Schumann et al v. Collier Anesthesia, P.A. et al

Filing 318

OPINION AND ORDER granting in part and denying in part: 280 Plaintiffs' Motion in Limine; 282 Defendants' Motion in Limine. See Order for details. Signed by Judge John E. Steele on 4/12/2017. (KP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BILLY
SCHUMANN,
DUSTIN
ABRAHAM,
on
behalf
of
themselves
and
others
similarly situated, LAUREN
TIDWELL, JEANIE HAKENEWERT,
STEPHANIE
ALANA
MARIE
BENJAMIN,
CHRISTOPHER
M.
BOURN, DEREK WHITE, LAHOMA
J.
NACHTRAB,
RICHARDO
ROSADO,
LANNETTE
GIBSON,
DANIEL
PENTON,
DENISE
ARMINIO,
OFELIA
BIAGAN,
SHEILA
SMITH,
CELINE
VIDAURRI, CHRISTINA VINAS,
RICARDO ROSADO, PATRICK C.
HARRELL,
RACHEL
GOODE,
JAMIESON
WISHMAN,
PAUL
CALOIAN, STEVEN TODD LITTLE,
JESSICA
LINCOLN,
and
CHRISTOPHER JALACKI,
Plaintiffs,
v.

Case No: 2:12-cv-347-FtM-29CM

COLLIER ANESTHESIA, P.A., a
Florida corporation, WOLFORD
COLLEGE,
LLC,
a
Florida
limited liability company,
THOMAS
L.
COOK,
an
individual, and LYNDA M.
WATERHOUSE, an individual,
Defendants.
OPINION AND ORDER
This matter comes before the Court on (i) Plaintiffs’ Motion
in Limine (Doc. #280) filed on March 8, 2017, to which Defendants
filed Responses in Opposition (Docs. ## 294, 297) on March 22,
2017, and (ii) Defendants’ joint Motion in Limine (Doc. #282) filed
on

March

8,

2017,

to

which

Plaintiffs

filed

a

Response

in

Opposition (Doc. #296) on March 22, 2017.

Each motion is granted

in part and denied in part, as set forth below.

These rulings

shall govern the trial, but any party may seek reconsideration at
trial in light of the evidence actually presented and must make
contemporaneous objections when evidence is elicited in order to
preserve an objection.
A.

Plaintiffs’ Motion in Limine
1.

Requests One and Two – Criminalization and Prohibition
of CRNA Employment While Students

Plaintiffs move to exclude presentation of testimony and
evidence that 1) Fla. Stat. § 464.016 makes it a felony to perform
CRNA duties without a license and 2) the accreditation authorities
and

Wolford

College

forbid

SRNAs

anesthetists by title or function.

from

employment

as

nurse

Plaintiffs specifically seek

to prevent the jury from being instructed that illegality is an
affirmative defense barring Plaintiffs from recovering damages,
even if they are found to have been Defendants’ “employees.”
Although evidence regarding criminalization or prohibition of
employment as a CRNA is not relevant to Plaintiffs’ employment
status under the FLSA, such evidence may have probative value on
the question of Defendants’ “willfulness” and “good faith,” and
thereby affect the statute of limitations and the availability of
liquidated damages.

Accordingly, the Court denies Plaintiffs’

request to entirely exclude this evidence.
The Court does, however, find improper an affirmative defense
that is based on the “illegality” or impropriety of Plaintiffs’
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status as “employees.”

Defendants argue that “if an FLSA claimant

actively and voluntarily participates in illegal activity that is
the subject of the wages claimed in an FLSA suit, the FLSA is not
available to reward him for that illegal activity.”

(Doc. #294,

p. 3 (citing Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d
1299, 1306 (11th Cir. 2013).)

But this “in pari delicto defense

may be applied to bar recovery under a federal statute only where
(1)

the

plaintiff

bears

at

least

substantially

equal

responsibility for the violations he seeks to redress, and (2)
preclusion of the suit would not substantially interfere with the
statute's policy goals.”

Lamonica, 711 F.3d at 1308 (emphases

added) (affirming district court’s denial of defendants’ motion
for judgment as a matter of law since plaintiffs - one of whom was
an undocumented alien and had used a fake Social Security number,
and both of whom had falsely reported their income to the FLSA –
had not “cooperated with [defendants] in violating the FLSA’s”
overtime wage provisions).
Such is also the case here.

Even assuming the in pari delicto

defense “may ever be applied to bar recovery under [the FLSA]” –
a question Lamonica left open – nothing in the record indicates
that Plaintiffs “cooperated” with Defendants to violate the FLSA
(if indeed the FLSA has been violated).

Id.

To the contrary, the

very premise of Plaintiffs’ lawsuit is that Defendants elevated
their own business interests over the students’ educational wants
and needs.

Moreover, as this Court has previously stated, “in

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determining whether a student intern was an ‘employee,’ the Glatt
factors and Schumann focus on the putative employer’s conduct.

In

other words, a student intern is deemed an ‘employee’ because he
was treated as such.”
not

entitled

to

a

(Doc. #269, p. 15.)
jury

instruction

Thus, Defendants are

stating

that

Florida’s

criminalization of unlicensed CRNA employment bars Plaintiffs from
recovering under the FLSA. 1
2.

Request Three – Average SRNA Clinical Hours

Plaintiffs

also

contend

that

the

Court

should

exclude

evidence and testimony that compares the total number of clinical
internship hours Plaintiffs worked with national SRNA averages.
In

support

of

this

request,

Plaintiffs

cite

to

this

Court’s

statement in the Opinion and Order denying summary judgment that
“[c]omparing Plaintiffs’ total hours to national averages is not
especially helpful” in evaluating the fifth Glatt factor.
#269, p. 31.)

(Doc.

While true, it does not mean national averages are

entirely irrelevant to the Glatt analysis.

Plaintiffs’ request

to exclude this evidence is denied.

1

Use of Fla. Stat. § 464.016 as a shield against FLSA liability
in this manner is also likely impermissible. See Garcia v. San
Antonio Metro. Transit Auth., 469 U.S. 528, (1985) (holding that
city transit authority was not immune from complying with FLSA and
thus could not set its own minimum wage and overtime rates lower
than what FLSA requires); cf. Moran v. City of Lakeland, 694 So.
2d 886, 887 (Fla. 2d DCA 1997) (Florida statute that limited
recovery of attorneys’ fees was preempted by more generous
provisions of Civil Rights Attorney’s Fees Awards Act).
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3.

Requests Four, Five, Seven – Academic & Financial Forms

Plaintiffs seek to exclude testimony and evidence regarding
three categories of documents: Plaintiffs’ student loan, financial
aid, and tuition forms; their Wolford applications and admission
documents;

and

their

tax

returns.

According

to

Plaintiffs,

presentation of such testimony will “unnecessarily prolong the
trial and result in cumulative evidence,” since Plaintiffs have
already stipulated that they were not promised compensation for
their

internships

or

future

employment.

(Doc.

#280,

p.

8.)

Defendants respond that this evidence is relevant to several
considerations

raised

in

Schumann,

regardless

of

Plaintiffs’

stipulations.

The Court cannot say at this juncture that the

evidence lacks any probative value or that Defendants’ anticipated
use

of

the

evidence

will

unduly

prejudice

Plaintiffs.

2

Accordingly, Plaintiffs’ request to exclude these documents and
related testimony is denied.
4.

Request Six - Plaintiffs’ Post-Graduation CRNA Wages

Defendants have indicated they intend to present evidence
regarding

Plaintiffs’

six-figure

CRNA

wages.

According

to

Defendants, “the massive improvement in earnings power these SRNAs
were able to achieve as a direct result of their participation in

2

Use of this evidence is, however, subject to the Court’s above
ruling as to the unavailability of an illegality/in pari delicto
affirmative defense. Defendants may not, for example, use these
documents to argue that Plaintiffs are estopped from claiming they
were “employees” because they told the government (and Wolford)
that they were applying for admission as “students.”
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the Wolford College accredited masters’ degree program” speaks to
the program’s “benefits to the students” - the main focus under
Schumann.

(Doc.

#294,

pp.

14-15.)

Plaintiffs

contend

that

testimony and evidence regarding their post-graduation wages does
not meet Rule 402’s relevancy requirement for admissibility.
The Court agrees with Plaintiff; the increased earning power
of a CRNA does not shed light on “whether the manner in which the
employer implement[ed] the [specific SRNA] internship program [at
issue took] unfair advantage of or [was] otherwise abusive towards
[the SRNAs].”

Schumann, 803 F.3d at 1203.

Nor is there any

indication that Plaintiffs make more (or less) money than other
SRNAs because they graduated from Wolford, as might speak to the
benefit (or lack thereof) of the clinical internship at issue.

In

other words, post-graduate earnings are simply not probative of
whether Plaintiffs were “students” or “employees” during their
clinical internships.

Accordingly, Plaintiffs’ request to exclude

evidence and testimony on their CRNA wages is granted.
5.

Request Eight – “New” Witnesses and Documents

According to Plaintiffs, between February 24 and March 6,
2017 (years past the discovery deadline), Defendants produced
approximately 1,000 pages of new documents (mostly student records
and financial documents), which Plaintiffs expect Defendants to
use at trial.

Defendants have also indicated they are likely to

call at least two trial witnesses who were not listed in their
Rule 37 disclosures.

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Citing
preventing

unfair
use

of

prejudice,
these

witnesses from, trial.

Plaintiffs

documents

at,

and

request

an

excluding

order

the

new

Defendants oppose the request, since the

witnesses were “otherwise known” to Plaintiffs, and since the
documents had either not been requested in discovery or not been
authorized for release by Plaintiffs, as required under law.
Because it does not appear that the newly-added witnesses are
“surprise

witnesses,”

and

because

Plaintiffs

also

intend

to

present witnesses at trial who have not been deposed (Doc. #283,
p. 9), the Court denies Plaintiffs’ request to exclude them from
trial.

See Chadwick v. Bank of Am., N.A., 616 F. App'x 944, 948

(11th Cir. 2015).

The Court also denies as premature the motion

as to the newly-produced documents, since it is not clear which
documents Defendants will present at trial and whether they should
have been produced earlier.

Counsel may, of course, object to

specific documents at trial.
6.

Request Nine – Wolford’s History & SRNA placement fees

Plaintiffs’ last request is to exclude “irrelevant” evidence
and testimony as to the circumstances surrounding the founding of
Wolford College as a non-profit school and regarding Collier
Anesthesia’s placement-fee arrangement with another school’s SRNA
program.
relevancy.

The

Court

disagrees

that

this

information

lacks

Plaintiffs have consistently argued that Wolford’s

current status as a for-profit institution and Collier’s payment
of SRNA placement fees are relevant to the claim that Plaintiffs

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were “employees.”

Evidence regarding Wolford’s history, including

why the school was founded and the placement fees Collier pays to
other schools, is relevant to these issues, and the probative value
of that evidence does not appear outweighed by the potential for
confusion or prejudice.
B.

Accordingly, this request is denied.

Defendants’ Motion in Limine
1.

Request One – SRNA National Certification Exam (NCE)
Passage Rates

Defendants seek to exclude from trial “evidence of 2011 NCE
first time pass rates, any comparison to 2011 first time pass rates
of Wolford College 2011 graduates, or any argument using any prior
single year’s first time pass rates as a basis of contending
deficiencies in Wolford College’s program.”

(Doc. #282, p. 5.)

According to Defendants, this evidence is more likely to confuse
the jury than to provide probative insight into any relevant issue
and, in any event, requires expert testimony.

Plaintiffs counter

that evidence regarding exam performance may assist the trier of
fact in assessing whether Plaintiffs were employees or students
and contend that jurors are capable of reviewing straightforward
published data and drawing the inferences they deem appropriate,
without the assistance of an expert.
In moving for summary judgment, Defendants argued that “the
training here prepared [Plaintiffs] to qualify for, sit for, and
pass the NBCRNA exam on their first try, except Rosado passed on
his second try.”
Defendants

want

(Doc. #249 (emphasis added).)
to

exclude

the
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same

type

of

Now, however,
evidence

they

previously introduced to support their position that Plaintiffs
were not “employees.”

Defendants’ in limine request is denied.

As the Court observed in denying summary judgment, data regarding
Wolford students’ NCE passage rates and the national passage rates
for all SRNAs (and the inference, if any, to be drawn therefrom)
is merely one fact the jury may choose to consider when assessing
whether Defendants implemented the SRNA internship program in a
manner that elevated their business interests over the students’
education.

Defendants may, however, raise objections at trial to

the specific way in which exam data is presented.
2.

Request Two – Collier Anesthesia CRNAs’ Wages

Defendants request to exclude attorney argument regarding
Plaintiffs’ Trial Exhibit 52, which contains calculations of the
total compensation paid to Collier CRNAs and physicians for the
relevant timeframe in this case - June 1, 2009 through June 30,
2012.

According

to

Defendants,

although

this

document

“is

identical to Exhibit 2 to the deposition of . . . [Defendant] Lynda
Waterhouse,” Plaintiffs “have misused this exhibit in the past” to
make

their

own

calculations

and

advance

“improper”

regarding Collier’s cost-saving utilization of SRNAs.

argument

(Doc. #282,

pp. 5-7.)

Plaintiffs respond that the exhibit is binding on

Defendants

and

personnel

and

contains
payroll

“self-explanatory,

data,

which

the

jury

straight-forward”
is

capable

of

evaluating, and from which the jury may draw its own conclusions.
(Doc. #296, p. 4.)

The Court finds it premature to preclude

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opposing argument on a document that Defendants created, based
solely on Defendants’ expectation of what that argument will be.
Defendants may raise specific objections at trial, as appropriate.
3.

Requests Three, Four, Five, Six – Barbara Rose, Dr.
Michael Barile, CRNA Sherry Kutz, and 2:1 Supervision

Defendants seek to limit or exclude the testimony of Barbara
Rose (a former scheduler for Collier Anesthesia), Dr. Michael
Barile (a former Collier physician and shareholder), and CRNA
Sherry Kutz (a former Collier CRNA), primarily because Defendants
expect each will improperly testify regarding Collier’s use of the
financially-advantageous 2:1 SRNA-to-CRNA supervisory ratio (the
Ratio).

Defendants also believe each lacks personal knowledge of

facts relevant to assessing whether Plaintiffs were “employees”
under the FLSA.

Defendants further object to the testimony of Dr.

Barile on the grounds that his employment with Collier began
shortly after this lawsuit was filed; he spent the majority of his
time at medical facilities other than those at issue here; and his
assertion that Plaintiffs worked “grossly excessive hours” is
conclusory and lacks adequate foundation.
Defendants

also

seek

to

disallow

On a broader level,

essentially

all

testimony

regarding Collier’s use of the Ratio.
These requests are denied. 3

As this Court pointed out in

denying summary judgment, although “it is not appropriate to view
use of this ratio as evidence of displacement,” Schumann does not

3

Again, Defendants may object to specific aspects of witness
testimony at trial.
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appear to preclude “consideration of whether the manner in which
Defendants did so short-changed Plaintiffs’ clinical education,”
such as by removing upperclassmen SRNAs from specialty rotations
and assigning them to more routine cases to suit Collier’s staffing
needs.

(Doc. #269, p. 22, n.17.)

There is nothing in the record

indicating that these witnesses possess no admissible testimony on
that question. 4

Moreover, as to Dr. Barile, the fact that he began

his employment with Collier shortly after this lawsuit was filed
does not compel a finding that he lacks personal knowledge of
relevant facts regarding Collier’s implementation of the SRNA
clinical internship program from which some Plaintiffs had just
graduated.

Peeler v. KVH Indus., Inc., No. 8:12-CV-1584-T-33MAP,

2014 WL 117101, at *13 (M.D. Fla. Jan. 13, 2014) (denying a motion
to exclude a document that fell “outside the relevant time period”
at

trial,

since

the

document

“nonetheless

[bore]

on

the

parties' respective positions”).
4.

Request Seven – “Medical Resident” Emails

Defendants seek to exclude Plaintiffs’ Trial Exhibits 1 and
48,

which

are

emails

anesthesiologist,

Dr.

in
John

which

Dr.

Nolan,

4

Cook

refer

and
to

another

Collier

Collier

SRNAs

as

Each of these witnesses may also have personal knowledge
regarding whether Collier SRNAs “regularly work[ed] clinical
shifts of ten or more hours or logg[ed] more than fifty clinical
hours per week,” i.e., whether they were required to work “grossly
excessive hours.” (Doc. #269, p. 31.) Regarding Ms. Rose, the
Court has already found that her testimony about scheduling to
implement the Ratio is relevant to the separate question of whether
Dr. Cook and Ms. Waterhouse can be held individually liable as
Plaintiffs’ “employers.” (Doc. #269, p. 14.)
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“medical residents.”

According to Defendants, these statements

must be confined to the specific insurance-reimbursement context
in which they were made, and thus Plaintiffs’ use of these emails
will unduly prejudice Defendants.

However, the Court has already

deemed this evidence relevant, as least as to the issues of
willfulness and good faith.

(Doc. #269, p. 41.)

It is for the

fact-finder – in this case, the jury – to evaluate the testimony
and exhibits and determine what significance, if any, to ascribe
thereto under the FLSA.
5.

Defendants’ request is denied.

Request Eight – Verbal and Physical Abuse

Defendants move in limine to prevent evidence and testimony
that certain plaintiffs were verbally or physically abused by
Collier

anesthesiologists.

This

Court

has

twice

rejected

Plaintiffs’ argument that such evidence is relevant to whether
Plaintiffs were Defendants’ “employees.”

(See Doc. #269, p. 17

n.20 (“Swearing, name-calling, and inappropriate physical contact
are not routine or accepted characteristics of a workplace, let
alone ‘any interaction between human beings.’” (quoting Doc. #1734, p. 20)).)

Plaintiffs acknowledge these rulings but observe

that Defendants have listed student exit interviews as potential
trial exhibits and argue that Defendants “should not be allowed to
pick and choose portions of these exit interviews . . . . to paint
a different picture of the students’ experience with Defendants”
than that portrayed by the entirety of the interviews.
#296, pp. 19, 20.)

(Doc.

If Defendants “open the door” by eliciting

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testimony on favorable statements from the interviews, “Plaintiffs
should

be

allowed

to

show

evidence

of

including the verbal and physical abuse.”

the

true

environment,

(Id. p. 19.)

Defendants’ request to exclude evidence and testimony on
alleged instances of verbal and physical abuse of SRNAs is granted.
However, if Defendants use Plaintiffs’ exit interviews to convey
to the jury that Plaintiffs recounted only positive experiences
during their internships, this may entitle Plaintiffs to “rebut”
that testimony with other statements from the interviews about
abusive

incidents.

To

the

extent

Plaintiffs

believe

this

situation has occurred, counsel shall bring it to the Court’s
attention via sidebar, prior to introducing any rebuttal evidence
or testimony.
Accordingly, it is hereby
ORDERED:
1.

Plaintiffs’ Motion in Limine (Doc. #280) is granted in

part and denied in part, as set forth herein.
2.

Defendants’ Motion in Limine (Doc. #282) is granted in

part and denied in part, as set forth herein.
DONE and ORDERED at Fort Myers, Florida, this 12th day of
April, 2017.

Copies:
Counsel of Record

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