Gohranson v. Snohomish County et alRESPONSEW.D. Wash.March 11, 2019 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SNOHOMISH COUNTY PROSECUTING ATTORNEY - CIVIL DIVISION Robert Drewel Bldg., 8th Floor, M/S 504 3000 Rockefeller Ave EVERETT, WASHINGTON 98201-4060 (425)388-6330/FAX: (425)388-6333 DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTIONS IN LIMINE - 1 16-cv-01124-RSL The Honorable Robert S. Lasnik UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE JOHN T. GOHRANSON, et al., Plaintiffs, vs. SNOHOMISH COUNTY, a municipal Corporation in the State of Washington, et al., Defendants. NO. C16-01124-RSL DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTIONS IN LIMINE Both liability and damages are contested in this case. Plaintiffs spend much of their motions in limine arguing that evidence for a purpose other than liability is inadmissible. Defendants are entitled, however, to present evidence on damages and their valuation. Defendants accordingly respond to Plaintiffs’ individual Motions as follows: 1. Evidence of Life Insurance is Admissible. John Gohranson received $100,000 from Lindsay Kronberger’s life insurance policy when she died. Mr. Gohranson used the proceeds of the life insurance policy to purchase a brand-new Ducati motorcycle, a picture of which he posted to his Facebook page. Genster Decl., Ex. A. Mr. Gohranson also purchased a Mercedes-Benz sedan. Id., Ex. B (Portions of Deposition Transcript of John T. Gohranson, p. 71, ln. 20 - 72, ln. 19). Before purchasing Case 2:16-cv-01124-RSL Document 144 Filed 03/11/19 Page 1 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SNOHOMISH COUNTY PROSECUTING ATTORNEY - CIVIL DIVISION Robert Drewel Bldg., 8th Floor, M/S 504 3000 Rockefeller Ave EVERETT, WASHINGTON 98201-4060 (425)388-6330/FAX: (425)388-6333 DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTIONS IN LIMINE - 2 16-cv-01124-RSL these vehicles, Mr. Gohranson did not pay for Ms. Kronberger’s funeral expenses. Id., Ex. C. While sure to post about his new motorcycle on Facebook, Mr. Gohranson made no mention of the death of his wife. Indeed, there are no pictures of them together on his Facebook feed after 2012. With regard to the § 1983 claim, Defendants are not offering evidence of the life insurance policy to suggest Plaintiffs’ damages be offset accordingly. Rather, evidence of the life insurance policy – and what Mr. Gohranson did, and did not do, with its proceeds – is further evidence of a defunct marriage with Ms. Kronberger. It is consistent with his use of the marriage solely for his financial gain. The absence of any meaningful relationship is demonstrated by his decisions to buy himself new toys rather than pay her funeral expenses. If the jury finds the marriage is defunct then Mr. Gohranson has no viable claim for the loss of a spousal relationship under § 1983. Accordingly, Defendants will stipulate to a limiting instruction indicating for the purpose of the § 1983 claim, the value of the life insurance policy is not to be considered an offset of damages to be awarded to Plaintiffs for that claim. However, regarding Mr. Gohranson’s state law medical negligence claims, Defendants are entitled to present evidence of the life insurance proceeds. Pursuant to RCW 7.70.080, in an action where Plaintiff’s injuries result from allegedly inadequate healthcare, a defendant may present evidence to the jury regarding the plaintiff’s prior compensation. RCW 7.70.080 provides: Evidence of compensation from other source. Any party may present evidence to the trier of fact that the plaintiff has already been compensated for the injury complained of from any source except the assets of the plaintiff, the plaintiff's representative, or the plaintiff's immediate family. . . . Compensation as used in this section shall mean payment of money or other property to or on behalf of the plaintiff, rendering of services to the plaintiff free Case 2:16-cv-01124-RSL Document 144 Filed 03/11/19 Page 2 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SNOHOMISH COUNTY PROSECUTING ATTORNEY - CIVIL DIVISION Robert Drewel Bldg., 8th Floor, M/S 504 3000 Rockefeller Ave EVERETT, WASHINGTON 98201-4060 (425)388-6330/FAX: (425)388-6333 DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTIONS IN LIMINE - 3 16-cv-01124-RSL of charge to the plaintiff, or indemnification of expenses incurred by or on behalf of plaintiff. . . . RCW 7.70.080 (emphasis added).1 The legislature’s intent for abrogating the collateral course rule in healthcare cases is to alleviate the “unnecessary costs on society” resulting from the overcompensation of plaintiffs. Adcox v. Children’s Orthopedic Hosp. & Med. Ctr., 123 wn.2d 15, 40, 864 P.2d 921 (1993)). Washington law is clear that “RCW 7.70.080 replaces the common law’s collateral source rule.” Haskins v. Multicare Health Sys., 186 Wn. App. 11, 18, 347 P.ed 460 (2014), review denied, 183 Wn.2d 1020, 355 P.3d 1152 (20150 (quoting Adcox, 123 Wn.2d at 40). Here, because Plaintiffs claim the medical care rendered to Ms. Kronberger in the jail was negligent, causing her death, Plaintiffs’ action is under Chapter 7.70 RCW, “Actions for Injuries Resulting from Health Care,” and the County is entitled to the benefit of RCW 7.70.080. By the express terms of the statute, the jury is responsible for determining the extent to which a plaintiff has been compensated “from any source,” including insurance, and must offset that amount from the assessed damages, if any. See Adcox, 123 Wn.2d at 40. Accordingly, Plaintiffs’ arguments that evidence of the life insurance policy and its proceeds should not be admitted under the collateral source rule is negated by the statute, and for the alternative purpose for which the evidence will be used with regard to the § 1983 claim. The Court should deny Plaintiffs’ motion to exclude evidence of the life insurance policy and Mr. Gohranson’s use of those proceeds. 1 RCW 7.70.080 formerly provided that “[a]ny party may present evidence to the trier of fact that the patient has already been compensated for the injury complained of from any source except the assets of the patient, his representative, or his immediate family, or insurance purchased with such assets.” In 2006, the legislature changed “patient” to “plaintiff” and removed “or insurance purchased with such assets” from the language of the statute. See H.R. 2292, 59th Leg., Reg. Sess. (Wash. 2006). Case 2:16-cv-01124-RSL Document 144 Filed 03/11/19 Page 3 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SNOHOMISH COUNTY PROSECUTING ATTORNEY - CIVIL DIVISION Robert Drewel Bldg., 8th Floor, M/S 504 3000 Rockefeller Ave EVERETT, WASHINGTON 98201-4060 (425)388-6330/FAX: (425)388-6333 DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTIONS IN LIMINE - 4 16-cv-01124-RSL 2. Explanation of the Law Governing the Beneficiaries of the Estate of Lindsay Kronberger is Admissible. Plaintiffs appear to argue that the jury should not be informed of the identities of the Estate’s statutory beneficiaries. Not only should the jury be informed of the law so that they may faithfully follow their jury instructions, a jury is entitled to know about who the statutory beneficiaries are. Since the statutory beneficiaries stand to gain from the lawsuit, and damages are calculated in part based on the testimony of the statutory beneficiaries, knowing who the statutory beneficiaries are allows the jury to better evaluate the witness’s potential bias and credibility. For example, the identities of the beneficiaries is relevant because Mr. Kronberger and Mr. Gohranson will likely be providing testimony regarding Ms. Kronberger’s career aspirations. Mr. Gohranson testified in his deposition that Ms. Kronberger wanted to become a nurse. Genster Decl., Ex B, at 65, ln. 16-17. Plaintiffs’ vocational expert relied upon reports “from family members” showing a “strong effort towards the nursing/healthcare field.” Genster Decl, Ex. G, at 9. Based upon that report, Plaintiffs’ expert posits that Ms. Kronberger would become an RN earing $83,000 a year. Id. at 9. Accordingly, Plaintiffs have a motive to promote the likelihood of her becoming an RN because that increases the value of the estate and thus their recovery. The jurors are entitled to consider this when evaluating the credibility of the witnesses’ testimony regarding Ms. Kronberger’s future prospects. This is especially true for Mr. Gohranson. As Plaintiffs note, should Defendants’ defunct marriage theory not succeed, Mr. Gohranson, as a spouse, stands to recover a greater share of the Estate, and the jury should be aware of that when evaluating the credibility of his testimony. Identifying beneficiaries is also important because Mr. Gohranson, as personal Case 2:16-cv-01124-RSL Document 144 Filed 03/11/19 Page 4 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SNOHOMISH COUNTY PROSECUTING ATTORNEY - CIVIL DIVISION Robert Drewel Bldg., 8th Floor, M/S 504 3000 Rockefeller Ave EVERETT, WASHINGTON 98201-4060 (425)388-6330/FAX: (425)388-6333 DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTIONS IN LIMINE - 5 16-cv-01124-RSL representative of Ms. Kronberger’s estate, has fiduciary duties to those beneficiaries. While Mr. Gohranson has admitted that Ms. Kronberger’s mother is a beneficiary, he also admits that he has never informed her of the existence of this lawsuit. Genster Decl., Ex. B, at 30, ln. 25 – p. 31, ln. 2. The jury should be permitted to hear such evidence. Plaintiffs are incorrect when they conclude that a defunct marriage theory, if successful, does not preclude recovery under Washington’s general survival statue, RCW 4.20.046. While it is true that recovery under the general survival statue passes through the decedent’s estate, see Rentz v. Spokane County, 438, F. Supp. 2d 1252, 1259 (E.D. Wash.2006), a survival action is maintained on behalf of beneficiaries enumerated in RCW 4.20.020. See RCW 4.20.046. If the jury concludes Mr. Gohranson and Ms. Kronberger’s marriage was defunct, Mr. Gohranson is no longer a valid statutory beneficiary and therefore does not stand to benefit in a survival action, even though any recovery under that action first passes through the estate. Plaintiffs argue Defendants are “inviting jurors to impermissibly award damages based on the plaintiffs’ liability.” Dkt. 126, at 4. Plaintiffs are asking to be compensated for the loss of their relationships with Ms. Kronberger. Evidence about the quality of the relationships is therefore extremely relevant to the jury’s valuation determination. Mr. Gohranson’s relationship, or lack thereof, with Ms. Kronberger at the time of her death is indeed prejudicial, but any prejudice is outweighed by the probative value, as this evidence affects the purview of the jury. Evidence of the law governing the recovery of the beneficiaries of Ms. Kronberger’s estate is admissible and necessary for the jury’s consideration. Plaintiff’s motion to exclude such evidence should be denied. Case 2:16-cv-01124-RSL Document 144 Filed 03/11/19 Page 5 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SNOHOMISH COUNTY PROSECUTING ATTORNEY - CIVIL DIVISION Robert Drewel Bldg., 8th Floor, M/S 504 3000 Rockefeller Ave EVERETT, WASHINGTON 98201-4060 (425)388-6330/FAX: (425)388-6333 DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTIONS IN LIMINE - 6 16-cv-01124-RSL 3. Evidence of Lindsay Kronberger’s Criminal History, Law Enforcement Contacts, and Prior Incarcerations is Far More Probative than Prejudicial. Evidence of Ms. Kronberger’s prior arrests, law enforcement contacts, and prior incarcerations is highly relevant. First, evidence of Ms. Kronberger’s prior incarcerations is offered not to inflame the jury, but rather, to establish what her vital signs were during prior incarcerations at the Snohomish County Jail, and to establish that Jail medical personnel had access to that information during Ms. Kronberger’s last period of incarceration in January of 2014. Plaintiffs’ counsel is aware of the relevance of this information, as they furnished it to all of their experts, who used in as the basis of their opinions. See Dkt. # 98 (Declaration of Jane Grametbauer) at 29-37 (listing materials reviewed, including Ms. Kronberger’s prior incarceration records). Ms. Kronberger’s vital signs taken by Jail medical personnel during her incarcerations in November and December of 2013, when she was also withdrawing from heroin, were similar in range to the vital signs taken during her final incarceration in January 2014. Plaintiffs cannot now reasonably expect to bar this information when their own experts reviewed and relied upon it in forming their opinions. To the extent evidence of Ms. Kronberger’s prior incarcerations is prejudicial, it is considerably more probative than prejudicial. Evidence of the domestic violence no-contact order which was the basis for Ms. Kronberger’s arrest on January 6, 2014 is also highly probative. Plaintiffs correctly note that Defendants are pursuing a theory of defunct marriage between John Gohranson and Lindsay Kronberger. The no-contact order Ms. Kronberger violated on January 6, 2014 was between Ms. Kronberger and her boyfriend, Corey Mosey, with whom the court concluded she had an intimate relationship. Genster Decl., Ex. F, at 8-9 (No-Contact Order between Ms. Kronberger Case 2:16-cv-01124-RSL Document 144 Filed 03/11/19 Page 6 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SNOHOMISH COUNTY PROSECUTING ATTORNEY - CIVIL DIVISION Robert Drewel Bldg., 8th Floor, M/S 504 3000 Rockefeller Ave EVERETT, WASHINGTON 98201-4060 (425)388-6330/FAX: (425)388-6333 DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTIONS IN LIMINE - 7 16-cv-01124-RSL and Mr. Mosey). Plaintiffs cannot expect to be permitted to offer evidence of their contention regarding the state of the marriage while excluding evidence demonstrating Ms. Kronberger was in an intimate relationship with another man. This evidence is not being offered as character evidence, but rather as additional evidence that the behavior of the parties demonstrated that the marriage was defunct. The fact that Ms. Kronberger was in a relationship with another man is highly relevant to the issue of damages. Evidence of the violation of the no-contact order is additionally probative as it provides circumstantial evidence that Ms. Kronberger may have used heroin while she was out for eight hours between January 6 and January 7, 2014. This is because the evidence of prior arrests and contact with law enforcement will show that she had previously been found with drug paraphernalia used for smoking heroin on at least two prior occasions, in November and December 2013. Genster Decl., Ex. D and E. Again, this evidence is not offered to inflame the jury, but to provide context for the medical treatment Ms. Kronberger received in the jail. The medical treatment she received was because she was a habitual heroin user. It is not unreasonable given the circumstances of her arrest for Jail personnel to assume that she had used heroin again during her release, and to act accordingly. This evidence is not offered as character evidence or to show propensity, but rather to inform the jury of the reasons why Defendants acted as they did during Ms. Kronberger’s January 2014 incarceration. It goes to the heart of liability in this case. Evidence of Ms. Kronberger’s drug use is also highly probative. The fact that Ms. Kronberger was a heroin user is an inescapable fact that is highly relevant in a case where Plaintiff is alleging deliberate indifference to the serious medical needs Ms. Kronberger Case 2:16-cv-01124-RSL Document 144 Filed 03/11/19 Page 7 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SNOHOMISH COUNTY PROSECUTING ATTORNEY - CIVIL DIVISION Robert Drewel Bldg., 8th Floor, M/S 504 3000 Rockefeller Ave EVERETT, WASHINGTON 98201-4060 (425)388-6330/FAX: (425)388-6333 DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTIONS IN LIMINE - 8 16-cv-01124-RSL experienced during opiate withdrawal. The fact that Ms. Kronberger hid heroin in her body cavities during a prior booking into the Jail in November of 2013, for example, provides evidence of how deep her addiction was, that Jail staff had access to this information, and how little her father and husband were aware of the extent of her addiction and lifestyle. See Genster Decl., Ex D. This evidence additionally conflicts with anticipated testimony from Ms. Kronberger’s father, Plaintiff Dale Kronberger, regarding the relationship he had with his daughter and the extent to which they communicated. This evidence is not offered for propensity, but to show that the relationship Plaintiffs are asking to be compensated for was not as robust as Plaintiffs would lead a jury to believe. Additionally, Plaintiffs have offered expert testimony to promote a valuation of Ms. Kronberger’s damages that is based on the presumption that Ms. Kronberger would overcome her addiction and go on to train for and enjoy a career in nursing. Genster Decl., Ex. G. Evidence of the extent of Ms. Kronberger’s addiction is highly relevant to any analysis of the likelihood of her recovery. Similarly, evidence of her lack of employment from 2009 to 2014, lack of education from 2010 to 2014, and interactions with the criminal legal system is relevant to any contention that Ms. Kronberger would be able to enter a highly regulated field like nursing. To support their argument that evidence of Ms. Kronberger’s prior incarceration, drug use, and law enforcement contact should be disallowed, Plaintiffs cite to several cases which are entirely inapplicable. The Court should disregard any of Plaintiffs’ cites to use of force cases, as split-second decisions in use of force differ greatly from treatment decisions made with knowledge of, and often based upon, information about drug use and prior contacts. See Case 2:16-cv-01124-RSL Document 144 Filed 03/11/19 Page 8 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SNOHOMISH COUNTY PROSECUTING ATTORNEY - CIVIL DIVISION Robert Drewel Bldg., 8th Floor, M/S 504 3000 Rockefeller Ave EVERETT, WASHINGTON 98201-4060 (425)388-6330/FAX: (425)388-6333 DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTIONS IN LIMINE - 9 16-cv-01124-RSL Dkt. # 125, at 5. Plaintiffs acknowledge Defendants’ arguments that Ms. Kronberger’s drug use and criminal history impact the relationship she had with Plaintiffs, but contend that there “is no direct nexus between the relationship she would have had if she had not died and her past criminal history,” citing to Mason v. City of Chicago, 641 F. Supp. 2d 726, 730 (N.D. Ill. 2009). In addition to Mason being a use of force case, and therefore inapposite to the case at bar, the Mason court actually reached the opposite conclusion than the one to which Plaintiffs cite, relying on precedent which established that “evidence [in a case where plaintiff died] of the plaintiff’s past drug use was relevant to the damages portion of the trial, specifically to the loss of the plaintiff’s life to the plaintiff himself.” Id. at 730 (emphasis added). The same is true here: evidence of Ms. Kronberger’s drug use and criminal history is relevant to a jury charged with awarding damages based in part on her future economic prospects. Plaintiffs state they will admit in their testimony at trial that Ms. Kronberger’s past incarcerations and addiction struggles “caused tension” in her relationship with Plaintiffs, and therefore allowing evidence of the underlying reasons for the “undisputed stress” in their relationship is cumulative. Dkt. # 126, at 6. But the specific evidence of Ms. Kronberger’s past incarcerations and addiction is not cumulative evidence of stress in the relationship with her husband; it is evidence that there was no marital relationship with her husband. This evidence supports Defendants’ theory of a defunct marriage, and Plaintiffs’ effort to exclude it is an attempt at improperly curtailing that narrative. Defendants are in complete agreement with Plaintiffs that evidence of drug use and criminal history are prejudicial and not particularly probative in cases where excessive use of force is alleged, as in the cases Plaintiffs cite. See Dkt. # 126, at 7. But no excessive force has Case 2:16-cv-01124-RSL Document 144 Filed 03/11/19 Page 9 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SNOHOMISH COUNTY PROSECUTING ATTORNEY - CIVIL DIVISION Robert Drewel Bldg., 8th Floor, M/S 504 3000 Rockefeller Ave EVERETT, WASHINGTON 98201-4060 (425)388-6330/FAX: (425)388-6333 DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTIONS IN LIMINE - 10 16-cv-01124-RSL been alleged here. In a case involving alleged deliberate indifference to opiate withdrawal in a correctional facility, facts regarding drug use and prior incarcerations are more probative that prejudicial, highly relevant, and necessary to the jury’s understanding of the issues, both as to liability and as to damages. This evidence is admissible. 4. Evidence of John Gohranson’s Naval Records that Post Date Ms. Kronberger’s Death is Admissible. Plaintiffs state in their consolidated Complaint, Dkt. # 57, that at “all relevant times, John Gohranson was . . . a member of the U.S. Navy stationed in San Diego, California.” This is not the case. Mr. Gohranson was generally discharged from the Navy under honorable circumstances in November 2015, with the reason for separation listed as “misconduct (drug abuse).” See Genster Decl., Ex. B (Gohranson Dep.), at 9, ln. 8-9; p. 190-191. Defendants anticipate Plaintiff Gohranson presenting testimony about why being in the Navy prevented him from being of help to Ms. Kronberger. Such testimony opens the door to the fact that Plaintiff Gohranson is no longer in the Navy, and the circumstances surrounding that fact. In the same vein, Defendants are entitled to use the information of Mr. Gohranson’s discharge for impeachment purposes. Additionally, Defendants anticipate that in his testimony at trial, Mr. Gohranson may attempt to attribute what he perceives to be Post Traumatic Stress Disorder, which has not been diagnosed, to Ms. Kronberger’s death. His testimony on this subject, if allowed, opens the door to Defendants exploring other possible reasons for any subsequent mental health conditions Mr. Gohranson purports to be experiencing, such as discharge from the Navy and his illegal use of controlled substances. Evidence of Plaintiff Gohranson’s naval records that post-date Ms. Kronberger’s death is accordingly admissible for all of these reasons. Case 2:16-cv-01124-RSL Document 144 Filed 03/11/19 Page 10 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SNOHOMISH COUNTY PROSECUTING ATTORNEY - CIVIL DIVISION Robert Drewel Bldg., 8th Floor, M/S 504 3000 Rockefeller Ave EVERETT, WASHINGTON 98201-4060 (425)388-6330/FAX: (425)388-6333 DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTIONS IN LIMINE - 11 16-cv-01124-RSL 5. Lori Bush’s Testimony Regarding Lindsay Kronberger is Highly Relevant. Mr. Gohranson makes hearsay and relevancy objections to the testimony of his mother, Lori Bush, setting forth her understanding that Ms. Kronberger was selling drugs. This objection is misplaced because the testimony is offered for a non-hearsay purpose: to show its effect on the listener. Ms. Bush told Mr. Gohranson about her belief that Ms. Kronberger was selling drugs. They both recognized that her actions put his career at risk. Q …Ms. Bush, you understood that John had a security clearance in the Navy; correct? A That's correct. Q And you understood that having a wife who was -- who you understood was not only using heroin but also dealing drugs could put that top security -- top secret security clearance at risk? MS. MOORE: Object to form. THE WITNESS: Yes. Q Okay. And did you discuss that with John? A I think that I did when I finally told him how bad it was getting and that she was -- I think that what brought it up was that when she was in jail. Dkt. 75, at 78, lns. 11-23, Id at 27, ln 20-28, ln 12. The evidence is relevant because it provides an additional explanation why Mr. Gohranson treated the marriage as defunct and took no action to help Ms. Kronberger and why he respected her choice to live with Mr. Mosey. Plaintiff also makes hearsay and ER 403 objections to the Facebook messages exchanged between Lindsay Kronberger and Ms. Bush. The hearsay objection should be overruled because the statements of a decedent are admissible against the decedent’s estate as an admission by a party opponent under ER 801(d)(2)(A). “No modern court doubts that a decedent, whose rights are transmitted intact to his successor, is a person whose admissions are receivable against a party claiming the decedent's rights as heir, executor, or administrator.” Estate of Shafer v. CIR, 749 F. 2d 1216, 1220 (6th Cir. 1984) (Citing IV J. Wigmore, Evidence Case 2:16-cv-01124-RSL Document 144 Filed 03/11/19 Page 11 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SNOHOMISH COUNTY PROSECUTING ATTORNEY - CIVIL DIVISION Robert Drewel Bldg., 8th Floor, M/S 504 3000 Rockefeller Ave EVERETT, WASHINGTON 98201-4060 (425)388-6330/FAX: (425)388-6333 DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTIONS IN LIMINE - 12 16-cv-01124-RSL in Trials at Common Law § 1081 (1972) (emphasis in original)). In Estate of Shafer, the court affirmed the lower court ruling admitting statements of the decedent as an admission by a party opponent under ER 801(d)(2)(A). Accord Savarese v. Agriss, 883 F.2d 1194, 1201 (3d Cir. 1989) (affirming district court ruling that decedent’s statement made in official capacity prior to death was admissible under ER 801(d)(2)(A)). Schroeder v. Bertolo, 942 F. Supp. 72, 78-79 (D. Puerto Rico 1996) (in action brought by legal representative of decedent’s estate, statements made by decedent to non-parties admissible against the estate as a party admission under ER 801(d)(2)(A)). Mr. Gohranson also argues that Ms. Kronberger’s Facebook messages are not relevant as to whether the marriage was defunct. To the contrary, Ms. Kronberger’s threats to turn Mr. Gohranson into the Navy for fraud and non-support are patent evidence of a defunct marriage. A wife with a will to union would not threaten to destroy her husband’s career. Ms. Kronberger’s communications with Ms. Bush are further evidence of a defunct marriage. Plaintiff cannot credibly argue that a spouse committed to marriage would communicate in the manner she did with Ms. Bush. Moreover, Ms. Bush, based on her communications with Ms. Kronberger, had reached the conclusion that the marriage was over back in September, 2012. There was nothing that occurred over the next 16 months to change that conclusion. Ms. Kronberger’s Facebook messages are admissible, relevant, and far more probative than prejudicial. They are in fact the only contemporaneous written evidence that documents the state of the marriage. The Plaintiffs have not produced any documents evidencing written communication between themselves and Ms. Kronberger. Case 2:16-cv-01124-RSL Document 144 Filed 03/11/19 Page 12 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SNOHOMISH COUNTY PROSECUTING ATTORNEY - CIVIL DIVISION Robert Drewel Bldg., 8th Floor, M/S 504 3000 Rockefeller Ave EVERETT, WASHINGTON 98201-4060 (425)388-6330/FAX: (425)388-6333 DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTIONS IN LIMINE - 13 16-cv-01124-RSL Lori Bush’s testimony regarding both the Facebook messages and about Ms. Kronberger’s selling drugs also falls into an exception to the hearsay rule as a “reputation concerning personal or family history.” Fed. R. Evid. 803(19). Under that exception, “a reputation among a person’s family by blood, adoption, or marriage – or among a person’s associates or in the community – concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.” Id. Marriage is universally conceded to be a proper subject of proof by evidence of reputation in the community. See 5 Wigmore § 1602. The rule seeks reliability by requiring that any reputation admitted derive from the opinions of those intimately associated with the subject. Thus, “family members are an obvious source of qualifying reputation evidence regarding personal or family history.” See Wright & Miller, Fed. Prac. &. Proc. § 6943. Ms. Bush’s testimony establishes what Ms. Kronberger’s reputation was among the family, based in part on reports by other family members. See Dkt. # 126, at 12. Ms. Bush’s testimony is admissible. 6. Plaintiffs’ Motion to Strike Patricia Enriquez’s Rebuttal Opinions Should Be Denied. In the course of discovery the Defendants disclosed Patricia Enriquez, Certified Rehabilitation Counselor, as a rebuttal expert witness to Plaintiffs’ expert Cloie Johnson, Vocational Rehabilitation Counselor. To put Plaintiffs’ motion in limine regarding Ms. Enriquez’s testimony into context, it is necessary to understand the opinions of Ms. Johnson to which Ms. Enriquez is responding. A copy of Ms. Johnson’s expert report is attached as Exhibit G to the Genster Declaration, which includes Ms. Johnson’s curriculum vitae. Ms. Johnson summarily concludes: Case 2:16-cv-01124-RSL Document 144 Filed 03/11/19 Page 13 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SNOHOMISH COUNTY PROSECUTING ATTORNEY - CIVIL DIVISION Robert Drewel Bldg., 8th Floor, M/S 504 3000 Rockefeller Ave EVERETT, WASHINGTON 98201-4060 (425)388-6330/FAX: (425)388-6333 DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTIONS IN LIMINE - 14 16-cv-01124-RSL It is anticipated that, were it not for Lindsay’s untimely death, she would have eventually been successful in her attempts to rehabilitate from her substance abuse disorder. Genster Decl., Ex. G, at 8. She goes on to posit that Ms. Kronberger would have gone on to obtain a college degree, obtain employment in the nursing field, and earn up to $83,000 a year. Id., at 9. In reaching her opinion Ms. Johnson reviewed Ms. Kronberger’s medical records detailing her seven year substance abuse disability and the failed attempts at treatment that ended about a year before her death. As Ms. Johnson explained, “[m]edical records provide foundation for the nature and extent of medical impairment.” Id., at 4. In other words, vocational rehabilitation counselors review medical records to assist them in helping persons with disabilities find suitable employment. Defendants understand Plaintiffs’ desire to present a one sided and facile view of Ms. Kronberger’s employment prospects that ignores the enormous challenges inherent in her addiction disability. But Defendants are entitled to rebut Ms. Johnson’s opinions and present evidence to the jury explaining the real world challenges Ms. Kronberger would face. Ms. Enriquez is qualified to offer those rebuttal opinions. Ms. Enriques is a Certified Rehabilitation Counselor and holds a master’s degree in Rehabilitation Counseling. She has over 20 years of work experience including vocational diagnostic evaluation and job placement and job development for disabled job seekers. As Ms. Enriquez notes, opiate dependence is a life-long disability. Ms. Enriquez work with substance abusers goes back to 1995. Plaintiffs fault Ms. Enriquez for not providing extensive background information on her work with substance abusers. That objection goes to weight, not admissibility, and if the Court determines there is a need for additional foundation, Defendants will provide it. Defendants also note that Plaintiffs’ expert, Ms. Johnson, does not Case 2:16-cv-01124-RSL Document 144 Filed 03/11/19 Page 14 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SNOHOMISH COUNTY PROSECUTING ATTORNEY - CIVIL DIVISION Robert Drewel Bldg., 8th Floor, M/S 504 3000 Rockefeller Ave EVERETT, WASHINGTON 98201-4060 (425)388-6330/FAX: (425)388-6333 DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTIONS IN LIMINE - 15 16-cv-01124-RSL offer any specific examples of her experience in working with individuals with substance abuse disabilities in either her report or curriculum vitae. Plaintiffs fault Ms. Enriquez for not being a doctor and not having read the report of another expert, Dr. Ries, retained by the Plaintiffs. Ms. Johnson, likewise, is not a doctor and she did not identify Dr. Ries’ report as a document she reviewed or relied upon in forming her opinions. Lastly, Plaintiffs fault Ms. Enriquez for referring to social health research studies indicating that substance abusers have lower employability and future earning potential than non-substance abusers. If Plaintiffs believe there are social health research studies that indicate otherwise they are free to bring those to Ms. Enriquez’ attention. But her referral to them does not make her testimony inadmissible. Ms. Enriquez set forth in detail the obstacles Ms. Kronberger would face in both overcoming her substance abuse disability and in finding and maintaining employment. She, like Ms. Johnson, relied upon her review of Ms. Kronberger’s employment history, educational history, addiction history and treatment, arrest record, and personal circumstances in reaching her opinions. She is not offering a medical opinion but rather an informed and objective opinion of Ms. Kronberger’s employment prospects. She is unable, unlike Ms. Johnson, to blithely “anticipate that” Ms. Kronberger would recover from her disability and go on to a relapse-free lifetime of stable employment as a nurse. Ms. Johnson never attempts to address how Ms. Kronberger’s history of addiction and legal problems would adversely impact a desire to work in a profession with ready access to opiates and other narcotics. Ms. Enriquez does not ignore that patent obstacle or the other red flags in Ms. Kronberger’s history, such as five years of unemployment, four years without further educational or training, and an unstable personal Case 2:16-cv-01124-RSL Document 144 Filed 03/11/19 Page 15 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SNOHOMISH COUNTY PROSECUTING ATTORNEY - CIVIL DIVISION Robert Drewel Bldg., 8th Floor, M/S 504 3000 Rockefeller Ave EVERETT, WASHINGTON 98201-4060 (425)388-6330/FAX: (425)388-6333 DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTIONS IN LIMINE - 16 16-cv-01124-RSL life. In sum, Ms. Enriquez used her knowledge, skills, and experience coupled with her review of Ms. Kronberger’s specific circumstances to arrive at her opinions. That is what vocational rehabilitation counselors do. The motion to strike her opinion should be denied. DATED this 11th day of March, 2019. ADAM CORNELL Snohomish County Prosecuting Attorney By:__/s/ Joseph B. Genster__________________ JOSEPH B. GENSTER, WSBA #14968 KATHERINE BOSCH, WSBA #43122 MIKOLAJ T. TEMPSKI, WSBA #42896 Deputy Prosecuting Attorney Attorneys for Snohomish County Defendants Snohomish County Prosecuting Attorney – Civil Division 3000 Rockefeller Ave., M/S 504 Everett, Washington 98201 Phone: (425) 388-6330 / Fax: (425) 388-6333 JGenster@snoco.org KBosch@snoco.org MTempski@snoco.org Case 2:16-cv-01124-RSL Document 144 Filed 03/11/19 Page 16 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SNOHOMISH COUNTY PROSECUTING ATTORNEY - CIVIL DIVISION Robert Drewel Bldg., 8th Floor, M/S 504 3000 Rockefeller Ave EVERETT, WASHINGTON 98201-4060 (425)388-6330/FAX: (425)388-6333 DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTIONS IN LIMINE - 17 16-cv-01124-RSL CERTIFICATE OF SERVICE I hereby declare I served a true and correct copy of the foregoing Defendants’ Response to Plaintiffs’ Motions in Limine upon the person/persons listed by the method(s) indicated: Kenneth E. Brewe Karen D. Moore BREWE & LAYMAN, P.S. P.O. Box 488 Everett, WA 98206-0488 Todd C. Nichols W. Mitchell Cogdill Mark Guiliano COGDILL NICHOLS REIN WARTELLE ANDREWS 3232 Rockefeller Avenue Everett, WA 98201 Electronic Filing (CM/ECF) Facsimile Express Mail Email U.S. Mail Hand Delivery Messenger Service Electronic Filing (CM/ECF) Facsimile Express Mail Email U.S. Mail Hand Delivery Messenger Service I declare under the penalty of perjury of the laws of the State of Washington that the foregoing is true and correct to the best of my knowledge. SIGNED at Everett, Washington, this 11th day of March, 2019. /s/Teresa Kranz _____________ Teresa Kranz, Legal Assistant Case 2:16-cv-01124-RSL Document 144 Filed 03/11/19 Page 17 of 17