Gohranson v. Snohomish County et al

REPLY

W.D. Wash.March 29, 2019

PLAINTIFFS’ REPLY IN SUPPORT OF MOTIONS IN LIMINE - 1 Case No. C16-1124RSL COGDILL NICHOLS REIN WARTELLE ANDREWS 3232 Rockefeller Avenue Everett, WA 98201 Ph: (425) 259-6111 / F: (425) 259-6435 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 27 28 THE HONORABLE ROBERT S. LASNIK UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE JOHN T. GOHRANSON, et al., Plaintiffs, v. SNOHOMISH COUNTY, et al., Defendants. Case No. C16-1124RSL PLAINTIFFS’ REPLY IN SUPPORT OF PLAINTIFFS’ MOTIONS IN LIMINE I. REPLY 1. Exclude Evidence of the Life Insurance Policy or Its Proceeds A. Evidence of How John Gohranson Spent the Proceeds of a Life Insurance Policy is Not Probative of the Status of His Marriage to Lindsay Kronberger Defendants contend that how John Gohranson spent money he received as the beneficiary of a life insurance policy for Lindsay Kronberger is relevant to proving their marriage was defunct. It stretches credulity to see how the acts by a grieving spouse, after the other spouse has died, have any bearing on the status of the marriage. As the Court is well aware, based upon Defendants’ Motion for Summary Judgment on this subject, “[a] defunct marriage exists where it can be Case 2:16-cv-01124-RSL Document 149 Filed 03/29/19 Page 1 of 7 PLAINTIFFS’ REPLY IN SUPPORT OF MOTIONS IN LIMINE - 2 Case No. C16-1124RSL COGDILL NICHOLS REIN WARTELLE ANDREWS 3232 Rockefeller Avenue Everett, WA 98201 Ph: (425) 259-6111 / F: (425) 259-6435 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 27 28 determined that the spouses, by their conduct, indicate they no longer have a will to union.” In Re Estate of Osicka, 1 Wash. App. 277 (1969). The test is whether the parties through their actions have exhibited a decision to renounce the community “with no intention of ever resuming the marital relationship.” Oil Heat Co. v. Sweeney, 26 Wash. App. 351, 354 (1980). It is axiomatic that this analysis is based upon acts that occurred during the marriage. Spouses cannot display a mutual intention to end the marriage after one is deceased. In this Court’s Order Denying Motion for Summary Judgment on Wrongful Death and Survival Claims (Dkt. #138), the Court noted that “[t]he jury could reasonably infer that neither Mr. Gohranson nor Ms. Kronberger had finally resolved to end their marriage before she died[.]” Gohranson v. Snohomish Cty., No. C16- 1124RSL, 2018 WL 2933352, at *2 (W.D. Wash. June 12, 2018) (emphasis added). The Defendants’ defunct marriage theory must either succeed or fail based upon the relevant factors used to prove the theory. In particular, it must be limited to relevant evidence from during the marriage. Evidence of how John Gohranson spent proceeds of a life insurance policy is certainly irrelevant to this analysis and must be excluded under ER 401, 402, and 403. B. Evidence of the Life Insurance Policy is Not Admissible under RCW 7.70.080 Defendants seek to admit evidence of the life insurance policy under RCW 7.70.080, which provides an exception to Washington’s collateral source rule in medical malpractice cases. The policy should not be admitted because it was an asset of John Gohranson’s and is therefore excluded under the statute. The life insurance policy at issue was Family Servicemembers’ Group Life Insurance (FSGLI), which was issued to John Gohranson for coverage of his spouse, Lindsay, incidental to his active-duty service in the Navy. See Giuliano Decl., Ex. A (“Gohranson Dep.”) 254:12-255:10. The premiums for the policy were deducted directly from Mr. Gohranson’s base Case 2:16-cv-01124-RSL Document 149 Filed 03/29/19 Page 2 of 7 PLAINTIFFS’ REPLY IN SUPPORT OF MOTIONS IN LIMINE - 3 Case No. C16-1124RSL COGDILL NICHOLS REIN WARTELLE ANDREWS 3232 Rockefeller Avenue Everett, WA 98201 Ph: (425) 259-6111 / F: (425) 259-6435 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 27 28 pay. Id. This policy, or the proceeds therefrom, does not constitute an admissible collateral source because it is an “asset[] of the plaintiff, the plaintiff’s representative, or the plaintiff’s immediate family. …” RCW 7.70.080. Defendants point out, in a footnote, that the statute was amended in 2006, to remove “or insurance purchased with such assets” from the law. See Response (Dkt. #144) at 3 n.1. Plaintiffs understand this revision to have eliminated a redundancy in the law because life insurance is an asset. See, e.g., Francis v. Francis, 89 Wash. 2d 611 (1978) (“[W]here premiums of an insurance policy issued on the life of the husband after coverture are paid entirely from community funds, the policy becomes a community asset.”) 2. Exclude Reference to the Beneficiaries of the Estate of Lindsay Kronberger Discussion of the beneficiaries of Lindsay Kronberger’s Estate is not relevant to a determination of damages that should be awarded to the Estate. ER 401. Moreover, it should be excluded as prejudicial, confusing, and a waste of time to explain to the jury who the beneficiaries of the Estate are. ER 403. Defendants argue it has a bearing on a determination of John Gohranson’s credibility because, they say, “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.” Response at 4. In other words, Defendants argue, the Jury should be made aware that John Gohranson has an ulterior motive in testifying about his marriage to Lindsay Kronberger because it affects his potential recovery in this lawsuit. The jurors will be plainly aware, by virtue of their designation as plaintiffs, that both John Gohranson and Dale Kronberger may potentially recover damages should the jury return verdicts in their favor. Any discussion of how much each will recover as a beneficiary of the Estate, separate from their independent § 1983 claims, is highly prejudicial. Case 2:16-cv-01124-RSL Document 149 Filed 03/29/19 Page 3 of 7 PLAINTIFFS’ REPLY IN SUPPORT OF MOTIONS IN LIMINE - 4 Case No. C16-1124RSL COGDILL NICHOLS REIN WARTELLE ANDREWS 3232 Rockefeller Avenue Everett, WA 98201 Ph: (425) 259-6111 / F: (425) 259-6435 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 27 28 Defendants believe the jury should make its determination of how much to award the Estate based upon how it will be distributed. This is clearly an issue beyond the scope of the jurors’ purview. They are not tasked with determining an award of damages on this basis, and it is impermissible to allow them to do so. Therefore, to the extent this issue has any relevance in determining John Gohranson’s character, it is substantially outweighed by prejudice and confusion, and must be excluded. 3. Exclude Reference to Lindsay Kronberger’s Criminal History, Law Enforcement Contacts, and Prior Incarcerations Plaintiffs provided authority in support of this motion to demonstrate that courts routinely exclude such evidence on the basis that it is not relevant or that it is more prejudicial than probative. Defendants aver that this authority is inapplicable because it comes from use-of-force cases, which make up a predominance of § 1983 decisions. Plaintiffs fail to see how this is a distinguishable characteristic that makes the authority any less applicable. The various bases under which Defendant proposes to introduce evidence of Lindsay’s prior drug use or criminal history are either moot or do not overcome ER 403. First, plaintiffs obviously do not object to the admission of Lindsay Kronberger’s medical records while incarcerated. Further, there is no dispute that Lindsay Kronberger suffered from opioid addiction at the time of her death. However, repeated references to past drug use is cumulative and serves no other purpose than to inflame the passions of the jury. Evidence of the existence and violation of a no-contact order is vastly more prejudicial than probative of any element of Defendants’ defense. Likewise, evidence that Lindsay Kronberger hid heroin in her body cavities on a previous booking has no nexus to the events of the current lawsuit, and its prejudicial effect far outweighs any bearing it may have on Lindsay and her father’s Case 2:16-cv-01124-RSL Document 149 Filed 03/29/19 Page 4 of 7 PLAINTIFFS’ REPLY IN SUPPORT OF MOTIONS IN LIMINE - 5 Case No. C16-1124RSL COGDILL NICHOLS REIN WARTELLE ANDREWS 3232 Rockefeller Avenue Everett, WA 98201 Ph: (425) 259-6111 / F: (425) 259-6435 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 27 28 relationship. 4. Exclude John Gohranson’s Naval Records That Post-Date Lindsay’s Death Evidence of John Gohranson’s military service after Lindsay Kronberger’s death is clearly irrelevant to any of the issues in this case. For the reasons articulated in support of Plaintiffs’ Motion in Limine no. 1, Mr. Gohranson’s actions after his wife died have no bearing on the status of their marriage. Defendants argue that if John Gohranson testifies that his Navy service prevented him from being near Lindsay Kronberger, that would open the door to evidence that he is no longer in the Navy, and the circumstances surrounding that fact. See Response at 10. It bears repeating that Mr. Gohranson’s discharge occurred after Lindsay’s death, so he was physically separated from his wife due to his active duty deployment and other assignments. That Mr. Gohranson left the service after the events giving rise to the lawsuit—regardless of the circumstances—is wholly irrelevant to evaluating the status of their marriage or any other issues in this case. This evidence should be excluded. 5. Exclude Improper Testimony by Lori Bush Regarding Lindsay Kronberger The status of Lindsay Kronberger and Johnson Gohranson’s marriage is based upon the relationship between Lindsay and John, not Lindsay and her mother-in-law, Lori Bush. The communications between Ms. Kronberger and Ms. Bush are highly inflammatory and only show that the relations between Ms. Kronberger and Ms. Bush were far from copacetic. Defendants argue these online arguments are relevant to their defunct marriage because, they argue, one who argues with their in-law in this manner would not be committed to marriage. See Response at 12. Sadly, this argument does not comport with real-world observations. One’s soured relationship with a relative by marriage does not evidence that one is not committed to marriage. Additionally, Case 2:16-cv-01124-RSL Document 149 Filed 03/29/19 Page 5 of 7 PLAINTIFFS’ REPLY IN SUPPORT OF MOTIONS IN LIMINE - 6 Case No. C16-1124RSL COGDILL NICHOLS REIN WARTELLE ANDREWS 3232 Rockefeller Avenue Everett, WA 98201 Ph: (425) 259-6111 / F: (425) 259-6435 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 27 28 Ms. Bush’s belief that the marriage was over is not probative of the legal status of Ms. Kronberger’s and Mr. Gohranson’s marriage. A defunct marriage theory is based on the acts of the spouses, not the impressions of a third party. DATED: March 29, 2019. By: s/ Todd C. Nichols Todd C. Nichols, WSBA No. 15366 W. Mitchell Cogdill, WSBA No. 1950 Mark P. Giuliano, WSBA No. 49871 Cogdill Nichols Rein Wartelle Andrews 3232 Rockefeller Avenue Everett, Washington 98201 Ph: (425) 259-6111 / F: (425) 259-6435 toddn@cnrlaw.com wmc@cnrlaw.com mark@cnrlaw.com Karen D. Moore, WSBA No. 21328 Kenneth E. Brewe, WSBA No. 9220 Brewe Layman, P.S. 3525 Colby Avenue Everett, Washington 98201 Ph: (425) 252-5167 / F: (425) 252-9055 karenm@brewelaw.com kennethb@brewelaw.com Attorneys for Plaintiffs Case 2:16-cv-01124-RSL Document 149 Filed 03/29/19 Page 6 of 7 PLAINTIFFS’ REPLY IN SUPPORT OF MOTIONS IN LIMINE - 7 Case No. C16-1124RSL COGDILL NICHOLS REIN WARTELLE ANDREWS 3232 Rockefeller Avenue Everett, WA 98201 Ph: (425) 259-6111 / F: (425) 259-6435 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 27 28 CERTIFICATE OF SERVICE The undersigned declares under penalty of perjury under the laws of the State of Washington that on this day, I electronically served the foregoing by email to the following: Joseph B. Genster, WSBA No. 14968 Katherine H. Bosch, WSBA No. 43122 Mikolaj T. Tempski, WSBA No. 42896 Deputy Prosecuting Attorneys Snohomish County Prosecuting Attorney Civil Division 3000 Rockefeller Avenue, M/S 504 Everett, WA 98201 Ph: (425) 388-6330 / F: (425) 388-6333 jgenster@snoco.org kbosch@snoco.org mtempski@snoco.org Attorneys for Defendant Snohomish County SIGNED AND DATED this 29th day of March 2019 at Everett, Washington. s/Mark P. Giuliano Mark P. Giuliano, WSBA No. 49871 mark@cnrlaw.com Case 2:16-cv-01124-RSL Document 149 Filed 03/29/19 Page 7 of 7