Siring v. Oregon State Board of Higher Education
Filing
109
Opinion and Order - The Parties motions in limine and other evidentiary objections are GRANTED IN PART and DENIED IN PART as set forth in this Opinion and Order. The next Pretrial Conference shall occur on Tuesday, October 15, 2013, at 11:00 a.m. in Courtroom 13B. Signed on 10/8/2013 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROSEMARY SIRING, an individual,
Case No. 3:11-cv-01407-SI
Plaintiff,
OPINION AND ORDER
ON PRETRIAL MOTIONS
v.
OREGON STATE BOARD OF HIGHER
EDUCATION acting by and through
EASTERN OREGON UNIVERSITY, a
public educational institution of higher
learning,
Defendant.
Craig A. Crispin and Shelley D. Russell, Crispin Employment Lawyers, 1834 S.W. 58th Avenue,
Suite 200, Portland, Oregon 97221. Attorneys for Plaintiff.
Michael Porter and Cody J. Elliot, Miller Nash LLP, 3400 U.S. Bancorp Tower, 111 S.W. Fifth
Avenue, Portland, Oregon 97204. Attorneys for Defendant.
Michael H. Simon, District Judge.
Dr. Rosemary Siring (“Plaintiff” or “Siring”) brings this lawsuit against Oregon State
Board of Higher Education, acting by and through Eastern Oregon University (“Defendant” or
“EOU”). Plaintiff alleges seven claims for relief: (1) age discrimination in violation of the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a); (2) age discrimination in
PAGE 1 – OPINION AND ORDER
violation of Or. Rev. Stat. § 659A.030(1)(a); (3) retaliation in violation of 29 U.S.C. § 623(d);
(4) retaliation in violation of Or. Rev. Stat. § 659A.030(1)(f); (5) discrimination based on a
perceived disability in violation of Title I of the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12112(a); (6) disability discrimination in violation of Or. Rev. Stat. § 659A.112(1);
and (7) violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). See Dkt. 53
(Pretrial Order). The Court has previously granted in part Defendant’s motion for summary
judgment, holding that Plaintiff may not base her retaliation claims on any actions taken by
Defendant either: (1) in response to Plaintiff’s March 2010 email, which is not a protected
activity; or (2) after Plaintiff filed her Tort Claim Notice and BOLI complaint in July 2010, due
to lack of causation. A jury trial is scheduled to begin on Tuesday, October 15, 2013, at 1:00
p.m. This Opinion and Order addresses the parties pending motions in limine and other pretrial
evidentiary objections.
DISCUSSION
A. Plaintiff’s Motions in Limine (See Dkts. 75 and 86)
1. Motion to exclude evidence regarding Plaintiff’s initial tenure denial and
subsequent successful appeal while a professor at Montana State University
DENIED.
Plaintiff argues that the fact that the tenure committee at Montana State UniversityBillings (“MSU-B”) voted to deny Plaintiff tenure is irrelevant because it concerned a different
school, a different tenure process, and different reasons for initially denying tenure than are
presented here. Plaintiff adds that any slight probative value of the initial denial of Plaintiff’s
tenure at MSU-B, before that decision was reversed by the provost and Plaintiff was offered
tenure, is significantly outweighed by the risk of unfair prejudice. Defendant responds that
Plaintiff “wants to tell only one side of her background.” Defendant adds that Plaintiff’s tenure
PAGE 2 – OPINION AND ORDER
experience at MSU-B, where the tenure committee found Siring’s scholarship to be lacking, is
relevant to show that Plaintiff was aware of the importance of scholarship in the university
tenure process and that university-level scholarship has been an ongoing struggle for Plaintiff.
The Court agrees with Defendant. These facts are relevant to the jury’s assessment of
Defendant’s stated reasons for taking the actions that it took and are not unfairly prejudicial.
2. Motion to exclude evidence regarding Plaintiff’s alleged gambling activities
GRANTED IN PART AND DENIED IN PART.
Plaintiff argues that evidence of Dr. Siring’s past gambling activities should be excluded
as irrelevant and, alternatively, excluded under Rule 403 of the Federal Rules of Evidence
(“FRE”). Defendant responds that Plaintiff’s past gambling activities are relevant to the issue of
Plaintiff’s claim for emotional distress. Defendant notes that the report prepared by Plaintiff’s
expert Dr. Lauren Best indicates that Plaintiff has a history of gambling and that financial stress,
including stress caused by gambling, can cause emotional distress.
Although financial stressors can be relevant to emotional distress damages, there is no
evidence that Plaintiff’s gambling activities and alleged gambling problem occurred near in time
to the relevant actions taken by EOU in 2009 and later. In fact, it appears from Dr. Best’s report
that Plaintiff has not gambled since 2007.
In an attempt to lay a foundation for this evidence, Defendant may inquire of both
Plaintiff and Dr. Best, out of the presence of the jury, regarding whether Plaintiff currently has a
gambling program and whether she has gambled since 2007. See FRE 104(c)(3). If an
evidentiary foundation is laid that shows that Plaintiff’s gambling activities may be contributing
to her emotional distress since 2009, evidence of those activities may be allowed, but not
otherwise. Until such a foundation has been laid outside the presence of the jury and the Court so
finds, Defendant may not refer to any such evidence of Plaintiff’s gambling activities.
PAGE 3 – OPINION AND ORDER
3. Motion to exclude argument and jury instruction on the “same-actor” inference
GRANTED IN PART AND DENIED IN PART.
Plaintiff argues that the same-actor inference cannot properly be applied to this case, that
a jury instruction on the inference is improper, and that Defendant should be barred from making
any argument relating to the inference. Defendant responds that the same-actor inference was
already found applicable by the Court at the summary judgment stage and that permitting
argument and giving a jury instruction on the inference is proper. This Court has tentatively
concluded that a jury instruction on the same-actor inference will not be given, but the parties
will be free during closing argument to make reference to the “same-actor” facts and to argue
that the jury may or may make draw a reasonable from these facts. Because a “same actor”
argument provides only an inference that may be drawn from the facts, however, it would not be
appropriate to argue any such inference during opening statement.
The Ninth Circuit has held “that where the same actor is responsible for both the hiring
and the firing of a discrimination plaintiff, and both actions occur within a short period of time, a
strong inference arises that there was no discriminatory motive.” Bradley v. Harcourt, Brace &
Co., 104 F.3d 267, 270-71 (9th Cir. 1996); see also Coghlan v. Am. Seafoods Co. LLC, 413 F.3d
1090, 1096 (9th Cir. 2005) (extending Bradley’s pronouncement on the same-actor inference for
“hiring and . . . firing” to cases where the employee is “offered a less desirable job assignment”
(quotation marks omitted)). The same-actor inference is “neither a mandatory presumption (on
one hand) nor a mere possible conclusion for the jury to draw (on the other hand).” Coghlan, 413
F.3d at 1098. Instead, “it is a ‘strong inference’ that a court must take into account on a summary
judgment motion.” Id.; see also Bradley, 104 F.3d at 271-72. The same actor inference can be
overcome, however, if the plaintiff provides “meaningful evidence that her supervisor harbored
discriminatory animus,” Johnson v. Boys & Girls Clubs of S. Puget Sound, 191 Fed. App’x 541,
PAGE 4 – OPINION AND ORDER
545 (9th Cir. 2006), or “evidence suggesting that [the employer] developed a bias against [the
protected class]” during the interval between the favorable and unfavorable employment actions,
Coghlan, 413 F.3d at 1097.
At summary judgment, the Court concluded that although the same-actor inference
applied in this case, there was “specific and substantial evidence to demonstrate that the
University’s reason for placing her on a terminal contract after her fourth year of employment
was a pretext for age discrimination.” Dkt. 39 at 39, 44. The Court concluded that there was a
genuine dispute as to a material fact regarding the existence of pretext and denied the
University’s motion for summary judgment on Siring’s age discrimination claim. Id. at 44.
Ninth Circuit precedent indicates that the same-actor inference is not typically provided
as a jury instruction. The holding from Coghlan, read narrowly, would indicate that the sameactor inference is a principle of law to be applied at the motion for summary judgment stage.
Coghlan, 413 F.3d at 1098. In addition, it is the practice in other circuits to leave the question of
the same-actor inference to the jury. See Banks v. Travelers Cos., 180 F.3d 358, 366-67 (2d Cir.
1999); Kelley v. Airborne Freight Corp., 140 F.3d 335, 351 (1st Cir. 1998); Buhrmaster v.
Overnight Transportation Co., 61 F.3d 461, 463 (6th Cir. 1995); Proud v. Stone, 945 F.2d 796,
797-98 (4th Cir. 1991). Within the Ninth Circuit, two district courts have found that because the
application of the rule was not straightforward, the jury should determine whether the inference
applies and if it is rebutted by additional evidence of discriminatory motive. See Conti v.
Corporate Servs. Grp., Inc., No. C12-245RAJ, 2013 WL 2297140, at *12 (W.D. Wash. May 24,
2013); Creekmore v. U.S. Bank, N.A., No. C09-561RAJ, 2010 WL 3211925, at *8-9 (W.D.
Wash. Aug. 12, 2010). The Court will follow this approach and leave the issue for the jury to
decide without a specific instruction on the same-actor inference.
PAGE 5 – OPINION AND ORDER
4. Motion to exclude argument and instruction on “second guessing” the business
or academic decisions of Defendant
GRANTED IN PART AND DENIED IN PART.
This issue will be more specifically addressed by the Court when it decides what jury
instructions will be given. Plaintiff, however, is entitled to argue that Defendant’s explanation for
its adverse employment action is mere pretext, and Defendant will be entitled to argue to the
contrary. The jury, however, will be instructed that it is not their role to substitute the jury’s
judgment on Plaintiff’s teaching abilities or academic scholarship for Defendant’s judgment if
made on a non-discriminatory and non-retaliatory basis.
B. Defendants’ Motions in Limine (See Dkts. 87 and 92)
1. Motion to exclude evidence pertaining to any alleged discriminatory actions that
occurred after Siring’s placement on a terminal contract
RULING RESERVED UNTIL NEXT PRETRIAL CONFERENCE (10/15/13, 11 A.M.)
Defendant argues that any evidence of discriminatory conduct by EOU during Plaintiff’s
terminal year should be excluded under FRE 401 because it occurred after Defendant took the
adverse employment action in this case. Defendant further argues that even if this evidence were
relevant, it should be excluded because it was not identified in the Pretrial Order (“PTO”).
Plaintiff responds that evidence of discriminatory conduct by EOU during Dr. Siring’s terminal
year is relevant because it shows a continuation of disparate treatment, which makes EOU’s
motive and intent to discriminate more likely. Although Plaintiff concedes that this evidence was
not identified in the PTO, Plaintiff argues that parties are only required to set out claims and
defenses in the PTO, not all the evidence that they plan to present to support those claims and
defenses.
Evidence of discriminatory conduct by an employer that occurs after an adverse
employment action has been taken can be relevant to proving a discriminatory atmosphere or the
PAGE 6 – OPINION AND ORDER
continuation of disparate treatment. See Cummings v. Standard Register Co., 265 F.3d 65, 63
(1st Cir. 2001). In addition, post-decision evidence can be relevant if it sheds light on whether
discriminatory animus existed at the time of the decision. See Snuggs v. Capital Cities/ABC, Inc.,
122 F.R.D. 430, 431 (S.D.N.Y. 1988); Rifkinson v. CBS, Inc., No. 94-civ-7985, 1997 WL
634514 (S.D.N.Y. Oct. 14, 1997).
Although LR 16-5(b)(4) requires the parties to set out each claim and defense in the PTO,
it also states that parties need “not recite the evidence to be offered at trial but will be sufficient
to frame the issues presented by each claim.” LR 16-5(4)(b). To the extent that evidence of
alleged discriminatory conduct that occurred after the adverse employment action is not a
separate claim but rather evidence that may support the Plaintiff’s discrimination claims, for
either liability or damage purposes, it is admissible. This will be discussed further, however, at
the next pretrial conference, which is scheduled for October 15, 2013, at 11:00 a.m.
2. Motion to exclude evidence suggesting that Lauritzen or the College Personnel
Committee (“the CPC”) had received or were aware of Siring’s May 24, 2010,
letter to Jaeger and to prohibit Plaintiff’s counsel from suggesting or implying
that evidence of such awareness exists
DENIED.
Defendant moves to exclude evidence or argument suggesting that Lauritzen or the CPC
knew about Plaintiff’s May 24, 2010 letter objecting to age discrimination before the meeting of
the CPC that took place at noon on May 24, 2010. Defendant argues that Plaintiff mailed the
letter on May 24, 2010, so the CPC could not have seen it before noon on May 24, 2010.
Defendant argues that because Plaintiff does not have personal knowledge of when the letter was
received, Plaintiff should be prevented from speculating about that matter under FRE 602.
Defendant further argues that this evidence should be excluded under FRE 403.
PAGE 7 – OPINION AND ORDER
In response, Plaintiff states that she faxed the letter on the morning of May 24, 2010.
Indeed, Defendant’s witness Jaeger testified during deposition that the letter was faxed on the
morning of May 24, 2010. Because of this factual dispute, Plaintiff argues that she is entitled to
present these facts to the jury and each side may argue for appropriate inferences. The Court
agrees. In addition, there is no basis for exclusion under FRE 403.
3. Motion to exclude evidence and argument that a fourth-year review of Plaintiff’s
progress toward tenure was impermissible
DENIED.
Defendant argues that evidence implying that a fourth-year review of Plaintiff’s progress
toward tenure was impermissible should be excluded under FRE 602, FRE 402, and FRE 403.
Plaintiff responds that Defendant misconstrues Plaintiff’s argument about the fourth-year review.
Plaintiff’s expert witness will not testify that a fourth-year review is legally impermissible, which
would be inappropriate testimony that invades the province of the Court. Instead, Plaintiff
maintains that Plaintiff’s expert will testify only that holding a fourth-year review was contrary
to the established tenure policies and practices of the Oregon University System. This Court has
already determined that Plaintiff’s expert witness is qualified to testify regarding the tenure
practices and procedures within the Oregon University System, including EOU. This evidence is
relevant and is not unfairly prejudicial.
4. Motion to exclude evidence concerning the settlement resulting from the lawsuit
that expert witness Jean Stockard brought against the Oregon University System
GRANTED IN PART AND DENIED IN PART.
Defendant moves to preclude Plaintiff from offering evidence regarding the settlement
amount received by Plaintiff’s expert witness Jean Stockard from her lawsuit against the Oregon
University System (“OUS”). Defendant argues that although Defendant will cross-examine
Stockard about the fact that she previously sued OUS, Plaintiff should be limited from inquiring
PAGE 8 – OPINION AND ORDER
into the amount of the settlement because it is not relevant and may bias the jury. Plaintiff
responds that questioning Stockard about the resolution of her case and whether she harbors any
ill will toward OUS is relevant to rebut Defendant’s attempt to impeach Stockard as biased.
Stockard’s settlement with OUS, by itself, is not relevant evidence. Under FRE 611(b),
however, cross-examination is allowed on “matters affecting the witness’s credibility.” See
generally United States v. Palmer, 536 F.2d 1278, 1282 (9th Cir. 1976) (“The range of evidence
that may be elicited for the purpose of discrediting a witness is very liberal. Inquiry is permitted
concerning his capacity to remember, to observe, and to recount, and for the purpose of testing
his sincerity, truthfulness and motives.” (citation omitted)). Thus, Defendant may cross-examine
Stockard about any lawsuit that she previously filed against OUS to expose any potential bias.
If Defendant were to do that, however, Defendant would have opened the door to redirect
examination and that same topic, including all of the details of how that lawsuit was resolved.
Upon redirect, Plaintiff is permitted to “meet new facts or rehabilitate a witness with respect to
impeaching matter brought out on cross-examination through the introduction of redirect
evidence tending to refute, deny, explain, qualify, disprove, repel, or otherwise shed light on the
evidence developed during cross-examination.” 1 MCCORMICK ON EVIDENCE § 32 (7th ed.).
Thus, if Defendant questions Stockard about her lawsuit against OUS, Plaintiff may ask
Stockard about how the lawsuit was resolved, including any settlement received, in order to
show that she harbors no ill will toward OUS. If, however, Defendant does not open the door by
asking Stockard about her lawsuit against OUS, then nothing about that lawsuit, including its
settlement, would be relevant or admissible.
5. Motion to prohibit Plaintiff from asserting that Plaintiff was “denied” tenure
DENIED.
PAGE 9 – OPINION AND ORDER
Defendant argues that Plaintiff should be prohibited from asserting that she was “denied”
tenure by EOU because the term “denied” mischaracterizes the adverse employment action taken
against Plaintiff. Defendant argues that this “mischaracterization” would prejudice Defendant
and confuse the jury by falsely suggesting that EOU took two adverse employment actions
against Plaintiff—placement on a terminal contract and denial of tenure—rather than one.
Defendant argues further that no witness can have the requisite personal knowledge to testify
about Plaintiff being denied tenure because a denial of tenure never occurred. Plaintiff responds
that being placed on a terminal contract had the practical or de facto effect of denying her tenure.
The technical difference between the decision to place Plaintiff on a terminal contract,
which effectively denied Plaintiff tenure, and a formal “denial” of tenure decision is not
significant enough to warrant prohibiting Plaintiff from referencing the decision as a “denial” of
tenure. Although denial of tenure does appear to be a term of art, the semantic distinction in this
case is insufficient to warrant the requested relief of exclusion. Referring to a decision that
Plaintiff was “denied” tenure will not create a significant risk of unfair prejudice to Defendant or
confusion for the jury, and Defendant certainly will be afforded every reasonable opportunity to
clarify any ambiguity on this issue.
6. Motion to exclude any reference to a statement by Costi in June 2011 that
Plaintiff was treated like “an elderly aunt who is only partially coherent” (See
also Plaintiff’s Exhibit 53)
DENIED.
In June 2011, Betsy Costi, then Director of EOU’s Elementary Education program at
Mount Hood Community College, allegedly stated that Siring had been treated like “an elderly
aunt who is only partially coherent” during a conversation with EOU Provost Michael Jaeger.
Defendant moves to exclude this statement as an irrelevant “stray remark” because the comment
was made more than a year after Plaintiff was placed on a terminal contract and Costi was not a
PAGE 10 – OPINION AND ORDER
decision-maker. Even if Costi’s statement is relevant, Defendant adds, it is unfairly prejudicial
under FRE 403. Plaintiff responds that Costi’s statement is admissible as an admission of a party
opponent pursuant to FRE 801(d). Plaintiff states that Costi held a management position on
EOU’s Mt. Hood campus and that her statement was made while discussing Plaintiff’s
employment with Provost Michael Jaeger. Plaintiff argues that Costi’s statement is relevant
because it tends to make it more probable that EOU’s management had discriminatory animus
towards Plaintiff on the basis of her age and that EOU’s believed that Plaintiff was disabled.
Although “stray remarks” cannot be the sole basis for a finding of discriminatory intent,
they can be relevant to show a decision-maker’s animus or a management culture of
discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 153 (2000)
(holding that the lower court had erred in dismissing comments made by a decision-maker as
mere “stray remarks” because a reasonable jury could have inferred that the remarks reflected the
decision-maker’s motivation at the time of the employment decision). The bar for relevance is
low, and although it may be that certain comments are “not reflective of the environment as a
whole or of management, [] it is for the jury to determine—in light of all the evidence before it—
that such a comment is ‘stray.’” Diaz v. Jiten Hotel Mgmt., Inc., 762 F. Supp. 2d 319, 337-38
(D. Mass. 2011). “A jury cannot be asked to determine questions of bias and motivation without
all of the evidence before it.” Id. at 338. Even though Costi was not a decision-maker for
purposes of this case, she was part of EOU’s management. Her statement is relevant and not
unfairly prejudicial.
7. Motion to prohibit Plaintiff from testifying that her job in Gresham was
“harder” than a job in La Grande
DENIED.
PAGE 11 – OPINION AND ORDER
Defendant argues that Plaintiff should not be allowed to testify that her position at the
Gresham campus was “more difficult” than a similar position at the La Grande campus because
that testimony is irrelevant and could confuse the jury. Plaintiff argues that evidence of the
relative difficulty of her position is relevant to rebut Defendant’s assertion that her actual job
performance was inadequate. Whether or not Defendant fairly evaluated Plaintiff’s job
performance is at issue in this case. The difficulty of Plaintiff’s position relative to her
colleagues’ at the La Grande campus is relevant to the jury’s determination of that issue. The
probative value of testimony about the relative difficulty of Plaintiff’s position is not
substantially outweighed by unfair prejudice or confusion of the issues. Assuming that a
sufficient foundation of personal knowledge is laid, Plaintiff may present this testimony.
C. Defendant’s Objections to Plaintiff’s Trial Exhibits (See Dkts. 96-1, 82, 93, and 103)
1. Pre-Admitted Exhibits
The following Plaintiff’s exhibits are pre-admitted without objection: Plaintiff’s Exhibit
Nos. 1-15, 19, 22, 24, 27-33, 36-38, 40-42, 45, 49, 55-57, 59-60, and 76-77.
2. Additional Pre-Admitted Exhibits
The following Plaintiff’s exhibits are pre-admitted over Defendants’ objections:
Plaintiff’s Exhibit No. 58 (student evaluations; Defendant may request a limiting instruction).
3. Withdrawn Exhibits
Plaintiff has withdrawn the following exhibits: Plaintiff’s Exhibit Nos. 18, 20, 23, 34,
and 35.
4. Rulings on Defendants’ Objections to Plaintiff’s Exhibits
Ex. 16
Ruling reserved
Ex. 17
Ruling reserved
Ex. 21
Ruling reserved
PAGE 12 – OPINION AND ORDER
Ex. 25
Ruling reserved
Ex. 26
Ruling reserved
Ex. 39
Ruling reserved
Ex. 43
Ruling reserved
Ex. 44
Ruling reserved
Ex. 46
Ruling reserved
Ex. 47
Ruling reserved
Ex. 48
Ruling reserved
Ex. 50
Ruling reserved
Ex. 51
Ruling reserved
Ex. 52
Ruling reserved
Ex. 53
Ruling reserved
Ex. 54
Ruling reserved
Ex. 61-75
Ruling reserved
Ex. 78
Ruling reserved.
D. Plaintiff’s Objections to Defendant’s Trial Exhibits (See Dkts. 101, 91, 100, and 103)
1. Pre-Admitted Exhibits
The following Defendant’s exhibits are pre-admitted without objection: Defendant’s
Exhibit Nos. 201-202, 204 (with limiting instruction), 205-212, 214-217, and 218.
2. Additional Pre-Admitted Exhibits
The following Defendants’ exhibits are pre-admitted over Plaintiff’s objections: None.
3. Withdrawn Exhibits
Defendant has withdrawn the following exhibits: None.
PAGE 13 – OPINION AND ORDER
4. Rulings on Plaintiff’s Objections to Defendant’s Trial Exhibits
Ex. 203
Ruling reserved
Ex. 213
Ruling reserved
Ex. 219
Ruling reserved
Ex. 220
Ruling reserved
E. Defendant’s Objections to Plaintiff’s Lay Witnesses (See Dkts. 73, 82, and 93)
1. Objections to Rosemary Siring
The Court has denied Defendant’s Motions in Limine Nos. 1, 2, 3, and 7. See supra. The
witness may testify only as to factual matters about which she has personal knowledge
(FRE 602) or that are appropriate for lay opinion testimony (FRE 701). Defendant’s objections
under FRE 403 are overruled. All other objections are overruled.
2. Objections to Ron Siring
The Court has denied Defendant’s Motion in Limine Nos. 1. See supra. The witness may
testify only as to factual matters about which he has personal knowledge (FRE 602) or that are
appropriate for lay opinion testimony (FRE 701), including Plaintiff’s emotional distress and
apparent depression. Defendant’s objections under FRE 403 are overruled. All other objections
are overruled.
3. Objections to Corinna Barrett Lain
Plaintiff may efficiently elicit from this witness general background information about
Plaintiff’s life to the extent that such testimony may be relevant to Plaintiff’s claim for emotional
distress damages. Overly extensive and time-consuming detail about Plaintiff’s entire life story,
however, is unnecessary and may be excluded by the Court under FRE 403. Plaintiff’s estimated
time of two hours for direct examination appears to be excessive in light of the witness
statement.
PAGE 14 – OPINION AND ORDER
4. Objections to Barbara Adams
The Court has denied Defendant’s Motion in Limine Nos. 1 and overruled Defendant’s
objection to Plaintiff’s Ex. 58. See supra. The witness may testify only as to factual matters
about which she has personal knowledge (FRE 602) or that are appropriate for lay opinion
testimony (FRE 701), including the witness’s assessment of Plaintiff’s teaching skills. The
Court, however, expects that there will not be cumulative or unduly repetitive testimony about
Plaintiff’s teaching skills. Defendant’s objections under FRE 403 are overruled. All other
objections are overruled.
5. Objections to Greg Austin
The Court has denied Defendant’s Motion in Limine Nos. 1 and overruled Defendant’s
objection to Plaintiff’s Ex. 58. See supra. The witness may testify only as to factual matters
about which he has personal knowledge (FRE 602) or that are appropriate for lay opinion
testimony (FRE 701), including the witness’s assessment of Plaintiff’s teaching skills. The
Court, however, expects that there will not be cumulative or unduly repetitive testimony about
Plaintiff’s teaching skills. Defendant’s objections under FRE 403 are overruled. All other
objections are overruled.
6. Objections to Mykele McClure Brucker
The Court has denied Defendant’s Motion in Limine Nos. 1 and overruled Defendant’s
objection to Plaintiff’s Ex. 58. See supra. The witness may testify only as to factual matters
about which she has personal knowledge (FRE 602) or that are appropriate for lay opinion
testimony (FRE 701), including the witness’s assessment of Plaintiff’s teaching skills. The
Court, however, expects that there will not be cumulative or unduly repetitive testimony about
Plaintiff’s teaching skills. Defendant’s objections under FRE 403 are overruled. All other
objections are overruled.
PAGE 15 – OPINION AND ORDER
7. Objections to Rebecca Hawkins
The Court has denied Defendant’s Motion in Limine Nos. 1 and overruled Defendant’s
objection to Plaintiff’s Ex. 58. See supra. The witness may testify only as to factual matters
about which she has personal knowledge (FRE 602) or that are appropriate for lay opinion
testimony (FRE 701), including the witness’s assessment of Plaintiff’s teaching skills. The
Court, however, expects that there will not be cumulative or unduly repetitive testimony about
Plaintiff’s teaching skills. Defendant’s objections under FRE 403 are overruled. All other
objections are overruled.
8. Objections to Betsy Costi
The Court has denied Defendant’s Motions in Limine Nos. 1 and 6. See supra. The
witness may testify only as to factual matters about which she has personal knowledge
(FRE 602) or that are appropriate for lay opinion testimony (FRE 701). Defendant’s objections
under FRE 403 are overruled. All other objections are overruled.
F. Plaintiff’s Objections to Defendant’s Lay Witnesses (See Dkts. 85, 91, and 100)
1. General Objections
Plaintiff’s General Objections are well taken. The Court’s Civil Trial Management Order
requires a “fair narrative statement summarizing the substance of the testimony expected to be
elicited on direct examination.” Dkt. 55, at 2 (emphasis added). Defendant’s outline listing the
topics “about” which the witness will testify is not a “narrative” statement. If Defendant would
like to file an amended lay witness statement, Defendant has leave to do so. If Defendant,
however, chooses not to file an amended lay witness list, then Defendant risks the exclusion at
trial, upon timely objection, of any testimony on direct examination that, in all fairness, has not
been materially disclosed to Plaintiff sufficiently to ensure that Plaintiff will not be unfairly
surprised.
PAGE 16 – OPINION AND ORDER
2. Specific Objections to Carol Lauritzen Witness Statement
Plaintiff’s objections are overruled. The testimony at “j.(i)” that Davenport told Lauritzen
about Davenport’s assessment of Plaintiff’s teaching abilities is not being offered for the truth of
the matter asserted. Instead, it is offered as part of the package of information received by
Laurizen that affected her decisions and actions. Plaintiff may submit a specific limiting
instruction if Plaintiff chooses. The testimony at “z” does not appear to call for speculation.
3. Specific Objections to Michael Jaeger Witness Statement
Plaintiff’s objections are overruled. The challenged testimony does not call for expert
testimony, is not cumulative, and does not appear to be inadmissible hearsay.
4. Specific Objections to Allen Evans Witness Statement
Plaintiff’s objection is overruled. The challenged testimony is not cumulative.
5. Specific Objections to Darren Dutto Witness Statement
Plaintiff’s objections are overruled. The challenged testimony is not cumulative and does
not appear to be inadmissible hearsay.
6. Specific Objections to Jeff Vermeer Witness Statement
Plaintiff’s objection at “c(ii)” regarding what “concerns” the “FPC had” is sustained for
lack of personal knowledge. FRE 602. Defendant may attempt to lay a foundation for this
testimony. Plaintiff’s other objections are overruled. The challenged testimony does not appear
to be inadmissible hearsay.
7. Specific Objections to Ruth Davenport Witness Statement
Plaintiff’s objection is overruled. The challenged testimony is not cumulative.
8. Specific Objections to Betsi Costi Witness Statement
Plaintiff offers no specific objections to this testimony.
PAGE 17 – OPINION AND ORDER
G. Defendant’s Objections Plaintiff’s Substantive Deposition Testimony Designations (See
Dkts. 64, 65, 82, and 93)
1. Carol Lauritzen
Defendant’s objections are overruled.
2. Michael Jaeger
Defendant’s objections are overruled.
H. Plaintiff’s Objections to Defendant’s Deposition Designations (See Dkts. 91)
1. Michael Jaeger
a. Tr. 95:9-13
Plaintiff’s objection is overruled.
b. Tr. 154:8-21
Plaintiff’s objection is sustained. If relevant and otherwise admissible, Defendant may
elicit this testimony from Mr. Jaeger at trial.
CONCLUSION
The Parties’ motions in limine and other evidentiary objections are GRANTED IN PART
and DENIED IN PART as set forth in this Opinion and Order. The next Pretrial Conference shall
occur on Tuesday, October 15, 2013, at 11:00 a.m. in Courtroom 13B.
IT IS SO ORDERED.
DATED this 8th day of October 2013.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 18 – OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?