Posteraro v. Citizens Financial Group et al
ORDER granting 43 Motion in Limine to Exclude Expert Testimony re PTSD; granting 44 Motion in Limine to Exclude Evidence of Lost Wages/Benefits; granting 45 Motion in Limine to Limit Evidence of Damages after 1/20/14; deny ing 46 Motion in Limine to Exclude Evidence from Hatzidakis Personnel File; granting 47 Motion in Limine to Exclude Evidence re Todisco; granting 49 Motion in Limine to Preclude Evidence of Other Litigation. So Ordered by Chief Judge Joseph N. Laplante.(jb)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Civil No. 13-cv-416-JL
Opinion No. 2016 DNH 003P
Citizens Financial Group
ORDER ON MOTIONS IN LIMINE
Before the court are the parties’ respective motions in
limine seeking to exclude various evidentiary items and issues
from the upcoming trial in the above-captioned matter.
Jennifer Posteraro sued her former employer, Citizens Financial
Group (“Citizens”), and her former manager, Christos Hatzidakis,
for, inter alia, violations of state and federal gender and
disability discrimination laws.
The court recently granted the
bulk of defendants' motion for summary judgment (doc. no. 63).
Accordingly, the only claims remaining for trial are Counts 5 and
6 against Citizens, which allege retaliation for complaining
about sexual harassment and pursuing accommodation for her
disabilities, in violation of Title VII and N.H. Rev. Stat. Ann.
Each side has filed motions in limine seeking to exclude
The court preliminarily addressed these
motions at the final pre-trial conference held on December 30,
As promised, the court makes the following, more detailed
findings on the pending motions.
The court reminds the parties
that all of the rulings herein are made without prejudice to
revisiting particular issues in response to circumstances that
might arise during trial.
Furthermore, these ruling are limited
to grounds argued in the parties' filings.
The court reserves
the right to assess other factors at trial, such as authenticity,
hearsay and best evidence.
See Fed. R. Evid. 800 et seq., 900
et. seq., and 1000 et seq.
Motion to exclude expert testimony (doc. no. 43)
Posteraro based her disability-related claims on diagnoses
of post-traumatic stress disorder (“PTSD”), anxiety and
Citizens seeks to exclude expert testimony regarding
PTSD and her treatment for anxiety and depression.
ostensible bases for the motion is Posteraro’s failure to
properly disclose experts on those matters.
The court first observes that by granting summary judgment
on Posteraro’s substantive ADA claim, the court has rendered much
of the testimony on the issue of her disabilities irrelevant.
Fed. R. Evid. 401.
While such testimony might be relevant to the
Counsel declined the opportunity for oral argument at the
limited issue of whether Citizens’ alleged retaliation caused or
exacerbated any of Posteraro’s medical conditions, Posteraro has
made no disclosure of any non-retained experts on this subject,
as is required by Fed. R. Civ. P. 26(a)(2)(A), (c) and (D).
the court noted in Aumand v. Dartmouth Hitchcock Med. Ctr., 611
F. Supp. 2d 78, 88 (D.N.H. 2009), the failure to disclose still
allows Posteraro’s treatment providers to testify about “‘what
they saw and what they did’ in the course of caring for a
patient; that would be fact testimony, rather than opinion
testimony under Rule 702.
But going beyond those facts triggers
the disclosure requirement . . . .”
To be sure, a treating
physician can testify, absent a report, as to causation,
diagnosis, prognosis and extent of disability “provided that [he
or she] reached that conclusion in a reliable manner while
examining and treating the plaintiff.”
Westerdahl v. Williams,
276 F.R.D. 405, 408 (D.N.H. 2011) (citation and internal
But here, Posteraro’s objection to the
instant motion does not cite any diagnoses or opinions that her
treating physicians reached during the course of treatment.2
Accordingly, Citizens’ motion to exclude expert testimony (doc.
no. 43) is granted to the extent it seeks to preclude Posteraro’s
For example, Citizens points out that references to PTSD in
the medical records were based on Posteraro’s own reports to her
providers, rather than through clinical assessments by them.
treating physicians from offering opinion testimony not based on
Motion to exclude evidence of lost wages or benefits
(Doc No. 44)
Posteraro originally sought lost wages based on her claims
of wrongful termination and constructive discharge.
court granted summary judgment as to those claims, rendering
evidence regarding lost wages or benefits irrelevant.
Evid. 401, 402.
Moreover, Posteraro has provided no authority
for the proposition (and has not seriously or articulately
argued) that she is entitled to recover lost wages for the
periods of her leave that she requested as an accommodation under
Accordingly, Citizens’motion to exclude evidence of
lost wages or benefits (doc. no. 44) is granted.
Motion to exclude evidence of damages after January 20,
2014, based on after-acquired evidence of misconduct (Doc.
Citizens notes that in January 2014, during the course of
discovery, it learned that Posteraro had been involuntarily
terminated by two previous employers, facts which she did not
disclose in her Citizens employment application.
that had it still employed Posteraro, it would have terminated
her upon learning this information.
Therefore, any accumulation
of damages should end at that date.
The court need not
specifically reach the issue, however, as the grant of summary
judgment in Citizens’ favor on Posteraro’s wrongful termination
and constructive discharge claims renders any lost wage evidence
Fed. R. Evid. 401, 402.
motion to exclude evidence of damages after January 20, 2014
(doc. no. 45), is granted.3
Motion to exclude evidence derived from Christos
Hatzidakis's personnel file (Doc. No. 46)
Citizens argues that evidence of branch manager Hatzidakis’s
poor performance or of disciplinary action it took against him
for performance-related issues is irrelevant.
The only claim remaining in this case is for
As the court observed in its summary judgment
order, there was evidence from which a jury could find that
Hatzidakis retaliated against Posteraro because her protected
activity – harassment complaints – “[got] him in trouble” with
2015 DNH 237, 29.
Accordingly, to the extent
that evidence in Hatzidakis’s personnel file is relevant to
Citizens also claims in its objection to plaintiff’s
exhibits (doc. no. 55 at 3 n.1) that Posteraro conceded in an
interrogatory answer that medical symptoms attributable to her
employment at Citizens ended about a year after her departure,
i.e., August 2012. As plaintiff’s interrogatory answers are not
(yet) part of the record, the court does not pass on this
assertion. If accurate, however, it would be a substantial
impediment to a damage claim beyond that date.
Posteraro’s retaliation claim – perhaps as corroboration of her
claims of retaliatory conduct or to establish a motive to
Citizens’ motion to exclude evidence derived from
Christos Hatzidakis's personnel file (doc. no. 46) is denied.4
Motion to exclude evidence regarding Genisa Todisco
(Doc. No. 47)
In her objection to Citizens’ motion for summary judgment,
Posteraro made reference to alleged discrimination against
Todisco, a former Citizens employee, as well as a discrimination
case filed by Todisco against Citizens, which now seeks to
exclude such evidence from trial.
To the extent Posteraro
intended to proffer this evidence to support a hostile
environment claim, she may not do so, as the court granted
summary judgment as this claim, rendering the evidence irrelevant
for that purpose.
Fed. R. Evid. 401, 402.
treatment conceivably might be admissible as a “crime, wrong, or
other act” under Fed. R. Evid. 404(b)(2), Posteraro has made no
Therefore, Citizens’ motion to exclude evidence
regarding Genisa Todisco (doc. no. 47) is granted.
The court’s task is complicated by plaintiff’s failure to
separately identify the particular documents from Hatzidakis’s
personnel file she intends to offer at trial, as required by L.R.
16.2(a)(5). Regardless, the court declines to categorically
exclude disciplinary or performance-related information from the
Motion to preclude evidence of other litigation (Doc. No. 49)
Posteraro seeks to exclude evidence of her involvement in
litigation against two other employers:
Citizens and one that followed.
one that preceded
Citizens argues that evidence
from those actions might help demonstrate that the complained-of
conduct at Citizens was not unwelcome or that she was not
actually intimidated by Hatzidakis’s alleged conduct.
grant of summary judgment in Citizens’ favor on Posteraro’s
harassment claims, such evidence is not relevant. Fed. R. Evid.
Moreover, whatever probative value can be assigned to
the mere fact that Posteraro has been in legal skirmishes with
other employers, such value is outweighed by the potential
prejudice of her being seen as unreasonably or unjustifiably
Fed. R. Evid. 403.
Therefore, Posteraro's motion to
exclude evidence of other litigation (doc. no. 49) is granted.
However, this ruling does not necessarily preclude the
introduction of particular evidence from such other litigation
for permissible purposes, such as credibility, damages, or
As set forth herein, and subject to the caveats noted,
Citizens’ motion to exclude expert testimony5 is GRANTED;
Citizens’ motion to exclude evidence of lost wages or benefits6
is GRANTED; Citizens’ motion to exclude evidence of damages after
January 20, 20147 is GRANTED; Citizens’ motion to exclude
evidence derived from Christos Hatzidakis’s personnel file8 is
DENIED; Citizens’ motion to exclude evidence regarding Genisa
Todisco9 is GRANTED; Posteraro’s motion to exclude evidence of
other litigation10 is GRANTED.
Joseph N. Laplante
United States District Judge
Dated: January 5, 2016
John P. Sherman, Esq.
K. Joshua Scott, Esq.
Martha Van Oot, Esq.
Debra Weiss Ford, Esq.
Doc. no. 43.
Doc. no. 44.
Doc. no. 45.
Doc. no. 46.
Doc. no. 47.
Doc. no. 49.
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