United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
JON E. DEGUILIO, District Judge.
Now before the Court are the parties' motions in limine [DE 167, 174] and objections to the opposing party's exhibits [DE 170, 173]. The parties' motions in limine are prolific, but in many cases relate to evidence that does not exist or that neither party plans to offer anyway. The Court denies those portions of the motions as moot, but should either party wish to offer such evidence, they should notify the opposing party immediately, and prior to offering the evidence, so that the matter can be raised with the Court if necessary. Certain of the requests also lack enough specificity to be useful as orders in limine, such as a blanket request to preclude lay witnesses from offering expert opinions. The Court denies those portions of the motions as well, but the parties remain free to raise those objections on an individual basis at trial.
The Court also notes that, as with any orders in limine, these rulings are preliminary in nature and are subject to change as the case unfolds, particularly if the evidence at trial differs from what was contained in the parties' proffers. Luce v. United States, 469 U.S. 38, 41-42 (1984) (An order in limine "is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant's proffer. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling."). That said, the Court addresses each of the motions in limine in turn, followed by the objections to the trial exhibits.
I. DEFENDANT'S MOTIONS IN LIMINE [DE 174]
1. Evidence of Defendant's insurance coverage
Granted. Defendant seeks to exclude evidence of its liability insurance pursuant to Rule 411. Plaintiff objects, but at the final pretrial conference he confirmed that he does not intend to offer such evidence unless Defendant somehow opens the door, and that he will approach the Court prior to offering such evidence. Because no admissible purpose for this evidence is currently apparent, the Court grants the motion.
2. Statements made during settlement negotiations
Granted without objection.
3. References to discovery disputes and untimely production of documents
Granted in part. Defendant seeks to exclude any reference to discovery disputes or its untimely production of certain documents. Plaintiff does not object, but wishes to be able to cross examine witnesses regarding Defendant's investigation of his charges of discrimination, which the Court does not interpret as being encompassed by this request. The Court thus grants the motion, subject to the Court's previous order on Plaintiff's motions for sanctions [DE 140], in that if Defendant references or elicits testimony on the matters addressed in that order, the Court will instruct the jury to disregard those matters and will inform it that the reason for the instruction is that the Defendant failed to comply with its discovery obligations.
4. References to the parties' motions in limine
Granted without objection.
5. "Golden rule" arguments
Granted in part. Defendant seeks to bar the "Golden Rule' argument, which invites the jury to place itself in the plaintiff's shoes." Plaintiff does not object, so the Court grants the motion. The Court notes, however, that an element of Plaintiff's harassment claim is that a reasonable person in Plaintiff's position would find Plaintiff's work environment to be hostile or abusive, so the Court will not construe this motion as limiting Plaintiff in any way relative to this element of proof.
6. References to Defendant's corporate status
Denied as overbroad. Defendant requests that any reference to its corporate status should be barred. The Court agrees that arguments that appeal to prejudice against corporations are improper, but the fact that Defendant is a corporation is apparent from its name, and even Defendant proposed a jury instruction that the jury should give corporations the same consideration they would give any individual person. In addition, Plaintiff must establish a basis for employer liability as part of his harassment claim, and some limited reference to the Defendant's corporate status may be appropriate in that context. Thus, barring any reference at all to the Defendant's corporate status would be overbroad, so the Court denies this motion, though the parties remain free to object on an individual basis should any argument improperly appeal to prejudice against corporations.
7. References to underlying facts during voir dire
Denied. Defendant requests that the facts related to this matter be barred from the voir dire process. That request is overbroad, as at least some of the underlying facts have to be shared with the venire in order to select a qualified jury. Further, this request need not be addressed through an order in limine, as the Court will be conducting voir dire itself, and has given the parties ample opportunity to propose and to object to any questions the Court intends to ask during the process.
8. Legal conclusions by any witness
Denied as lacking specificity.
9. Witnesses, exhibits, or contentions that Plaintiff did not timely disclose
Denied. The only evidence Defendant identifies as falling in this category relates to Plaintiff's claim for attorney fees, which is not an issue for the jury, and which Plaintiff does not propose to offer.
10. Defendant's subsequent remedial measures
Granted without objection. Evidence of any subsequent remedial measures, including the changing of Defendant's hiring procedures following Plaintiff's termination, will be excluded.
11. Financial situation of the parties
Taken under advisement. Defendant seeks to exclude evidence of its financial situation. Where punitive damages are at issue, though, as here, a party's financial situation may be relevant. Lampley v. Onyx Acceptance Corp., 340 F.3d 478, 485 (7th Cir. 2003); EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1287 (7th Cir. 1995). Defendant argues that punitive damages will be limited by a statutory cap that is so low-either $50, 000 or $100, 000, 42 U.S.C. § 1981a-that the probative value of this evidence would be substantially outweighed by the danger of unfair prejudice. The Court disagrees that any damages caps substantially affect the probative value of such evidence, since no damages caps apply to section 1981, 42 U.S.C. § 1981a(b)(4) (stating that the caps on compensatory and punitive damages for Title VII claims shall not "be construed to limit the scope of, or the relief available under, section 1981 of this title"), and even if Title VII's caps were to apply, those amounts would still be considerable punitive damages awards. However, without knowing what evidence Plaintiff intends to offer on this subject, if any, the Court cannot conduct a Rule 403 analysis, and therefore reserves ruling on this motion until trial, at which time the parties should raise the issue outside the presence of the jury before offering such evidence.
12. "Send a message" arguments
Denied, for the same reason as the previous request. Punitive damages are at issue, and even if statutory caps (of which the jury will not be informed) apply, a jury could consider those amounts to be sending a message, so this argument is proper as long as it is limited to the purpose of punitive damages.
13. Defendant's confidential or proprietary documents
Denied, as neither party is aware of any such documents that might be offered at trial.
14. Testimony of non-called witnesses
Granted. Defendant asks the Court to bar comments regarding the Defendant's failure to call a certain witness. Plaintiff responds by arguing that, consistent with Seventh Circuit Pattern Jury Instruction 1.19, it can ask the jury to draw an adverse inference from the Defendant's failure to call a witness. However, that instruction is only appropriate where the missing witness was only available to the party against whom the inference would be drawn. Plaintiff has not identified any such witness, so this argument would be improper and the Court grants this motion.
15. Comments on a party's failure to call certain experts
Denied, as neither party has identified any expert witnesses or indicated any possibility of making such comments.
16. Prior allegations, claims, lawsuits, or complaints of discrimination against Defendant
Denied. At the final pretrial conference, Plaintiff stated that he is unaware of any such evidence, so there is no need for an order in limine to prevent him from offering it. To the extent any such evidence may become available Plaintiff is cautioned to notify the Court prior to disclosure to the jury.
17. Evidence of Mike Wilson as a comparator
Denied. Defendant seeks to bar evidence of Mike Wilson as a comparator to Plaintiff, on the basis that a single comparator is insufficient to prove discrimination. However, Plaintiff does not need to prove his entire case through every piece of evidence he offers. See Fed.R.Evid. 401 (defining relevant evidence as evidence that has "any tendency to make a fact more or less probable than it would be without the evidence"). Comparator evidence is probative of discrimination and retaliation, Coleman v. Donahoe, 667 F.3d 835, 860 (7th Cir. 2012) (recognizing "evidence... that similarly situated employees were treated differently" as probative of discrimination and retaliation), and there is little if any prejudicial aspect to this evidence, so this motion is denied.
18. Plaintiff's EEOC charges of discrimination
Denied. Defendant seeks to prevent Plaintiff from offering his EEOC charges of discrimination into evidence, on the ground that they are hearsay. If offered by Defendant, these would be statements of a party opponent, but that exclusion to the hearsay rule does not apply if Plaintiff offers them. Nonetheless, Plaintiff also argues that the charges could constitute prior consistent statements, and these documents could be admitted on that basis if Plaintiff lays the necessary foundation, so the motion is denied.
19. Plaintiff's response to the Indiana Department of Workforce Development request for information
Denied. As with Plaintiff's charges of discrimination, this would be hearsay if offered by Plaintiff, but could potentially be admitted as prior consistent statements.
20. Plaintiff's lost wage summary
Granted without objection. Plaintiff has withdrawn the exhibit at issue.
21. Use of the words "nigger" or "nigga"
Denied. In Defendant's motion, it seeks to exclude any use of the words "nigger" or "nigga" at trial, and asks the Court to instruct counsel and every witness to only use the term "N word" instead. As written, this motion is frivolous, as what words were said and in what manner are squarely at issue in this case, as are the effect those words actually had on Plaintiff and the effect those words would have had on a reasonable person, so the inflammatory nature of these words is probative of disputes that are central to this case. At the final pretrial conference, Defendant narrowed its request somewhat, and asked that the words only be permitted to be used by witnesses in describing exactly what was said and how, and that counsel should only be allowed to use the words on a single occasion, in order to clarify his subsequent uses of the term "N word." This is somewhat more reasonable, but the Court still views this request as too restrictive, as the inflammatory nature of these words is directly at issue in this matter. The motion is therefore denied.
That said, the Court has no intention to permit excessive or gratuitous use of these words by either party in this matter. These words are exceptionally offensive and inflammatory, and the Court will not permit counsel to use them in a manner that crosses the line from a desire to inform to a desire to inflame. Where appropriate, counsel should use the term "N word" instead.
22. Plaintiff's income or work history after August 2009
Denied as moot. Defendant's argument on this motion relates only to Plaintiff's claim for back pay and front pay, which the Court has already ordered will not be presented to the jury.
23. Wrongdoing by the Defendant before October 11, 2008
Denied. Defendant seeks to exclude evidence of any discrimination that occurred prior to October 11, 2008, on the basis that it would be outside the 180-day statute of limitations. However, as Plaintiff correctly argues, this motion is based on the wrong limitations period, as Plaintiff had 300 days to file his charges of discrimination and retaliation, so this motion is denied.
24. Testimony by Plaintiff about statements to him from employees that were not his supervisors
Denied. Defendants seeks to bar Plaintiff "from testifying about any statements to him from any employees of the defendant that were not his supervisors, " on the grounds that the statements would be hearsay, and that stray racial comments should not be admitted unless Plaintiff can link them to the decisionmakers. As to the first ground, such statements may be hearsay, but only if offered for the truth of the matters asserted, and only if no exception applies. Without knowing what statements, if any, Defendant is actually referring to, the Court cannot conduct this analysis. Likewise for the second ground, there is no indication what statements Defendant is referring to or that Plaintiff would be offering them for the purpose of establishing a racial animus by his supervisors. Therefore, the motion is denied, but may be raised on an individual basis at trial.
25. Evidence that Mr. Nichols accused Plaintiff of stealing a tire iron
Granted. Defendant seeks to exclude evidence that Mr. Nichols accused Plaintiff of stealing a tire iron at some point after terminating Plaintiff's employment. Plaintiff asserts that at some point shortly after his employment with Defendant, Mr. Nichols reported to the police that Plaintiff stole a floor jack out of the body shop, and that Plaintiff was subsequently questioned by police officers. Plaintiff argues that this evidence is relevant since treating similarly situated people outside of Plaintiff's protected class more favorably can suggest that Mr. Nichols harbored a racial or retaliatory animus, which motivated him to harass and fire Plaintiff. That may be correct in theory, but Plaintiff has not made a sufficient showing to support an inference that Mr. Nichols made this accusation because of Plaintiff's race or protected activity. There is no information before the Court indicating what accusation Mr. Nichols actually made, what his basis for that accusation was, whether he made similar accusations against any other individuals, or whether he had any reason to make similar accusations against any other individuals, for example. Thus, at this time, there is no basis from which a jury could find that Mr. Nichols actually treated similarly situated individuals differently as to this incident, such ...