BUBAR v. MAINEHEALTH et al
MEMORANDUM DECISION AND ORDER ON PLAINTIFF'S MOTION IN LIMINE RE: DEFENDANT'S ACQUISITION OF LAB - denying 34 Motion in Limine Regarding NorDx's Acquisition of the Biddeford Lab. By MAGISTRATE JUDGE JOHN H. RICH III. (mnw)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MEMORANDUM DECISION AND ORDER ON PLAINTIFF’S
MOTION IN LIMINE RE: DEFENDANT’S ACQUISITION OF LAB
Plaintiff Anne-Marie Bubar moves in limine to exclude any and all evidence that defendant
NorDx “hired” her at an advanced age; she argues that the evidence is irrelevant, Fed. R. Evid.
401, and, in the alternative, that any probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, and misleading of the jury, Fed. R. Evid. 403. See
Plaintiff’s Motion in Limine Regarding NorDx’s Acquisition of the Biddeford Lab (“Motion”)
(ECF No. 34) at 1-3. For the reasons that follow, the Motion is denied.
The plaintiff points out that the defendant produced no documents in response to her
request for production of documents pertaining to the process it followed in deciding which
employees of SMMC in Biddeford to retain, hire, or dismiss when it acquired the SMMC lab in
2010. See id. at 1-2 & Exh. A (ECF No. 34-1) thereto at 4, ¶ 6. She notes that, instead, the
defendant stated: “[A]ll SMMC employees, who wanted to work at NorDx, were retained by
NorDx.” Id. at 2 (quoting Exh. A at 4, ¶ 6).
She argues that, because the defendant produced no evidence in discovery that it made an
independent decision to “hire” her at an advanced age, any “hiring” evidence is irrelevant, that is,
would not make its alleged age discrimination either more or less probable. See id. at 2. In the
alternative, she asserts that allowing such evidence would confuse the jury, posing “a significant
danger that the jury would unfairly equate Plaintiff’s ‘hiring’ at the age of 61 with a workplace
free of age-related bias.” Id. at 3. She also contends that lay jurors might not understand the legal
consequences of a merger or acquisition, including the acquisition of employees, causing them to
unfairly and incorrectly speculate that the defendant made an independent decision to hire her at
age 61. See id. Finally, she argues that the dispositive issue is how NorDx treated its employees
after the acquisition, not the circumstances in which it acquired them. See id.
The defendant represents that, in response to a different document request – the plaintiff’s
request for production of her personnel file – it produced a number of documents bearing on her
hiring: (i) her application for employment with NorDx, (ii) a Driving on Company Business
Agreement, (iii) an agreement to release her personnel information to NorDx, (iv) a letter dated
June 30, 2010, from NorDx to the plaintiff extending “our offer of employment” on certain terms
and conditions, including offered wages and schedule, which contains her signature dated July 24,
2010, “accept[ing] the position as offered above[,]” and (v) her acknowledgement of receipt of the
NorDx employee handbook. Defendant NorDx’s Memorandum in Opposition to Motion in
Limine Regarding NorDx’s Acquisition of the Biddeford Lab (“Opposition) (ECF No. 41) at 3-5
& Exhs. A-E (ECF Nos. 41-1 to 41-4 & 44-1) thereto.
The defendant argues that (i) this evidence demonstrates that it “hired” the plaintiff, (ii) the
evidence is relevant in that it tends to show that it had a broad, nondiscriminatory policy to hire
every qualified SMMC lab employee who wished to work for it, regardless of age, and (iii) there
is no risk of undue prejudice or jury confusion because the plaintiff can make clear to the jury that
the defendant had a broad policy to hire anyone who was working at the SMMC lab and is free to
argue that this weakens the inference that it did not discriminate against her based on her age. See
id. at 5-6. The defendant disputes that there is any need for the jurors to grapple with (and, hence,
be confused by) the legal consequences of mergers or acquisitions. See id. at 7-8.
I agree. The defendant clearly “hired” the plaintiff. That is relevant to whether it harbored
discriminatory animus based on age. See, e.g., United States v. Maravilla, 907 F.2d 216, 222 (1st
Cir. 1990) (“Under our system, molded by the tradition of jury trial and predominantly oral proof,
a party offers his evidence not en masse, but item by item. An item of evidence need not prove
conclusively the proposition for which it is offered. A brick is not a wall.”) (citation and internal
punctuation omitted). The plaintiff is free to adduce her own evidence of the circumstances in
which the hiring was made and to argue that those circumstances weaken any inference of
nondiscrimination. See, e.g., id. at 221-22 (affirming trial court’s admission, in prosecution
stemming from victim’s death by gunshot, and over objections on relevance, waste of time, and
unfair prejudice grounds, of evidence that defendant customs officer owned gun and attempted to
have its barrel replaced following victim’s death; noting, “The fact that [the defendant] might have
had a good reason, consistent with innocence, for owning a gun, makes the evidence less probative,
Finally, the probative value of the defendant’s hiring evidence is not “substantially
outweighed by a danger of . . . unfair prejudice, confusing the issues, [or] misleading the jury[.]”
Fed. R. Evid. 403 (emphasis added). As the defendant argues, see Opposition at 7, there is no
need for the jury to examine the legal consequences of mergers and acquisitions. Indeed, there is
no fundamental disagreement that the defendant’s policy was to retain those SMMC lab employees
who wished to continue to work in the lab under its direction. A jury is capable of understanding
the facts of the plaintiff’s hiring and assessing the degree to which those facts bear on the
defendant’s alleged age discrimination.
For the foregoing reasons, the Motion is DENIED.
Dated this 7th day of April, 2017.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
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