SCHEIDLER v. STATE OF INDIANA

Filing 88

ORDER granting Defendant's 72 Motion in Limine. ***SEE ENTRY***. Signed by Judge William T. Lawrence on 5/30/2017. (JDC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BRENDA LEAR SCHEIDLER,
Plaintiff,
vs.
STATE OF INDIANA,
Defendant.

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) Cause No. 1:14-cv-937-WTL-DML
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ENTRY ON DEFENDANT’S MOTIONS IN LIMINE
This cause is before the Court on the Defendant’s motions in limine (Dkt. No. 72). The
motions are fully briefed and the Court, being duly advised, resolves them as set forth below.
The Court notes that the granting of a motion in limine is not a final ruling regarding the
admissibility of the evidence at issue. Rather, it simply prohibits any party from eliciting
testimony regarding or otherwise mentioning a particular issue during trial without first seeking
leave of Court outside of the presence of the jury. Therefore, a party who wishes to elicit
testimony or introduce evidence regarding a topic covered by a motion in limine that has been
granted should request a sidebar conference during the appropriate point in the trial, at which
time the Court will determine how best to proceed. Parties should always err on the side of
caution and interpret rulings on motions in limine broadly, requesting sidebars before eliciting
testimony or offering evidence that is even arguably covered by a ruling in limine and avoiding
mention of such topics during voir dire, opening statements, and closing argument. Counsel
shall also carefully instruct each witness regarding subjects that should not be mentioned or
alluded to during testimony unless and until a finding of admissibility is made by the Court.
The Defendant combines several motions into one filing. Each of them is addressed, in
turn, below.

Reference to the following articles: “Exposed in Emails” from the Indianapolis Star on October
20, 2013, “Walkup Resigns Over Emails” from the Indianapolis Star on October 22, 2013, and
“It’s Who You Know” from the Indiana Lawyer’s November 2 -15, 2016 edition.
The Plaintiff has included in its exhibit list the above-referenced newspaper articles. The
Defendant objects to the articles, arguing that they contain inadmissible hearsay and are
otherwise irrelevant to this case because they refer to people and departments not involved in this
lawsuit. The Plaintiff responded that “[t]he articles summarize events that the Defendant
tolerated that were worse than the events alleged against the Plaintiff.” Dkt. No. 79 at 1. The
Plaintiff also argues that “[t]he third article on networking shows that it is acceptable for anyone
to make statements like ‘It’s Who You Know’ and the statement the Defendant claims Plaintiff
said, something to the effect that [‘]it’s who you know and who you blow,[’] is a variation of that
statement.” Id.
Federal Rule of Evidence 801 defines hearsay as “a statement that: (1) the declarant does
not make while testifying at the current trial or hearing; and (2) a party offers in evidence to
prove the truth of the matter asserted in the statement.” The Plaintiff’s suggested use of the
information in the articles meets the definition of hearsay. Under Federal Rule of Evidence 802,
such hearsay is not admissible.
The Plaintiff further argues that “[t]he articles are admissible to show Plaintiff’s state of
mind as to what actions were permitted by the Defendant and not subject to termination.” Dkt.
No. 79 at 1. Although Federal Rule of Evidence 803(4) allows an exception to the exclusion of
hearsay statements of the declarant’s “then-existing mental, emotional, or physical condition,”
the newspaper articles are not statements made by the Plaintiff. Thus, they cannot be evidence of
her state of mind. Furthermore, the articles were written and published months after the

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Plaintiff’s employment was terminated. They could not possibly show the Plaintiff’s state of
mind at any time prior to their publication.
Having reviewed the information provided by the parties, the Court GRANTS the
Defendant’s motion as to this issue. Neither party shall mention any of the above-listed
newspaper articles without first, during an appropriate point in the trial, requesting a sidebar
conference to discuss the matter outside the jury’s presence, at which time the Court will
determine how best to proceed.

Reference to any transcript, findings, or orders from the SEAC proceeding
The Defendant seeks to exclude reference to transcripts, findings, and orders from the
SEAC proceeding. The Plaintiff does not object to the motion regarding the findings and orders
of the SEAC proceeding; accordingly, that motion is GRANTED. The Defendant argues that
reference to the contents of the transcripts constitutes hearsay. It noted that the individuals who
testified at the SEAC proceeding are available to testify and be cross-examined in front of the
jury in this trial. The Defendant acknowledges and does not contest that the transcript testimony
could be used for impeachment purposes.
The Plaintiff argues that the transcript testimony was made under oath, similar to a
deposition. When asked at the final pretrial conference by the Court whether he planned to use
the transcripts for anything other than impeachment, the Plaintiff’s counsel indicated that he did
not know of any other use at this point.
The Court GRANTS the Defendant’s motion regarding the SEAC proceeding transcripts.
If either party wishes to reference those proceedings or use the transcript testimony for any
purpose other than impeachment, during an appropriate point in the trial, counsel may request a

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sidebar conference to discuss the matter outside the jury’s presence, at which time the Court will
determine how best to proceed.

Reference or discussion of allegations of misconduct against state agencies
The Defendant contends that reference or discussion of allegations of misconduct against
state agencies would be inflammatory, irrelevant, and have no probative value. The Plaintiff
argues that the State of Indiana is the defendant in this matter and therefore, actions of the state
are admissible. The Plaintiff further reasoned that “[i]n a discrimination case against the State,
there must be references and discussion of misconduct by state agencies in order to show that the
State treated Plaintiff worse.” Dkt. No. 79 at 1-2. The Plaintiff also noted that there are two
state agencies involved in this case: the State Personnel Department and the Department of
Insurance. At the final pretrial hearing, the Defendant stated that this case involves “just the
Department of Insurance.”
The Court notes that the Plaintiff need not prove at trial that the Plaintiff was treated
worse than similarly situated individuals outside her protected class. That is one of the standards
used at the summary judgment phase. Even if that were the standard at trial, the Court does not
see how reference and discussion of misconduct by other state agencies, or by the State
Personnel Department or the Department of Insurance, would show that the Plaintiff was treated
worse than similarly situated individuals were treated. Such references and discussions would
contain inadmissible hearsay and are otherwise not relevant if they involve individuals and
agencies other than those who were decisionmakers in the Plaintiff’s termination. The Court
thus GRANTS the Defendant’s motion regarding reference or discussion of misconduct by state
agencies involving individuals other than the Plaintiff. If the Plaintiff believes that any other
incidents are relevant, during an appropriate point in the trial, counsel may request a sidebar

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conference to discuss the matter outside the jury’s presence, at which time the Court will
determine how best to proceed.
Reference to Defendant’s alleged failure to call witnesses or present evidence
The Defendant requests that “the Court bar all parties from conveying to the jury that
State Defendants are hiding evidence by choosing not to call a particular witness or present
certain evidence.” Dkt. No. 72 at 3-4. The Plaintiff responds that “[a]rguments that the
Defendant is hiding evidence and lying is always permitted. That is was a trial is about.” Dkt.
No. 79 at 3. At the final pretrial conference, the Plaintiff further argued that documents not
produced by a party or a witness not called by a party raises an inference that that evidence
would not help the party that chose not to produce the evidence or call the witness. He stated
that case law supported this position.
The law, in fact, is just the opposite. As the Seventh Circuit Pattern Jury Instruction 1.18
points out, “[t]he law does not require any party to call as a witness every person who might
have knowledge of the facts related to this trial. Similarly, the law does not require any party to
present as exhibits all papers and things mentioned during this trial.” The Court knows of two
circumstances in which the adverse inference described by the Plaintiff might be sought, and
neither circumstance has been alleged in this case. First, an adverse inference may be drawn
regarding a particular witness’s absence at trial where “the complaining party [] establish[es] that
the missing witness was peculiarly in the power of the other party to produce.” Oxman v. WLSTV, 12 F.3d 652, 661 (7th Cir. 1993) (citing Chicago Coll. of Osteopathic Med. v. George A.
Fuller Co., 719 F.2d 1335, 1353 (7th Cir. 1983)). “This can be shown in two ways: (1) that the
missing witness was physically available only to the [party against whom the inference would be
drawn], or (2) that the missing witness has a relationship with [that] party that practically renders

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his testimony unavailable to the [complaining] party.” Id. Second, an adverse inference against
a party may be drawn where spoliation of evidence has occurred. In that instance, a party
seeking the adverse inference must prove that the other party intentionally destroyed evidence in
bad faith. Miksis v. Howard, 106 F.3d 754, 762-63 (7th Cir. 1997). Since neither situation
appears to be present here, the Court GRANTS the Defendant’s motion regarding references to
the Defendant’s alleged failure to call witnesses or present evidence. Should the Plaintiff have
evidence supporting either instance in which an adverse inference could be drawn against a
Defendant’s missing witness or evidence, the Court can revisit the matter. The Plaintiff’s
counsel, however, must first request a sidebar conference to discuss the matter outside the jury’s
presence, at which time the Court will determine how best to proceed.

Reference to settlement negotiations
and
Reference to other lawsuits in which the State of Indiana or the Indiana Department of Insurance
has been named as a party
and
Reference to the motion for summary judgment that was filed by the Defendants and the Court’s
decision on that motion
The Plaintiff does not object to these motions; accordingly, these motions are
GRANTED.
SO ORDERED: 5/30/17

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic communication

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