Company's (“BNSF”) motions in limine. (Doc. 96.) As set forth below, BNSF's motions in limine will be granted in part and denied in part. Because the parties and the Court are familiar with the facts of this case, the undersigned will discuss them only as relevant to the discussion below.

I. Analysis

BNSF moves for an order in limine to preclude Plaintiff David Brewer from presenting evidence, argument, or testimony on 18 different issues. Whether to grant BNSF's motions in limine lies within the sound discretion of this Court. Tritchler v. County of Lake, 358 F.3d 1150, 1155 (9th Cir.2004). “To exclude evidence on a motion in limine ‘the evidence must be inadmissible on all potential grounds.’ ” Wood v. Mt. Dept. of Revenue, 2011 WL 4348301 *2 (D. Mont. Sept. 16, 2011) (quoting BNSF Ry. v. Quad City Testing Laboratory, Inc., 2010 WL 4337827 (D. Mont. Oct. 26, 2010)). “Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context.” Id.

1. References to or evidence of alleged protected activities other than those referenced in Mr. Brewer's Complaint or disclosed in discovery.

BNSF argues that in his Complaint and discovery responses Mr. Brewer identified only the following alleged protected activities: (1) reporting a defective bridge handrail on or about May 3, 2012; (2) voicing a concern at a June 7, 2012 town hall meeting; (3) checking to make sure handbrakes were not applied on railcars that were about to be moved on or about July 6, 2012; and (4) reporting hours on duty on or about October 8, 2012, October 10, 2012, October 14, 2012, and October 25, 2012. BNSF therefore argues that Mr. Brewer should not be allowed to inject other claimed protected activities into the trial of this action because he has failed to exhaust his administrative remedies with respect to such claimed protected activities. BNSF also argues it would be surprised and unfairly prejudiced if Mr. Brewer was allowed to inject matters into the trial that have never before been disclosed. (Doc. 97 at 2-3.)

Mr. Brewer does not argue that he has identified protected activities other than those listed by BNSF. Mr. Brewer also does not identify in his brief other protected activities in which he claims to have engaged. Rather, Mr. Brewer argues BNSF's motion is improper because it is being used as a substitute for a motion for summary judgment and because BNSF's motion is based upon a misunderstanding of the Rules of Civil Procedure. (Doc. 102 at 7-8.)

As the record now stands, Mr. Brewer has not identified any protected activity he allegedly engaged in other than the items BNSF listed in its brief. As such, neither the Court nor BNSF has any idea whether Mr. Brewer is claiming any protected activity other than those pleaded and disclosed during discovery. Therefore, it would be unfair to BNSF to allow Mr. Brewer to present evidence or argument of other protected activity that he has never before pleaded or disclosed because BNSF would be surprised by such undisclosed protected activity and prevented from preparing a defense to them. The Court therefore grants BNSF's motion in limine on this issue.

2. Media reports regarding Mr. Brewer's termination and media reports of other OSHA investigations.

*2 Mr. Brewer states that he does not intend to present evidence of the media coverage of BNSF's treatment of him. Mr. Brewer makes no argument regarding media reports of other OSHA investigations. (Doc. 102 at 9.) Therefore, the Court grants BNSF's motion in limine on this issue.

3. Alleged retaliatory termination, dismissal, or discipline of any other employee.

BNSF argues that before Mr. Brewer should be allowed to introduce evidence of any other employee being terminated, dismissed, or disciplined, he must show that the other employee was “similarly situated.” (Doc. 97 at 4-5.) Mr. Brewer argues that, to the extent his witnesses are aware of other lawsuits brought against BNSF under the Federal Railroad Safety Act (FSRA) or other employees who have been terminated, dismissed, or otherwise disciplined as a result of their protected activity, such evidence is entirely admissible. (Doc. 102 at 10.)

The Court will reserve ruling on this motion until the time of trial so it can determine whether Mr. Brewer's witnesses have the proper foundation to testify about such matters and whether other employees who were terminated, dismissed, or disciplined for engaging in protected activity were sufficiently similarly situated to him.

4. Any evidence or argument about congressional intent (including any discussion of prior actions of any railroad, employer, or government entity that may have led, in whole or in part, to the promulgation of 49 U.S.C. § 20109) or congressional hearing statements or testimony of any person.

BNSF argues that it is improper for Mr. Brewer to present evidence or argument about Congress's intent concerning FRSA and that it is the Court who instructs the jury on the law. It also argues that congressional hearing testimony by Mark Schultze and Charles Ehlenfeldt should be inadmissible because neither was identified as a witnesses and Mr. Brewer has not identified what portions of their testimony before Congress he intends to offer as evidence. (Doc. 97 at 5-6.)

Mr. Brewer argues that his experts formed opinions in part based on their review of congressional intent or congressional testimony and as such these matters are properly admissible evidence. He also argues that congressional hearing testimony by Mr. Schultze is admissible as an admission of a party opponent under Fed. R. Evid. 803(8) because he testified in his capacity as a BNSF vice president, and that congressional hearing testimony by Charles Ehlenfeldt is admissible under Fed. R. Evid. 807. (Doc. 102 at 10-13.)

In relation to congressional intent in enacting FRSA, the Court grants BNSF's motion because it is the function of the Court to instruct the jury on relevant law. Almendarez v. BNSF Railway, 2014 WL 1338090, at * 4-5 (W.D. Wash. April 2, 2014) (excluding evidence or argument concerning legislative intent of because it is the Court's task to instruct the jury on the relevant law).

In relation to congressional hearing testimony from Messrs. Schultze and Ehlenfeldt, the Court will defer ruling on this motion until the time of trial so it can determine what testimony Mr. Brewer is offering and from whom and what BNSF's specific objections are to the proposed testimony.

5. Arguments for political or punitive effect, including any reference to the size or financial holdings of a corporate party or comparisons between Mr. Brewer and BNSF or corporations.

*3 BNSF argues that arguments designed to inflame the jury, such as arguing that a large verdict would “send a message to the railroad” or comparing Mr. Brewer's financial condition to BNSF's, should not be allowed. Mr. Brewer maintains he does not intend to argue that BNSF should pay compensatory damages because it is a wealthy corporation. However, he argues that BNSF's financial condition is relevant to his claim for punitive damages. (Doc. 102 at 13-15.)

The Court will reserve ruling on this motion until the time of trial so it can determine what arguments Mr. Brewer's counsel makes and what specific objection BNSF makes in response.

6. BNSF Railway Company's PPI index and ERP safety program.

BNSF argues that its Personal Performance Index (PPI) and Employee Review Process (ERP) programs relate to guidance and counseling when employees accrue a certain number of operating test failures, human factor rail incidents, or workplace injuries. BNSF also argues that these programs were intended to create a safety index to provide a safer workplace and that they are not relevant in a whistle blower retaliation case. Mr. Brewer argues that these programs provide BNSF discretion in assessing discipline, which belies its argument that it would have subjected him to the same discipline in the absence of protected activity. (Doc. 102 at 15-16.)

The Court denies BNSF's motion because it appears at this time that these programs may be relevant to Mr. Brewer's claim.

7. Mention of these Motions in Limine or the Court's rulings thereon.

Mr. Brewer does not object to BNSF's motion in limine. (Doc. 102 at 16.) The Court therefore grants BNSF's motion in limine.

8. Documents and photographs not identified in discovery.

Like motion in limine number 1, Mr. Brewer does not identify any document or photograph he has not identified during discovery that he intends to offer as evidence at trial. Therefore, neither the Court nor BNSF has any idea whether Mr. Brewer intends to introduce documents or photographs at trial that he has not disclosed during discovery. Therefore, it would be unfair to BNSF to allow Mr. Brewer to introduce such documents or photographs, if they even exist, because BNSF would be surprised by such documents or photographs and prevented from preparing a defense to them. The Court therefore grants BNSF's motion in limine on this issue.

9. The January 10, 2013 Accord between OSHA and BNSF or any realted negotiations, as well as any other claims or lawsuits against BNSF based on the FRSA.

BNSF argues that a settlement accord with the Occupational Safety and Health Administration (OSHA) (the “Accord”) regarding 36 employees, not including Mr. Brewer, who asserted rights under the anti-retaliation provisions of FSRA should be excluded from trial under Federal Rule of Evidence 408. It also argues that any other claims or lawsuits against BNSF should be excluded as irrelevant and prejudicial. (Doc. 92 at 8-9.)

Mr. Brewer argues evidence of the Accord is admissible to prove the existence of other claims against BNSF and to prove its punitive damage claim. In relation to other FSRA claims or lawsuits, Mr. Brewer argues that evidence of such claims or lawsuits is admissible as he argued in relation to motion in limine three. (Doc. 102 at 18-19.)

In relation to the Accord, the Court grants BNSF's motion in limine. The Accord is a settlement document and as such it is inadmissible under Rule 408. Bliss v. BNSF, 2013 WL 5570231, at *5-6 (D. Neb. October 9, 2013) (citing U.S. v. Contra Costa County Water Dist., 678 F.2d 90, 92 (9th Cir. 1982)).

*4 In relation to other claims or lawsuits alleging violations of FRSA, the Court will reserve ruling on this motion until the time of trial so it can determine whether Mr. Brewer's witnesses have the proper foundation to testify about such matters and whether other employees who were terminated, dismissed, or disciplined for allegedly engaging in protected activity were sufficiently similarly situated to him.

10. Reference to any railroad accidents or incidents, or inflammatory remarks such as “bomb trains.”

BNSF argues that evidence related to any railroad incident (including but not limited to accidents involving crude oil shipments, crossing accidents, explosions, fuel spills, and/or derailments) or the fact that BNSF transports crude oil is inadmissible in this case because Mr. Brewer's claim does not involve any such incident or the transportation of crude oil. It also argues that Mr. Brewer's counsel has used the phrase “bomb train” during discussions involving Mr. Brewer's case and others, and that such a phrase is inflammatory and should be prohibited. (Doc. 97 at 9-10.)

Mr. Brewer argues that the issue of other railroad accidents is relevant to his claim because at least one other accident involved fatigue as a factor and, according to Mr. Brewer, BNSF retaliated against him for raising concerns about fatigued workers at the Havre, Montana town hall meeting. Mr. Brewer does not make any argument in relation to his counsel using the phrase “bomb train.” (Doc. 102 at 20-21.)

In relation to the phrase “bomb train,” the Court grants BNSF's motion in limine because Mr. Brewer does not argue this is a phase that should be used in this action. In relation to other railroad accidents, the Court reserves ruling on this motion until the time of trial so it can determine in light of BNSF's objections at the time whether evidence of other railroad accidents are admissible.

11. Budget cuts.

BNSF argues that any testimony regarding furloughs or budget cuts is irrelevant and inadmissible. (Doc. 97 at 10.) Mr. Brewer argues, without identifying any specific budget cut or furlough, that to the extent BNSF has placed fiscal priorities above safety concerns such evidence is highly relevant without setting forth why. (Doc. 102 at 21-22.)

Because Mr. Brewer has not identified any budget cut or furlough that relates to his claim, the Court grants BNSF's motion in limine.

12. Discovery orders or discovery issues.

BNSF argues that discovery issues and the Court's orders regarding discovery are irrelevant and inadmissible. (Doc. 97 at 10.) Mr. Brewer argues that BNSF's motion is overbroad and that BNSF should not be allowed to “hide” from its abuse and/or neglect of the discovery process. (Doc. 102 at 18.)

The parties’ discovery disputes and the Court's orders addressing those disputes are not admissible. Whether and to what extent any party's conduct during discovery was inappropriate in any manner is a matter for the Court to determine, not the jury. Furthermore, evidence or argument concerning such issues would cause confusion of the issues and waste time. Therefore, the Court grants BNSF's motion in limine.

13. Emotional distress or related treatment of Denise Brewer and the Brewers’ children.

BNSF argues that evidence of the emotional distress of Mr. Brewer's wife or children is inadmissible because they are not plaintiffs in this action. (Doc. 97 at 10.) Mr. Brewer argues that the emotional distress of his wife and children is relevant to his emotional distress claim to the extent that their emotional distress causes him to suffer emotional distress. (Doc. 102 at 22-23.)

*5 The Court defers on ruling on this motion limine until trial so that questions of foundation, relevancy, and potential prejudice may be resolved in the proper context.

14. Testimony regarding the conduct of BNSF or its attorneys in defending this lawsuit, or any other lawsuit, including allegations of spoliation.

BNSF argues that evidence or statements from Mr. Brewer's counsel about its litigation practices and counsel would be prejudicial and not probative to the issues in this action. BNSF's motion is primarily based on statements it claims Mr. Brewer's counsel made in the past. BNSF anticipates that Mr. Brewer or his counsel: (1) “may attempt to put before the jury the actions, strategies, and tactics of BNSF's claims department, legal department and/or counsel in preparing to defend this action;” (2) may argue that BNSF “forced” Mr. Brewer to institute litigation,“subjected” him to a lengthy deposition and the discovery process, intruded into his “privacy,” attempted to “overwhelm” him, and acted “unreasonably” in investigating and defending this lawsuit; and (3) “may further claim, without any supporting evidence or finding by this Court, that BNSF has spoliated evidence.” (Doc. 97 at 11-13.)

Mr. Brewer states that “with regard to spoliation, Brewer has no intention of using unfairly prejudicial inflammatory remarks, and will of course comply with all rules and orders.” He also argues, however, that BNSF's failure to preserve certain documents or search for certain documents may well be relevant and admissible “as possible fodder for examination and cross-examination.” He further argues that the motion is overbroad and that he should be allowed to use BNSF's discovery responses during trial. (Doc. 102 at 23-25.)

Cases should be decided on their merits, not on the basis of the amount of improper prejudice that can be injected into a trial. Anderson v. BNSF Ry., 354 P.3d 1248, ¶ 80 (Mont. 2015). The acid of improper argument may eat away at the evidence, leaving only prejudice against the party towards whom the argument is directed. Id. (citing Kuhnke v. Fisher, 683 P.2d 916, 922 (Mont. 1984)). Furthermore, it is the judge's role, not the jury's, to determine whether a party has engaged in bad faith tactics and to determine what sanction, if any, should be imposed. Palmer by Diacon v. Farmers Ins. Exchange, 861 P.2d 895, 914 (Mont. 1993).

The trial of this action will be about whether BNSF violated FSRA and, if so, the damages Mr. Brewer should recover as compensation for the violation. The trial will not be about unfairly prejudicial remarks, the parties and litigation tactics in this or any other case, or claims handling. As such, BNSF's motion in limine is granted in relation to (1) and (2) above.

In relation to (3), the Court defers ruling on this motion limine until trial so that questions of foundation, relevancy, and potential prejudice may be resolved in the proper context and in light of BNSF's specific objection(s).

15. BNSF's “corporate mindset” or “corporate culture.”

BNSF argues that Mr. Brewer should not be allowed to elicit testimony regarding BNSF's alleged “corporate mindset” or “corporate culture” because “opinions regarding these issues are irrelevant, speculative, and not based upon facts.” (Doc. 97 at 13-14.)

*6 Mr. Brewer argues that BNSF does not provide any detail about the type of evidence it seeks to preclude and as such the motion is inadequately argued and should be denied. He also argues that in relation to opinions from his experts, BSNF essentially challenges the foundation for any such opinions before Mr. Brewer has had the opportunity to lay a proper foundation. (Doc. 102 at 25-26.)

The Court defers ruling on this motion limine until trial so that questions of foundation, relevancy, and potential prejudice may be resolved in the proper context and in light of BNSF's specific objection(s).

16. Testimony from Mr. Welter about “psychological affects [sic] the investigations, being terminated and this lawsuit” had on Mr. Brewer.

BNSF argues that Mr. Welter, Mr. Brewer's co-worker, should not be allowed to testify about the “the psychological affects [sic] of the investigations, being terminated, and this lawsuit as a whole have had on Mr. Brewer” because he is not a medical doctor and lacks the foundation to render such an opinion. (Doc. 97 at 14-15.) Mr. Brewer argues that although Mr. Welter is not a medical doctor he should be allowed to testify about his observations of Mr. Brewer's emotional distress. (Doc. 102 at 26-27.) In its reply brief, BNSF concedes that Mr. Welter can properly testify to his observations of Mr. Brewer. However, it also argues that he should not be allowed to offer any opinions on what his observations indicate (e.g., that Mr. Brewer “was depressed”). (Doc. 112 at 14.)

BNSF's motion will be granted in part. Mr. Welter cannot testify to any diagnosis of Mr. Brewer's psychological condition. However, Mr. Welter can testify about his observations of Mr. Brewer.

17. Testimony about the after-the-fact PEPA board review.

BNSF argues that the Policy for Employee Performance Accountability (“PEPA”) board's February 2013 consideration of Mr. Brewer's December 2012 termination is irrelevant. (Doc. 97 at 15-16.)

Mr. Brewer argues that the purpose of the PEPA review is to assure that discipline is consistently applied and that evidence of his allegedly disparate treatment is relevant to an FRSA action. Mr. Brewer also argues that BNSF failed to provide any authority that evidence of a board tasked with reviewing employee discipline to make sure it is consistently applied is irrelevant to: (1) whether protected activity played a role in the discipline and/or (2) whether that discipline would have been assessed even in the absence of such protected activity. (Doc. 102 at 27-30.)

The fact that the PEPA review took place after Mr. Brewer was terminated does not render it irrelevant as BNSF argues. To the contrary, the PEPA review appears to the Court to be relevant to the issue of whether Mr. Brewer's termination violated FRSA. BNSF's motion in limine will be denied.

18. Exclusion of witnesses pursuant to Federal Rule of Evidence 615.

BNSF requests that the Court exclude from the courtroom witnesses who may be called by either party before they testify pursuant to Rule 615. (Doc. 97 at 17.) Mr. Brewer does not oppose BNSF's request as a general rule but does argue that Jim Larkin, an employee of Mr. Brewer's counsel who assisted with the investigation and preparation of this case, is essential to the presentation of Mr. Brewer's case and cannot be excluded from the courtroom under Rule 615(c). (Doc. 102 at 30.)

BNSF's request will be granted, but Mr. Larkin may be present in the courtroom to manage case presentation. If Mr. Brewer identifies Mr. Larkin as a witness, the Court will revisit this issue.

II. Conclusion

*7 Based on the foregoing, BNSF's motions in limine will be granted in part and denied in part. The undersigned issues the following:

ORDER

BNSF's Motions in Limine (Doc. 96) are GRANTED in part and DENIED in part as follows:

1. Mr. Brewer and his counsel cannot suggest, argue, present evidence on, ask questions in reference to, exhibit, use, or refer in any manner at the trial of this action, directly or indirectly, to references to or evidence of alleged protected activities other than those referenced in Mr. Brewer's Complaint or disclosed in discovery.

2. Mr. Brewer and his counsel cannot suggest, argue, present evidence on, ask questions in reference to, exhibit, use, or refer in any manner at the trial of this action, directly or indirectly, to media reports regarding Mr. Brewer's termination or other OSHA investigations.

3. The Court reserves ruling on whether Mr. Brewer can suggest, argue, present evidence on, ask questions in reference to, exhibit, use, or refer in any manner at the trial of this action, directly or indirectly, to the alleged retaliatory termination, dismissal, or discipline of any other employee.

4. Mr. Brewer and his counsel cannot suggest, argue, present evidence on, ask questions in reference to, exhibit, use, or refer in any manner at the trial of this action, directly or indirectly, to congressional intent regarding Section 20109. The Court reserves ruling on whether Mr. Brewer and his counsel can suggest, argue, present evidence on, ask questions in reference to, exhibit, use, or refer in any manner at the trial of this action, directly or indirectly, to congressional hearing statements or testimony regarding 49 U.S.C. § 20109.

5. The Court reserves ruling on whether Mr. Brewer and his counsel can make arguments for political or punitive effect, including making any reference to the size or financial holdings of a corporate party or comparisons between Mr. Brewer and BNSF or corporations.

6. Mr. Brewer and his counsel can suggest, argue, present evidence on, ask questions in reference to, exhibit, use, or refer in any manner at the trial of this action, directly or indirectly, to BNSF's PPI index and ERP safety programs.

7. Mr. Brewer and his counsel cannot suggest, argue, present evidence on, ask questions in reference to, exhibit, use, or refer in any manner at the trial of this action, directly or indirectly, to these motions in limine or the Court's rulings thereon.

8. Mr. Brewer and his counsel cannot suggest, argue, present evidence on, ask questions in reference to, exhibit, use, or refer in any manner at the trial of this action, directly or indirectly, to documents and photographs not identified in discovery.

9. Mr. Brewer and his counsel cannot suggest, argue, present evidence on, ask questions in reference to, exhibit, use, or refer in any manner at the trial of this action, directly or indirectly, to the January 10, 2013 Accord between OSHA and BNSF or any negotiations regarding the Accord. The Court reserves ruling on whether Mr. Brewer and his counsel can suggest, argue, present evidence on, ask questions in reference to, exhibit, use, or refer in any manner at the trial of this action, directly or indirectly, to any other claims or lawsuits against BNSF based on FRSA.

*8 10. Mr. Brewer and his counsel cannot suggest, argue, present evidence on, ask questions in reference to, exhibit, use, or refer in any manner at the trial of this action, directly or indirectly, to “bomb trains.” The Court reserves ruling on whether Mr. Brewer and his counsel can suggest, argue, present evidence on, ask questions in reference to, exhibit, use, or refer in any manner at the trial of this action, directly or indirectly, to any railroad accidents or incidents.

11. Mr. Brewer and his counsel cannot suggest, argue, present evidence on, ask questions in reference to, exhibit, use, or refer in any manner at the trial of this action, directly or indirectly, to budget cuts made by BNSF.

12. Mr. Brewer and his counsel cannot suggest, argue, present evidence on, ask questions in reference to, exhibit, use, or refer in any manner at the trial of this action, directly or indirectly, to discovery orders or discovery issues.

13. The Court reserves ruling on whether Mr. Brewer and his counsel can suggest, argue, present evidence on, ask questions in reference to, exhibit, use, or refer in any manner at the trial of this action, directly or indirectly, to the emotional distress or related treatment of Denise Brewer and the Brewers’ children.

14. Mr. Brewer and his counsel cannot “attempt to put before the jury the actions, strategies, and tactics of BNSF's claims department, legal department and/or counsel in preparing to defend this action” or argue that BNSF “forced” Mr. Brewer to institute litigation,“subjected” him to a lengthy deposition and the discovery process, intruded into his “privacy,” attempted to “overwhelm” him, and acted “unreasonably” in investigating and defending his lawsuit. The Court reserves ruling on whether Mr. Brewer “may further claim, without any supporting evidence or finding by this Court, that BNSF has spoliated evidence.”

15. The Court reserves ruling on whether Mr. Brewer and his counsel can suggest, argue, present evidence on, ask questions in reference to, exhibit, use, or refer in any manner at the trial of this action, directly or indirectly, to BNSF's “corporate mindset” or “corporate culture.”

16. Mr. Welter will not be allowed to testify to any diagnosis of Mr. Brewer's psychological condition. However, Mr. Welter will be allowed to testify about his observations of Mr. Brewer.

17. Mr. Brewer and his counsel may suggest, argue, present evidence on, ask questions in reference to, exhibit, use, or refer in any manner at the trial of this action, directly or indirectly, to the after-the-fact PEPA board review.

18. Witnesses will be excluded from the courtroom pursuant to Rule 615. Mr. Larkin may be present in the courtroom to manage case presentation. However, if Mr. Brewer identifies Mr. Larkin as a witness, the Court will revisit this issue.

DATED the 22nd day of April, 2016.