Smith v. T.W. Clyde, O.D., P.C.

Filing 59

ORDER granting in part and denying in part 46 Plaintiff's Motion in Limine; denying 49 Defendant's Motion in Limine. Evidence of Plaintiff's 2003 convictions will be inadmissible at trial. By Judge William J. Martinez on 3/12/2015. (alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-1672-WJM-KLM
ANDREA SMITH,
Plaintiff,
v.
T.W. CLYDE, O.D., P.C., d/b/a PIKES PEAK EYE CARE,
Defendant.

ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION IN LIMINE
AND DENYING DEFENDANT’S MOTION IN LIMINE

Plaintiff Andrea Smith (“Plaintiff”) brings this action against her former employer,
Tom W. Clyde, O.D., P.C., doing business as Pikes Peak Eye Care (“Defendant”), for
discrimination based on sex in violation of Title VII of the Civil Rights Act, 42 U.S.C.
§§ 2000e, et seq. (ECF No. 1.) This matter is set for a four-day jury trial commencing
on Monday, April 6, 2015, with the Final Trial Preparation Conference set for March 20,
2015. (ECF No. 40.) This matter is before the Court on the parties’ Motions in Limine
(“Motions”). (ECF Nos. 46 & 49.) For the reasons set forth below, Plaintiff’s Motion is
granted in part and denied in part, and Def endant’s Motion is denied in its entirety.
I. ANALYSIS
The parties’ Motions seek evidentiary rulings on the following evidence prior to
trial: (1) Plaintiff’s 2003 convictions for felony drug possession, theft, and criminal
impersonation; (2) additional evidence to prove stipulated facts, beyond the stated facts

contained in the Final Pretrial Order; (3) the testimony of Lana Zaller and Keith
Sanchez; (4) evidence of Plaintiff’s use of Facebook; (5) the testimony of Laura
Haynes; and (6) evidence of Plaintiff’s list of prescription medications. (ECF Nos. 46 &
49.) The Court will discuss each category of evidence in turn.
A.

Plaintiff’s Prior Convictions
Both parties’ Motions seek a ruling as to Plaintiff’s convictions for felony drug

possession, theft, and criminal impersonation; Plaintiff moves to exclude such evidence
under Federal Rule of Evidence 609(b), while Defendant moves to allow its introduction
under the same rule. (ECF Nos. 46 at 2-5; 49 at 2-3.)
Federal Rule of Evidence 609 governs when and how a witness’s prior conviction
may be used at trial:
(a) In General. The following rules apply to attacking a
witness’s character for truthfulness by evidence of a criminal
conviction:
(1) for a crime that, in the convicting jurisdiction, was
punishable by death or by imprisonment for more
than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a
civil case or in a criminal case in which the
witness is not a defendant; and
(B) must be admitted in a criminal case in
which the witness is a defendant, if the
probative value of the evidence outweighs its
prejudicial effect to that defendant; and
(2) for any crime regardless of the punishment, the
evidence must be admitted if the court can readily
determine that establishing the elements of the crime
required proving—or the witness’s admitting—a
dishonest act or false statement.
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(b) Limit on Using the Evidence After 10 Years. This
subdivision (b) applies if more than 10 years have passed
since the witness’s conviction or release from confinement
for it, whichever is later. Evidence of the conviction is
admissible only if:
(1) its probative value, supported by specific facts and
circumstances, substantially outweighs its prejudicial
effect; and
(2) the proponent gives an adverse party reasonable
written notice of the intent to use it so that the party
has a fair opportunity to contest its use.
Because the standard is vastly different, the Court must first determine whether
Rule 609(a) or (b) applies here.
In 2003, Plaintiff was convicted of felony drug possession, criminal
impersonation, and theft under Colorado Revised Statutes §§ 18-18-405, 18-5-113, and
18-4-401. (ECF No. 46 at 3.) Plaintiff was sentenced to a Diversion Residential Status
Program, and was placed in “Non-Residential Status” on February 26, 2004. (Id.)
Accordingly, Plaintiff was “release[d] from confinement” on February 26, 2004. Fed. R.
Evid. 609(b).
Defendant argues that Rule 609(a) applies because this action was filed on June
25, 2013, less than ten years after Plaintiff was released. (ECF No. 49 at 2.)
However, Defendant again cites no support for its argument that the Court should
consider the date this case was filed rather than the date on which Plaintiff will testify.
As this Court held in a prior case:
Rule 609 applies to all witnesses, not just parties to an
action. Therefore, it would make no sense for the rule to be
dictated by when an action is brought rather than the date
on which a witness is to testify. Most courts that have
addressed this issue have considered the ten-year time
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period to run from the date on which the witness begins
testifying. See, e.g., United States v. Daniel, 957 F.2d 162,
168 (5th Cir. 1992) (considering a conviction that occurred
ten years and four days before the witness testified and
ruling that Rule 609(b) applied); 28 W right & Gold, Federal
Practice & Procedure § 6136 (2012) (noting that “the only
approach that makes sense from a policy standpoint” is to
calculate ten years from the date the witness begins
testifying).
Rucinski v. Torian Plum Condominium Owners Ass’n, No. 08-cv-2798 (D. Colo. Jan. 3,
2013). Trial in this matter is not set to commence until April 6, 2015, more than 11
years after Plaintiff’s release from confinement. Accordingly, the Court finds that Rule
609(b) applies to the convictions at issue here.
Rule 609(b) requires that the conviction be significantly more probative than
prejudicial and that the opposing party provide notice of its intent to use a prior
conviction. Here, the parties do not dispute that Def endant gave Plaintiff adequate
notice of his intent to use the prior conviction. (ECF No. 45.) Thus, the Court must
determine whether the probative value of Plaintiff’s prior convictions substantially
outweighs the prejudicial effect of their admission. Fed. R. Evid. 609(b)(1). The Tenth
Circuit has not explicitly outlined any factors for the Court to consider in making this
assessment. However, a number of other courts have held that the Court should
consider: (1) the impeachment value of the prior crime; (2) the point in time of the
conviction and the witness’s subsequent history; (3) the similarity between the past
crime and the acts at issue; (4) the importance of the witness’s testimony; and (5) the
centrality of the credibility issue. See, e.g., United States v. Sloman, 909 F.2d 176, 181
(6th Cir. 1990).
First, the Court notes that Defendant has made no effort whatsoever to establish
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any probative value of Plaintiff’s felony drug conviction, instead focusing solely on the
convictions for criminal impersonation and theft. (See ECF Nos. 48 at 1-2; 49 at 2.)
Accordingly, the Court concludes that Rule 609(b) excludes evidence of the drug
conviction.
As for Plaintiff’s convictions for criminal impersonation and theft, the Court has
considered the arguments of the parties and finds that, while it is a close question,
these factors ultimately weigh against allowing admission of this evidence. The Court
agrees with Defendant that Plaintiff’s credibility is central to the issues in this case, as
Defendant contends that his reason for terminating her was due to her dishonesty and
“theft” of pay for hours she allegedly did not work, and that Plaintiff’s testimony is
important to the case. (See ECF No. 48 at 2.) Thus, the Court finds that these
convictions have significant impeachment value, the importance of the testimony is
great, and credibility is a central issue.
However, the Court also recognizes that that one of the purposes of Rule 609(b)
is to recognize an individual’s ability to rehabilitate herself. See Mitchell v. Sun Drilling
Prods., 1996 WL 411613, *2 (E.D. La. July 22, 1996). With respect to a conviction
more than ten years old, the general rule is one of inadmissibility. United States v.
Caldwell, 760 F.3d 267, 286 (3d Cir. 2014) (Rule 609(b) balancing test creates
“predisposition toward exclusion”); United States v. Cathey, 591 F.2d 268, 275 (5th Cir.
1979) (citing Fed. R. Evid. 609(b) advisory committee’s note (“It is intended that
convictions over 10 years old will be admitted very rarely and only in exceptional
circumstances.”)). “Congress intended that trial courts be extremely cautious in

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admitting evidence of remote convictions.” United States v. Bibbs, 564 F.2d 1165,
1170 (5th Cir. 1977). These convictions occurred approximately 12 years ago, and
although Defendant alleges that Plaintiff was recently charged with assault, harassment
and child abuse with no injury, Defendant has not presented evidence of any
subsequent convictions or charges involving untruthfulness, the basis for his arguments
here. (See ECF No. 48 at 2.) Furthermore, because dishonesty is a common thread
between the challenged convictions and Defendant’s allegations of Plaintiff’s workplace
misconduct, the risk of severe prejudice is proportionately greater. See Caldwell, 760
F.3d at 286-87 (“With respect to the similarity of the crime to the offense charged, the
balance tilts further toward exclusion as the offered impeachment evidence becomes
more similar to the crime for which the defendant is being tried. . . . The generally
accepted view, therefore, is that evidence of similar offenses for impeachment
purposes under Rule 609 should be admitted sparingly if at all.”) (internal quotation
marks omitted).
In considering all the factors, the Court finds that while Defendant has
established that Plaintiff’s convictions for impersonation and theft have probative value,
he has not shown that such value substantially outweighs the seriously prejudicial effect
of this evidence. Fed. R. Evid. 609(b). Therefore, the Court concludes that this is not
one of the exceptional cases in which a conviction more than ten years old is
admissible, and the Court grants Plaintiff’s Motion and denies Defendant’s Motion with
respect to the evidence of Plaintiff’s 2003 convictions.

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B.

Stipulated Facts
Plaintiff moves to exclude any additional evidence to prove the stipulated facts to

which the parties agreed in the Final Pretrial Order. (ECF No. 46 at 6-7 (citing (ECF
No. 39).) Defendant agrees that he would not object to the Court instructing the jury as
to these facts, and that he “defers to this court’s preference.” (ECF No. 48 at 3.)
It is this Court’s practice to instruct the jury on the parties’ stipulated facts at both
the beginning and end of trial. As Defendant has agreed that he need not present
additional evidence of the stipulated facts if the jury is so instructed, the Court finds that
there is no need for any order as to the admissibility of such additional evidence.
Accordingly, Plaintiff’s Motion is denied as moot as to any additional evidence of the
stipulated facts.
C.

Testimony of Lana Zaller and Keith Sanchez
Plaintiff moves to exclude the testimony of two witnesses, Lana Zaller and Keith

Sanchez, under Federal Rule of Evidence 403. (ECF No. 46 at 7-8.) Plaintiff argues
that their testimony on the issue of Plaintiff’s use of Facebook and her alleged failure to
clock in and out is only marginally probative, and is needlessly cumulative and a waste
of time because two other witnesses will similarly testify. (Id.)
Defendant responds that he intends only to call Ms. Zaller and Mr. Sanchez for
thirty minutes each, and cites additional reasons why each witness’s testimony would
be probative. (ECF No. 48 at 3-4.) Defendant argues that Mr. Sanchez is a good friend
of Plaintiff’s former husband and has known Plaintiff since high school, lending him
additional credibility in testifying against Plaintiff, and that Ms. Zaller will testify to her

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personal observations of Plaintiff using inappropriate language on the job and leaving
work without clocking out. (Id.) Thus, Defendant has indicated that both witnesses will
provide evidence that is not purely cumulative of other witnesses’ testimony.
Although Plaintiff argues that the testimony of Ms. Zaller and Mr. Sanchez may
be repetitious and cumulative to some degree, Plaintiff has not shown that the probative
value of their testimony is “substantially outweighed by a danger of . . . needlessly
presenting cumulative evidence.” Fed. R. Evid. 403. Accordingly, the Court finds that
Plaintiff has not shown that Ms. Zaller’s and Mr. Sanchez’s testimony is inadmissible
under Rule 403, and Plaintiff’s Motion is denied as to this evidence.
D.

Facebook Use
Plaintiff moves to exclude any evidence of her alleged inappropriate use of

Facebook on the job, arguing that it is irrelevant under Rule 401 and inadmissible under
Rule 403 because it risks confusing the issues and misleading the jury. (ECF No. 46 at
8.) Plaintiff states that Defendant testified in his deposition that he fired Plaintiff for
“stealing” time and lying about it, not for using Facebook. (Id.) Defendant does not
dispute this, but notes that shortly before discharging Plaintiff, Defendant discovered
that Plaintiff was using Facebook while clocked in despite claiming to be clocked out.
(ECF No. 48 at 4.) Because of the similarity between Plaintiff’s alleged use of
Facebook on the clock and her alleged “theft” of time by leaving early and failing to
clock out, Defendant argues that this evidence is both relevant and probative. (Id.)
Evidence is relevant if it has “any tendency to make a fact more or less probable
that it would be without the evidence[,] and the fact is of consequence in determining

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the action.” Fed. R. Evid. 401. The Court concludes that the evidence of Plaintiff’s
Facebook use is relevant. Plaintiff makes no effort to explain how this evidence would
confuse and mislead the jury, instead asserting in a conclusory manner that it should be
excluded under Rule 403. The Court finds that Plaintiff has failed to show that the
probative value of this evidence is substantially outweighed by the dangers of confusion
and misleading the jury. Accordingly, the evidence of Plaintiff’s Facebook use is not
inadmissible, and Plaintiff’s Motion is denied as to this evidence.
E.

Testimony of Laura Haynes
Defendant moves to preclude the testimony of Laura Haynes, an attorney who

has an attorney-client relationship with Plaintiff. (ECF No. 49 at 3-6.) Defendant
argues that Ms. Haynes’s involvement in this action as Plaintiff’s advocate makes her
testimony inappropriate under the Colorado Rules of Professional Conduct (“RPC”),
and such attorney testimony has been discouraged by both the U.S. Supreme Court
and the Colorado Supreme Court. (Id.) Plaintiff does not dispute that Ms. Haynes
assisted Plaintiff with her case, but points out that Ms. Haynes is not Plaintiff’s attorney
of record, she has not entered an appearance, and she w ill not act as an advocate at
trial. (ECF No. 51 at 4.)
The Court is not persuaded by Defendant’s citation to Hickman v. Taylor, 329
U.S. 495, 513 (1947), as the cited portion of that case dealt with the question of
whether an attorney should be required to produce documents memorializing his
recollection of what witnesses had told him, not whether an attorney may serve as a
fact witness and advocate in the same case. However, Defendant’s citations to

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Williams v. District Court, 700 P.2d 549, 553 (Colo. 1985) and RPC 3.7 are m ore on
point, and merit further discussion.
In Williams, the Colorado Supreme Court noted its concern that an attorney who
acts as both advocate and witness in the same proceeding is “an obviously interested
witness who on that account is subject to impeachment, and, of equal importance, the
lawyer is placed in the unseemly position of arguing his own credibility to the jury.” 700
P.2d at 553. The latter concern is aimed at avoiding the conflict that arises for an
attorney-witness who is trying the case, which does not apply here because Ms.
Haynes will not serve as trial counsel. As for the former concern, the Court agrees that
it is preferable to avoid testimony of “an obviously interested witness.” Id. However,
the strong fodder for impeachment resulting from such bias is not a basis for
inadmissibility, but rather for vigorous cross-examination and/or impeachment by
Defendant. While it may be ill-advised for Plaintiff to call a witness with such obvious
potential bias, that does not make the testimony inadmissible.
Finally, RPC 3.7 prohibits a lawyer from “act[ing] as advocate at a trial in which
the lawyer is likely to be a necessary witness unless . . . disqualification of the lawyer
would work substantial hardship on the client.” The prohibition of RPC 3.7 reflects the
danger of misleading or confusing the jury due to the merging of the roles of attorney
and witness: “A witness is required to testify on the basis of personal knowledge, while
an advocate is expected to explain and comment on evidence given by others. It may
not be clear whether a statement by an advocate-witness should be taken as proof or
as an analysis of the proof.” Colo. R. Prof. Conduct 3.7 (2012), comment (2).
Defendant contends that, because Ms. Haynes remains co-counsel for Plaintiff,
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she is an advocate and cannot testify under RPC 3.7. (ECF No. 49 at 4-5.) However,
Defendant does not dispute that Ms. Haynes has not entered an appearance and will
not be trial counsel. (Id. at 5.) Because Ms. Haynes will not “act as advocate at . . .
trial,” the jury will not be misled or confused as to whether her testimony is rooted in
personal knowledge or in legal analysis.1 Notably, RPC 3.7(b) states that it does not
preclude one attorney from acting as an advocate in a trial where another attorney from
the same firm will be called as a witness. Ms. Haynes’s role as co-counsel is similar to
the role of an attorney-witness from the same firm as trial counsel, and the
permissibility of her testimony is supported by the same rationale as RPC 3.7(b). See
Colo. R. Prof. Conduct 3.7 (2012), comment (5) (noting that “the tribunal is not likely to
be misled when a lawyer acts as advocate in a trial in which another lawyer in the
lawyer’s firm will testify”). Thus, the Court finds that because Ms. Haynes will not serve
as counsel at trial, RPC 3.7 does not apply to preclude her testimony.
As Defendant has not presented any basis on which to preclude Ms. Haynes’s
testimony, Defendant’s Motion is denied as to that evidence.
F.

Plaintiff’s Medication List
Defendant seeks an order permitting him to cross-examine Plaintiff about the list

of medications she took both before and after her termination. (ECF No. 49 at 6-7.)
However, as Plaintiff points out, she has indicated that she will not introduce her list of
prescription medications, nor will she introduce her use of such medications in support
of her claim for emotional distress damages. (ECF No. 51 at 3.) The Court cannot

1

Indeed, should Ms. Haynes testify outside the scope of her personal knowledge, her
testimony is arguably excludable as undisclosed expert testimony.

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make a preliminary ruling as to whether this evidence is admissible on crossexamination when the witness has not yet testified on direct examination. Accordingly,
the Court denies Defendant’s Motion as to the evidence of Plaintiff’s medications,
without prejudice to reasserting this argument at trial should it become appropriate.
II. CONCLUSION
In accordance with the foregoing, the Court ORDERS as follows:
1.

Defendant’s Motion in Limine (ECF No. 49) is DENIED;

2.

Plaintiff’s Motion in Limine (ECF No. 46) is GRANTED IN PART and DENIED IN
PART as described herein; and

3.

Evidence of Plaintiff’s 2003 convictions will be inadmissible at trial.
Dated this 12th day of March, 2015.
BY THE COURT:

William J. Martínez
United States District Judge

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