Ariza v. Loomis Armored US, LLC

Filing 173

ORDER: For the foregoing reasons and subject to the exceptions stated therein, this Court DENIES the Inference and Exhibits Motions, GRANTS the Bad Acts and Withdrawal Motions, and GRANTS IN PART and DENIES IN PART the Defendant's Motion. Signed by Judge John W. deGravelles on 01/22/2016. (BCL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
LIZA C. ARIZA,
Plaintiff,
CIVIL ACTION
No. 3:13-00419-JWD-EWD
VERSUS

LOOMIS ARMORED US, LLC,
Defendant.

ORDER ON MOTIONS IN LIMINE
I.

INTRODUCTION
Before the Court are five motions in limine: Plaintiff’s First Motion in Limine-To Admit

Evdience but with Adverse Inference (“Inference Motion”), (Doc. 133); Plaintiff’s Second
Motion in Limine-Bad Acts (“Bad Acts Motion”), (Doc. 134); Plaintiff’s Third Motion in
Limine-Exhibits Never Produced during Discovery (“Exhibits Motion”), (Doc. 135); Plaintiff’s
Fourth Motion in Limine-Withdrawn Claim (“Withdrawal Motion”), (Doc. 136); and
Defendant’s omnibus Motion in Limine (“Defendant’s Motion”), objecting to eleven exhibits
proposed by Plaintiff, (Doc. 150). Each of these five motions has engendered a response by the
opposing party. (Docs. 160–63, 165.) For the reasons more fully explained below, and subject to
the Parties’ ability to later satisfy the requirements set in the Federal Rules of Evidence1 as to
certain objections predicated on, among other matters, a lack of foundation, this Court DENIES

1

In this order, any and all reference to “Rule []” or “Rules” are to the Federal Rules of Evidence
unless otherwise noted.

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the Inference and Exhibits Motions, GRANTS the Bad Acts and Withdrawal Motions, and
GRANTS IN PART and DENIES IN PART the Defendant’s Motion.
II.

DISCUSSION

A.

STANDARD
Entirely discretionary, Rule 403 allows a court to “exclude relevant evidence if its

probative value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” FED. R. EVID. 403. According to the relevant advisory
committee, “‘[u]nfair prejudice’ within its context means an undue tendency to suggest decision
on an improper basis, commonly, though not necessarily, an emotional one.” FED. R. EVID. 403
advisory committee note. As case law further explains, “evidence is prejudicial [for purposes of
Rule 403] only when it tends to have some adverse effect upon accused beyond proof of fact or
issue that justified its admission into evidence, by proving some adverse fact not in issue or
exciting emotions against accused.” United States v. Figueroa, 618 F.2d 934, 943 (2d Cir. 1980).
Rule 404, in turn, renders “[e]vidence of a person’s character or character trait . . . not
admissible to prove that on a particular occasion the person acted in accordance with the
character or trait.” FED. R. EVID. 404(a)(1). Three exceptions, encoded in Rules 606, 607, and
608 and covering impeachment, exist. FED. R. EVID. 404(a)(3). Seemingly, “[t]he rationale
behind this rule is the notion that this evidence has slight probative value but has a tendency to
be highly prejudicial or to confuse the issues.” Cohn v. Papke, 655 F.2d 191, 194 (9th Cir. 1981)
(relying on Reyes v. Mo. Pac. R.R., 589 F.2d 791, 793 (5th Cir. 1979)).

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As Defendant rightly notes, (See, e.g., Doc. 160 at 1; Doc. 161 at 1; Doc. 162 at 1),2 motions in
limine are generally disfavored, see, e.g., United States v. Dish Network, L.L.C., No. 09-3073,
2015 U.S. Dist. LEXIS 17055, at *5 (C.D. Ill. Nov. 30, 2015); United States v. Amor, No. 1420750-CR-LENARD/GOODMAN, 2015 U.S. Dist. LEXIS 144291, at *3, 2015 WL 6438479, at
*1 (S.D. Fla. Oct. 23, 2015); Mahmoud v. Rambosk, No. 2:13-cv-63-FtM-38DNF, 2014 U.S.
Dist. LEXIS 98700, at *3, 2014 WL 3593763, at *1 (M.D. Fla. July 21, 2014); Mi-Jack Prods. v.
Intl. Union of Operating Engrs., Loc. 150, No. 94 C 6676, 1995 U.S. Dist. LEXIS 16930, 1995
WL 680214 at *1 (N.D. Ill. Nov. 14, 1995). Instead, “[b]y deferring evidentiary rulings until
trial, courts can properly resolve questions of foundation, relevancy, and prejudice.” Telewizja
Polska USA, Inc. v. Echostar Satellite Corp., No. 02 C 3293, 2005 U.S. Dist. LEXIS 4502, at *3,
2005 WL 289967, at *1 (N. D. Ill. 2005). Such a result aligns with the Rules’ broad tenor: “In
fairness to the parties and their ability to put on their case, a court should exclude evidence in
limine only when it is clearly inadmissible on all potential ground.” United States v. Gonzalez,
718 F. Supp. 2d 1341, 1345 (S.D. Fla. 2010) (emphasis added); cf. Luce v. United States, 469
U.S. 38, 41, 105 S. Ct. 460, 463, 83 L. Ed. 2d 443 (1984) (emphasizing how a “court must know
the precise nature of . . . testimony” in performing the balancing required under Rule 609(a)(1)).
B.

APPLICATION

1.

Inference Motion: Defendant Exhibits 3 and 4
The Inference Motion asks that this Court admit two exhibits allegedly not provided

during discovery and now submitted by Defendant, but to do so with “an adverse inference . . .

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Having repeatedly asserted this proposition in these three documents, this Court is puzzled as to
why Defendant then proceeds to make many technical objections in its own motion in limine.
(Compare Doc. 150, with Doc. 160 at 1; Doc. 161 at 1; Doc. 162 at 1.) Based on a venerable
aphorism alone—what is good for the goose is good for the gander—the Court would be tempted
to deny its motion. Of course, out of fairness, it will weigh its merits carefully.

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that defendant continues to fail to provide documents in violation of the Court’s orders.” (Doc.
133-1 at 1.) Plaintiff’s entire case for this instructions rests upon Loomis’ alleged failure to
provide two now non-privileged letters, presently set to be introduced as Defendant Exhibits 3
and 4: “The two new exhibits prove[] that Loomis earlier failed to comply with the Court’s
orders to produce all non-privileged correspondence made between the dates of Ariza’s query
and Loomis’[] effective termination date.” (Id. at 3.) To this contention, Plaintiff returns, (Id. at
4), and hazards “a guess” at what other documents not provided, but seemingly deliberately
withheld, would show: “a shame that blames Loomis’[] failure to return Ariza to work on Ariza
failing to get medical information the company doctor ostensible wants,” (Id. at 5.) In response,
Defendant makes a single point: the exhibits upon which Plaintiff so heavily relies had been
properly and previously withheld pursuant to the attorney-client privilege, Defendant having
provided the requisite log, and recently released due to Defendant’s voluntary waiver of the
privilege “in order to show the complete dialogue at issue.” (Doc. 160 at 1–2.) To wit, to the
extent these two exhibits were once withheld, they were done so in accordance with the Federal
Rules of Civil Procedure. (Id.)
This Court agrees with Defendant. Under Federal Rule of Civil Procedure 26(b)(1), it had
no obligation to provide Plaintiff with materials encompassed by the attorney-client privilege;
arguably, on their client’s behalf, its lawyers had the duty not to do so. FED. R. CIV. P. 26(b)(1).
The fact that a motion to compel was granted as to some material, but not all, and that this shield
was waived as to other does not mean that the material was withheld with a culpable state of
mind (or bad faith), as the adverse inference instruction that Plaintiff seeks requires as a matter
of law. See, e.g., Beaven v. U.S. Dep’t of Justice, 622 F.3d 540, 553 (6th Cir. 2010) (quoting
Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002)); United

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States v. Smith, 534 F.3d 1211, 1223–24 (10th Cir. 2008). Essentially, Plaintiff seeks to make
the decision to assert the attorney-client privilege, which often, if not invariably, shields relevant
evidence, as equivalent to spoliation and as proof that evidence, its existence unestablished, not
provided would “prove” her case. Declining to thereby expand the limited reach of this doctrine
and curtail a longstanding common law right, this Court denies the Inference Motion.
2.

Bad Acts Motion
In the Bad Acts Motion,3 Plaintiff asks this Court to bar Defendant from either

introducing or mentioning evidence about her illegal sale of pain-prescription medication and
text messages hinting at her post-termination shoplifting. (Doc. 134-1 at 1.) Noting that it
obtained the evidence “legitimately,” “[t]he point,” according to Defendant, “is that [P]laintiff
does not deny any of these bad actions,” and that they are relevant, each going “to her credibility
and her modus operandi to make false claims for financial gain.” (Id. at 2.) In Defendant’s
words, “[a]ll of th[e] information is probative as the case is based on plaintiff’s credibility.” (Id.
at 3.)
The Court disagrees with Defendant. The issue before the jury will be whether Plaintiff
has made the prima facie case of discrimination by Defendant in violation of the Americans with
Disabilities Act, as amended in 2008 (“ADA”). Irrelevant evidence must be excluded, FED. R.
EVID. 402, but even relevant evidence may be excluded if the relevance is minimal and the risk
of unfair prejudice is far too high, Id. Whatever the legality and reality of Plaintiff’s “bad acts,”
not one bears on whether or not she suffered cognizable and illegal discrimination when
terminated; that she may have sold her pills or stolen a dress matters not a bit if she can prove her

3

Inexplicably, Plaintiff makes this same argument in the Withdrawal Motion, (Doc. 136-1 at 2–
5), as Defendant later notes, (Doc. 163 at 2).

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ADA case. Meanwhile, their automatic introduction raises the risk that the jury will read
evidence directly relevant to the case at hand via the prism of distinguishable acts. Whether a
party or not, a witness’ credibility, of course, is a fair subject for impeachment, assuming it is not
impeachment on a collateral issue. FED. R. EVID. 607. Yet, that fact does not make impeachment
evidence admissible as an initial matter. Indeed, the strict system erected by the Federal Rules of
Evidence for the admission of prior bad acts underscores the delicacy with which such evidence
should be treated. See FED. R. EVID. 609. Otherwise, every plaintiff would be subject to attack
based on post-incident bad acts, a position inconsistent with precedent’s overwhelming weight,
even if Defendant truly believes that a plaintiff’s credibility is always at issue.4 For this reason,
this Court grants the Bad Acts Motion.
3.

Exhibits Motion
In this third motion, Plaintiff requests that this Court bar Defendant from “introduc[ing]

evidence that it had [allegedly] not provided in discovery.” (Doc. 135-1 at 1.) Three exhibits are
specified: Exhibit 50, 51, and 52. (Id.) However, later in the motion, Plaintiff seemingly adduces
a new reason: as the exhibits “address company policy,” and as Defendant’s expert “did not use
any of the exhibits in making their opinions,” “[i]t is feared that if the exhibits are admitted at
trial, it would risk admitting that the expert’s opinion was not [sic] based on these trial exhibits.”
(Id. at 2.) Such a result would be “unfair . . . since the expert did not even have the evidence
when he prepared his opinion.” (Id.) Seemingly, therefore, Plaintiff raises two objections to these
exhibits: (1) they had not been previously provided, and (2) their introduction may imply the

4

By that logic, so is any defendant’s, and any incident in which Loomis was accused of
discrimination (or worse) would be relevant and admissible as a matter of law. The Court,
however, presumes Defendant would object to such evidence’s admission.

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expert relied upon these exhibits in making his determination. In response, Defendant insists the
exhibits were actually provided with the relevant expert report. (Doc. 162 at 1–2.)
This Court declines to strike these exhibits for three reasons. First, two of the three
documents—Exhibits 51 and 52—are manuals setting forth the requirements of various positions
with Loomis, and they are thus self-evidently relevant to ascertaining, as a jury will have to do,
the extent to which Plaintiff was able to perform her job’s essential functions or adhered to the
requisite procedures. With its relevance so clear, the Court is not inclined to foreclose admission
of these objective and un-prejudicial documents over whose authenticity Plaintiff has raised no
credible doubt. Indeed, this result seems especially proper in light of Defendant’s claim, not yet
controverted, that the materials were actually disclosed during discovery. Second, Exhibit 50
once constituted part of the expert reported received by Plaintiff on June 16, 2014, (Id. at 2), and
Plaintiff has thus had possession of it since the summer of 2014. Neither surprise nor unfair
prejudice can materialize when plaintiff’s counsel has had more than six months to review the
exhibit—and prepare questions about its methodology and conclusions. Finally, whatever
dangers may be threatened by these exhibits’ introduction can be easily mitigated by an order or
on cross-examination. To show Defendant’s expert did not rely upon them requires no more than
a line of questioning and, eventually, a credibility determination by the appropriate factfinder:
the jury, not this Court. The risk of confusion, then, seems rather minimal, easily reducible
without the sacrifice of evidence that is more than tangentially relevant. As such, this Court
denies the Exhibits Motion.
4.

Withdrawal Motion
The Withdrawal Motion advances a single request: “[A]n order excluding any and all

evidence, references to evidence, testimony, or argument relating to the sexual harassment

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charges filed and withdrawn by Ms. Ariza[,] all of which are wholly unrelated to the subject
matter of this litigation.” (Doc. 136 at 1.) Echoing its earlier motion, (Doc. 134-1 at 2),
Defendant points out a crucial fact—this claim was not withdrawn but dismissed by this Court—
and stresses the harassment claims, though dismissed, is relevant for what it intimates: “As
testimony will reveal during the trial, this is part of plaintiff’s modus operandi to pursue
meritless claims for her own personal financial gain.” (Id. at 2.)
For the same reason that this Court granted the Bad Acts Motion, it will grant this fourth
motion in limine. The sexual harassment claim, disposed of pursuant to Rule 56, has no bearing
on the immediate cause of action. It can only conflate the precise issues before the jury soon to
be empaneled, thereby either confusing them unnecessarily or inviting them to ignore directly
relevant evidence on the basis of a wholly separate claim’s failure. The prejudice that may
follow—a jury findings little merit in a party’s case on the basis of its failure to succeed on
another claim—is simply too great when the relevance appears so miniscule. Accordingly, this
Court grants the Withdrawal Motion.
5.

Defendant’s Motion
In one motion, Defendant attempts to strike at eleven different exhibits proposed by

Plaintiff. (Doc. 150.) It objects to seven exhibits on hearsay alone: Exhibit 2, “text messages
between Patrick LaFolette and Liza Ariza”; Exhibits 7, 8, 9, which contain return to work
documents signed by three different doctors; Exhibit 11, an email thread featuring Ms. Stacey
Robinson; Exhibit 22, an expert report by Mr. Jim McGuffey; and Exhibit 30, a letter from
American Occupational Health Care. (Id. at 1–2.) It objects to Exhibit 12, an email sent by
Plaintiff “stating the amount of money in the vault,” as “irrelevant, not calculated to lead to
admissible evidence at trial and is confidential information and is a privileged business record.”

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(Id. at 2.) Lastly, it damns three exhibits as “inaccurate”: Exhibit 18, a job description of the
Vault Supervisor position held by Plaintiff prior to her termination; Exhibit 33, “demonstrative
exhibit showing the dates and efforts to provide Loomis with medical information”; and Exhibit
34, “demonstrative exhibit of timeline of events in case.” (Id. at 2; see also Doc. 150-1.)
a.

Objections to Exhibits 2, 6, 7, 8, 11, 22, and 30
As to Defendant’s multiple hearsay objections, this Court grants them, subject to the

caveat that Plaintiff may still lay down a proper foundation in the midst of trial.
Exhibit 2, containing a series of text messages between Plaintiff and a former coworker,
is not being introduced, as Plaintiff contends, to simply hint at the latter’s fearful reaction to
Plaintiff’s spell of June 5, 2012. (Doc. 165 at 3–4.) It is quite clearly being introduced so as to
imply that Plaintiff suffered a seizure or epilepsy, an element of Plaintiff’s prima facie case and a
fact which she must still prove. Indeed, Plaintiff acknowledges as much in defending this exhibit:
“If they were just fainting spells, however, it would not have caused the response . . . [Plaintiff’s
colleague] experienced.” (Id. at 4.) Even if Plaintiff’s artful distinction was colorable, the risk
that the jury may fail to make it, effectively treating this email exchange as proof that Plaintiff
did not just suffer a fainting spell, is too great to permit its inclusion pursuant to Rule 403.
Unless employee testifies, this objection will be sustained.
Exhibits 11 and 22 consist of an email and an expert report involving witnesses who are
scheduled to testify at trial. Thus, like Exhibit 2, a witness will verify and testify to their
contents, and a foundation will likely be articulated when necessary. Hence, unless the relevant
persons testify, this objection will be sustained.

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Exhibits 7, 8, and 9 consist of three doctors’ notes.5 While Plaintiff attempts to defend
them as regular business records, (Id. at 3), they do not bear that clear imprimatur. Notes
scratched on a pad by a doctor or an email written at a patient’s request are not the kind of
official records to which Rule 803(6) applies, for they are too informal and too unique to the
individual to be classified as records of a regular business activity. However, according to
Plaintiff, a foundation may still be laid as to Exhibits 6 and 8, as the doctors who drafted those
notes are scheduled to testify. Assuming the proper foundation is then established, Defendant’s
hearsay objection will have no merit, and it will be overruled. In contrast, Exhibit 7 was written
by a doctor who will not testify, and as this Court will not treat a simple handwritten note as an
official business record, the hearsay objection will be sustained unless a proper foundation is
poured. The same principles extends to Exhibit 30, a letter written by a presently non-testifying
doctor.
In sum, this Court grants Defendant’s objections to Exhibits 2, 6, 7, 8, 11, 22, and 30,
subject to Plaintiff setting down the proper foundation at trial.6

5

This Court finds Defendant’s other objections—that the records are incomplete and therefore
inaccurate or prejudicial—as without merit. The Defendant remains able, as Plaintiff concedes,
(Doc. 165 at 4), and as their own exhibits suggest, to augment Plaintiff’s selective medical
disclosures. Because it can do so and thus obviate the very bases of its objections—indeed,
because it already plans to do so—this Court denies this objection.
6

In this regard, this Court notes that a certified copy of Plaintiff’s medical records would be
admissible under Louisiana law (and, by association, the Rules) and prima facie evidence of its
contents. LA. R.S. § 13:3714(A); see also, e.g., State v. Yates, 574 So. 2d 566, 568 (La. Ct. App.
1991). In effect, the Rules, buttressed by Louisiana law, render such medical records sufficiently
relevant to be admitted in this federal court. Cf., e.g., Daigle v. Parish of Jefferson, 08-1310 (LA.
App. 5 Cir. 12/08/09); 30 So. 3d 55, 65 (holding that “certified hospital records are admissible
into evidence without the laying of any foundation beyond a showing of certification” and
finding them relevant). Thus, if Plaintiff is able to later show that these three exhibits are part of
a certified medical record, this ruling will be revisited.

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b.

Objection to Exhibit 12
The bases of Defendant’s objection are too flimsy to sustain this exhibit’s exclusion. The

exhibit is but an email stating the amount of money in Defendant’s vault at a certain date and
time. Arguably, as only a jury can decide, such information is relevant to showing that Loomis
considered Plaintiff to be a valuable and competent employee, or at the very least the nature of
her responsibilities as a vault supervisor. It offends no cognizable federal privilege, such rules
already narrowly circumscribed, and Defendant has not adduced a single case recognizing an
applicable fiduciary privilege. (See Doc. 150-1.) To claim it so, does not make it true, especially
when courts are commanded to construe all privileges both tightly and narrowly. This Court
overrules Defendant’s objection to Exhibit 12.
c.

Objection to Exhibits 18, 33, and 34
Its objections based on these exhibits alleged inaccuracy, Exhibits 33 and 34 constitute

two different timelines of events relevant to this proceeding, and Exhibit 18 is a description of
the vault supervisor position which apparently came from Defendant as part of a discovery
response. (Doc. 165 at 7–8, 9–10.) In essence, these objections reflect the Parties’ inability to
agree on even basic facts, ones whose veracity this Court is loath to prejudge. Nonetheless, as
Exhibit 18 contains purely an objective description of Plaintiff’s former position and as Exhibit
33 includes simply a list of dates upon which relevant events occurred, dates which can be
confirmed by perusing Defendant’s own filings in this proceeding, Defendant’s objections are
overruled. If it wishes to impugn these exhibits accuracy before the jury, it may freely do so
within the constraints imposed by the Rules. For now, however, this Court overrules
Defendant’s objections to Exhibits 18 and 33.

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Exhibit 34, however, presents an obvious problem under the Rules: unlike Exhibit 33, it
specifically includes loaded terms and expressions regarding critical elements of her case that
Plaintiff must still prove. Thus, it reads: “Seizure 6/5/2012,” “Physician Oks RTW 7/27/12,”
“Surgeon OKs RTW,” and “Ariza: why delay in return to work? 9/12/2012.” Defendant,
obviously, denies that Plaintiff has ever suffered a seizure; the question appended is not a
statement of incontrovertible fact; and Defendant intends to contend that the “RTW” (“Return to
work”) statements did not reflect their authors’ true opinion via these men’s own courtroom
testimony. In other words, the timeline in Exhibit 34 depicts as facts allegations not yet proven
and whose accuracy is thus fairly in doubt at this time. Accordingly, this Court grants
Defendant’s objection to Exhibit 34.
III.

CONCLUSION
For the foregoing reasons and subject to the exceptions stated therein, this Court DENIES

the Inference and Exhibits Motions, GRANTS the Bad Acts and Withdrawal Motions, and
GRANTS IN PART and DENIES IN PART the Defendant’s Motion.
Signed in Baton Rouge, Louisiana, on January 22, 2016.

S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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