Wilson v. The Birmingham Public Library Foundation et al

Filing 56

MOTION in Limine by Birmingham Library Board, City of Birmingham, Alabama, The. (Fullerton, Frederic)

FILED
2012 Apr-09 PM 04:23
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BARBARA ANN WILSON,
Plaintiff,
v.
CITY OF BIRMINGHAM, et al.,
Defendants.

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CIVIL ACTION NO.
CV-10-KOB-2386

DEFENDANTS’ MOTION IN LIMINE

The Defendants, the City of Birmingham (“the City” or “Defendant”), a
municipal corporation under the laws of the State of Alabama, and the Birmingham
Library Board (“the Board” or “Defendant”), by and through their attorneys, pursuant
to the Court’s Pretrial Order of February 29, 2012, hereby move the Court for entry of
an order in limine, prohibiting the introduction by Plaintiff Barbara Wilson of certain
testimony and evidence, and prohibiting any argument, mention, discussion or
references to, or any other showing of any of the matters described below. The
Defendants state that such testimony and evidence is not admissible and introduction of
such evidence in the presence of the finder of fact, even if an objection was sustained
and the finder of fact instructed not to consider it, could not be erased from the mind of
the finder of fact. Therefore, the Defendants move the Court to instruct the Plaintiff’s
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attorneys, prior to trial, and any and all witnesses called on behalf of any party, to
refrain from giving any testimony, making direct or indirect reference to, or otherwise
mentioning or introducing during the trial of this case in the presence of the finder of
fact the following matters:
A.

The wealth or poverty of the parties
The Defendants anticipates that the Plaintiff will attempt to offer evidence of the

economic condition of the Plaintiff or one or more parties to this litigation. “There is a
general exclusionary rule in Alabama precluding the admission of evidence as to the
wealth or poverty of litigants when offered to aggravate or mitigate damages.” Bowers
v. Wal-Mart Stores, Inc., 827 So. 2d 63, 72 (Ala. 2001) (internal quotation and citation
omitted); see generally GAMBLE’S ALABAMA RULES OF EVIDENCE § 414, at 150 (2d ed.
2002) (“A civil litigant is precluded generally from making the jury privy to the
litigant’s own poverty or an opponent’s wealth.”); Allison v. Acton-Etheridge Coal
Co., 268 So. 2d 725 (Ala. 1972) (holding that defense counsel was prohibited from
commenting that it is a great thing to be like the plaintiff and hire two law firms with
four lawyers). Reference by any party regarding the wealth or economic condition of a
litigant is improper and prejudicial. See Holt v. State Farm Mut. Auto. Ins. Co., 507
So. 2d 388 (Ala. 1986). The Court should, therefore, pursuant to AL. R. EVID. 401,
402, 403, preclude any evidence of any of the parties’ wealth, net worth, income,
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profits, or any other similar information.
B.

Punitive Damages.
Defendant anticipates that the Plaintiff will attempt to produce into evidence

discussion of punitive damages against the Defendant. The discussion of punitive
damages is prejudicial and outweighs its probative value. Further, punitive damages
never recoverable against the City, a governmental entity under Alabama law. Code
of Alabama §6-11-26, 1975. It would be irrelevant and immaterial to the issues in
this case. ALA. R. EVID. 401, 402. The Birmingham Public Library is part of the
Governmental entity.

The Birmingham Library Board has no nor maintains

independent assets. A discussion of punitive damages would serve only to confuse,
mislead and prejudice the jury. The Court should, therefore, preclude all evidence or
discussion of punitive damages.
C.

Relationship between Edith Major and Mike Lee
Defendants anticipate that the Plaintiff will attempt to produce into evidence a

discussion of the nature of the relationship between Edith Major and Mike Lee.
Plaintiff has not shown how the relationship between Ms. Major and Mr. Lee proves
how the Defendants failed to address the alleged sexually hostile work environment
which she alleges was created by Library patrons. Second, there has been no testimony
that Mr. Edith Major or Mr. Lee were the Plaintiffs’ supervisors and there is no
specific allegation that either one of them created the alleged sexually hostile work
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environment. Finally, their sole relationship is not widespread in the workplace nor
concerns various “multiple” relationships. See Broderick v Ruder, 1988 WL 66210, 46
Empl. Prac. Dec. P 38,042 (D.D.C. Jun 16, 1988) (NO. CIV.A. 86-1834) and Miller v.
Dept. of Corrections, 36 Cal.4th 446, 115 P.3d 77, (Cal.2005). It would be irrelevant
and immaterial to the issues in this case. ALA. R. EVID. 401, 402. A discussion of their
relationship would serve only to confuse, mislead and prejudice the jury.
Wherefore the Premises considered, the Defendants respectfully moves this
Honorable Court to preclude the Plaintiff from testifying, presenting testimony, asking,
questioning, refer to, mention, or present documentary evidence in reference to the
above matters in the trial. That such other and further relief be provided as the Court
may deem proper.
Respectfully Submitted,
/s/Fredric L. Fullerton, II
Fredric L. Fullerton, II
Chief Assistant City Attorney
/s/Nicole E. King
Nicole E. King
Assistant City Attorney
CITY OF BIRMINGHAM
LAW DEPARTMENT
710 North 20th Street
Room 600 City Hall
Birmingham, Alabama 35203
[phone]/[phone] (fax)
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CERTIFICATE OF SERVICE
I hereby certify that on this 9 day of April, 2012 I have served a copy of the
foregoing Motion upon all counsel of record in open court.
Adam P. Morel, Esq.
517 Beacon Parkway West
Birmingham, AL. 35209
/s/Fredric L. Fullerton, II
Fredric L. Fullerton, II

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