Denoewer v. Union County Board of Developmental Disabilities et al
Filing
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ORDER denying 118 Motion in Limine; denying 119 Motion in Limine; denying 120 Motion in Limine; denying 121 Motion in Limine. Granting in part and denying in part 127 Motion in Limine; GRANTED IN PART as to the fifth and tenth objections. Ruling is withheld as to the sixth objection, and the remaining objections are DENIED. Signed by Chief Judge Algenon L. Marbley on 9/29/2019. (cw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHAEL A. DENOEWER,
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Plaintiff,
v.
UCO INDUSTRIES, INC.,
Defendant.
Case No. 2:17-cv-0660
JUDGE ALGENON L. MARBLEY
Magistrate Judge Jolson
OPINION & ORDER
This matter is before the Court on Plaintiff’s and Defendant’s Motions in Limine. (ECF
Nos. 118, 119, 120, 121, 127). For the reasons set forth below, the Court DENIES Plaintiff’s
Motions, GRANTS IN PART AND DENIES IN PART Defendant’s Motions, and withholds
ruling on one of Defendant’s Motions.
II. APPLICABLE LAW
A. Motions in Limine
The purpose of motions in limine is “to narrow the issues remaining for trial and to
minimize disruptions at trial.” United States v. Brawner, 173 F.3d 966, 970 (6th Cir. 1999). In
disposing of a motion in limine, the guiding principle is to “ensure evenhanded and expeditious
management of trials.” Ind. Ins. Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio July
16, 2004). Courts should “exclude evidence on a motion in limine only when that evidence is
determined to be clearly inadmissible on all potential grounds.” Delay v. Rosenthal Collins Grp.,
LLC, 2012 WL 5878873, at *2 (S.D. Ohio Nov. 21, 2012). Thus, “[w]hen a court is unable to
determine whether or not certain evidence is clearly inadmissible, evidentiary rulings should be
deferred until trial so that questions of foundation, relevancy and potential prejudice can be
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resolved in the proper context.” Id. “Orders in limine which exclude broad categories of evidence
should seldom be employed. A better practice is to deal with questions of admissibility as they
arise.” Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975); see also
Morrison v. Stephenson, 2008 WL 343176, at *1 (S.D. Ohio Feb. 5, 2008) (“Courts . . . are
generally reluctant to grant broad exclusions of evidence in limine, because a court is almost
always better situated during the actual trial to assess the value and utility of evidence.”) (internal
quotation omitted). “Whether or not to grant a motion in limine falls within the sound discretion
of the trial court.” Delay, 2012 WL 5878873, at *2.
B. Rules of Evidence
Together, the parties’ motions implicate the Federal Rules of Evidence on relevance (Rules
401, 402, 403), lay and expert witnesses (Rules 602, 701, 702, 703, 704), and hearsay (Rules 801,
802), as well as Federal Rule of Civil Procedure 26(a)(2) on pretrial disclosures.
The relevance rules provide that evidence is relevant, and thus generally admissible, if it
has “any tendency” to make a “fact . . . of consequence in determining the action” “more or less
probable than it would be without the evidence.” Fed. R. Evid. 401, 402. Relevant evidence may
be excluded, however, when the court determines that “its probative value is substantially
outweighed” by “unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
Lay witnesses are restricted in offering opinion testimony, as it must be “rationally based
on the witness’s perception,” “helpful to understanding the witness’s testimony or to determining
a fact in issue,” and “not based on scientific, technical, or other specialized knowledge.” Fed. R.
Evid. 701. Lay witnesses also are required to have personal knowledge of the matter to which they
testify. Fed. R. Evid. 602. By contrast, expert witnesses generally can testify in the form of an
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opinion. Fed. R. Evid. 702. Opinion testimony by an expert is “not objectionable just because it
embraces an ultimate issue,” provided that it stops short of giving legal conclusions. Fed. R. Evid.
704(a). Experts need not have personal knowledge of the matter, and they may base an opinion on
facts or data brought to their awareness. Fed. R. Evid. 602, 703. If the expert’s opinion rests on
otherwise inadmissible evidence, however, the expert may disclose them “only if their probative
value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.” Id.
Hearsay is an out-of-court statement offered for the truth of the matter asserted, and it
generally is inadmissible. Fed. R. Evid. 801(c), 802. One of the exceptions to this rule, at issue
here, is the statement of an opposing party. A statement that “was made by the party’s agent or
employee on a matter within the scope of that relationship and while it existed” is excluded from
the hearsay definition, and thus is admissible, when offered against that party. Fed. R. Evid.
801(d)(2)(D).
Federal Rule of Civil Procedure 26(a)(2) concerns the pretrial disclosures of an expert
witness. The rule generally requires a written report containing “a complete statement of all the
opinions the witness will express and the basis and reasons for them.” Fed. R. Civ. P.
26(a)(2)(B)(i). The report “must only convey the substance of the expert’s opinion,” and it “need
not replicate every word that the expert might say on the stand.” Evans v. Cardinal Health, 2020
WL 8459004, at *5 (E.D. Mich. Nov. 19, 2020) (internal quotations omitted).
III. ANALYSIS
A. Plaintiff’s Motions in Limine
Plaintiff submitted four Motions in Limine (ECF Nos. 118, 119, 120, 121). For the reasons
that follow, these Motions are DENIED.
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1. To Preclude Defendant from Raising the Affirmative Defense of Direct Threat at Trial
(ECF No. 118)
Plaintiff first asks the Court to preclude Defendant from raising the affirmative defense of
“direct threat.” Plaintiff argues that Defendant raised direct threat only in the context of the “File
13” job, which did not survive summary judgment, and not in the context of the “production line”
job presently at issue. (ECF No. 118 at 3). Defendant acknowledges that the direct threat defense
is moot with respect to the File 13 job but denies that it waived the defense with respect to the
production line job. (ECF No. 135 at 2).
The Court previously granted Defendant leave to amend its answer and plead direct threat
with respect to both jobs. (ECF No. 100 at 28–29). The amended answer pled direct threat in
general terms and did not confine the argument to the File 13 job. (ECF No. 105 ¶ 62). Moreover,
Plaintiff has been on notice of this argument since Defendant’s first answer to the original
complaint. Defendant consistently has pled that it possessed legitimate, nondiscriminatory reasons
for its actions (ECF No. 13 ¶ 10; ECF No. 30 ¶ 55; ECF No. 46 ¶ 55; ECF No. 49 ¶ 50; ECF No.
105 ¶ 50); and an employee’s threatening behavior can be such a reason. See, e.g., McNamara v.
Gen. Motors, LLC, 189 F. Supp. 3d 685, 697 (N.D. Ohio May 27, 2016).
Because Plaintiff’s first Motion is premised on a misplaced assumption that Defendant
waived the direct threat defense as applied to the production line job, the Motion is DENIED.
2. Plaintiff’s Motion in Limine to Preclude Defendant from Presenting Evidence of Plaintiff’s
Personal Care Needs and Behavior Outside of the Workplace (ECF No. 119)
Next, Plaintiff asks the Court to preclude Defendant from presenting evidence of Plaintiff’s
behavior outside the workplace, including his personal care needs. Plaintiff argues that such
evidence tarnishes his reputation without bearing on his job qualifications, so it is irrelevant under
Rule 401 or unfairly prejudicial under Rule 403. (ECF No. 119 at 3–4). Defendant retorts that
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Plaintiff put such evidence at issue through its experts. Dr. Mills relied on Plaintiff’s personal care
skills to assess his qualification for the jobs at issue (ECF No. 135 at 4); and Dr. Mills and Dr.
Calculator each concluded that Defendant caused Plaintiff’s disruptive behavior. (Id. at 6).
Evidence of personal care needs and of disruptive behavior outside the workplace (i.e., in the
absence of the alleged trigger) would tend to challenge the experts’ conclusions.
Defendant has identified some plausible ground that would permit the evidence of personal
care needs and behavior outside the workplace to be heard. Specifically, Defendant offers the
evidence as rebuttal to Plaintiff’s experts, not affirmatively to tarnish Plaintiff’s reputation.
Plaintiff’s second Motion is DENIED.
3. Plaintiff’s Motion in Limine to Preclude Defendant from Referring to Plaintiff’s Behaviors in
the Workplace as “Violent” (ECF No. 120)
Plaintiff asks the Court to preclude Defendant from characterizing Plaintiff’s behavior at
UCO as “violent,” asserting that only an expert can interpret Plaintiff’s intent. (ECF No. 120 at 4).
Defendant contends that lay testimony is appropriate and should not be excluded. (ECF No. 135
at 8).
Defendant correctly identifies that the Federal Rules on expert testimony are permissive,
not mandatory. Just because an issue may be appropriate for expert testimony does not mean that
lay testimony is barred. Rule 701 permits opinion testimony by a lay witness that is “rationally
based on the witness’s perception.” Defendant seeks to offer testimony from witnesses who
observed Plaintiff grabbing, head-butting, and biting others in the workplace, and who perceived
these behaviors as “violent.” (Id.). Such testimony will be helpful to the jury as a summary of
observations, and it will not carry any aura of expertise. See also United States v. Gyamfi, 805 F.3d
668, 672 (6th Cir. 2015) (Body language and physical demeanor observed by a lay witness may
be characterized as “nervous” because “testimony related to a person’s manner of conduct is also
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categorized as a prototypical example of Rule 701 evidence.”); Yowan Yang v. ActioNet, Inc., 2016
WL 8929250, at *7–8 (In a case involving assault at a workplace, “lay witness testimony recalling
violence by [the assailant] that occurred in the witness’s presence” is relevant and admissible,
provided that it concerns “specific instances of conduct that they have observed” and not “whether
someone has a ‘propensity for violence.’”).
Plaintiff’s expert, Dr. Calculator, may undermine the weight of this evidence by testifying
that the behaviors were “purposeful and communicative” expressions of a nonverbal individual.
(ECF No. 120 at 2). But Plaintiff may not bar the admission of lay testimony altogether. Plaintiff’s
third Motion is DENIED.
4. Plaintiff’s Motion in Limine to Preclude Defendant from Arguing that “No Good Deed Goes
Unpunished” and Making Similar Arguments that Risk Jury Nullification (ECF No. 121)
Finally, Plaintiff seeks to preclude arguments that risk jury nullification, such as the adage
in Defendant’s Motion for Summary Judgment that “No good deed goes unpunished.” Plaintiff
argues that Defendant’s mission to employ people with developmental disabilities is the type of
evidence that would encourage jurors to decide the case based on “what UCO is instead of what
UCO did vis-à-vis Mr. Denoewer.” (ECF No. 121 at 2). Defendant responds that its mission is
relevant to malice and punitive damages, which Plaintiff put at issue. (ECF No. 135 at 13).
Defendant’s mission would tend to disprove Plaintiff’s assertion that punitive damages are
necessary to prevent it from discriminating again against developmentally disabled workers.
Accordingly, Defendant has identified some potential ground for admissibility. If the arguments
start to verge on coded pleas for jury nullification, the Court will intervene at trial. Plaintiff’s final
Motion is DENIED.
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B. Defendant’s Motion in Limine (ECF No. 127)
Defendant submitted a single Motion in Limine containing ten objections, most of which
related to Plaintiff’s expert testimony. For the reasons that follow, Defendant’s fifth and tenth
objections are SUSTAINED, ruling is withheld on the sixth objection, and the remaining
objections are OVERRULED.
1. Objections relating to Plaintiff’s expert witnesses
Defendant’s first objection seeks to preclude Plaintiff’s experts from testifying as to legal
conclusions. (ECF No. 127 at 2). Defendant argues that Dr. Mills and Dr. Calculator “cross the
line” when they testify, inter alia, on whether particular accommodations are “reasonable,” (Id. at
3), whether Plaintiff was “qualified,” (Id.), and whether particular job functions are “essential,”
(Id. at 4). Federal Rule 704(a) provides that, in general, an expert opinion “is not objectionable
just because it embraces an ultimate issue.” Plaintiff, citing this rule and Sixth Circuit caselaw,
states that its experts will “suggest the answer” to legal questions but will not opine on whether
Defendant violated the law. (ECF No. 132 at 4–5). See also Babb v. Maryville Anesthesiologists
P.C., 942 F.3d 308, 317 (6th Cir. 2019). This is permissible; and to the extent that the experts cross
this line, the Court will hear objections at trial. Further, Plaintiff notes that several of the terms to
which Defendants object (e.g., “disabled,” “qualified,” “accommodation”) are also within the
experts’ professional vernacular. (ECF No. 132 at 5). Proper jury instructions will clarify that the
jury should not take the experts as legal authorities. Defendant’s first objection is OVERRULED.
Defendant’s second objection challenges the relevance of Dr. Mills’s opinions on how
Plaintiff’s career trajectory was affected by the alleged discrimination. (ECF No. 127 at 4–5).
Defendant views Dr. Mills’s report as suggesting a legal duty on its part to help Plaintiff achieve
competitive wage employment. (Id. at 5). This misconstrues the report. Dr. Mills will offer
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opinions on the damages Defendant caused by their alleged discrimination. (ECF No. 132 at 6).
The legal duty is nondiscrimination; the loss of competitive wage employment is a damages theory
thereunder. To the extent Defendant is concerned about misleading the jury with inapplicable legal
duties, clear jury instructions are the preferable remedy. Defendant’s second objection is
OVERRULED.
Defendant’s third, fourth, and fifth objections concern Plaintiff’s expert testimony on
reasonable accommodations. (ECF No. 127 at 6, 8, 10). Defendant has conceded in its proposed
jury instructions that “no accommodation was necessary because Mr. Denoewer could perform
that essential functions of the production line job without accommodations and UCO never
prohibited him from working on the production line because of his disability.” (ECF No. 128 at
3). Defendant seeks now to exclude reasonable accommodations evidence as irrelevant or not
disclosed. Plaintiff agrees that the testimony complained of in objection five is no longer needed
since the facts it sought to prove are no longer in dispute. (ECF No. 132 at 11).
As to objections three and four, however, Plaintiff seeks still to present the testimony on
reasonable accommodations as either background evidence, rebuttal to Defendant’s testimony
about Plaintiff’s low productivity, or evidence of other wrongs suggestive of motive or absence of
mistake. (Id. at 7). The strongest ground for admissibility is rebuttal. Despite their concession,
Defendant continues to argue that it declined to promote Plaintiff to the production line job out of
“concern[] that Mr. Denoewer would not maintain the team speed necessary to succeed on the
production line because he was one of the slowest workers in the pre-production area.” (ECF No.
128 at 3). An absence of reasonable accommodations at the pre-production area would be relevant
to whether Defendant’s concern was legitimate or self-fulfilling. Moreover, Plaintiff has put other
wrongs at issue by seeking punitive damages. As to disclosure, Plaintiff complied with Federal
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Rule of Civil Procedure 26 by indicating that Dr. Mills’s testimony would cover reasonable
accommodations available to Defendant. (ECF No. 127-1 at 2). Defendant complains that the
specific proposed accommodations were not disclosed; but, as Plaintiffs note, Defendant could
have learned this information by deposing Dr. Mills. (ECF No. 132 at 8–9).
The Court appreciates that excluding all evidence of reasonable accommodations would
simplify issues for the jury; but Plaintiff has identified legitimate uses for some of the expert
testimony. Accordingly, Defendant’s fifth objection is SUSTAINED, but its third and fourth
objections are OVERRULED.
Defendant’s sixth objection asks the Court to prevent Plaintiff’s experts from testifying
that Defendant could have or should have tolerated Plaintiff’s “violent” behavior. (ECF No. 127
at 12). The Court has observed in this very case that the ADA duty to accommodate does not run
in favor of employees who threaten or commit violence because they are considered unqualified
for the job. (ECF No. 100 at 15–16). Defendants, however, have not identified which (if any)
portions of the expert reports and expected testimony will suggest that there is a legal duty to
accommodate violent behavior. Rather than rule prematurely, the Court will WITHHOLD ruling
on this objection and assess the issue at trial, when it can be considered in proper context.
Defendant’s seventh objection seeks to preclude Plaintiff’s experts from testifying beyond
the scope of their expertise. Defendant argues that Dr. Mills and Dr. Calculator are not qualified
to opine on what caused Plaintiff’s disruptive behavior at the workplace. (ECF No. 127 at 13).
Defendant also notes that Plaintiff’s treating psychiatrist and primary physician reached
conclusions in tension with those of Dr. Mills and Dr. Calculator. (Id. at 14–15). Opinions can,
and often do, differ between experts; just because Plaintiff’s treating doctors reached different
conclusions does not mean that Dr. Mills and Dr. Calculator are unqualified. On the contrary, the
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experts have greater than seventy years’ combined experience working with people with
developmental disabilities. (ECF No. 132 at 12). Defendant may probe the experts’ qualifications
and conclusions during cross examination, but the seventh objection is OVERRULED.
Defendant’s eighth and ninth objections challenge Plaintiff’s expert testimony related to
lost earning capacity. Defendants state that Dr. Sabo and Dr. Boyd will offer opinions that are
irrelevant to the case, which they also failed to disclose as required by Federal Rule of Civil
Procedure 26(a)(2). (ECF No. 127 at 15, 19). The challenged opinions relate to Plaintiff’s lost
future earning capacity resulting from Defendant’s discrimination (ECF No. 132 at 13), not, as
Defendants argue, to Plaintiff’s suitability to work in the production line. (ECF No. 127 at 16). In
other words, the experts will testify to consequential damages, which are relevant as one of
Plaintiff’s key theories of the case. Moreover, Plaintiff disclosed in their Rule 26 report that Dr.
Sabo and Dr. Boyd would give opinions about Plaintiff’s potential to achieve competitive wage
employment and about the present value of lost earnings. (ECF No. 127-1 at 3, 4). Therefore, the
opinions are relevant and were disclosed properly. Defendant’s objections as to the experts’
methodology, such as the similarity of the jobs and wages they considered, are appropriate for
cross-examination. Defendant’s eighth and ninth objections are OVERRULED.
2. Hearsay objection
Defendant’s tenth and final objection seeks to exclude hearsay testimony from Ms. Cauley,
an employee of the Union County Board of Developmental Disabilities (“UCBDD”). (ECF No.
127 at 20; ECF No. 132 at 14). UCBDD previously was a co-defendant in this case since it
controlled Defendant UCO until a privatization effort in 2013. (Id. at 15). Ms. Cauley would testify
about statements allegedly made by her supervisor Mr. Murphy, also a County employee, that
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suggest Defendant denied Plaintiff the opportunity to work on the production line in retaliation for
Plaintiff’s parents having opposed privatization. (ECF No. 127 at 20).
The statements in question occurred prior to privatization, when Mr. Murphy still
supervised UCO employees. (ECF No. 132 at 15). Plaintiff seeks to admit the statement as the
admission of a party opponent. (Id.). But in so doing, Plaintiff would have Mr. Murphy’s statement
attributed down the chain of supervision. Rule 801(d)(2)(D) attributes statements by the agent or
employee up the chain to the principal or employer. It does not work in the reverse. See, e.g.,
Mahlandt v. Wild Canid Survival & Res. Ctr., Inc., 588 F.2d 626, 631 (8th Cir. 1978) (statement
contained in minutes of corporate board meeting are not admissible against employee of
corporation, whereas employee’s statements are admissible against corporation). Mr. Murphy’s
statement would be admissible against UCBDD, but not against Defendant UCO.
Separately, the statement is of questionable relevance. The statement suggests that
Plaintiff’s firing was retaliatory, not discriminatory. Plaintiff’s case sounds under disability
discrimination and does not allege any form of retaliation. (See ECF No. 45). Moreover, the event
allegedly prompting the retaliation is Plaintiff’s parents’ exercise of free speech rights, not
Plaintiff’s exercise of any rights under federal or state discrimination laws. Even if the statement
were allowed as nonhearsay, it still could be excluded as nonrelevant. Fed. R. Evid. 401(b), 402.
An additional challenge occurs because Dr. Mills relied on Ms. Cauley’s testimony about
Mr. Murphy’s statement in forming her opinion. (ECF No. 127 at 20). Per Rule 703, experts can
rely on otherwise inadmissible evidence, but it can be disclosed to the jury “only if [the] probative
value in helping the jury evaluate the opinion substantially outweighs [the] prejudicial effect.”
There is significant probative value to the Court and jury in leaving Dr. Mills’s report intact and
allowing her to testify completely as to the grounds for her opinion. The prejudice to Defendant is
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minimal, since the statement concerns retaliation, not discrimination, and is attributable to
UCBDD, not Defendant. With the aid of cross examination, the jury can be depended on to keep
these issues separate. Therefore, the balance under Rule 703 disfavors restricting the expert
testimony. Defendant’s tenth objection is SUSTAINED, but only as to direct testimony.
IV. CONCLUSION
For the reasons stated herein, Plaintiff’s Motions in Limine (ECF Nos. 118, 119, 120, 121)
are DENIED. Defendant’s Motion in Limine (ECF No. 127) is GRANTED IN PART as to the
fifth and tenth objections. Ruling is withheld as to the sixth objection, and the remaining objections
are DENIED.
IT IS SO ORDERED.
______
__________________
ALGENON L. MARBLEY
CHIEF UNITED STATES DISTRICT JUDGE
DATED: September 29, 2019
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