Rusch v. Midwest Industries Inc et al

Filing 71

MEMORANDUM AND OPINION ORDER granting 57 Motion in Limine and denying 58 Motion in Limine. See text of order. Signed by Senior Judge Donald E O'Brien on 7/12/12. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
DONALD C. RUSCH,
Plaintiff,

No. 10-CV-4110-DEO

v.
Memorandum and Opinion Order

MIDWEST INDUSTRIES INC.,
et. al.,
Defendant.

____________________
Currently before this Court is Plaintiff’s First Motion
in Limine to exclude:
settlement

(1) “evidence of, or reference to any

negotiations”

and

(2)

“opinion

testimony

from

Defendants’ designated expert, Karen L. Stricklett . . . .”
Docket No. 57, 1.

Also currently before this Court is

Defendant’s First Motion in Limine to exclude paragraph 20 of
Susan Godbersen’s Affidavit dated May 26, 2009.

Docket No.

58, 1.
I.

SETTLEMENT NEGOTIATIONS
At the hearing of July 9, 2012, both parties stated they

did not intend to present evidence related to the settlement
negotiations. Evidence relating to settlement negotiations is
hereby excluded to the extent provided for under Federal Rule
of Evidence 402 when read in conjunction with other applicable
Rules of Evidence.

II.

DEFENDANT’S DESIGNATED EXPERT
As previously noted, Plaintiff requests the exclusion of

opinion testimony from Defendants’ designated expert, Karen L.
Stricklett.

Docket No. 57, 1.

Ms. Stricklett has been a

member of the American Board of Vocational experts since 1989
and a Certified Rehabilitation Counselor since 1983.
No. 57-2, 1.

Docket

She is currently a Rehabilitation Counselor at

and President of Stricklett & Associates in Omaha, Nebraska.
Docket No. 57-2, 13.

Her report at issue, entitled Analysis

of Job Search Efforts: Donald Rusch, incorporates a number of
resources related to a successful job search campaign and
concludes that “Mr. Rusch has not made a good faith or
reasonable effort to secure a job” since his termination from
Midwest Industries.1

Docket No. 57-2.

Defendants argue Ms.

Stricklett’s testimony should be admitted in order “to show
that Plaintiff failed to mitigate his damages . . . .”

Docket

No. 60, 4.

1

Though not currently before this Court, this Court has
reservations about allowing Ms. Stricklett to testify
regarding the ultimate reasonableness of Plaintiff’s efforts.
See Roniger v. Mccall, 2000 WL 1191078, 5 (2000) (stating, it
is improper to allow an expert to testify whether a
plaintiff’s efforts to find alternative employment were
“reasonable” because such a question is dispositive and should
be left “for the jury to decide based on all the evidence” and
a court’s instructions).
2

Federal Rule of Evidence 702 controls the admission of
expert testimony.

It provides:

A witness who is qualified as an expert by
knowledge, skill, experience, training, or
education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or
other specialized knowledge will help the
trier of fact to understand the evidence or
to determine a fact issue;
(b) the testimony is based on sufficient
facts or data;
(c) the testimony is the product of
reliable principles and methods; and
(d) the expert has reliably applied the
principles and methods to the facts of the
case.
Fed. R. Evid. 702.
“Whether

to

admit

expert

testimony

rests

in

the

discretion of the trial judge, whose decision will not be
reversed unless it is clearly erroneous.”

Bartak v. Bell-

Galyardt & Wells, Inc., 629 F.2d 523, 530 (8th Cir. 1980).
Under

Rule

702,

the

trial

court

acts

as

a

screening evidence for relevance and reliability.

gatekeeper,
Daubert v.

Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 589-90 (1993).
Defendant has the burden to produce substantial evidence
supporting a failure-to-mitigate claim prior to the admission
Vasconez v. Mills, 651 N.W.2d

of evidence related thereto.
48, 53-54 (Iowa 2002).

However, “[c]ourts should resolve

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doubts regarding the usefulness of an expert’s testimony in
favor of admissibility.”

Marmo v. Tyson Fresh Meats, Inc.,

457 F.3d 748, 758 (8th Cir. 2006).
Plaintiff’s Brief in Support of its First Motion in
Limine

makes

two

general

arguments:

(1)

because

the

reasonableness of Plaintiff’s efforts to obtain alternate
employment is a matter within the common knowledge of an Iowa
jury,

expert

testimony

is

superfluous;

and

(2)

expert

testimony on the reasonableness of Plaintiff’s efforts to
obtain

alternate

employment

is

not

admissible

without

substantial evidence of the existence of alternate employment.
Docket No. 57-1.
A.

Whether the Reasonableness of Plaintiff’s Efforts to

Obtain Alternate Employment is a Matter of Common Knowledge?
“Where the subject matter” of evidence or testimony “is
within the knowledge or experience of lay people, expert
testimony is superfluous.”

Ellis v. Miller Oil Purchasing

Co., 738 F.2d 269, 270 (8th Cir. 1984) (citing Bartak v. BellGalyardt & Wells, Inc., 629 F.2d 523, 530 (8th Cir. 1980).
Though this Court agrees that the average juror will have a
general understanding of how to go about seeking employment,
Plaintiff is a former Vice-President of a large company.

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After careful consideration, this Court is persuaded that Ms.
Stricklett’s report and/or testimony could be admitted to aid
the jury in understanding typical job search efforts of a
person with Plaintiff’s qualifications.
B.

Whether Expert Testimony on the Reasonableness of

Plaintiff’s

Efforts

to

Obtain

Alternate

Employment

is

Inadmissible Without Substantial Evidence of the Existence of
Alternate Employment?
The Defendant contends “there is no requirement under
Iowa law or Eighth Circuit tort law that an employer must show
that suitable work existed” in order to sustain a failure-tomitigate claim. Docket No. 60, 4. In considering Defendant’s
argument, this Court has considered two competing standards
employed by Iowa Courts.
In Vasconez v. Mills, a negligence case, the Iowa Supreme
Court identified the following elements of a failure-tomitigate damages claim:
(1) there was something the plaintiff could
have done to mitigate his loss;
(2) requiring the plaintiff to do so was
reasonable under the circumstances;
(3) the plaintiff acted unreasonably in
failing
to
undertake
the
mitigating
activity; and
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(4) a causal connection exists between the
plaintiff’s failure to mitigate and the
damages claimed.
651 N.W.2d 48, 53-54 (Iowa 2002) (citing
Mitchell, 621 N.W.2d 200, 205 (Iowa 2001).

Greenwood

v.

In The Children’s Home of Cedar Rapids v. Cedar Rapids
Civil Rights Commission, a Title VII employment case, the Iowa
Court of Appeals identified the following elements of a
failure-to-mitigate claim:
(1) that the damage suffered by [the
employee] could have been avoided, i.e.
that
there
were
suitable
positions
available which [the employee] could have
discovered and for which he was qualified;
and
(2) that [the employee] failed to use
reasonable care and diligence in seeking
such a position.
464 N.W.2d 478, 481 (Iowa App. 2000) (quotations omitted).
This

Court

is

persuaded

the

standard

identified

in

Children’s Home is more appropriately applied to this case
than the standard enunciated in Vasconez.

However, such a

determination is not necessary to this Court’s ruling herein.
Both standards require a substantial showing that suitable
alternate employment existed.

The Title VII standard does so

explicitly.

The standard announced in Vasconez does so

implicitly.

Clearly, there is nothing a Plaintiff can do to

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mitigate his losses if there is no alternative employment.
Furthermore, it would be unreasonable to require a Plaintiff
to take employment unless it was suitable to his particular
qualifications.

Finally, there cannot be a causal connection

between a Plaintiff’s failure-to-mitigate and his damages
unless other employment was actually available.
To date, Defendant has failed to identify other suitable
job opportunities which Plaintiff could have pursued.

Until

such time as Defendant submits additional information with
this Court indicating how they plan to produce substantial
evidence that other work was available to Plaintiff, Ms.
Stricklett’s Report and/or testimony is excluded.

After this

submission is made, the Court will hold a hearing as to
whether and to what extent the expert will be allowed to
testify.
III.

PARAGRAPH 20 OF SUSAN GODBERSEN’S AFFIDAVIT DATED MAY

26, 2009
Paragraph 20 of Ms. Godbersen’s Affidavit in question
states in full:
In April, 2009, Don told Andy Brosius, the
President of Midwest, that he wanted to be
a consultant in Des Moines for Midwest so
he could live in Des Moines. Andy told Don
he didn’t have such a position and didn’t
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feel the need to create one for him. Andy
also told Don that under the circumstances
of his recent work ethic, if Don wouldn’t
resign, he was going to have to terminate
him. It has come to light that in the last
10 years, Don has not taken care of
business at Midwest Industries.
Don was
supposed to report to Andy for job
assignments in February and March, 2009.
However, Don only reported once to Andy and
failed to report the other times.
Don
still got paid for two months but was not
even doing the work that was assigned and
did not have to come in to work at a
regular time.
Docket No. 63.
Hearsay is a “statement that:

(1) the declarant [did]

not make while testifying at the current trial or hearing; and
(2) a party offers into evidence to prove the truth of the
matter asserted in the statement.” Fed. R. Evid. 801(c). The
Plaintiff

concedes

that

Paragraph

20

of

Ms.

Godbersen’s

Affidavit at issue includes statements that declarants therein
did not make while testifying before this Court.

However,

Plaintiff is not offering Paragraph 20 to prove the truth of
the matters asserted in the statements therein.

In fact,

Plaintiff is contending that the statements were untrue and
serve as evidence that Susan Godbersen improperly interfered
with Plaintiff’s business relations with Midwest Industries.
Therefore, Defendant’s Motion in Limine as to Paragraph 20 of

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Susan Godbersen’s Affidavit is denied.
IV.

MISCELLANEOUS ORAL MOTIONS
At

the

hearing

before

this

Court

on

July

9,

2012,

Defendants argued Paragraph 20 should be excluded pursuant to
Rule of Evidence 403.

In particular, Defendants argued

Paragraph 20's probative value is outweighed by the prejudice
it would cause to Defendant Andrew Brosius.

However, it is

unclear to this Court how Paragraph 20 would be prejudicial to
Defendant Brosius, especially if it is presented as something
that is not true. Even if there were cognizable prejudice, it
is unclear how this would outweigh Paragraph 20's apparent
probative value.

Therefore, Paragraph 20 is not hereby

excluded on this basis.

However, Defendant is given leave to

clarify their position at a future time, either orally or
through a formal motion and brief.
Defendant also orally requested a limiting instruction in
relation to Paragraph 20.

This matter will be taken up prior

to finalizing the jury instructions.
IT IS SO ORDERED this 12th day of July, 2012.

__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

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