Hilderbrand v. Levi Strauss & Company

Filing 218

ORDER granting in part and denying in part 158 Motion in Limine; granting in part and denying in part 160 Motion in Limine; granting 162 Motion in Limine; granting 164 Motion in Limine; granting 166 Motion in Limine; denying 168 Motion in Limine; denying 170 Motion in Limine; deferring ruling on 172 Motion in Limine; finding as moot 174 Motion in Limine; granting 176 Motion in Limine; granting 178 Motion in Limine; denying 180 Motion in Limine as set out in the order. Du ring the pretrial conference, the parties expressed interest in mediation and indicated that a ruling on at least some of the pending motions could better focus the discussions. Given its limited resources, the Court instructs the parties to set thi s matter for hearing, which can be conducted telephonically, after mediation. If the parties decline mediation, then they can set the hearing at a mutually agreeable time and date. Signed by District Judge Daniel P. Jordan III on July 21, 2011. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
HERBERT R. HILDERBRAND

PLAINTIFF

VS.

CIVIL ACTION NO.: 3:09cv243-DPJ-FKB

LEVI STRAUSS & COMPANY

DEFENDANT
ORDER

This employment dispute is before the Court on numerous Motions in Limine filed by
Defendant Levi Strauss & Company (Levi) [158, 160, 162, 164, 166, 168, 170, 172, 174, 176,
178, 180]. On February 25, 2011, the Court ruled on Levi’s Motion for Summary Judgment.
That Order [136] provides a detailed factual and procedural history that is incorporated herein.
As for the present motions, the Court discussed some of the issues with the parties during the
pretrial conference and has fully considered their submissions in light of the applicable
standards. The Court will address the motions in turn.
I.

Standard
As summarized by the Fifth Circuit Court of Appeals:
A motion in limine is a motion made prior to trial for the purpose of prohibiting
opposing counsel from mentioning the existence of, alluding to, or offering
evidence on matters so highly prejudicial to the moving party that a timely motion
to strike or an instruction by the court to the jury to disregard the offending matter
cannot overcome its prejudicial influence on the jurors’ minds.

O’Rear v. Fruehauf Corp., 554 F.2d 1304, 1306 n.1 (5th Cir. 1977) (citation and quotation
omitted). But blanket pre-trial exclusion of evidence must be considered with caution. Kelly v.
Boeing Petroleum Servs., Inc., 61 F.3d 350, 357 (5th Cir. 1995) (“We agree with other circuits
that have cautioned that an appellate court should carefully examine blanket pre-trial evidentiary
rulings.”). And the circuit court has noted “judicial inhospitability to blanket evidentiary

exclusions in discrimination cases” where plaintiffs “face the difficult task of persuading the
fact-finder to disbelieve an employer’s account of its own motives.” Id. at 359 (citations and
quotations omitted).
II.

Motions
A.

First Motion in Limine No. 1 to Exclude Evidence and Argument Regarding
Events Occurring Prior to the Settlement of Plaintiff’s 2003 Lawsuit by Levi
Strauss & Company

This is Hilderbrand’s second lawsuit against his employer Levi. The first ended with a
settlement 28 April 2005 which included a standard agreement waiving any potential claims
regarding conduct occurring before that date. Levi now contends that all evidence prior to the
settlement should be excluded, and Hilderbrand concedes that he cannot seek recovery for
conduct predating his settlement. But Hilderbrand contends that the Motion is overly broad and
premature because evidence of the terms of the settlement and his employment history prior to
settlement could become relevant.
The Court finds that a blanket exclusion of all evidence before April 2005 is overly
broad. But it agrees that Plaintiff has yet to demonstrate why the jury should be informed of the
facts and circumstances surrounding the original termination, lawsuit, and settlement. Evidence
of those matters would unfairly prejudice Levi, confuse the jury, and potentially require a minitrial on the matters contested in the first dispute. Thus, until Hilderbrand makes a better showing
of probative value outside the presence of the jury, the Motion is granted as to the original
termination, suit, and settlement based on Federal Rules of Evidence 402 and 403.

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B.

Motion in Limine No. 2 to Exclude Evidence and Argument Regarding Issues
That Have Been Summarily Adjudicated in Defendant’s Favor [160]

The Court granted portions of Levi’s Motion for Summary Judgment, ruling that
Hilderbrand failed to establish retaliation under Title VII and that his at-will-employee status
precluded state-law claims for fraudulent misrepresentation and breach of the duty of good faith
and fair dealing. The parties generally agree to exclude evidence and argument regarding these
dismissed claims.
Dispute remains, however, as to whether alleged representations by Levi regarding
Hilderbrand’s future employment opportunities are admissible in the surviving ADEA claim.
The Court finds that they are because statements regarding Levi’s intentions are probative of its
motivation for the termination decision. That probative value is not substantially outweighed by
Rule 403 factors. There are, however, obvious limitations as to the way the evidence may be
presented or argued. For example, Hilderbrand may not testify that he was fraudulently induced
to take the SAP position. Levi is invited to draft a limiting instruction for consideration.
C.

Motion in Limine No. 3 to Exclude Evidence or Argument of Age-Related
Comments or Conduct by Non-Decision Makers [162]

The parties agree that age-related comments allegedly made by Rich Keuther in 2003
should not be admitted. As the Keuther statements were the focus of the Motion, it is granted.
The parties have not identified any other statements, but Levi’s Reply [207] seeks to exclude any
new statements to avoid trial by ambush. Normally, the Court would not grant a blanket
prohibition, but if there are no such statements then this is a non-issue. If there are, and if they
have never been identified in discovery, then Hilderbrand should first address the issue outside
the presence of the jury.

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D.

Motion in Limine No. 4 to Exclude “Evidence” or Argument Regarding
Speculation That Rich Keuther Was Involved in Plaintiff”s Termination [164]

Levi’s Reply [208] clarifies that it seeks to exclude speculative testimony as to the
identity of the decisionmaker(s), not evidence tending to identify the decisionmaker(s).
Speculative testimony is not admissible, and the Motion is granted to that extent. See Fed. R.
Evid. 602.
E.

Motion in Limine No. 5 to Exclude Evidence or Argument Relating to Plaintiff’s
2005 Performance Evaluation [166]

Levi’s Motion is granted as unopposed.
F.

Motion in Limine No. 6 to Bar Evidence and Argument Regarding Testimony
Solicited From Rule 30(b)(6) Witnesses Outside The Scope For Which They
Were Presented [168]

According to Levi’s Reply [209], this Motion is moot. It is therefore denied without
prejudice to Levi’s right to seek exclusion should Hilderbrand revise his deposition designations.
G.

Motion in Limine No. 7 to Preclude Plaintiff’s Use of Defendant’s Motion to
Transfer Venue as Evidence or Argument [170]

Levi contends that Mississippi resident Mark Grovich made the decision to terminate
Hilderbrand’s employment. Hilderbrand contends that the identity of the decisionmaker(s) is not
clear and that Levi’s position has evolved. In particular, Hilderbrand points to Levi’s Motion to
Transfer Venue [5] which states in relevant part as follows:
all[] of the fact witnesses (other than the Plaintiff) to the incident alleged in the
Complaint reside or work in San Francisco, California. Additionally, the decision
to terminate the Defendant was part of a company wide lay off and elimination of
positions in the financial services department of Levi Strauss & Co. and said
decision was made at the corporate office of Levi Strauss & Co. in San Francisco,
California. Further, the Plaintiff’s position, which was eliminated, was located at
the company’s San Francisco based headquarters where the Plaintiff had been
working for approximately two years.

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Def.’s Mot. [5] at 4.
Levi now seeks exclusion of these statements on two primary grounds. First, it contends
that it never meant to suggest that anyone other than Grovich decided to include Hilderbrand in
the RIF—the parameters of which were decided in California. Therefore, even if the venue
motion was “inartful,” it would be confusing and prejudicial to admit it. The problem is that
Levi’s Motion to Transfer Venue never identified Grovich as the decisionmaker and never
conceded that any decisionmakers could be found in Mississippi. Instead, Levi strongly implied
to the Court that the decisionmakers were in California. See Id. at 4–5 (stating that although
venue in Mississippi is “technically proper,” decision was made in California, and “all” fact
witnesses reside in California) (emphasis added). Levi’s venue motion would have lost
considerable punch had it conceded that the disputed decision was made in Mississippi by a
witness residing in this district. Although Levi is certainly free to explain what it meant,
Hilderbrand’s interpretation of the Motion to Transfer Venue is plausible, and the probative
value of the evidence is not substantially outweighed by the risk of unfair prejudice or confusion.
Second, Levi contends that statements by counsel in a legal memorandum—as opposed
to a motion—are not per se admissible and fall within the Court’s discretion. Def.’s Mem. [171]
at 3 (citing Plastic Container Corp. v. Cont’l Plastics of Okla., Inc., 607 F.2d 885, 906 (10th Cir.
1979) (“Briefs are not a part of the record, and in those cases in which statements in a brief were
considered as admissions, it appears that the court did so as a matter of discretion.”) (other
citations omitted). In the present case, the disputed comments appear in Levi’s Motion which
was docketed in the record. It appears that Levi filed no supporting brief. Even if the statements

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had been part of a brief, discretion would still exist, and the Court concludes that the statements
are admissible.
H.

Motion in Limine No. 9 to Exclude Evidence or Argument Regarding
Defendant’s Financial Resources and Wealth [174]

Levi observes in its Reply [212] that Hilderbrand’s exhibit list includes no evidence
related to the disputed evidence. The Motion therefore appears moot. If, however, Hilderbrand
intends to offer such evidence, he is instructed to raise the issue outside the presence of the jury
so the Court can evaluate the merits of Levi’s Motion.
I.

Motion in Limine No. 10 to Exclude Evidence or Argument of Unsupported
Speculation that an Open Shift Manager Position Existed [176]

Dispute exists as to whether an open position existed at Levi’s Canton, Mississippi,
facility at the time Hilderbrand lost his job. This Motion seeks to exclude speculative testimony
on the issue and an organizational chart upon which Hilderbrand relies. Hilderbrand concedes
the former and contests the latter. As for the organizational chart, the Court agrees that a proper
foundation must be established. Hilderbrand will have that opportunity at trial, but he is
precluded from publishing the exhibit or its content until the Court rules on its admissibility.
J.

Motion in Limine No. 11 to Exclude Evidence or Argument that Plaintiff May
Recover a Front Pay Award in Excess of Two Years [178]

Front pay, if any, is an issue for the Court to decide. Accordingly, the Motion is granted
to the extent it seeks to exclude evidence of front pay offered before the jury.
K.

Motion in Limine No. 12 to Exclude New Opinions, Data, and Exhibits in
Plaintiff’s Expert’s May 4, 2011 “Revised Report” [180]

Hilderbrand produced a timely designation by his damages expert Dr. Carl Brooking.
Over a year later, Dr. Brooking produced a “Revised Report” that Levi now seeks to exclude.

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Specifically, Levi contends that three categories of opinions were delinquently disclosed and
therefore inadmissible. First, Dr. Brooking updated his report to reflect damages as of a trial
date in mid-2011, such as an adjusted discount rate. Second, Dr. Brooking added a 9% bonus to
the damage calculations. Finally, Dr. Brooking added opinions regarding retirement, health, and
pension benefits.
“The admission or exclusion of expert testimony is a matter left to the discretion of the
trial court . . . .” Eiland v. Westinghouse Elec. Corp., 58 F.3d 176, 180 (5th Cir. 1995). Under
Rule Rule 37(c), “[i]f a party fails to provide information or identify a witness as required by
Rule 26(a) or (e), the party is not allowed to use that information . . . at trial, unless the failure
was substantially justified or is harmless.” Levi baldly states that the late disclosures are not
harmless, but never examines the issue under the standard applied in this circuit.
In Hamburger v. State Farm Mutual Automobile Ins. Co., the Fifth Circuit applied a fourfactor test to determine whether an undisclosed expert should have testified: “(1) the explanation
for the failure to identify the witness; (2) the importance of the testimony; (3) potential prejudice
in allowing the testimony; and (4) the availability of a continuance to cure such prejudice.” 361
F.3d 875, 883 (5th Cir. 2004) (citing Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir.
1990)). The Fifth Circuit also applies these factors to insufficiently disclosed opinions. See
Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 563–64 (5th Cir. 2004). And
district courts routinely apply the Hamburger factors when expert disclosures are challenged.
See, e.g., Previto v. Ryobi N. Am., Inc., No. 1:08cv177-HSO-JMR, 2010 WL 5185055, at *4
(S.D. Miss. Dec. 16, 2010).

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It is important to separate those opinions that have been supplemented from those that are
entirely new. Starting with the former, Rule 26(a)(2)(E) requires supplementation of expert
disclosures when required by Rule 26(e). Rule 26(e)(1)(A) explains that a party must
supplement when it “learns that in some material respect the disclosure or response is incomplete
or incorrect.” Under Rule 26(e)(2), the supplementation must occur before the deadline for
pretrial disclosures.
Here, Hilderbrand explains that a substantial delay in setting the trial date necessitated
the Revised Report because the damage figures must be calculated as of the trial date. The Court
agrees. Without supplementation, Dr. Brooking’s original numbers, and the rates upon which
they were based, would be two-years old by the time the case is tried. The supplemented
opinions were timely under Rule 26(e)(2). Even assuming that the disclosures failed to comply
with the rules, they would still be admitted under a Hamburger analysis: (1) the delay in trial
dates creates good cause for the Revised Report; (2) the information is important to an accurate
assessment of alleged damages; (3) Levi made no showing of prejudice and has already
supplemented its expert report to meet Hilderbrand’s evidence; and (4) there has been ample
time for Levi to respond to these new numbers without need for a continuance. See Rodriguez v.
Crown Equip. Corp., 923 F.2d 416, 418 (5th Cir. 1991) (“[T]he inauguration of formalized
discovery did not render every trial a staged performance. Trial lawyers, and witnesses alike,
must react to shifting fact patterns, developing arguments, and refined lines of inquiry.”).
The more troubling portion of Levi’s Motion relates to retirement, health, and pension
benefits. These are new opinions based on figures Levi apparently produced before Dr.
Brooking’s original report. It therefore appears that Hilderbrand failed to timely disclose the

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opinions. Looking at the Hamburger factors, Hilderbrand’s explanation that Levi’s
supplemental discovery triggered the need for the testimony is only marginally persuasive. But,
the evidence is important as it relates to a disputed aspect of the case. More significantly, Levi
has not addressed prejudice in any specific way, stating only that the late disclosure “certainly is
not harmless.” Def.’s Resp. [215] at 2. Levi never deposed Dr. Brooking and has not requested
a deposition to respond to the new opinions. Instead, Levi immediately supplemented its
expert’s report in response. The lack of prejudice weighs in favor of allowing the opinions. See
Primrose Operating Co., 382 F.3d at 564 (affirming admission of expert despite Rule 26(a)
violation and focusing on lack of prejudice). The fourth factor is whether a continuance would
remove prejudice had it been shown. This factor typically applies to experts and opinions that
are disclosed at or on the eve of trial. But here, Hilderbrand produced Dr. Brooking’s Revised
Report before the case was set for trial and approximately five months before the current trial
date. There is obviously no need for a continuance.
The Fifth Circuit has “limited reversible error from unfair surprise to situations where a
completely new issue is suddenly raised or a previously unidentified expert witness is suddenly
called to testify.” Rodriguez, 923 F.2d at 418 (citations omitted). Levi has had, and still has,
ample time to prepare for trial. 1

1

As a word of caution to future litigants, this Court is not shy about striking delinquent
opinions. See, e.g., Bradley v. Cooper Tire & Rubber Co., No. 4:03cv00094–DPJ–JCS, 2007
WL 4624613, at *7 (S.D. Miss. Aug. 3, 2007). The rules exist for a reason, and few issues are
more frustrating than motions to strike delinquent filings. But this record simply fails to show
prejudice to Levi. The new opinions address a very narrow issue that Levi can readily meet
without “additional delay and increased . . . expense.” Hamburger, 361 F.3d at 883. Thus,
allowing the testimony promotes a “just” determination of the case without offense to the
remaining objectives of Rule 1 of the Federal Rules of Civil Procedure.
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L.

Motion in Limine No. 8 to Exclude Expert Testimony or Argument Regarding
Plaintiff’s Statistical “Evidence” [172]

The Court defers ruling on this issue pending oral argument. During the pretrial
conference, the parties expressed interest in mediation and indicated that a ruling on at least
some of the pending motions could better focus the discussions. Given its limited resources, the
Court instructs the parties to set this matter for hearing, which can be conducted telephonically,
after mediation. If the parties decline mediation, then they can set the hearing at a mutually
agreeable time and date.
SO ORDERED AND ADJUDGED this the 21st day of July, 2011.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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