Hernandez-Gil v. Dental Dreams, LLC et al

Filing 176

MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera granting Defendants' Motion in Limine to Exclude Evidence or Argument Related to Massachusetts Settlement 139 and granting in part and denying in part Relator's Motion in Limine to Exclude Evidence and Argument 140 (baw)

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA, and
STATE OF NEW MEXICO, ex rel.
JOSE HERNANDEZ-GIL, DMD,
Relator
Plaintiff,
v.

No. Civ. 13-1141 JH/KBM

DENTAL DREAMS, LLC A/K/A DENTAL
EXPERTS, LLC, an Illinois limited liability
company, SAMEERA TASNIM HUSSAIN,
DMD, individually and as an organization
agent, DENTAL DREAMS, LLC, a New
Mexico limited liability company, FAMILY
SMILES, LLC, a New Mexico limited
liability company, FRANK VON
WESTERNHAGEN, DDS, individually and
as an organization agent, KOS SERVICES,
LLC, an Illinois limited liability company, and
KHURRAM HUSSAIN, ESQ., individually
And as an organization agent,
Defendants.

MEMORANDUM OPINION AND ORDER
This matter is before the court on Defendants’ Motion in Limine to Exclude Evidence or
Argument Related to Massachusetts Settlement (ECF No. 139) and Relator’s Motion in Limine to
Exclude Evidence and Argument (ECF No. 140). The Court, having considered the motions,
briefs, evidence, relevant law, and otherwise being fully advised, will grant Defendants’ motion in
limine and will grant in part and deny in part Relator’s motion in limine.

I.

LAW
Rule 401 states that evidence is relevant if “it has any tendency to make a fact more or less

probable than it would be without the evidence” and “the fact is of consequence in determining
the action.” Fed. R. Evid. 401. A court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative evidence. Fed. R. Evid. 403. Rule
404(b) prohibits the admission of evidence of crimes, wrongs, or other acts to prove a person’s
character to show action that conforms to that character, but it allows evidence of other bad acts if
admissible for other purposes, such as intent, knowledge, absence of mistake, or lack of accident.
See Fed. R. Evid. 404(b).
II.

ANALYSIS
A. Defendants’ Motion in Limine to Exclude Evidence or Argument Related to
Massachusetts Settlement
Defendant seeks to exclude any evidence or argument relating to settlements between

Dental Dreams, LLC, a Massachusetts entity, and the United States Attorney’s Office for the
District of Massachusetts and the Massachusetts Attorney General’s Office (collectively, the
“Massachusetts settlement”). Relator does not oppose the motion or requested order, subject to the
one exception that Relator requests the Court allow evidence or argument “in the event that any of
Defendants’ witnesses give testimony or otherwise provide evidence in a matter that is inconsistent
with the facts of the matter as explained in the Declaration of Laura McLane that accompanied the
Motion.” Relator’s Resp. 2, ECF No. 153. The Court finds that the Massachusetts settlement is not
relevant to this case. Even if the evidence had any minimal probative value, the value is
substantially outweighed by the danger of undue prejudice, confusing the issues, misleading the
jury, and wasting time. The Court will not permit inquiry by either party into the Massachusetts
2

settlement under Federal Rule of Evidence 403, and therefore, there should be no basis for any
possible impeachment value regarding the contents of Ms. McClane’s Declaration. Accordingly,
the Court will grant Defendant’s motion in limine in its entirety and preclude evidence and
argument regarding the Massachusetts settlement.
B. Relator’s Motion in Limine to Exclude Evidence and Argument
Relator seeks to exclude evidence of the following: (1) his prior employment history, (2)
his subsequent employment history, and (3) the New Mexico Department of Workforce Services’
“Determination of No Probable Cause” Letter (hereinafter “No Probable Cause Letter”).
Defendants argue that the No Probable Cause Letter is admissible under the public records
exception to hearsay set forth in Rule 803(8). Additionally, they assert that Relator’s prior and
subsequent employment history are relevant to Relator’s damages.
To determine whether Rule 404(b) evidence is admissible, courts should consider four
factors:
(1) the evidence must be offered for a proper purpose; (2) the evidence must be
relevant; (3) the trial court must make a Rule 403 determination of whether the
probative value of the similar acts is substantially outweighed by its potential for unfair
prejudice; and (4) pursuant to Fed. R. Evid. 105, the trial court shall, upon request,
instruct the jury that evidence of similar acts is to be considered only for the proper
purpose for which it was admitted.
United States v. Zamora, 222 F.3d 756, 762 (10th Cir. 2000).
A portion of Relator’s employment history was provided to the Court in the summary
judgment record. See Def.’s Ex. 11, ECF No. 112-11. Relator seeks damages for, among other
things, “emotional distress and lost past and future compensation and benefits.” Verified Am.
Compl. ¶ 330, ECF No. 52. The Court finds that Relator’s subsequent employment history is
relevant to the issue of mitigation of his damages. The evidence is thus offered for a proper purpose
and relevant to issues at trial, so the first two factors set forth in Zamora have been satisfied. The
3

Court finds that the danger of unfair prejudice is outweighed by the probative value of the
mitigation evidence, and can be cured by appropriate jury instructions, if requested. The Court will
therefore deny Relator’s motion in limine to exclude evidence of his subsequent employment
history. This ruling does not prevent the parties from raising objections to specific evidence at
trial. Cf. Randolph v. ADT Sec. Services, Inc., Civ. No. DKC 09-1790, 2012 WL 4480259, at *1
(D. Md. July 23, 2012) (unpublished) (holding that plaintiffs’ subsequent employment history is
relevant to damages plaintiffs incurred because of allegedly unlawful termination, and thus,
denying plaintiffs’ motions to exclude “any and all” evidence relating to their financial condition
and employment history after termination).
As for Relator’s prior employment history, the Court finds it is relevant to the issue of his
damages, both his earning capacity and the extent of his emotional distress damages. Cf. Montoya
v. Sheldon, 898 F.Supp.2d 1259, 1273 (D.N.M. 2012) (“Montoya's prior arrests are relevant to the
issue of his emotional distress damages, because the amount of times and the manner in which M.
Montoya had been arrested up to the arrest, if he is claiming emotional distress only to that time,
or the amount of arrests up until the present if he claims his emotional damages are ongoing, makes
more or less probable the Defendants' arrest emotionally distressed him.”); Martin v. Cottrell
Contracting Corp., No. 7:00-CV-114-F(1), 2000 WL 331277232, at *1 (E.D.N.C. Sept. 13, 2000)
(finding merit to defendant’s argument that “the Plaintiff's ‘employment history, employability (or
difficulty retaining employment), job performance (including poor performance), advancement (or
lack thereof), and earnings history are all relevant to his pre-injury earning capacity’”). The
evidence is thus offered for a proper purpose and relevant to issues at trial, so the first two factors
have been satisfied. The probative value of the evidence is not substantially outweighed by its
potential for unfair prejudice, and a jury instruction may be provided, upon request, to instruct the

4

jury that the evidence is to be considered only for the proper purpose for which it is admitted. The
Court will therefore deny Relator’s motion to exclude generally his prior and subsequent
employment history.
This ruling, however, is without prejudice. Should evidence be admitted that will result in
mini-trials of the reasons for why Relator left employment at each of the places, such evidence has
the potential for confusing the issues, creating undue delay, and wasting time. At this stage,
however, it is unclear what specific evidence Defendants intend to present at trial. Consequently,
while generally permitting evidence of prior and subsequent employment history, the Court’s
ruling does not preclude the parties from objecting to specific evidence at trial.
Next, Relator argues that the No Probable Cause Letter is hearsay and unreliable because
it is “entirely conclusory without any analysis.” Relator’s Mot. 5, ECF No. 140. Defendants
contend the No Probable Cause Letter is admissible under Rule 803(8) as a public record because
it is trustworthy and relevant.
Rule 803(8)(A) provides an exception to the hearsay rule for public records that set out “in
a civil case … factual findings from a legally authorized investigation,” Fed. R. Evid.
803(8)(A)(iii), so long as the opponent “does not show that the source of information or other
circumstances indicate a lack of trustworthiness,” id. at 803(8)(B). The advisory committee’s notes
explain factors that may assist in determining the admissibility of reports under Rule 803(8)(A):
“(1) the timeliness of the investigation; (2) the special skill or experience of the official; (3)
whether a hearing was held and the level at which conducted; (4) possible motivation problems....
Others no doubt could be added.” Coleman v. Home Depot, Inc., 306 F.3d 1333, 1342 (3d Cir.
2002) (quoting Fed. R. Evid. 803(8)(c) advisory committee’s note). The Court finds that Relator
has not shown the untrustworthiness of the No Probable Cause Letter, and thus finds the Rule

5

803(8)(A) public records exception met. Cf. Daniel v. Cook County, 833 F.3d 728, 739-42 (7th
Cir. 2016) (concluding that Department of Justice investigative report fell within Rule
803(8)(A)(iii) hearsay exception because it was timely, it relied on team of experts, the Department
provided a draft to county officials and gave them an opportunity to respond, and was prepared as
part of an investigation that the Department carried out pursuant to its statutory duties).
Nevertheless, this Court must determine whether the letter should be excluded under Rule
403. See Hall v. Western Production Co., 988 F.2d 1050, 1058 (10th Cir. 1993) (district court has
discretion under Rule 403 to determine whether evaluative reports of public agencies should be
excluded); Coleman, 306 F.3d at 1344-47 (holding that, despite presumption of admissibility under
Rule 803(8)(C), trial court must make case-by-case decision under Rule 403 of whether EEOC
determination letter is more probative than prejudicial, considering factors such as undue delay,
waste of time, or needless presentation of evidence). The Court finds that the danger of prejudice
and confusing the jury substantially outweighs the probative value of the evidence. There is a
considerable danger that the jury may be overly influenced by the Department of Workforce
Solutions’ determination, defer to the agency expertise, and abdicate its own independent
judgment. Cf. Hall, 988 F.2d at 1051-52, 1058 (finding no abuse of discretion in district court
excluding Wyoming Fair Employment Commission report that determined plaintiff was not
discharged because of his age, where all evidentiary matter before agency could be presented to
jury in some form, and thus, only purpose to be served by evidence would be to suggest to jury
that it should reach same conclusion).
The Court will thus at this time grant Relator’s request to exclude evidence of the No
Probable Cause Letter. This ruling, however, is without prejudice. As Defendants note, Relator
has designated as trial exhibits his complaint to the New Mexico Human Rights Bureau and the

6

EEOC Dismissal and Notice of Rights. Defendants argue that admission of the No Probable Cause
Letter is necessary under the rule of completeness. The parties may raise the admissibility of the
letter at trial should evidence therein become more relevant for impeachment purposes or other
admissible grounds.
IT IS THEREFORE ORDERED that
1. Defendants’ Motion in Limine to Exclude Evidence or Argument Related to Massachusetts
Settlement (ECF No. 139) is GRANTED.
2. Relator’s Motion in Limine to Exclude Evidence and Argument (ECF No. 140) is
GRANTED as to the request to exclude the New Mexico Department of Workforce
Services’ “Determination of No Probable Cause” Letter, but in other respects is DENIED.

____________________________________
UNITED STATES DISTRICT JUDGE

7