BOSCO v. Lincare Holdings Inc. et al

Filing 86

ORDER denying as untimely 69 Motion for Sanctions; granting 71 Motion in Limine; granting in part and denying in part 73 Motion in Limine; granting 74 Motion in Limine; granting 75 Motion in Limine; denying 76 Motion in Limine.Ordered by U.S. District Judge W LOUIS SANDS on 6/11/14 (wks)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
HOPE BOSCO,
Plaintiff,
v.
LINCARE INC.,
Defendant.

:
:
:
:
:
:
:
:
:
:

CASE NO.: 1:12-CV-059 (WLS)

ORDER
Presently pending are Plaintiff’s Motion for Sanctions and Request for Spoliation
Instruction (Doc. 69) and Motion in Limine (Doc. 71) and Defendant Lincare Inc.’s
Motions in Limine (Docs. 73, 74, 75, and 76). The Court has reviewed these motions and
makes the following pretrial rulings:
I.

Plaintiff’s Motions
Plaintiff’s Motion in Limine (Doc. 71), which moves for the exclusion of evidence

as to Plaintiff’s former romantic relationship with Dr. Rao, is GRANTED unless and
until the proponent establishes admissibility and relevance of this information outside
of the presence of the jury and upon timely notice to the Court. Counsel shall not make
reference to Plaintiff’s relationship with Dr. Rao in opening statements or otherwise
prior to ruling of the Court and counsel shall so instruct each of the witnesses not to do
so.
As for Plaintiff’s Motion for Sanctions and Request for Spoliation Instruction
(Doc. 69), the Court DENIES this motion as untimely. We are now at the trial stage.
Discovery ended in this case on April 22, 2013, and dispositive motions were due not
later than June 6, 2013. (Doc. 30.) The Court agrees with Lincare that Plaintiff’s Motion
is essentially a discovery motion designed to challenge the fact that Lincare did not

1

produce Plaintiff’s cell-phone records, which Plaintiff alleges were in Lincare’s
possession. According to the Scheduling/Discovery Order, any motions challenging
discovery were to be filed within twenty-one (21) days of the date on which the
response(s) was due or twenty-one (21) days of receipt of an allegedly inadequate
response, and not later than twenty-one (21) days after the close of discovery,
whichever first occurs. (Doc. 27 at 2.) That means that Plaintiff had until May 13, 2013,
to challenge any discovery violations.
Plaintiff had ample time during and following discovery to move for sanctions
regarding any evidence not produced or allegedly destroyed during discovery. Plaintiff
is not permitted to ask the Court to now, as a sanction, strike Defendant’s Answer, right
before trial where she never challenged the alleged destruction of evidence during the
discovery process. Plaintiff failed to even address her spoliation concerns during the
dispositive-motion stage of this case. In her response in opposition to Defendants’
Motion for Summary Judgment, Plaintiff merely alleged that Lincare’s discovery
responses regarding the cell-phone records show that “at a minimum, Lincare has been
disingenuous, or at worst, made bald misrepresentations as to the evidence gathered in
its investigation of Plaintiff’s original complaint,” thereby creating a jury question as to
whether Lincare’s reasons for Plaintiff’s termination are pretextual. (Doc. 47 at 17.) This
argument is a far cry from contending that sanctions should be imposed for alleged
destruction of evidence. Plaintiff did not raise her spoliation concerns during discovery,
and the Court declines to consider the merits of her arguments right before trial.
Plaintiff is nevertheless free to address credibility issues, assuming a factual basis,
regarding the cell-phone records during trial in relation to her retaliation claims.
II.

Lincare’s Motions in Limine
Lincare’s Motion in Limine (Doc. 73) to exclude reference to the claims or parties

the Court has dismissed is GRANTED IN PART and DENIED IN PART. Neither party
shall make reference to any claims or parties dismissed or evidence regarding the same,
except after first establishing the legal grounds for, and relevance of, said evidence

2

upon timely notice to the Court, such as if the evidence is relevant to the remaining
claims and therefore admissible. Lincare’s Motion in Limine related to other
discrimination, harassment or retaliation claims by any other person against Lincare
(Doc. 74) is GRANTED unless and until the proponent establishes admissibility and
relevance of this information outside of the presence of the jury and upon timely notice
to the Court. Lincare’s Motion to Exclude evidence of its 2006 settlement with the
Department of Health and Human Services (Doc. 75) is also GRANTED. Similarly to its
prior rulings above, no reference shall be made to the settlement with DHHS unless and
until the proponent establishes admissibility and relevance of this information outside
of the presence of the jury and upon timely notice to the Court. Regarding all of the
aforementioned, where the Court has declared that evidence shall be excluded, counsel
shall make no mention or reference to any excluded evidence in the presence of the jury
and counsel shall so instruct witnesses not to do so.
The Court DENIES, however, Lincare’s Motion to Exclude the hearsay
statements of Keith Adams (Doc. 76). These statements can be adequately addressed by
proper objection at trial and are not properly addressed via a pretrial motion in limine.
SO ORDERED, this 11th day of June 2014.

/s/ W. Louis Sands
W. LOUIS SANDS, JUDGE
UNITED STATES DISTRICT COURT

3