Phillips-Kerley v. City of Fresno Fire Department
1:18-cv-00438
E.D. Cal.Jul 2, 2025Background
- David Phillips-Kerley, a former City of Fresno firefighter, alleges the City retaliated against him under federal and state law after he reported workplace concerns.
- The City filed multiple motions in limine to exclude or limit testimony and evidence before trial.
- Key disputed evidence included "me too" and comparator evidence, past adjudicated claims, certain claimed adverse actions, expert testimony, and specified damages.
- The court ruled on each motion, sometimes granting, denying, partially granting, or reserving judgment depending on the circumstances and the completeness of the parties' showings.
- The order provides detailed guidance on what testimony and evidence will be allowed, how plaintiff’s claims are limited by prior rulings, and the proper scope of expert and lay opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of "me too" and comparator evidence | Admissible to show discrimination/retaliatory intent | Irrelevant, unduly prejudicial, or not previously disclosed | Reserved – admissibility requires outside-the-jury showing and proper disclosure |
| Reference to liability insurance/settlement offers | No opposition | Prohibited by FRE 411 & 408 | Granted – excluded |
| Use of adjudicated (dismissed) claims as evidence | Background facts about dismissed claims relevant to retaliation | All evidence of dismissed claims should be excluded | Granted in part/denied in part – factual background allowed, but not as independent claims or damages |
| Scope of adverse actions for trial | Plaintiff not limited to City’s narrow list; outlines broader actions | Limit to those in pleadings/discovery | Granted in part – only adverse actions alleged in TAC and not barred by prior rulings admitted |
| Expert (May, Zengler, Thomas, Jacks) scope and admissibility | Want to admit expert testimony on liability/damages | Experts are unqualified/outside scope/discuss legal conclusions | Generally granted for City (excluded or limited) if opinions invade legal conclusions or rely on inadmissible evidence |
| Medical/psychological conditions testimony by plaintiff | May discuss personal experience but not offer diagnosis/causation | Non-expert medical testimony/inference or hearsay should be excluded | Granted – only symptoms & experience allowed, not diagnosis/opinion/causation |
| Damages post-termination (after July 11, 2023) | Actionable, included in expert’s report | Overlapping with new lawsuit or beyond operative complaint | Granted – damages limited to period before termination |
Key Cases Cited
- United States v. Heller, 551 F.3d 1108 (9th Cir. 2009) (motions in limine are procedural tools for limiting evidence at trial)
- Luce v. United States, 469 U.S. 38 (1984) (district court’s authority to rule on evidence in advance of trial)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (comparator evidence and circumstantial proof in employment retaliation cases)
- Vasquez v. County of Los Angeles, 349 F.3d 634 (9th Cir. 2003) (requirements for valid comparator evidence in discrimination/retaliation claims)
- Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379 (2008) (relevance of "me too" evidence is a case-specific inquiry)
- International Bhd. of Teamsters v. United States, 431 U.S. 324 (1977) (futile gesture doctrine and proof in promotion claims under Title VII)