United States District Court, D. Colorado
LORRAINE M. RAMOS, et al., Plaintiffs,
BANNER HEALTH, et al., Defendants.
ORDER GRANTING DEFENDANT SLOCUM'S MOTION IN
LIMINE AND DENYING PLAINTIFFS' MOTION IN LIMINE
WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE.
Lorraine M. Ramos and others (“Plaintiffs”) bring
this lawsuit against Banner Health and certain current and
former employees (together “Banner Defendants”)
and Jeffrey Slocum & Associates, Inc.
“Defendants”) alleging breach of fiduciary duties
under the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. §§ 1101, et
before the Court is Slocum's Motion In Limine to
Exclude Irrelevant Evidence Concerning Unrelated SEC Order
(“Slocum's MIL”) and Plaintiffs' Motion
In Limine To Preclude Banner From Calling Michael
Frick as a Trial Witness (“Plaintiffs' MIL”).
(ECF Nos. 398 & 398.) For the reasons explained below,
Slocum's MIL is granted and Plaintiffs' MIL is
motion in limine allows a court to decide
evidentiary issues in advance of trial to avoid delay and
ensure “an evenhanded and expeditious trial.”
Dry Clean Super Ctr., Inc. v. Kwik Indus.,
Inc., 2012 WL 503510, at *4 (D. Colo. Feb. 15, 2012).
Slocum's MIL (ECF No. 398)
moves to exclude a February 8, 2017 Securities and Exchange
Commission (“SEC”) Order imposing remedial
sanctions on Slocum and its founder. (ECF No. 398 at 1-2.)
The SEC Order concerns misleading statements in Slocum's
marketing materials between 2011 and 2014 about, as relevant
here, its gift policy. (Id.; ECF No. 398-1 at 3.)
Federal Rule of Evidence 401, “[e]vidence is relevant
if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.”
Fed.R.Evid. 401. While relevant evidence is generally
admissible at trial, it “may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.”
makes two arguments about the relevance of the SEC Order.
First, Plaintiffs contends that Banner and Slocum both
accepted gifts by “regularly attending Fidelity
purchased dinners and outings to major sporting events,
” and that these relationships caused
“substantial harm to the Plan” by causing Banner
and Slocum to maintain the status quo Plan fees and to retain
underperforming investment funds. (ECF No. 402 at 3.)
Although Plaintiffs allege that Banner engaged in this
wrongful conduct, there is no apparent connection between
Banner's alleged conduct and the SEC Order. Second,
Plaintiffs argue that Slocum made misleading statements to
Banner about its gift policy, and those same statements are
the subject of the SEC Order. Plaintiffs posit that had
Banner properly performed its due diligence when looking to
renew its contract with Slocum in 2014, it should have
discovered the conduct described in the SEC Order.
(Id. at 2; ECF No. 372 at 4.)
relevancy arguments are thin. The Court is not convinced that
the SEC Order makes it “more or less probable”
that Slocum engaged in “tainted behavior” by
accepting gifts from Fidelity. See Fed. R. Evid.
401(a). Moreover, the Court is hard-pressed to see how a 2017
SEC Order about misleading marketing materials is evidence
that Banner could have discovered Slocum's misleading
statements with respect to their employees' acceptance of
gifts of less than $100 or other gifts in violation of the
company's written policy.
argue that excluding evidence under Rule 403 in a bench trial
is improper because there is no risk of unfair prejudice.
(ECF No. 402 at 4.) However, other Rule 403 concerns, such as
wasting time and undue delay, are still proper considerations
for the Court in a bench trial. “Although the Tenth
Circuit has opined that excluding evidence in a bench trial
under Rule 403 is improper as a general matter, the issues
here remove this case from that general principle.
Importantly, the general rule focus[es] primarily on the
danger of unfair prejudice, whereas here, the main reason
behind the [Defendant's] motion is that the evidence
would waste time ‘without appreciable
benefit.'” Union Pac. R.R. Co. v. Utah State
Tax Comm'n, 2019 WL 5637100, at *3 (D. Utah Oct. 31,
2019). Here, introduction of the SEC Order would focus the
parties on the issue of whether Slocum generally accepted
gifts, rather than if Slocum employees accepted gifts from
Fidelity and whether those gifts (if any) influenced their
recommendations about the Plan. Moreover, Plaintiffs can
easily elicit what Banner knew about Slocum and its gift
policy when the parties signed the 2014 contract without
relying on the SEC Order. Introduction of the SEC Order will
only serve to waste time without appreciable benefit. The
Court will thus grant Slocum's MIL and exclude the SEC
Order under Rule 403.
Plaintiffs' MIL (ECF No. 399)
move to bar Banner from calling Michael Frick as a witness on
the grounds that Banner failed to disclose Frick in its
Federal Rule of Civil Procedure 26 initial disclosures or
supplemental disclosures (“Rule 26 disclosures”)
as an individual Banner may use as a witness to support its
defenses. Plaintiffs contend that because Banner's
failure to disclose Frick as a witness was not
“substantially justified” or “harmless,
” Frick should be prohibited from testifying at trial.
See Fed R. Civ. P. 37(c)(1). In particular,
Plaintiffs argue that allowing Banner to use Frick as a
witness would prejudice Plaintiffs, who had “no
opportunity to depose Mr. Frick.” (ECF No. 399 at 3.)
26(a)(1) disclosures are designed to accelerate the exchange
of basic information and ‘help focus the discovery that
is needed, and facilitate preparation for trial or
settlement.'” Sender v. Mann, 225 F.R.D.
645, 650 (D. Colo. 2004) (quoting advisory comm. note to 1993
amendments to Fed.R.Civ.P. 26(a)). The Advisory Committee
Notes on Rule 26 further instructs that “litigants