Yano v. City Colleges of Chicago et al

Filing 221

MEMORANDUM Opinion and Order signed by the Honorable Andrea R. Wood on 12/31/2014. Mailed notice (ac, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KYUNG HYE YANO, et al.,
Plaintiffs,
v.
CITY COLLEGES OF CHICAGO, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 08-cv-04492
Judge Andrea R. Wood

OPINION AND ORDER
Plaintiff Sayuri Yano (“Plaintiff”) has sued Dr. Priscilla Lancki (“Lancki”) and Dr.
Mohamed El-Maazawi (“El-Maazawi”), two of her former professors at Harry S. Truman
College (“Truman College”), for intentional infliction of emotional distress. 1 In anticipation of
the scheduled jury trial, the parties have filed a total of nine motions in limine. (Dkt. Nos. 182190.) The following constitutes the Court’s rulings on these motions.
LEGAL STANDARD
A motion in limine is “any motion, whether made before or during trial, to exclude
anticipated prejudicial evidence before the evidence is actually offered.” Luce v. United States,
469 U.S. 38, 40 n.2 (1984). District courts have broad discretion in ruling on motions in limine,
however evidence should not be excluded before trial unless it is clearly inadmissible for any
purpose. See Jonasson v. Lutheran Child and Family Servs., 115 F.3d 436, 440 (7th Cir. 1997)
(motions in limine permit the trial judge “to eliminate from further consideration evidentiary
submissions that clearly ought not to be presented to the jury because they clearly would be
inadmissible for any purpose”); see also Betts v. City of Chicago, 784 F. Supp. 2d 1020, 1023
1

At the summary judgment stage, the Court dismissed Plaintiff’s claims against several other defendants
and the counts of the Complaint alleging claims for gender discrimination, national origin discrimination,
defamation, equal protection violations, and First Amendment retaliation. (See Dkt. Nos. 145 & 155.)

(N.D. Ill. 2011). “Some evidentiary submissions, however, cannot be evaluated accurately or
sufficiently by the trial judge in such a procedural environment. In these instances, it is necessary
to defer ruling until during trial, when the trial judge can better estimate its impact on the jury.”
Jonasson, 115 F.3d at 440. Moreover, rulings on motions in limine are necessarily preliminary
and may be altered by the district judge even if nothing unexpected happens at trial. Luce, 469
U.S. at 41; Farfaras v. Citizens Bank & Trust of Chicago, 433 F.3d 558, 565 (7th Cir. 2006).
DISCUSSION
I.

Plaintiff’s Motions in Limine
A.

Plaintiff’s Motion in Limine No. 1 (Dkt. No. 188)

Plaintiff first seeks to bar references to any financial aid or scholarships that she received.
Defendants do not object. Accordingly, Plaintiff’s motion is granted.
B.

Plaintiff’s Motion in Limine No. 2 (Dkt. No. 189)

Plaintiff next seeks to bar references at trial to complaints that she made about her
treatment by instructors at schools other than Truman College. This motion is a counterpart to
Defendants’ Motion in Limine No. 6 (Dkt. No. 187), in which Defendants argue that they should
be able to introduce evidence that, after she left Truman College, Plaintiff complained that her
test papers were lost or tampered with while she was a student at Roosevelt University
(“Roosevelt”) and the Illinois Institute of Technology (“IIT”). Plaintiff contends that evidence of
her complaints at other schools constitutes impermissible character evidence under Federal Rule
of Evidence 404(a) and, furthermore , that allowing such evidence would cause the jury to
speculate unfairly that she was lying about testing irregularities and bias claims.
Defendants themselves admit that they seek to introduce evidence of the other complaints
so that the jury may “draw the inference that the issue of test tampering and inadequate security

2

procedures might not have actually been an issue at all, but that it was [Plaintiff] who would
claim such issues any time that she was performing below an ‘A’ grade level.” (Defs.’ Resp. at 4,
Dkt. No. 191.) However, they argue that the evidence is nonetheless admissible under Federal
Rule of Evidence 404(b)(2) to show motive, intent, or planning on the part of Plaintiff. In short,
Defendants intend to argue that Plaintiff intentionally (and presumably falsely) claimed professor
misconduct whenever she received a poor grade in a class, so that she could either re-take the
exam or withdraw from the class. Defendants also argue that Plaintiff’s complaints from her time
at Roosevelt and IIT are relevant to Plaintiff’s damages calculations, since they contributed to
her emotional distress but were not caused by Defendants’ conduct.
The Seventh Circuit has, in the past, used a four-part test to determine whether evidence
should be admitted under Rule 404(b). Under that test, the party seeking to introduce the
evidence had to demonstrate that: “(1) the evidence is directed toward establishing a matter in
issue other than the defendant’s propensity to commit the crime charged; (2) the evidence shows
that the other act is similar enough and close enough in time to be relevant to the matter in issue;
(3) the evidence is sufficient to support a jury finding that the defendant committed the similar
act; and (4) the probative value of the evidence is not substantially outweighed by the danger of
unfair prejudice.” United States v. McMillan, 744 F.3d 1033, 1038 (7th Cir. 2014) (quoting
United States v. Chambers, 642 F.3d 588, 594 (7th Cir. 2011)). 2 The Seventh Circuit recently
abandoned this specific four-part test “in favor of a more straightforward rules-based approach,”
which is “less a substantive modification than a shift in paradigm that we hope will produce

2

While the Rule 404(b) cases cited herein are criminal cases, the principles apply equally in the civil context. See
Huddleston v. United States, 485 U.S. 681, 685 (1988) (“Federal Rule of Evidence 404(b) – which applies in both
civil and criminal cases – generally prohibits the introduction of extrinsic acts that might adversely reflect on the
actor’s character, unless that evidence bears upon a relevant issue in the case such as motive, opportunity, or
knowledge.”).

3

clarity and better practice in applying the relevant rule of evidence.” United States v. Gomez, 763
F.3d 845 (7th Cir. 2014). In Gomez, the Seventh Circuit explained the new standard as follows:
[T]o overcome an opponent’s objection to the introduction of other-act evidence, the
proponent of the evidence must first establish that the other act is relevant to a specific
purpose other than the person’s character or propensity to behave in a certain way. See
Fed. R. Evid. 401, 402, 404(b). Other-act evidence need not be excluded whenever a
propensity inference can be drawn. But its relevance to “another purpose” must be
established through a chain of reasoning that does not rely on the forbidden inference that
the person has a certain character and acted in accordance with that character on the
occasion charged in the case. If the proponent can make this initial showing, the district
court must in every case assess whether the probative value of the other-act evidence is
substantially outweighed by the risk of unfair prejudice and may exclude the evidence
under Rule 403 if the risk is too great. The court’s Rule 403 balancing should take
account of the extent to which the non-propensity fact for which the evidence is offered is
actually at issue in the case.
Id. at 860.
On the one hand, the Court tends to agree with Defendants’ characterization of the
evidence as potentially show motive, intent, or planning. The complaints that Defendants are
seeking to introduce took place directly after 3 the complaints involving the Defendants, and
involve the same type of allegations — testing irregularities and bias on the part of professors.
On the other hand, Defendants have not introduced any evidence to support a jury finding that
the Plaintiff lied about professor misconduct at Roosevelt and IIT. While Defendants certainly
have evidence (in the form of e-mails from Plaintiff and admissions during her deposition) that
she made complaints regarding testing irregularities and bias at Roosevelt and IIT, they have not
introduced any evidence that Plaintiff made up those complaints in response to receiving bad
grades. See Fed.R.Evid. 104(b) (“When the relevance of evidence depends on whether a fact
exists, proof must be introduced sufficient to support a finding that the fact does exist.”); Gomez,
763 F.3d at 853-54 (“This requirement remains in full force as a condition of relevance.”).
3

Rule 404(b) is not limited to evidence of prior acts. See United States v. Savage, 505 F.3d 754, 761 (7th Cir. 2007)
(“We have recognized that Rule 404(b) does not restrict the evidence concerning other acts to events which took
place before the alleged crime.”).

4

Defendants also have not shown how the evidence of other complaints does not rely on a
forbidden propensity inference –that because Plaintiff supposedly lied at Roosevelt and IIT, she
is also lying about what happened to her at Truman College. 4 Defendants are therefore barred
from introducing the complaints at Roosevelt and IIT for the purpose of establishing that
Plaintiff had a motive, intent, or plan to lie when she received a poor grade. See Gomez, 763 F.3d
at 856 (quoting United States v. Lee, 724 F.3d 968, 976-77 (7th Cir. 2013)) (“When one looks
beyond the purposes for which the evidence is being offered and considers what inferences the
jury is being asked to draw from that evidence, and by what chain of logic, it will sometimes
become clear … that despite the label, the jury is essentially being asked to rely on the evidence
as proof of the defendant’s propensity to commit the charged offense.”).
Even if Defendants could overcome the other obstacles to their proposed 404(b)
evidence, they would still have to convince this Court that the probative value of the evidence is
not substantially outweighed by the danger of unfair prejudice. See Fed. R. Evid. 403.
Defendants have not proposed to present testimony from any person with firsthand knowledge of
the events at Roosevelt and IIT other than Plaintiff. Despite offering no proof that Plaintiff has
lied about what happened at those schools, Defendants’ argument for admitting the evidence
relies upon an assumption that she has in fact lied. The Court finds that it would be unfairly
prejudicial to require Plaintiff to rebut Defendants’ unsubstantiated speculation about what
happened.

4

In the criminal context, the Seventh Circuit held in United States v. Richards, 719 F.3d 746, 764 (7th
Cir. 2013) that the government cannot use evidence admitted for a non-propensity purpose to “later argue
that the evidence shows the defendant’s propensity to engage in criminal behavior.” In that case, the
government argued in its closing argument that other, prior evidence of drug dealing established that the
defendant was a drug dealer, and that because the defendant dealt drugs “in California [] he must have
dealt in Bolingbrook.” Id. at 765. The argument Defendants intend to raise here would be extremely
similar – that because Plaintiff supposedly lied at Roosevelt and IIT (for which they have introduced no
evidence), she must have lied at Truman College.

5

Still, there is an open question as to whether Defendants may introduce the testing
irregularities at Roosevelt and IIT for the purpose of mitigating damages. Plaintiff does not
refute that her counseling sessions (i) took place, in part, while she claimed to be experiencing
testing irregularities at Roosevelt, and (ii) addressed the purported testing irregularities at
Roosevelt and IIT, as well as those at Truman College. (Defs.’ Reply at 4-5, Dkt. No. 196). The
complaints at Roosevelt and IIT might therefore be relevant to whether the damages claimed in
this litigation are solely the result of the conduct of the Defendants.
If Plaintiff limits her claims regarding emotional distress to events that took place prior to
her first day at Roosevelt, the complaints at that school and IIT would not be relevant. If Plaintiff
seeks to introduce evidence from her counseling sessions, which took place while she was at
Roosevelt, Defendants would be permitted to introduce the testing irregularities at Roosevelt and
IIT to demonstrate that the counseling sessions were not solely evaluating her emotional state
based on her claims at Truman College, but were also addressing her emotional state based on
her claims at her subsequent schools. See United States v. Villegas, 655 F.3d 662, 672 (7th Cir.
2011) (“When a party opens the door to evidence that would be otherwise inadmissible, that
party cannot complain on appeal about the admission of that evidence.”). As to whether the
probative value is outweighed by the danger of unfair prejudice, the Court finds that given the
proximity in time, the similarity of the complaints, and the relevance to the damages question,
the probative value of the fact that the counseling sessions addressed Roosevelt and IIT is
substantial enough to outweigh the danger of unfair prejudice if Plaintiff introduces evidence of
the counseling sessions for the purpose of establishing damages. See Whitehead v. Bond, 680
F.3d 919, 930 (7th Cir. 2012) (“Recognizing that most relevant evidence is, by its very nature,
prejudicial, we have emphasized that evidence must be unfairly prejudicial to require exclusion.

6

We employ a sliding scale approach: as the probative value increases, so does our tolerance of
the risk of prejudice.”) (internal quotations and citations omitted) (emphasis in original).
Plaintiff’s motion in limine is therefore granted as to precluding Defendants from
introducing evidence of her complaints at Roosevelt and IIT, with the exception that if Plaintiff
introduces evidence from her counseling sessions to support her claim for damages, Defendants
may introduce evidence that the counseling sessions addressed Plaintiff’s claims of testing
irregularities at those other schools as well as Truman College.
C.

Plaintiff’s Motion in Limine No. 3 (Dkt. No. 190)

Plaintiff also seeks to bar Defendants from reading excerpts from the deposition
transcript of third-party witness Youn Kyung Lee at trial. Defendants represent that they have
been unable to locate Lee to serve her with a trial subpoena and that, based on certain statements
by Lee at the time of her deposition, they believe she may have left the country. 5 If they are
unable to locate her in time for trial, Defendants intend to read Lee’s deposition testimony to the
jury. In support of her motion to preclude Defendants from doing so, Plaintiff points out that
Lee’s deposition testimony is hearsay and argues that allowing Defendants to use it at trial “is
unfair because it does not allow Plaintiff herein to cross examine [Lee] before the Court and
before the Jury.” (Pl.’s Mot. ¶ 2, Dkt. No. 190.)
Federal Rule of Evidence 804(b) provides that a witness’s prior deposition testimony is
not excluded by the hearsay rule “if the declarant is unavailable as a witness” and the deposition
testimony is “offered against a party who had . . . an opportunity and similar motive to develop it
by direct, cross-, or redirect examination.” Fed. R. Evid. 804(b). A witness is unavailable for

5

At the final pretrial conference, Defendants represented that they have made multiple attempts to contact
Lee and believe that she may have returned to South Korea, as she previously indicated that her visa was
expiring. Defendants further represented that they intend to subpoena Lee at her last known address for
trial and will continue to search for her.

7

purposes of Rule 804(b) if he or she “is absent from the trial or hearing and the statement’s
proponent has not been able, by process or other reasonable means, to procure the declarant’s
attendance.” Fed. R. Evid. 804(a)(5). See also Fed. R. Civ. P. 32(a)(4) (providing that deposition
testimony may be used for any purpose if the court finds that the witness is dead, the witness is
more than 100 miles from the place of trial or outside of the United States (unless the absence
was facilitated by the party offering the deposition), the witness cannot attend or testify at trial
due to age, illness, infirmity, or imprisonment, or the party offering the deposition could not
procure the witness’s attendance by subpoena).
Plaintiff does not contest that Lee is unavailable and does not object to the substance of
her testimony. Her only objection to the use of the transcript is that it constitutes hearsay
evidence. But the Federal Rules of Evidence expressly contemplate use of deposition testimony
in lieu of live testimony when the witness is unavailable. That appears to be the case here.
Nonetheless, the Court will reserve ruling on Plaintiff’s motion in limine until it can be
determined whether Lee is, in fact, unavailable for trial. Assuming Defendants make an
appropriate showing of unavailability, Defendant will be permitted to read portions of Lee’s
deposition transcript into the record. Consistent with the Federal Rules of Civil Procedure,
Plaintiff will be provided the opportunity to introduce other parts of the transcript, as appropriate,
and both sides will have the right to object to the admission of any testimony that would be
inadmissible if Lee were present and testifying. See Fed. R. Civ. P. 32(a)(6), (b). If either party
chooses to read from Lee’s deposition transcript, the Court and the opposing party must be
provided with a copy of the transcript in advance. Fed. R. Civ. P. 32(c).

8

II.

Defendants’ Motions in Limine
A.

Defendants’ Motion in Limine No. 1 (Dkt. No. 182)

In their first motion in limine, Defendants seek to bar evidence related to various
confrontations between Plaintiff’s mother, Kyung Hye Yano, and members of the faculty,
administration, and staff at Truman College. Defendants argue that these alleged confrontations
are irrelevant to the case at bar because they did not involve Plaintiff herself or Defendants. In
response, Plaintiff contends that the confrontations are relevant because “they might add to
damages inasmuch as they prevented Kyung Hye Yano from being with her daughter at certain
times when her presence would have been helpful to S.Y.” (Pl.’s Resp. at ¶ 4, Dkt. No. 194.)
Furthermore, according to Plaintiff, these third-parties caused her harm by preventing her mother
“from being present for her daughter, or otherwise involved with her daughter’s academic
career.” (Id. at ¶ 5.)
To succeed on her intentional infliction of emotional distress claim, Plaintiff must prove:
(1) that Defendants’ conduct toward her was extreme and outrageous, (2) that Defendants
intended their conduct to inflict severe emotional distress or knew that there was a high
probability that their conduct would cause severe emotional distress, and (3) that Defendants’
conduct did cause Plaintiff severe emotional distress. See, e.g., Swearnigen-El v. Cook Cnty.
Sheriff's Dep’t, 602 F.3d 852, 863-64 (7th Cir. 2010). Since all three elements speak specifically
to Defendants’ conduct, actions by any other person are irrelevant unless they may be attributed
to Defendants. Thus, conflicts between Kyung Hye Yano and Truman College parking
enforcement staff, conflicts regarding Dean Elizabeth Roeger’s investigation of Plaintiff’s
claims, conflicts involving Professor Elia Lopez, and emails between Dr. Michael Swisher and
Dr. Rudra Dundzilla are inadmissible because they cannot be attributed to Defendants.

9

The only other incident mentioned in Defendants’ motion in limine is the allegation that
Kyung Hye Yano felt threatened when she was asked to leave after she was seen staring through
a window into Defendant Lancki’s biology classroom as Plaintiff and other students were
preparing to take a quiz. Yet Kyung Hye Yano was not asked to leave by Lancki; rather, it was
Dean Roeger (who is no longer a defendant in this case) who confronted Kyung Hye Yano and
asked her to leave. Moreover, in her complaint, Plaintiff stated that Dean Roeger acted “on
orders from Dr. Rahman, the Vice President of Truman College.” (Am. Compl. ¶ 56, Dkt. No.
84.) Plaintiff did not mention Defendant Lancki with regards to this incident. As Plaintiff does
not allege that Defendant Lancki precipitated Dean Roeger’s allegedly wrongful act, this incident
is irrelevant to the case against Defendant Lancki.
In short, as none of the incidents described in Defendants’ motion can be attributed to the
Defendants remaining in this case, the motion is granted.
B.

Defendants’ Motion in Limine No. 2 (Dkt. No. 183)

Defendants next seek to exclude evidence related to an allegedly missing Scantron form
for Quiz II in Defendant Lancki’s Biology 121 class. Plaintiff claims that after Defendant Lancki
told her that she had received a very low grade on Quiz II, Plaintiff asked to see the scantron
form that she had completed during the exam. According to Plaintiff, Defendant Lancki then
purported to show Plaintiff her Scantron form but, in fact, the form provided was not hers.
Plaintiff claims that she knew the Scantron form that Defendant Lancki showed her was not the
one she had completed during the exam because it had drawings and eraser marks that Plaintiff
never made on her own form.
While Plaintiff originally represented in her response to Defendants’ motion in limine
that she intended to claim spoliation—i.e., that the original Scantron form was lost or destroyed

10

so that it would not be available as evidence in this proceeding—Plaintiff’s counsel represented
at the pretrial conference that she no longer intends to pursue that argument. Instead, Plaintiff has
now limited her argument to the position that the Scantron provided to her during the meeting
with Defendant Lancki was not hers. 6
The Court denies the motion in limine insofar as Plaintiff seeks to argue that the Scantron
form provided to her by Defendant Lancki during their meeting to discuss Quiz II was not
Plaintiff’s Scantron form. Plaintiff will be permitted to testify that when she asked Defendant
Lancki for her Scantron form, she was shown a form that was not hers. Plaintiff will also be
permitted to explain why she believes that it was not her form. Furthermore, Plaintiff will be
permitted to present evidence and argue that Defendant Lancki was unable or unwilling to
produce the original Scantron form at the time of the incident and to ask the jury to infer that
Defendant Lancki did something with the original Scantron form as part of her infliction of
emotional distress on Plaintiff. However, Plaintiff will not be permitted to argue that her original
Scantron form was lost or destroyed subsequent to the events in question so that it would not
have to be produced in discovery.
C.

Defendants’ Motion in Limine No. 3 (Dkt. No. 184)

Defendants also seek to bar Plaintiff from making any reference to the investigation
regarding Defendant Lancki’s conduct by Truman College or the discipline that Defendant
Lancki received from the college for making inappropriate comments to Plaintiff in her Biology
121 class. Plaintiff did not file a response to this motion. Thus, it is not clear how Plaintiff
intends to use evidence pertaining to the disciplinary proceedings at trial.
6

During discovery, Defendants produced a copy of the Scantron form that was shown to Plaintiff during
her meeting with Defendant Lancki, but they were unable to produce the original form that was shown to
Plaintiff. (Defs.’ Mot. at 2, Dkt. 183.) Plaintiff does not dispute that the version of the document produced
during discovery is a duplicate of what was shown to her at the time of her meeting with Defendant
Lancki.

11

Federal Rule of Evidence 407 precludes the admission of evidence of subsequent
remedial measures for the purpose of proving culpable conduct. Disciplining an employee
qualifies as a subsequent remedial measure. Therefore, the fact that Defendant Lancki received a
one-day suspension for making an inappropriate comment to Plaintiff is properly excluded from
evidence as a subsequent remedial measure under Rule 407. Likewise, any changes to Truman
College’s practices, policies, or procedures that were proposed or implemented as a result of the
college’s investigation (such as those reflected in Defendants’ Trial Exhibit 82) are also excluded
under Rule 407.
Other courts have determined that while evidence of subsequent discipline cannot be used
to establish culpability, Rule 407 does not prevent evidence relating to investigations from being
admitted to demonstrate investigative findings, to establish the authenticity of statements made,
or to impeach witnesses that deny the authenticity of statements made. See Helicopters, Inc. v.
Bell Helicopters, Inc., 805 F.2d 907, 918-19 (10th Cir. 1986) (investigative materials should be
permitted since to exclude them under Rule 407 would deprive “injured claimants of one of the
best and most accurate sources of evidence and information”) (internal quotation omitted); Duke
v. Garcia, No. 11-CV-784-BRB/RHS, 2014 WL 1318647, at *4 n.4 (N.D.M. Feb. 28, 2014)
(“The discipline probably could be introduced to demonstrate the authenticity of the text
messages or to impeach witnesses who deny this authenticity.”) (emphasis in original). This
Court generally agrees with that approach.
But while Rule 407 does not preclude the introduction of investigative findings, such
evidence may still present a problem under Federal Rule of Evidence 403 if its probative value is
substantially outweighed by a danger of unfair prejudice or a likelihood of confusing or
misleading the jury. See Fed. R. Civ. P. 403. Plaintiff has not presented an explanation of how

12

the college’s investigative findings might be probative of the issues in this case. On the other
hand, the potential for unfair prejudice and confusion is readily apparent: a jury presented with
investigative “findings” might mistakenly believe that certain facts have already been decided or
confuse Truman College’s standard for determining a violation of its own rules with the legal
standard for proving intentional infliction of emotion distress under state law.
Nonetheless, a motion in limine should be granted only if the evidence to be excluded is
clearly inadmissible for any purpose. If inadmissibility is not clear, “the motion should be
denied, or the ruling deferred until trial so that questions of foundation, relevancy and potential
prejudice may be resolved in the proper context.” U.S. v. Rusin, 889 F. Supp. 1036, 1038 (N.D.
Ill. 1995) (quoting Hawthorne Partners v. AT&T Technologies, Inc., 831 F. Supp. 1398, 1400
(N.D. Ill. 1993) (internal quotations omitted). For this reason, the Court reserves ruling on
Defendants’ motion in limine to the extent it seeks to exclude all evidence of the college’s
investigative findings.
Accordingly, Defendants’ motion is granted to the extent Plaintiff seeks to introduce
evidence that Defendant Lancki was punished by the college or that the college made or
considered changes to its practices, policies, or procedures as a result of its investigation
regarding Plaintiff’s allegations. However, Plaintiff will be permitted to use information from the
investigation to impeach Defendant Lancki or other witnesses. And finally, the Court reserves
ruling on whether evidence regarding the findings of the investigation may be admitted
notwithstanding the requirements of Rule 403.
D.

Defendants’ Motion in Limine No. 4 (Dkt. No. 185)

Defendants also seek to exclude any reference at trial to an alleged tailgating incident
involving Plaintiff, her mother, and Dr. Gabriel Hose (“Hose”). Plaintiff has alleged that Hose

13

parked outside the Yanos’ home one day and that when Plaintiff and her mother subsequently
left their home he proceeded to follow and tailgate their vehicle, placing them in fear of
imminent harm.
In seeking to exclude evidence of this incident, Defendants argue that Hose’s alleged
conduct toward Plaintiff, even if true, has no connection to them. Although Defendants
acknowledge that Hose and Defendant El-Maazawi shared an office at the time the alleged
tailgating occurred, they claim that El-Maazawi and Hose were little acquainted with each other
beyond the cursory greetings exchanged between colleagues. Defendants further assert that ElMaazawi and Hose had never spoken to each other about Plaintiff before the alleged tailgating.
Thus, according to Defendants, whatever Hose did (or did not do) cannot be attributed to ElMaazawi and should not be introduced as evidence at his trial. Defendants further seek to bar
testimony and argument regarding the alleged tailgating incident on the grounds that it would be
highly prejudicial to El-Maazawi as well as confusing and misleading for the jury.
Plaintiff, on the other hand, contends that evidence regarding Hose’s conduct is probative
because it cannot be said that the alleged tailgating “did not contribute to her [Plaintiff’s]
emotional distress.” (Pl.’s Resp. at ¶ 4, Dkt. No. 193.) This, however, misstates the matter to be
determined at trial. The purpose of the trial is not simply to determine whether Plaintiff suffered
any emotional harm. Rather, it is to determine whether Plaintiff suffered emotional harm as a
result of Defendants’ conduct towards her. Thus, unless Plaintiff can offer an evidentiary basis
beyond mere speculation from which a jury might find that Hose acted at the direction or
instigation of Defendant El-Maazawi, this incident is irrelevant and cannot be presented at trial.
See Fed. R. Evid. 401, 402.

14

Plaintiff also misstates the burden on the party seeking to introduce evidence. Plaintiff
asserts that she should be permitted to make arguments and introduce testimony regarding the
alleged tailgating because “El-Maazawi is free to introduce evidence suggesting that he had
nothing to do with the incident as rebuttal.” (Pl.’s Resp. at ¶ 5, Dkt. No. 193.) But Defendants
should not be forced affirmatively to rebut every piece of evidence introduced by Plaintiff
regardless of the relevancy of that evidence. See Fed. R. Evid. 402.
This is not to say that the alleged tailgating incident is categorically irrelevant. Rather, the
relevancy of the incident “depends on whether a fact exists” and thus falls within the scope of
Federal Rule of Evidence 104(b). Fed. R. Evid. 104(b) (“When the relevance of evidence
depends on whether a fact exists, proof must be introduced sufficient to support a finding that the
fact does exist.”). The fact that must exist here for the alleged incident to be relevant is that
Defendant El-Maazawi, by some deliberate conduct, must have caused Hose to tailgate or
otherwise harass and intimidate Plaintiff. Thus far, however, Plaintiff has pointed to nothing in
the record that would support such a finding of that fact. The Court notes that Plaintiff has not
proposed to call as a witness Hose, or any other person who might have been privy to
interactions between Hose and El-Maazawi that could support such an inference. 7 And Plaintiff
has not otherwise asserted that she plans to tie Hose’s alleged tailgating to El-Maazawi with
anything other than the fact that they shared an office. That simple fact, without more, simply is
not sufficient to warrant asking a jury to attribute Hose’s conduct to El-Maazawi. Accordingly,
the Court grants the motion in limine.

7

The Court is aware that Hose is on the list as a person who may be called by Defendants and as such, is
reserved as a witness by Plaintiff.

15

E.

Defendants’ Motion in Limine No. 5 (Dkt. No. 186)

Defendants next seek to bar Plaintiff from indicating to the jury that Defendants may be
indemnified for any damages award against them. Plaintiff does not object. Accordingly,
Defendants’ motion is granted, with one caveat. If Defendants “open the door” by introducing
evidence that they would be personally responsible for damages, or that they would face
financial hardship or otherwise have an inability to pay damages, Plaintiff may inform the jury
that Defendants will be indemnified for compensatory damages. See Hillard v. City of Chicago,
No. 09 C 2017, 2010 WL 1664941, at *4 (N.D. Ill. Apr. 23, 2010).
F.

Defendants’ Motion in Limine No. 6 (Dkt. No. 187)

Lastly, Defendants seek to admit evidence regarding Plaintiff’s claims that her test papers
were lost or tampered with while she was a student at Roosevelt and IIT, as well as when she
attended Truman College. For the reasons discussed above with respect to Plaintiff’s Motion in
Limine No. 2 (Dkt. No. 189), Defendants’ motion is denied.

ENTERED:

Dated: December 31, 2014

__________________________
Andrea R. Wood
United States District Judge

16