Karlick v. Social Security, Commissioner of

Filing 59

ORDER GRANTING DEFENDANTS MOTION TO BAR PLAINTIFF FROM INTRODUCING ANY MEDICAL-BASED DAMAGES EVIDENCE AT TRIAL [#40], GRANTING PLAINTIFFS MOTION IN LIMINE TO EXCLUDE ARBITRATION, EEOC AND MSPB DETERMINATIONS [#46], DENYING DEFENDANTS MOTION IN LIMINE TO EXCLUDE TESTIMONY OF CATHERINE DAVIDS [#48], DENYING DEFENDANTS MOTION TO ADMIT EXHIBIT P [#55] AND GRANTING PLAINTIFFS MOTION TO EXCLUDE EXHIBIT P [#57]. Signed by District Judge Gershwin A. Drain. (Bankston, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT KARLIK,
Plaintiff,
Case No. 12-cv-14879
Honorable Gershwin A. Drain
v.
CAROLYN W. COLVIN,
Acting Commissioner Social
Security Administration,

Defendant.
____________________________/
ORDER GRANTING DEFENDANT’S MOTION TO BAR PLAINTIFF FROM
INTRODUCING ANY MEDICAL-BASED DAMAGES EVIDENCE AT TRIAL [#40],
GRANTING PLAINTIFF’S MOTION IN LIMINE TO EXCLUDE ARBITRATION,
EEOC AND MSPB DETERMINATIONS [#46], DENYING DEFENDANT’S MOTION IN
LIMINE TO EXCLUDE TESTIMONY OF CATHERINE DAVIDS [#48], DENYING
DEFENDANT’S MOTION TO ADMIT EXHIBIT P [#55] AND GRANTING
PLAINTIFF’S MOTION TO EXCLUDE EXHIBIT P [#57]
I.

INTRODUCTION
Plaintiff filed the instant action claiming he was unlawfully terminated from his position as

a Claims Representative Journeyman based on his disabilities of dyslexia and Attention Deficit
Hyperactivity Disorder (ADHD) in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et
seq. Trial in this matter is scheduled to commence on May 27, 2014. Presently before the Court are
various pre-trial motions recently filed by the parties.1 Upon review of the parties’ submissions, the

1

In her response, Defendant indicates that she has no objection to Plaintiff’s Motion in
Limine to Exclude Arbitration, EEOC and MSPB determinations. See Dkt. No. 56.
Accordingly, the Court will grant Plaintiff’s Motion in Limine to Exclude Arbitration, EEOC and
MSPB determinations.
-1-

Court concludes that oral argument will not aid in the resolution of these matters. Therefore, the
parties’ motions will be resolved on the briefs. See E.D. Mich. L.R. 7.1(f)(2).
II.

LAW & ANALYSIS
Rules 401 and 402 of the Federal Rules of Evidence permit the admission of only relevant

evidence. Evidence that is irrelevant is inadmissible. See Fed. R. Evid. 402. Evidence is relevant
if it has any tendency to make the existence of a material fact more or less probable than it would
be without the evidence. See Fed. R. Evid. 401. Rule 403 permits the exclusion of relevant
evidence when its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, undue delay, wasting time or needlessly presenting
cumulative evidence. See Fed. R. Evid. 403. “Exclusion under Rule 403 is appropriate only where
the probative value of relevant evidence is substantially outweighed by the danger of unfair
prejudice.” Humana, Inc. v. Shook, No. 85-5478, 1986 U.S. App. LEXIS 27825, *6 (6th Cir.
Jun. 3, 1986). Additionally, “the evidence must be more than damaging or simply adverse to the
opposing party; it must be unfairly prejudicial.” Id.
A.

Defendant’s Motion to Bar Plaintiff from Introducing Any Medical-Based
Damages Evidence

In this motion, Defendant seeks to bar Plaintiff from introducing any medical-based damages
evidence at trial because Plaintiff has failed to execute a medical release despite Defendant’s
repeated requests for same. More importantly however is the fact that Plaintiff was ordered to sign
medical releases by Magistrate Judge Grand on April 1, 2014, but has yet to comply with Magistrate
Judge Grand’s order. See Dkt. No. 39.
Federal Rule of Civil Procedure 37(b)(2) permits the Court to enter sanctions for a party’s
failure to comply with a discovery order. See Fed. R. Civ. P. 37(b)(2). Specifically, the rule
-2-

states in pertinent part:
(2) Sanctions Sought in the District Where the Action is Pending.
(A) For Not Obeying a Discovery Order. If a party . . . fails to obey an order to
provide or permit discovery, . . . the court where the action is pending may issue
further just orders. They may include the following:
*
*
*
(ii) prohibiting the disobedient party from supporting or opposing designated
claims or defenses, or from introducing designated matters in evidence[.]

Fed. R. Civ. P. 37(b)(2)(A)(ii). In response to Defendant’s present motion, Plaintiff offers no
justification for his refusal to comply with this Court’s April 1, 2014 Order. It is of no consequence
that Plaintiff has provided some medical documents to the Defendant. Plaintiff was ordered to
provide medical releases to Defendant’s counsel, and with less than a week before the
commencement of trial, Defendant will be severely prejudiced if Plaintiff were permitted to testify
about medical-based damages without having any opportunity to review Plaintiff’s medical records
or depose the medical professionals identified by Plaintiff during discovery. Accordingly, the Court
will grant Defendant’s Motion to Exclude Medical-Based Damages Evidence at Trial.
B.

Defendant’s Motion in Limine to Exclude Testimony of Catherine Davids

Here, Defendant argues that the Court should exclude the testimony of Catherine Davids
pursuant to Rules 401, 402 and 403. Davids is a Claims Representative for the Administration. She
works out of an office located in Flint, Michigan. Like the Plaintiff, she suffers from dyslexia and
ADHD, however the Administration eliminated multiple tasks that are part of a Claims
Representative’s duties to accommodate Davids’s disabilities. Specifically, Davids testified that she
has:
[N]ever done a couple’s claim. I have never done overpayment. I have never done
windfall offset. Those are three major ones. But there’s also a few others that I
-3-

cannot just think of off the top of my head which are in my job description that I
have not yet ever been able to do. So I do not meet the expectations of my particular
job.
See Dkt. 48-2 at 17. The Administration has argued during summary judgment briefing, as well
as intends to argue during trial that restructuring Plaintiff’s Claims Representative position was too
burdensome and would eliminate essential functions of the position. As such, Davids’s anticipated
testimony is directly relevant to Defendant’s claim that the accommodations sought by Plaintiff were
unreasonable. While Plaintiff and Davids did not work out of the same office, Davids’s testimony
will assist the jurors in determining whether Plaintiff’s position can be restructured to remove certain
duties without changing the essential functions of the position.
Moreover, the fact that this testimony will undermine Defendant’s defense does not amount
to unfair prejudice under Rule 403. See Humana, 1986 U.S. App. LEXIS 27825, at *6. “Exclusion
under Rule 403 is appropriate only where the probative value of relevant evidence is substantially
outweighed by the danger of unfair prejudice. Additionally, “the evidence must be more than
damaging or simply adverse to the opposing party; it must be unfairly prejudicial.” Id.
Lastly, Kathryn Young’s testimony will not cover the same topics as Davids’s anticipated
testimony. As such, the Court will deny Defendant’s Motion in Limine to Exclude Davids’s
testimony. The parties shall be given one (1) hour per side to question Davids at trial.
C.

Exhibit P

Both parties have filed motions concerning Defendant’s proposed Exhibit P, which consists
of six (6) out of one hundred and seventy-five (175) case reviews used during the audit undertaken
during Plaintiff’s performance improvement plan in 2007. Plaintiff seeks to exclude Exhibit P as
untimely, or in the alternative, pursuant to Rule 901 (a) because the case files are unauthentic.

-4-

Here, Plaintiff is correct that the late production of Exhibit P is severely prejudicial and
requires that this Court preclude this evidence at trial. The Federal Rules of Civil Procedure require
the disclosure of all documents and tangible things within the control of the disclosing party that it
may use to support its defenses. See Fed. R. Civ. P. 26(a)(1)(A)(ii). However, Defendant did not
provide the requisite information when the parties exchanged initial disclosures over a year ago.
Nor did Defendant produce this evidence prior to the close of discovery. Instead, Defendant just
recently produced the case file reviews, on May 9, 2014, which is less than a month before the start
of the trial. Similar to the prejudice suffered by Defendant with respect to Plaintiff’s untimely
medical-based evidence, Plaintiff cannot adequately prepare for trial with such an untimely
production.
Moreover, Plaintiff should have been privy to the contents of all one hundred and seventyfive (175) audited case file reviews if the Administration relied upon any of these case reviews
during the pre-termination process. Stone v. Fed. Deposit Ins. Corp., 179 F.3d 1368, 1376 (Fed.
Cir.

1999)(“The introduction of new and material information by means of ex parte

communications to the deciding official undermines the [] employee’s constitutional due process
guarantee of notice (both of the charges and of the employer’s evidence) and the opportunity to
respond.”). The Court cannot accept Defendant’s contention that Plaintiff was given copies of the
one hundred and seventy-five (175) case reviews along with Jill Behrens’s proposal for termination.
See Dkt. No. 57-4. Defendant mischaracterizes the content of Behrens’s proposal, which states in
relevant part:
during the OPS you were provided with a wide range of assistance which included
. . . written feedback on cases[.] Enclosure 11 is the written feedback forms you
received of your work during the OPS.

-5-

Id. There is no discussion of the audit. Rather, it appears that in addition to the audited case
reviews, the Administration also prepared written feedback on some of Plaintiff’s cases during his
performance improvement plan; the latter representing the information provided to Plaintiff in 2008
and not the one hundred and seventy-five (175) audited case reviews.
Lastly, the Court declines to allow Defendant to pick and choose a purported representative
sample of the audited case file reviews without Plaintiff having any opportunity to review all one
hundred and seventy-five (175) case reviews in sufficient time to adequately prepare for trial.
Accordingly, the Court will grant Plaintiff’s Motion to Exclude Exhibit P and deny Defendant’s
Motion to Admit Exhibit P.
III.

CONCLUSION
For the foregoing reasons, Defendant’s Motion to Bar Plaintiff from Introducing Any

Medical-Based Damages Evidence [#40] is GRANTED.
Plaintiff’s Motion in Limine to Exclude Arbitration, EEOC and MSPB Determinations [#46]
is GRANTED.
Defendant’s Motion in Limine to Exclude Testimony of Catherine Davids [#48] is DENIED.
The parties shall have one (1) hour per side to question Davids at trial.
Defendant’s Motion to Admit Exhibit P [#55] is DENIED.
Plaintiff’s Motion to Exclude Exhibit P [#57] is GRANTED.
SO ORDERED.

Dated: May 20, 2014

/s/Gershwin A Drain
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE

-6-