Hercher v. International Paper Company

Filing 52

OPINION AND ORDER denying as moot 38 Motion in Limine; denying without prejudice 41 Amended Motion in Limine; and granting in part and denying in part 42 Motion in Limine, as set forth. Signed by Honorable P. K. Holmes, III on February 22, 2016. (jas)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
CHRISTINE BURDUE, Executrix of the
estate of Stephan Hercher
v.

PLAINTIFF

Case No. 2:14-cv-2173

INTERNATIONAL PAPER COMPANY

DEFENDANT

OPINION AND ORDER
Before the Court are Plaintiff Christine Burdue’s motion in limine (Doc. 38) and amended
motion in limine (Doc. 41), Defendant International Paper Company’s (“IP”) motion in limine
(Doc. 42), and the parties’ responses and supporting documents (Docs. 39, 40, 45, and 46).
Because Burdue’s original motion in limine is substantively identical to her amended motion,
except for the addition of a confirmation that she conferred with opposing counsel, the Court finds
that the original motion in limine (Doc. 38) should be DENIED AS MOOT. The Court will take
up the remaining motions in turn.
I.

Burdue’s Amended Motion in Limine 1
Burdue seeks to exclude evidence or testimony related to: (1) Hercher’s personnel records

prior to beginning employment with IP, i.e., pre-2008; (2) any audio recordings of Hercher; (3)
Hercher’s medical records from 2014 or later; (4) Hercher’s state senate race; (5) Hercher’s
unemployment benefits; and (6) the circumstances surrounding Hercher’s death.

Burdue’s

primary basis for excluding these items is that they are either irrelevant pursuant to Federal Rule

1

Although Burdue failed to file a supporting brief for either of her motions in limine pursuant to
Local Rule 7.2(a), the Court has nevertheless considered them. Burdue’s future failure to abide
by applicable rules may result in the denial of requested relief on that basis alone.

of Evidence 401 or that their probative value would be substantially outweighed by the unfair
prejudice caused by their introduction pursuant to Federal Rule of Evidence 403.
The Court declines to exclude any of the evidence or testimony identified by Burdue in
advance of trial. While it is conceivable, and perhaps probable, that some of the evidence or
testimony should ultimately be excluded, the Court finds it more appropriate to make a final
determination on these matters if and when they are brought up during the trial. At that time the
Court will be better able to judge the relevance and possible prejudice in the context of the evidence
and testimony already received during the trial. Accordingly, Burdue’s amended motion in limine
(Doc. 41) is DENIED WITHOUT PREJUDICE to Burdue raising objections to the abovementioned evidence and testimony if and when it is sought to be introduced at trial.
II.

International Paper Company’s Motion in Limine
A.

Miscellaneous Requests to Exclude Evidence

IP requests that the Court exclude any and all evidence of or related to: (1) claims other
than Hercher’s Americans with Disabilities Act (“ADA”) claim, as well as evidence related to
punitive or liquidated damages; (2) the availability of part-time or light duty work at IP; (3) hearsay
statements; (4) conduct of non-decision-makers at IP. Each of these requests seek blanket rulings
excluding unidentified testimony. IP’s arguments in support tend to list one or more reasons that
such evidence may possibly be excluded if offered for a purported purpose. However, at this time
the Court has no way of concluding exactly what the purpose of certain testimony or evidence may
be, or what its relevance may be in light of evidence to be received at trial. Therefore, the Court
declines to make any final ruling at this time, and will instead address the admissibility of the types
of evidence identified above if and when they are sought to be introduced at trial.

2

B.

Information from Arkansas Department of Workforce Services

Burdue’s pretrial disclosure sheet lists a “Workforce services claimant statement” (Doc.
48-2, ¶ 33) and a “Determination ltr of Workforce services 11/27/12” (Doc. 48-2, ¶ 37) as exhibits
she intends to offer into evidence. IP requests that the Court exclude any documents obtained from
the Arkansas Department of Workforce Services because they are privileged pursuant to Ark. Code
Ann. §§ 11-10-314(a)(1), (a)(2)(A). Section 11-10-314(a)(1) provides that “information obtained
by the Director of the Department of Workforce Services from any employing unit or
individual . . . and any determination as to the rights or status of any employer or individual made
by the director shall be held confidential and shall be protected by government privilege.”
Furthermore, “The information shall not be used in any action or proceeding before any
court . . . unless the Department of Workforce Services is a party, a real party in interest, or a
complainant therein or unless the litigation involves criminal actions brought under provisions of
this chapter.” Ark. Code Ann. § 11-10-314(a)(2)(A). Burdue’s response to IP’s motion does not
contest that her proposed exhibits are subject to the statute preventing their use at trial, but instead
simply recites why she intends to offer those particular exhibits. The exhibits appear to be
protected from use at trial pursuant to Ark. Code. Ann. § 11-10-314(a)(2)(A). Moreover, the
Department of Workforce Services is neither a party, real party in interest, or complainant, and the
litigation does not involve criminal actions.

Accordingly, the exhibits obtained from the

Department of Workforce Services listed above will be excluded from trial.
C.

Similarly Situated Individuals

IP also seeks to exclude any evidence or testimony regarding the treatment of other
unknown, undisclosed truck drivers, and any other individuals who were not similarly situated to
Hercher. IP takes particular issue with the introduction of evidence or testimony regarding IP’s

3

red card attendance policy as it relates to employees other than Hercher. This kind of evidence
would purportedly be offered to show that instances of disparate treatment support Hercher’s claim
that the reasons given by IP for his termination were a pretext for discrimination. In order to make
that kind of a showing, Burdue would bear the burden to prove that Hercher and those treated more
favorably were “similarly situated in all relevant respects—a rigorous standard at the pretext
stage.” Onyiah v. St. Cloud State University, 684 F.3d 711, 717 (8th Cir. 2012) (citation and
internal quotations omitted). But the fact that Burdue may seek to offer evidence or testimony
that, in the opinion of IP, would not meet that standard does not provide a sufficient basis for the
Court to wholesale exclude such evidence or testimony at this time. The Court will instead make
appropriate determinations as to the admissibility of evidence or testimony if and when it is offered
at trial.

In any event, it will remain Burdue’s burden to demonstrate individuals used as

comparators were similarly situated to Hercher.
D.

Mitigation of Damages

IP next points out that Hercher admitted in deposition testimony that he did not apply for
any other jobs because he believed that they were not as good as the job he was terminated from
at IP. IP contends that this testimony establishes that Hercher did not mitigate his damages as
required and that Burdue should therefore be precluded from presenting any further testimony or
evidence

suggesting

that

Hercher

did

mitigate

his

damages.

In

any

case,

“[t]he employer has the burden to prove that the individual did not mitigate his damages.” Chalfant
v. Titan Dist., Inc., 475 F.3d 982, 992 (8th Cir. 2007) (citation omitted). “[T]he individual’s efforts
do not have to be successful but must represent an honest effort to find substantially equivalent
work.” Id. (citation omitted). The jury may reasonably find that Hercher did not mitigate his
damages after his termination from IP. However, IP’s circular reasoning—to not allow evidence

4

that Hercher mitigated his damages because they assert that he did not—is not a sufficient basis to
completely deny Burdue the opportunity to present evidence and argument that Hercher mitigated
his damages. Burdue may seek to offer whatever evidence or testimony she believes supports
Hercher’s mitigation of damages. IP can then object, if desired, and the Court will make a ruling
on the admissibility of any such evidence at that time.
E.

Financial Condition of Parties

IP next asserts that evidence of the financial condition of the parties should be excluded
because punitive damages are no longer at issue and because such evidence would otherwise be
irrelevant. Burdue’s response did not address this matter. The Court has already ruled that Burdue
may not seek punitive damages on behalf of Hercher, so the financial condition of the parties
would be irrelevant in that respect. (Doc. 44). The Court also cannot find any reason that the
financial condition of either party would otherwise be relevant to deciding the triable issues.
Accordingly, any such evidence will be excluded at trial.
F.

Hercher’s Mental Health

IP seeks to exclude any reference by lay witnesses to any of Hercher’s mental problems or
damages Hercher suffered based on hypothetical scenarios. IP also points out that no expert
witnesses have been identified to testify on behalf of mental injuries suffered by Hercher. In
essence, IP is requesting that the Court follow the law in making sure that testimony has the proper
foundation before being offered and is otherwise admissible under the Federal Rules of Evidence.
The Court will do so. Still, the request as submitted by IP does not present a sufficient basis to
exclude any evidence or testimony at this time.
G.

Front Pay & Short Term Disability

5

Finally, IP contends that the Court should exclude any testimony related to front pay or
short term disability benefits. As to front pay, IP contends that it is a remedy left to the Court’s
sole discretion and thus should be excluded from consideration by the jury. While that may be
true, it is not a sufficient basis for the Court to exclude any particular testimony at this juncture.
As to short term disability benefits, IP argues that Hercher never applied for any such benefits and
that Burdue should therefore be precluded from arguing that those benefits were denied to him.
This is a matter better taken up at trial through objections to testimony, and through cross
examination by IP’s counsel, if and when such testimony is accepted.
III.

Conclusion
IT IS THEREFORE ORDERED that Burdue’s motion in limine (Doc. 38) is DENIED AS

MOOT.
IT IS FURTHER ORDERED that Burdue’s amended motion in limine is (Doc. 41) is
DENIED WITHOUT PREJUDICE to Burdue raising objections to the evidence and testimony
that is the subject of the motion if and when it is sought to be offered at trial.
IT IS FURTHER ORDERED that IP’s motion in limine (Doc. 42) is GRANTED IN PART
and DENIED IN PART. The motion granted insofar as the Court will exclude (1) any documents
sought to be offered at trial that were obtained from the Arkansas Department of Workforce
Services; and (2) evidence or testimony as to the financial condition of either party. In all other
respects, IP’s motion is DENIED WITHOUT PREJUDICE to IP raising the same objections to
the evidence and testimony that is the subject of its motion if and when it is sought to be offered
at trial.

6

IT IS SO ORDERED this 22nd day of February, 2016.

/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE

7