Roswick v. Mid Dakota Clinic, P.C. et al

Filing 205

ORDER ON PRETRIAL MOTIONS by Judge Ann D. Montgomery granting 105 Motion in Limine; granting 107 Motion in Limine; granting 109 Motion in Limine; denying 111 Motion in Limine; granting 114 Motion in Limine; granting 145 Motion for Attorney conducted Voir Dire; denying 152 Motion to Strike; granting 156 Motion in Limine; granting 158 Motion in Limine; granting 160 Motion in Limine; granting 162 Motion in Limine; granting 164 Motion in Limine; denying 173 Motion for Hearing (Written Opinion). (TLU)

UNITED STATES DISTRICT COURT
DISTRICT OF NORTH DAKOTA

Dr. Robert J. Roswick,
Plaintiff,

ORDER ON
PRETRIAL MOTIONS
Civil No. 17-44 ADM/ARS

v.
Mid Dakota Clinic, P.C.,

Defendant.
______________________________________________________________________________
J. Ashwin Madia, Esq., Madia Law LLC,, Minneapolis, MN on behalf of Plaintiff.
Scott K. Porsborg, Esq., and Sarah E. Wall, Esq., Smith Porsborg Schweigert Armstrong
Moldenhauer & Smith, Bismarck, ND, on behalf of Defendant.
______________________________________________________________________________
I. INTRODUCTION
This matter is before the undersigned United States District Judge for rulings on
Defendant Mid Dakota Clinic, P.C.’s (“MDC”) Motions in Limine [Docket Nos. 105, 107, 109,
111, 156, 158, 160, 162, and 164] and Motion for Hearing [Docket No. 173], and Plaintiff Dr.
Robert J. Roswick’s (“Dr. Roswick”) Motions in Limine [Docket Nos. 114, 145, and 152].
II. DISCUSSION
Dr. Roswick alleges he was suspended by MDC’s Board of Directors (“Board”) and
subsequently terminated by MDC’s physician shareholders in retaliation for opposing MDC’s
“racially discriminatory actions” allegedly taken against Dr. Jayaram Bharadwaj (“Dr.
Bharadwaj”), an Indian-American physician. Compl. [Docket No. 1] ¶¶ 23, 34. MDC denies the
allegations and argues Dr. Roswick was suspended and terminated for filing a false complaint of
discrimination, not for engaging in protected conduct. MDC argues that Dr. Roswick’s false

allegation was the cause of his suspension and termination, the “last straw” in a history of
disruptive behavior since he resigned as the Medical Director of MDC.
A jury trial on Dr. Roswick’s retaliation claim is scheduled for August 5, 2019. The
parties have filed a number of pretrial motions. Based on the memoranda and documents filed to
date, the Court makes the following preliminary rulings.1 These rulings are intended to assist the
parties in tailoring their evidence to expedite the presentation of testimony at trial. The parties
may renew their arguments on the admissibility of evidence if the evidence at trial differs from
the discussion here. An opportunity for preserving objections to these rulings will be provided
on the first day of trial.
A. MDC’s Motions in Limine
1. Motion to Exclude Evidence of Insurance
MDC argues that any evidence of MDC’s insurance coverage is not admissible under
Federal Rule of Evidence 411, which prohibits the admission of insurance coverage for the
purpose of proving fault. Roswick responds that he does not intend to introduce evidence of
insurance coverage unless MDC opens the door to evidence of insurance by introducing
evidence or argument regarding MDC’s ability to pay a large verdict.
MDC’s motion to exclude evidence of insurance is GRANTED. If Dr. Roswick contends
at trial that a door has been opened to allow the evidence of insurance coverage, he must first
obtain a ruling reversing the exclusion of evidence of insurance.

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The timing and location of the trial precludes oral argument on the pretrial motions.
MDC’s motion for oral argument is denied.
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2. Motion to Exclude Evidence Regarding Opinions of Plaintiff’s Job Performance
of Non-Decisionmakers
MDC argues that evidence of non-decisionmakers’ opinions regarding Dr. Roswick’s
competency as a physician are inadmissible on the issue of whether MDC retaliated against him.
Dr. Roswick argues that the evidence is relevant to rebut MDC’s argument that Dr. Roswick
engaged in a pattern of disruptive behavior. MDC’s assertions of a pattern of disruptive
behavior were first documented in an October 2014 letter from the Board to Dr. Roswick. The
letter, sent approximately three months before Dr. Roswick complained of discrimination against
Dr. Bharadwaj, outlined six instances in which the Board perceived Dr. Roswick to have
engaged in disruptive behavior. The Board stated that if the disruptive behaviors did not cease it
would take disciplinary action that could result in termination. Dr. Roswick argues the
allegations of disruptive incidents occurring prior to October 2014 are false, and he seeks to
introduce evidence of non-decisionmakers to rebut the allegations.
Whether Dr. Roswick’s behavior prior to October 2014 was in fact disruptive (as
perceived by the Board) or was in fact proper (as perceived by Dr. Roswick) is not relevant to
whether MDC retaliated against Dr. Roswick in 2015 for asserting a good faith, objectively
reasonable claim of discrimination. The only relevance of the six incidents is to show that the
Board perceived Dr. Roswick’s behavior as disruptive. Therefore, evidence of the facts and
circumstances underlying the pre-October 2014 incidents is inadmissible. Evidence underlying
the pre-October 2014 incidents also threatens to confuse the jury and cause undue delay by
creating mini trials on irrelevant issues.
Similarly, evidence to Dr. Roswick’s competency as a physician or his character for

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truthfulness are irrelevant to whether MDC retaliated against Dr. Roswick in 2015 for asserting a
good faith and reasonably objective claim of discrimination. Therefore, such evidence is not
admissible. MDC’s motion to exclude evidence regarding non-decisionmakers’ opinions
regarding Dr. Roswick’s job performance is GRANTED.
3. Motion to Exclude Evidence Regarding Plaintiff’s Request for Punitive Damages
MDC argues any evidence of Dr. Roswick’s request for punitive damages must be
excluded as irrelevant, because the claim for punitive damages is unsupported and improperly
pled. Dr. Roswick responds that Board members knew their actions were unlawful but retaliated
against him anyway.
“Punitive damages are appropriate for victims of Title VII if the plaintiff has shown that
the employer engaged in intentional discrimination and acted with “malice or with reckless
indifference” to the plaintiff’s federally protected rights.” Dominic v. DeVilbiss Air Power Co.,
493 F.3d 968, 974 (8th Cir. 2007) (quoting 42 U.S.C. § 1981a(b)(1); Kolstad v. American Dental
Ass’n, 527 U.S. 526, 535 (1999)). “Malice and reckless indifference can be shown by
demonstrating that an employer discriminated ‘in the face of a perceived risk that its actions will
violate federal law.’” Id. (quoting Kolstad, 527 U.S. at 536). This standard focuses on the
employer’s state of mind regarding its knowledge that it “may be acting in violation of federal
law, not its awareness that it is engaging in discrimination.” Id. (quoting Kolstad, 527 U.S. at
535). “When an employer promptly and conscientiously responds to complaints of harassment
or discrimination with good faith efforts, punitive damages are not warranted.” Id.
The summary judgment, trial briefs, and documents filed in this case do not suggest
MDC acted with malice or reckless indifference to Dr. Roswick’s rights under Title VII. This is

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not a case where an employee was the object of discrimination, reported it, and the company
failed to investigate. Here, Dr. Roswick complained that a third party was the object of
discrimination, and MDC promptly asked Dr. Roswick to meet with its compliance officer to
investigate the basis for the complaint. Punitive damages are not appropriate under these
circumstances. MDC’s motion to exclude evidence of Dr. Roswick’s request for punitive
damages is GRANTED.
4. Motion to Exclude Plaintiff’s Expert Witnesses
MDC moves to exclude any evidence or testimony from two experts retained by Dr.
Roswick to support his alleged damages. MDC does not challenge the experts’ qualifications,
but contends their opinions include factual errors, improper calculations, and unsupported
assumptions.
When evaluating the admissibility of expert testimony under Federal Rule of Evidence
702, a trial court serves as the gatekeeper to ensure the reliability and relevance of the expert
testimony offered into evidence. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999).
A trial court has broad discretion in fulfilling the gatekeeping role. Wagner v. Hesston Corp.,
450 F.3d 756, 758 (8th Cir. 2006). The proffered testimony must be useful to the fact-finder, the
expert must be qualified, and the proposed evidence must be reliable. Lauzon v. Senco Prods.,
Inc., 270 F.3d 681, 686 (8th Cir. 2001). “As a general rule, the factual basis of an expert opinion
goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to
examine the factual basis for the opinion in cross-examination.” United States v. Finch, 630
F.3d 1057, 1062 (8th Cir. 2011) (internal quotations and alterations omitted). “Only if the
expert’s opinion is so fundamentally unsupported that it can offer no assistance to the jury must

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such testimony be excluded.” Bonner v. ISP Techs., Inc., 259 F.3d 924, 929-30 (8th Cir. 2001).
Doubts about the usefulness of an expert’s testimony should generally be resolved in favor of
admissibility. Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 758 (8th Cir. 2006).
Here, the experts’ opinions are not so fundamentally unsupported that they can offer the
jury no assistance. Thus, the testimony and opinions by Dr. Roswick’s experts are admissible.
MDC’s challenges to the opinions’ factual bases, calculations, and assumptions go to the
credibility of the experts’ testimony, and MDC will be allowed to explore these challenges at
trial during cross examination. MDC’s motion in limine to exclude expert witnesses is
DENIED.
5. Motion to Exclude Witnesses and Evidence
This motion expands on MDC’s motion in limine discussed in Paragraph 2 (i.e., MDC’s
Motion to Exclude Evidence Regarding Opinions of Plaintiff’s Job Performance of NonDecisionmakers). MDC argues that evidence and testimony by non-decisionmakers is irrelevant
to the Board’s decision to suspend and recommended termination of Dr. Roswick. To the extent
the evidence is offered as character evidence or evidence that some staff members enjoyed
working with Dr. Roswick, the evidence is not admissible because it is not relevant. The
evidence in this case should be focused on whether MDC terminated Dr. Roswick for asserting a
good faith, objectively reasonable claim of discrimination against Dr. Bharadwaj.
Additionally, evidence related to the propriety of the Board’s suspension of Dr.
Bharadwaj is excluded because the merits of an underlying discrimination claim are not relevant
to a retaliation claim. Buettner v. Arch Coal Sales Co., 216 F.3d 707, 714 (8th Cir. 2000). The
evidence is also likely to confuse the jury. Consistent with this discussion, the motion to exclude

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witnesses and evidence is GRANTED.
6. Motion to Exclude Evidence of Similarly Situated Physicians and Confidential
Peer Review Information
MDC argues that evidence and argument regarding similarly situated physicians and
confidential peer review information is not admissible because it is not relevant, would be
unfairly prejudicial, confuses the issues, and is likely to mislead the jury. Dr. Roswick responds
that the evidence is necessary to show that Dr. Roswick was reasonable in his belief that MDC
was discriminating against Dr. Bharadwaj on the basis of race by treating white, American-born
doctors more leniently than Dr. Bharadwaj.
The confidential peer review information in other physicians’ files will be excluded at
trial. The information is not relevant because the evidence to date is that Dr. Roswick did not
know the reason for the Board’s disciplinary action against Dr. Bharadwaj, and thus had no way
of ascertaining whether the action against Dr. Bharadwaj was proportional to the actions taken
against other physicians. Additionally, the peer review information is confidential and sensitive.
Such evidence is likely to confuse the issues and mislead the jury. Any probative value of this
evidence is far outweighed by its prejudicial value.
Dr. Roswick will be allowed to testify about his past roles at MDC on the Board and as
Medical Director involving peer review issues. He will also be allowed to testify that he was
aware of other physicians with severe disciplinary issues, but he is restricted from naming the
physicians or the specifics of their conduct without further permission from the Court. MDC’s
motion to exclude evidence of similarly situated physicians and confidential peer review is
GRANTED.

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7. Motion to Exclude Evidence of Proposed Merger with Sanford
MDC argues that evidence and discussion of prior potential sales of MDC are not
admissible because they are not relevant to Dr. Roswick’s retaliation claim. Dr. Roswick argues
the evidence is necessary to show why he was removed from the Board in 2012 and to show that
he was not bitter or vindictive about his removal. Dr. Roswick contends the evidence is
necessary to show that his disagreement with two Board members over the potential sale of
MDC caused those members to be biased against him.
The motion to exclude evidence and discussion of prior potential sales of MDC is
GRANTED. The specifics of the disagreement that allegedly led to Dr. Roswick’s removal from
the Board in 2012 are not relevant to whether MDC retaliated against Dr. Roswick in 2015 for
making a good faith and objectively reasonable claim of discrimination. The disagreement can
be broadly characterized as a disagreement over the future direction of MDC, a topic which has
little to no evidentiary value and will likely lead to jury confusion over the issues being tried in
this case.
8. Motion to Exclude Evidence of Legal Conclusions by a Witness
MDC moves to exclude any testimony of legal conclusions by its outside legal counsel,
Michael C. Waller (“Waller”). Dr. Roswick responds that he intends to elicit testimony from
Waller about his personal knowledge of the facts and his perception of those facts. During
Waller’s deposition, Waller was asked whether he believed that the facts alleged in an email by
Dr. Roswick stated a reasonable concern of discrimination. MDC argues this and other
questions improperly expanded the scope of Waller’s deposition as a fact witness into an expert
deposition.

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Waller was not a decisionmaker in this case, and his opinion of Dr. Roswick’s email is
not relevant. It is for the jury to decide whether Dr. Roswick’s email stated a reasonable concern
of discrimination. Waller’s opinion on this jury issue is inadmissible. The motion to exclude
evidence of legal conclusions by a witness is GRANTED.
9. Motion to Exclude Evidence of Plaintiff’s Notes as Hearsay
MDC argues that notes written by Dr. Roswick documenting his version of what
transpired at various meetings are inadmissible hearsay. Dr. Roswick responds that some of the
notes were made pursuant to his duties as medical director and are admissible as business
records under Federal Rule of Evidence 803(6). He also argues that the contemporaneous notes
of events occurring several years ago are admissible as recorded recollections under Federal
Rule of Evidence 803(5).
Any notes offered for the purpose of litigating the merits of the disputes between Dr.
Roswick and Board members that occurred prior to the January 2015 discrimination claim are
excluded on relevance grounds. As to the other notes, if Dr. Roswick intends to testify in a
manner consistent with the notes, he may use them to refresh his recollection, but they will not
be admitted into evidence. The motion to exclude evidence of Dr. Roswick’s notes as hearsay is
GRANTED.
B. Dr. Roswick’s Pretrial Motions
1. Motion to Exclude Evidence and Argument Regarding the District Court’s
Opinion in Bharadwaj v. Mid Dakota Clinic
Dr. Roswick argues the District Court’s summary judgment order dismissing Dr.
Bharadwaj’s discrimination lawsuit is not admissible. The Court agrees. As discussed above,

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the merits of an underlying discrimination claim are not relevant to a retaliation claim. Here,
whether Dr. Roswick had a good faith, objectively reasonably belief that MDC was
discriminating against Dr. Bharadwaj depends on what Dr. Roswick knew at the time he made
the discrimination complaint, not on what a court later concluded. The motion to exclude
evidence regarding the District Court’s opinion in Bharadwaj v. Mid Dakota Clinic, No. 16-262
(D.N.D.) is GRANTED.
2. Motion to Strike Errata of Mike Waller
Dr. Roswick moves to strike an errata sheet that changes an answer Waller gave in his
deposition to the question of whether it was reasonable for Dr. Roswick to be concerned about
racial discrimination against Dr. Bharadwaj. As discussed above, Waller’s opinion on the
reasonableness of Dr. Roswick’s concern is not relevant because he was not a decisionmaker.
Additionally, the reasonableness of Dr. Roswick’s concern is the issue the jury must decide.
Because Waller’s answer to the question is not admissible, the motion to strike errata is DENIED
as moot.
3. Motion for Attorney-Conducted Voir Dire
Dr. Roswick requests up to 30 minutes of attorney-conducted voir dire to explore the jury
pool’s views on racial discrimination and awarding money damages. Attorney-conducted voir
dire will be allowed but will be counted toward the time allocated to Dr. Roswick to present his
case. The motion for attorney-conducted voir dire is GRANTED.
III. CONCLUSION
Based upon the foregoing, and all of the files, records and proceedings herein, IT IS
HEREBY ORDERED that:

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1. The following motions are preliminarily GRANTED as stated above:
a.

MDC’s first, second, third, fifth, sixth, seventh, eighth, and ninth motions
in limine [Docket Nos. 105, 107, 109, 156, 158, 160, 162, and 164]; and

b.

Dr. Roswick’s motion in limine [Docket No. 114] and motion for
attorney-conducted voir dire [Docket No. 145].

2. The following motions are preliminarily DENIED as stated above:
a.

MDC’s fourth motion in limine [Docket No. 111] and motion for hearing
[Docket No. 173]; and

b.

Dr. Roswick’s Motion to Strike Errata [Docket No. 152].
BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: August 1, 2019.

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