Williams v. Dakota County Board of Commissioners et al

Filing 216

ORDER - The defendants' Motion to Dismiss Rodney Herron in His Official Capacity and to Amend Case Caption (Filing No. 196 in Case 8:09CV201; Filing No. 197 in Case 8:09CV288) is granted. The defendants' Objection to and Motion to Stri ke Plaintiff's Supplemental Expert Designation (Filing No. 198 in Case 8:09CV201; Filing No. 199 in Case 8:09CV288) is overruled and denied. The defendants may re-depose Dr. Fitzgerald at the plaintiffs' expense. Herron's Motion t o Bifurcate (Filing No. 202 in Case 8:09CV201; Filing No.203 in Case 8:09CV288) is granted. Jury trials against the County shall commence, if necessary, immediately after the trials against Herron with the same jury. The plaintiffs' Motion to Consolidate (Filing No. 205 in Case 8:09CV201;Filing No. 211 in Case 8:09CV288) is denied. Any objection to this Order shall be filed with the Clerk of the Court within fourteen (14) days after being served with a copy of this Order. Ordered by Magistrate Judge Thomas D. Thalken. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHARVETTE WILLIAMS,

)
)
Plaintiff,
)
)
and
)
)
ALANA CRUTCHER-SANCHEZ,
)
f/k/a Alana Smith,
)
)
Plaintiff,
)
)
vs.
)
)
COUNTY OF DAKOTA, NEBRASKA, and )
RODNEY HERRON, in his individual
)
capacity,
)
)
Defendants.
)

8:09CV201

8:09CV288

ORDER

This matter is before the court on the defendants’ Motion to Dismiss Rodney Herron
in His Official Capacity and to Amend Case Caption (Filing No. 196 in Case 8:09CV201;
Filing No. 197 in Case 8:09CV288); Objection to and Motion to Strike Plaintiff’s
Supplemental Expert Designation (Filing No. 198 in Case 8:09CV201; Filing No. 199 in
Case 8:09CV288); and Rodney Herron’s (Herron) Motion to Bifurcate (Filing No. 202 in
Case 8:09CV201; Filing No. 203 in Case 8:09CV288); and the plaintiffs’ Motion to
Consolidate (Filing No. 205 in Case 8:09CV201; Filing No. 211 in Case 8:09CV288). The
court will address the defendant’s, County of Dakota, Nebraska (the County) Motion to
Amend Protective Order (Filing No. 207 in Case 8:09CV288) in a separate order. The
court held a telephone conference on November 14, 2012, to discuss the motions. Kodi
A. Brotherson and Thomas J. Duff represented the plaintiffs, Charvette Williams (Williams)
and Alana Crutcher-Sanchez (Crutcher-Sanchez). Vincent Valentino and Brandy Johnson
represented the defendant, the County of Dakota, Nebraska. Charles W. Campbell
represented the defendant, Rodney Herron, in his individual capacity.

BACKGROUND
These cases concern the plaintiffs’ sexual harassment claims against the
defendants in violation of 42 U.S.C. § 1983. See Filing No. 59 - Complaint in Case
8:09CV201; Filing No. 45 - Complaint in Case 8:09CV288. The plaintiffs allege the
defendants discriminated against the plaintiffs by establishing, maintaining, and enforcing
policies which created or fostered a sexually hostile work environment. See Filing No. 59 Complaint in Case 8:09CV201; Filing No. 45 - Complaint in Case 8:09CV288.

ANALYSIS
A.

The defendants’ Motion to Dismiss Rodney Herron in His Official Capacity and

to Amend Case Caption.
The defendants move this court to dismiss Herron in his official capacity because
it is equivalent to, and redundant of, the plaintiffs’ claims against the County. See Filing
No. 1961. The plaintiffs do not resist the defendants’ motion. See Filing No. 201.
Therefore, Herron, in his official capacity, is dismissed from these cases and the caption
of these cases shall so reflect.

B.

The defendants’ Objection to and Motion to Strike Plaintiff’s Supplemental

Expert Designation.
On June 3, 2011, the plaintiffs designated Louise F. Fitzgerald, Ph.D. (Dr.
Fitzgerald), as an expert witness and served initial disclosures of her opinions. See Filing
No. 152; Filing No. 199-1 - Dr. Fitzgerald Affidavit (affidavit). On December 1, 2011, during
the stay due to the defendants’ appeal to the Eighth Circuit, the plaintiffs served the
Plaintiff’s Supplemental Designation of Expert Witness, Dr. Fitzgerald’s opinions. See
Filing No. 185; Filing No. 199-2 - Dr. Fitzgerald’s Supplemental Report (report). The
defendants initially filed an objection to the notice. See Filing No. 186. The court entered
a Text Order ordering the defendants to re-file the objection, if the issue was not resolved,
after resolution of the defendants’ appeal. See Filing No. 187 - Text Order.

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Unless otherwise noted the court will only cite to docum ents filed in 8:09CV201.
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After appeal, on October 25, 2012, the defendants re-filed the Objection (Filing No.
198). The defendants filed an affidavit (Filing No. 199) in support of the Objection. The
plaintiffs filed a response (Filing No. 208) and brief (Filing No. 209) in opposition. The
defendants filed a reply (Filing No. 213) in support of the Objection.
The defendants argue the plaintiffs should not be permitted to utilize the latedisclosed information because the deadline for all disclosures pertaining to expert
witnesses was May 31, 2011. See Filing No. 198. The defendants argue Dr. Fitzgerald’s
report is not supplemental because it discusses different material from Dr. Fitzgerald’s
affidavit. See Filing No. 213 - Reply p. 1-3. The defendants argue Dr. Fitzgerald states,
for the first time in the report, her opinions regarding the adequacy of the County’s policies
and training are supported by various social science articles and secondary sources, which
were previously undisclosed in the affidavit or during Dr. Fitzgerald’s deposition. Id. at 5.
The defendants also argue, although we need not address the admissibility of Dr.
Fitzgerald’s opinion at this juncture, the strong likelihood of a successful Daubert challenge
to Dr. Fitzgerald’s opinions weigh in favor of striking the report as untimely. Id. at 17.
Lastly, the defendants argue the late-disclosed report is prejudicial because the defendants
will incur expense in re-deposing Dr. Fitzgerald and potentially hiring another expert to
analyze Dr. Fitzgerald’s report. Id. at 13. The defendants argue if the report is not stricken
the defendants should be permitted to re-depose Dr. Fitzgerald at the plaintiffs’ expense.
Id. at 18.
The plaintiffs argue Dr. Fitzgerald’s report is fully within the scope of the affidavit as
well as Federal Rule of Civil Procedure 26. See Filing No. 209 - Response p. 4. The
plaintiffs argue the report does not change Dr. Fitzgerald’s opinion or alter her deposition
testimony. Id. at 5. The plaintiffs argue even if the court determines the report is not
supplemental, the report should not be stricken because the defendants are not prejudiced
and the report is essential to the plaintiffs’ cases. Id. at 6. The plaintiffs argue the
defendants have been aware of the report for almost an entire year and there are no
deadlines or trial dates established in these cases. Id.
“For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party’s
duty to supplement extends both to information included in the report and to information
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given during the expert’s deposition. Any additions or changes to this information must be
disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are due.” Fed.
R. Civ. P. 26(e)(2). A supplemental report’s purpose is to “inform the opposing party of any
changes or alterations.” Tenbarge v. Ames Taping Tool Sys., Inc., 190 F.3d 862, 865
(8th Cir. 1999). “Unless the court orders otherwise, these disclosures must be made at
least 30 days before trial.” Fed. R. Civ. P. 26(a)(3)(B), 26(e).
The court finds Dr. Fitzgerald’s report qualifies as a supplemental report. The
affidavit states Dr. Fitzgerald was retained as an expert “to opine concerning the adequacy
of the [County’s] sexual harassment prevention and remediation programs.” See Filing No.
199-1 - Affidavit. In the affidavit Dr. Fitzgerald concludes the County’s sexual harassment
policies, the County’s sexual harassment training programs, and the employees’ access
to information were deficient. Id. Dr. Fitzgerald’s report supplements these opinions
expressed in the affidavit and explains how such deficiencies affect the work environment.
See Filing No. 199-2 - Report. Therefore, the defendants’ objection is overruled and the
motion is denied. However, in order to avoid any prejudice to the defendants, the
defendants are permitted to re-depose Dr. Fitzgerald at the plaintiffs’ expense.

C.

Herron’s Motion to Bifurcate.
The defendant, Herron, filed a Motion to Bifurcate (Filing No. 202) the plaintiff’s

individual capacity claims against Herron from the plaintiffs’ claims against the County.
Herron filed a brief (Filing No. 204) and an index of evidence (Filing No. 203) in support of
the motion. The plaintiffs filed a brief (Filing No. 215) in opposition to the motion. The
County does not object to bifurcation. See Filing No. 214.
Herron argues bifurcation will accomplish judicial efficiency and avoid unnecessary
litigation and prejudice. See Filing No. 204 - Brief p. 2. Herron argues this court is best
served by bifurcating Herron’s individual capacity claims because if the jury does not find
Herron individually liable, the court would not need to try the plaintiffs’ claims against the
County. Id. at 2-4. Additionally, Herron argues the claims against the County will likely
take longer to litigate than the trial of the claims against Herron. Id. at 6-7. Specifically,
the evidence regarding the County’s policy necessary to establish the plaintiffs’ Monell
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claims and the County’s Faragher-Ellerth defenses will be substantially more complex
than the litigation of the underlying harassment claims against Herron. Id. Lastly, Herron
contends if the claims against him were tried concurrently with the claims against the
County, evidence of Herron’s relationships with other women will be presented, which is
not relevant to plaintiffs’ claims, inadmissible as improper character evidence, and highly
prejudicial. Id. at 8-12.
The plaintiffs argue bifurcation is unnecessary because there is little additional
evidence the plaintiffs would present against the County that would not also be presented
against, and admissible against, Herron. See Filing No. 201 - Brief p. 4-5. The plaintiffs
contend Herron misconstrues the evidence necessary to establish Herron sexually
harassed the plaintiffs. Id. The plaintiffs argue if some of the evidence is inadmissible
against Herron a limiting instruction to the jury could address such issues. Id. at 6. In the
alternative, the plaintiffs argue if bifurcation occurs, the claims against the County must be
tried to the same jury immediately after the conclusion of the trial against Herron. Id. at 7.
Federal Rule of Civil Procedure provides: “For convenience, to avoid prejudice, or
to expedite and economize, the court may order a separate trial of one or more separate
issues, claims, crossclaims, counterclaims, or third-party claims.” Fed. R. Civ. P. 42. A
party seeking severance has the burden to show that separate trials will (1) promote
convenience, (2) expedite the proceedings, or (3) avoid unfair prejudice to a party. Athey
v. Farmers Ins. Exchange, 234 F.3d 357, 362 (8th Cir. 2000). A court considers the
preservation of constitutional rights, clarity, judicial economy, likelihood of inconsistent
results and possibilities for confusion when determining whether to bifurcate claims. Koch
Fuels, Inc. v. Cargo of 13,000 Barrels of No. 2 Oil, 704 F.2d 1038, 1042 (8th Cir. 1983).
The court finds in the interest of judicial economy, bifurcation is appropriate because
litigation of the individual claims against Herron might eliminate the need to litigate the
claims against the County. See Amato v. City of Saratoga Springs, N.Y., 170 F.3d 311,
316 (2d Cir. 1999) (recognizing in a § 1983 claim, litigating individual liability first might
eliminate the need to litigate the official liability claim). Additionally, in order to prove the
plaintiffs’ claims against the County, the plaintiffs will offer evidence proving the County’s
unconstitutional policy or custom caused the alleged sexual harassment. This evidence
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may be unfairly prejudicial toward Herron and bifurcating Herron’s individual capacity
claims will avoid any unnecessary confusion or undue prejudice. Therefore, the plaintiff’s
claims against Herron in his individual capacity will be bifurcated and tried before the
plaintiffs’ claims against the County. If necessary, trials against the County will commence
with the same jury immediately following the trials against Herron.

D.

The plaintiffs’ Motion to Consolidate.
The plaintiffs filed a Motion to Consolidate (Filing No. 205) cases 8:09CV201 and

8:09CV288. The plaintiffs filed a brief (Filing No. 205-1) in support of the motion. The
defendants filed a brief (Filing No. 211) and an index of evidence (Filing No. 212) in
opposition to the motion.
The plaintiffs argue these cases present common issues of law and fact regarding
whether the County had a custom or policy of promoting, encouraging, or ignoring sexual
harassment and whether Herron is individually liable for such harassment. See Filing No.
205-1 - Brief p. 2-3. The plaintiffs argue the same reasoning that permitted joinder of the
plaintiffs in Criss v. County of Dakota, Neb., No. 8:09cv387, 2010 WL 4628175, at *3-4
(D. Neb. Nov. 8, 2010) applies in these cases. Id. at 3. The plaintiffs argue despite their
individual circumstances, the plaintiffs experienced similar treatment by Herron and the
County. Id. at 4.
The defendants argue discovery has shown consolidation is unwarranted because
these cases involve uniquely different facts, evidence, and proof. See Filing No. 211 Response p. 2. The defendants argue the plaintiffs worked in two different environments
and the plaintiffs have different witnesses. Id. at 10-11. Further, the defendants argue the
plaintiffs will be subjected to different defenses. Id. at 13.
“Consolidation of separate actions presenting a common issue of law or fact is
permitted under Rule 42 as a matter of convenience and economy in judicial
administration. The district court is given broad discretion to decide whether consolidation
would be desirable and the decision inevitably is contextual.” 9 Charles A. Wright & Arthur
R. Miller, Federal Practice & Procedure § 2383 (2d ed. 1994). Whether to grant a Rule
42(a) motion to consolidate is within the sound discretion of the court. United States
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Envtl. Prot. Agency v. Green Forest, 921 F.2d 1394, 1402-03 (8th Cir. 1990). The “court
[must] weigh the saving of time and effort that consolidation under Rule 42(a) would
produce against any inconvenience, delay, or expense that it would cause . . . .” Wright
& Miller, supra, § 2383. “[D]istrict courts generally take a favorable view of consolidation
. . . .” Id. Furthermore, “[a]ctions involving the same parties are apt candidates for
consolidation.” Id. § 2384. However, under Fed. R. Civ. P. 42(b), consolidation is
considered inappropriate “if it leads to inefficiency, inconvenience, or unfair prejudice to a
party.” EEOC v. HBE Corp., 135 F.3d 543, 551 (8th Cir. 1998).
This court previously denied the plaintiffs’ motion to consolidate several related
cases. See Filing No. 38. The basis for denial was: “the plaintiff has failed to show
consolidation is appropriate for the actions listed. Although the cases may present some
common issues of law and fact, the cases remain at an early stage of litigation, involve
diverse plaintiffs, different causes of action and, in some cases, different defendants.”
Although the parties and claims are similar, substantial discovery has shown consolidation
is inappropriate. The plaintiffs worked during different time periods, under different
supervisors, and left employment with the County under different circumstances.
Additionally, in between the time Crutcher-Sanchez and Williams worked, the Dakota
County Board formed the Board of Corrections, which controlled jail operations, utilized
online sexual harassment training, and updated the Employee Handbook.

Further,

consolidation will not save time in these cases due to the different witnesses involved and
different factual circumstances. Lastly, the plaintiffs’ various evidence on their claims, if
consolidated into one trial, would unfairly prejudice the defendants.

Accordingly,

consolidation will likely lead to inefficiency and inconvenience.
Upon consideration,

IT IS ORDERED:
1.

The defendants’ Motion to Dismiss Rodney Herron in His Official Capacity

and to Amend Case Caption (Filing No. 196 in Case 8:09CV201; Filing No. 197 in Case
8:09CV288) is granted.
2.

The defendants’ Objection to and Motion to Strike Plaintiff’s Supplemental
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Expert Designation (Filing No. 198 in Case 8:09CV201; Filing No. 199 in Case 8:09CV288)
is overruled and denied. The defendants may re-depose Dr. Fitzgerald at the plaintiffs’
expense.
3.

Herron’s Motion to Bifurcate (Filing No. 202 in Case 8:09CV201; Filing No.

203 in Case 8:09CV288) is granted. Jury trials against the County shall commence, if
necessary, immediately after the trials against Herron with the same jury.
4.

The plaintiffs’ Motion to Consolidate (Filing No. 205 in Case 8:09CV201;

Filing No. 211 in Case 8:09CV288) is denied.

ADMONITION
Pursuant to NECivR 72.2 any objection to this Order shall be filed with the Clerk of
the Court within fourteen (14) days after being served with a copy of this Order. Failure to
timely object may constitute a waiver of any objection. The brief in support of any objection
shall be filed at the time of filing such objection. Failure to file a brief in support of any
objection may be deemed an abandonment of the objection.

DATED this 19th day of November, 2012.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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