McCammond v. Schwan's Home Service, Inc.

Filing 99

ORDER re: 86 Designation of Deposition Testimony filed by Schwan's Home Service, Inc., 93 Supplemental Trial Brief filed by Michael McCammond, 94 Supplemental Trial Brief, filed by Schwan's Home Service, Inc. by Judge William J. Martinez on 8/18/2011. (erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 09-cv-02895-WJM-MJW
MICHAEL McCAMMOND,
Plaintiff,
v.
SCHWAN’S HOME SERVICE, INC.,
Defendant.

ORDER ON SUPPLEMENTAL TRIAL BRIEFS
AND DEPOSITION DESIGNATIONS

At the Trial Preparation Conference, two issues were raised that remain pending:
(1) whether Defendant will be permitted to use Plaintiff’s videotaped deposition
testimony as substantive evidence at trial; and (2) whether the jury or the Court should
determine whether Plaintiff is entitled to front pay. The Court will address each of these
issues below.
I.

USE OF DEPOSITION TESTIMONY
Defendant has submitted deposition designations indicating that it intends to use

portions of Plaintiff’s videotaped deposition testimony “for purposes other than
impeachment.” (ECF No. 86.) Plaintiff objects to the use of his videotaped deposition
testimony because he will testify live at trial and will be subject to live cross-examination
by the Defendant.
The preference for live testimony at trial rather than deposition testimony as a

substitute is uniformly stressed in case law. This was long ago asserted by Judge
Learned Hand, who stated: “[t]he deposition has always been, and still is, treated as a
substitute, a second-best, not to be used when the original is at hand.” Napier v.
Bossard, 102 F.2d 467, 469 (2d Cir. 1939). The preference expressed by Learned
Hand is the constant theme of courts which have dealt with the issue of the use of
depositions in lieu of live testimony. For example, one court in this circuit has held:
“Parties or witnesses who will be present at trial are generally not permitted to testify by
way of deposition in lieu of live testimony.” Hillman v. U.S. Postal Service, 171 F. Supp.
2d 1174, 1175 (D. Kan. 2001); see also U.S. v. IBM Corp., 90 F.R.D. 377, 382
(S.D.N.Y. 1981) (citing Circuit Court decisions standing for the same proposition).
The portions of the deposition testimony proffered by Defendant would be
admissible under Federal Rule of Civil Procedure 32(a)(3) which provides that “[a]n
adverse party may use for any purpose the deposition of a party.” However, the Court
has significant discretion when determining whether to admit deposition testimony at
trial. Coletti v. Cudd Pressure Control, 165 F.3d 767, 773 (10th Cir. 1999); GarciaMartinez v. City and Cty. of Denver, 392 F.3d 1187, 1191 (10th Cir. 2004). The Tenth
Circuit has held that, despite the admissibility of the opposing party’s deposition under
Rule 32(a)(3), “the admission of deposition testimony still remains subject to the sound
discretion of trial court and ‘it has a perfect right to limit the use of the material if the
deposition is repetitious or immaterial.’” Coletti, 165 F.3d at 773 (quoting King & King
Enterprises v. Champlin Petroleum Co., 657 F.2d 1147, 1164 (10th Cir. 1981)).
Given the preference for live testimony, the Court DENIES Defendant’s request
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to offer Plaintiff’s videotaped deposition as substantive evidence at trial. Defendant
remains free, of course, to use Plaintiff’s deposition for impeachment purposes.
II.

DETERMINATION OF FRONT PAY
The parties were asked to submit briefs addressing whether the Court or the jury

should determine what, if any, front pay is appropriate in this case. The parties both
state that it this issue is unclear under Minnesota law. Having reviewed the briefs and
conducted its own research, the Court concludes that Minnesota law dictates that the
determination of front pay is a question for the jury in a breach of employment contract
case.
In Feges v. Perkins Restaurants, Inc., 483 N.W.2d 701 (Minn. 1992), the trial
court instructed the jury that only damages that occurred before trial were recoverable.
On appeal, the Minnesota Supreme Court held that “it is error to instruct the jury in a
breach of an employment contract case that only damages suffered before the trial are
recoverable. The jury should be instructed that damages for breach of an employment
contract consist of the compensation which an employee who has been wrongfully
discharged would have received if the contract had been carried out according to its
terms.” Id. at 710. The Court then set out factors that the jury should consider in
making its front pay determination. Id.
Defendant contends that the Minnesota Supreme Court changed course in Ray
v. Miller Meester Advertising, Inc., 684 N.W.2d 404 (Minn. 2004) by holding that the
Court should determine whether front pay is appropriate. However, the plaintiff in Ray
asserted claims under the Minnesota Human Rights Act and Title VII of the federal Civil
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Rights Act. The holding in Ray governs the award of front pay under those statutes but
is inapplicable to a breach of contract case. Nothing in Ray overruled Feges for
purposes of a breach of employment contract case such as this.
Because Minnesota law clearly states that the jury should determine whether
front pay is appropriate as part of its general award of damages, the Court will so
instruct the jury on this issue. However, the Court’s special interrogatories will require
that the jury’s award be broken out into two parts, one for the damages, if any, incurred
by Plaintiff through to the date of the verdict, and one for the damages, if any, the jury
finds Plaintiff will sustain post-trial. Given the anticipated lack of evidence from either
party at trial on the appropriate manner of discounting to present value any award of
future damages,1 the Court will consider this issue when it is asked to rule on an
appropriate post-trial motion.
The parties should be mindful of these and all other pretrial rulings when
submitting any supplemental proposed jury instructions and verdict forms the Court, in
its discretion, hereafter determines the parties should file prior to and during the trial.
Dated this 18th day of August, 2011.
BY THE COURT:

William J. Martínez
United States District Judge

1

Neither party has listed an expert capable of testifying about discounting a damages
award of their witness lists.

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