]. Defendant further argues that the documents Mr. Romero supplied and the testimony Mr. Romero gave in pursuing unemployment benefits, as well as the testimony other H&P employees provided, constitute admissible evidence for the purposes of impeachment and rehabilitation at trial. [Id. at 3].

         1. Applicable Law

         As the Parties note, both Colorado and Wyoming law state that findings of fact, conclusions of law, final orders, and decisions or final judgments in unemployment proceedings are not admissible as evidence "in any separate or subsequent action or proceeding in another forum." Colo. Rev. Stat. § 8-74-108. See also Wyo. Stat. Ann. § 27-3-406; Hart v. Dillon Companies, Inc., No. 12-cv-00238-RM-DW, 2014 WL 6819724, at *4 (D. Colo. Dec. 3, 2014).

         Rule 401 of the Federal Rules of Evidence advises that evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence, " and "the fact is of consequence in determining the action." Fed.R.Evid. 4Ol(a)-(b). The court may nonetheless exclude relevant evidence "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Id. at 403.

         Rule 613 governs scenarios in which a witness's prior statements are implicated. The Rule allows admission of extrinsic evidence of a witness's prior inconsistent statement "only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires." Fed.R.Evid. 613(b). This subsection of Rule 613 does not apply to Rule 801(d)(2), which governs statements offered against an opposing party. Under Rule 801(d)(2), in relevant part, an opposing party's statement offered against the opposing party is not hearsay if it "was made by the party in an individual or representative capacity." Similarly, a declarant or witness's prior statement is not hearsay if the declarant/witness testifies and, subject to cross-examination about the prior statement, the statement "is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition." Fed.R.Evid. 801(d)(1)(A). Additionally, the declarant or witness's prior statement is not hearsay if, subject to cross-examination about the prior statement, the statement is consistent with the declarant/witness's testimony and is offered "to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying, " or "to rehabilitate the declarant's credibility as a witness when attacked on another ground." Id. at 801(d)(1)(B).

         2. Application

         Neither Party engages in an analysis under Rules 401 and 403 as to the relevance of evidence that Plaintiff applied for unemployment benefits, or prejudice associated with that evidence; they simply argue respectively that the evidence may, or may not, be admitted pursuant to the statutes. I agree with Defendant that nothing in the plain language of either statute precludes evidence of the fact that a person sought unemployment benefits, and this court similarly found no authority to imply such a limitation. "A court will generally not grant a motion in limine unless the moving party meets its burden of showing that the evidence in question is clearly inadmissible on all potential grounds." Cook v. Peters, No. 13-cv-107-GKF-FHM, 2015 WL 10986407, at *1 (N.D. Okla. Jul. 30, 2015) (citing Koch, 2 F.Supp.2d at 1388). I find that Plaintiff has not met his burden in asking the court to preclude all "evidence of, and argument regarding, the fact that [he] filed claims for unemployment benefits, had hearings on such claims, filed appeals regarding such claims..., " and I deny the request. [#79 at 3]. However, I grant the Motion in Limine to the extent it seeks to preclude evidence of the results of Mr. Romero's applications and results of the subsequent hearings and appeals, as evidence of such would implicate the type of findings, conclusions, orders, and decisions barred by the statutes.

         With respect to Defendant's assertion in its Response that testimony from unemployment proceedings is admissible for the purpose of impeachment and rehabilitation, the court defers its ruling until such a time as the issue is ripe. The court may deny a motion in limine when it "lacks the necessary specificity with respect to the evidence to be excluded, " and denial of the motion "does not necessarily mean that all evidence contemplated by the motion will be admitted at trial." Koch, 2 F.Supp.2d at 1388 (citations omitted). In his Motion in Limine, Plaintiff did not specifically address the admissibility of testimony that he and other H&P employees offered during his unemployment proceedings. See generally [#79 at 1-3]. He stated only that he is not seeking to preclude facts regarding his employment with Defendant or his work related injury simply because those facts "were cited in the underlying unemployment claims, hearings, or appeals." [Id. at 2]. I decline to craft an argument for exclusion on Plaintiffs behalf[2] I also decline to speculate as to what evidence may come in, or affirmatively allow evidence of the testimony before the matter of impeachment or rehabilitation has even arisen. See Koch, 2 F.Supp.2d at 1388 ("the court believes the better practice is to wait until trial to rule on objections when admissibility substantially depends upon what facts may be developed there") (citing Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir.), cert, denied, 423 U.S. 987 (1975); Hunter v. Blair, 120 F.R.D. 667 (S.D. Ohio 1987)). See also Farrier v. Nicholson, No. CIV-06-825-D, 2008 WL 4186217, at *2 (W.D. Okla. Sept. 9, 2008) ("The relevance and admissibility of evidence related to Plaintiffs unemployment compensation claim that does not reflect OESC findings will be determined at trial upon Defendant's contemporaneous objection"). Should Defendant find during trial that the use of testimony given during the unemployment proceedings is necessary so as to impeach or rehabilitate, and Plaintiff objects to the admissibility of such evidence, the court will determine the issue at that time within the context of the trial pursuant to the applicable Federal Rules of Evidence.

         B. Reference to Redactions

         Mr. Romero next asserts that certain trial exhibits are redacted, and that the redactions primarily concern his medical and worker compensation records and protect private information such as his Social Security number. He asserts the redactions also concern information protected by the attorney-client privilege, for which Plaintiff provided a privilege log. [#79 at 3-4]. Plaintiff asks the court to preclude "testimony referencing, or attorney argument regarding, the redactions in the records." [Id] H&P agrees that "certain personally identifiable information, including social security numbers, " is properly subject to redaction, but argues that the jury "should be informed about the redactions to avoid confusion, and factual, nonargumentative references to such information present no prejudice to Mr. Romero." [#82 at 5]. Defendant does not appear to argue that its counsel is entitled to reference the substance of the redacted information, nor does Defendant contend that the redactions, or Plaintiffs use of privilege, are improper. Defendant responds only that, absent explanation, the jury could speculate as to the redactions and form improper conclusions. Thus, Defendant asks the court to "instruct the jury at the ...

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