Taboas v. Fiddler Gonzalez Rodriguez, PSC

Filing 125

ORDER re 100 Motion in Limine and re 114 Emergency Motion to Exclude Defendant's New Evidence; re 101 Motion in Limine to Exclude Anecdotal Evidence Concerning Other Employees, re 102 Motion in Limine to Exclude the Testimony of Emma Can cio and re 104 Motion in Limine to Exclude Evidence of FGR's Insurance Policy with Chartis Insurance Company (Now AIG Insurance Company); re 103 Motion in Limine to Exclude Evidence of Taboa's Cancer Diagnosis and Treatment and re 105 Motion in Limine to Exclude Any Evidence or Reference to the Specific Monetary Amount of Damages Sought by Plaintiff. The Court DENIES Taboas's two motions in limine (Docket Nos. 100 & 114-1), and three of FGR's motions in limine (Docket Nos. 101; 102; 104). The Court GRANTS two of FGR's motions in limine (Docket Nos. 103 & 105.) Signed by Judge Francisco A. Besosa on 08/28/2014. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MARIA DEL CARMEN TABOAS,
Plaintiff,
CIVIL NO. 13-1205 (FAB)

v.
FIDDLER, GONZALEZ & RODRIGUEZ,
PSC,
Defendant.

MEMORANDUM AND ORDER
BESOSA, District Judge.
Before the Court are five motions in limine filed by defendant
Fiddler, Gonzalez & Rodriguez, PSC (“FGR”), (Docket Nos. 101-105),
and two motions in limine filed by plaintiff Maria del Carmen
Taboas (“Taboas”) (Docket Nos. 100 & 114-1.)

The Court addresses

each motion in turn below.
I.

Taboas’s Motion to Exclude FGR’s “New Lines of Defense” to her
Law 80 Claim
Taboas moves to preclude FGR from presenting evidence at trial

regarding its “new lines of defense” to her Law 80 claim.
No. 100.)

(Docket

Puerto Rico’s Law 80 provides that “the employer is

bound to plead in his answer to the complaint the facts that led to
the dismissal, and to prove that it was justified in order to be
exempted from compliance with the provision of § 185a of this
title.”

P.R. Laws Ann. tit. § 185k.

The Puerto Rico Supreme Court

has interpreted this provision as allocating to the employer the

Civil No. 13-1205 (FAB)

2

burden of proving that the dismissal was justified. Secretario del
Trabajo v. I.T.T., 8 P.R. Offic. Trans. 564 (1979).
Taboas argues that pursuant to Law 80’s provisions, FGR cannot
present any new fact in its defense beyond those that it plead in
its answer to the complaint.

In its answer and amended answer, FGR

alleged,
J.

Taboas’s termination was for just cause.

K.

Plaintiff fails to establish a cause of action for
unjustified dismissal under [Law 80].

L.

Taboas was terminated primarily because she
consistently failed to meet her production budget
despite various meetings with Taboas to discuss the
problem.
FGR
also
received
complaints
from
coworkers that Taboas was a very difficult person
to work with and several clients informed that they
were not satisfied with Taboas’ [sic] as their
attorney.

(Docket Nos. 9 & 34.)

Taboas maintains that in its arguments

regarding summary judgment, FGR raised for the first time as a
defense that Taboas was inefficient in carrying out her duties and
that she was subjected to numerous sanctions during her tenure at
FGR.
Taboas’s argument attempts to elevate form over substance.
While the defenses FGR presented at the summary judgment stage were
worded differently from the affirmative defenses raised in its
answer,

the

substance

of

the

defenses

is

the

same.

FGR

characterizes Taboa’s consistent failure to meet her production
goals

as

“inefficiency,”

and

the

multiple

meetings

and

Civil No. 13-1205 (FAB)
communications

it

had

3
with

her

regarding

her

production

deficiencies as “sanctions.” (See, e.g., Docket Nos. 51-1 at p. 3;
108 at pp. 19-21.)

Taboas points to no authority indicating that

an employer is bound to use the same wording, or point to the same
set of facts, at each stage of the litigation.

Accordingly,

Taboas’s motion in limine (Docket No. 100) is DENIED.
II.

Taboas’s Motion to Exclude Evidence Added by FGR to the
Amended Proposed Pretrial Order
Taboas moves to exclude argument, evidence or both regarding

the decisions taken by FGR’s Board of Directors with respect to her
dismissal. (Docket No. 114-1.) Specifically, she seeks to exclude
one new witness and four new exhibits included by FGR in the
amended Proposed Pretrial Order (“PPO”).
p. 62, ¶ 13; 113-2, exhibits Q through T.)

(See Docket Nos. 113 at
The parties originally

filed a PPO and their respective exhibit lists on August 15, 2014.
(Docket No. 95.)

Finding the original PPO — particularly Taboas’s

portions — to be deficient, the Court ordered the parties to submit
a new PPO in compliance with Local Rule 16 by August 25, 2014.
(Docket No. 99.) In compliance with the Court’s order, the parties
timely submitted a new PPO.

(Docket No. 113.)

In the new PPO, FGR

announced a new witness — Jose A. Sosa (Docket No. 113 at p. 62
¶ 13) — and attached a modified exhibit list adding four new
exhibits.

(Docket No. 113-2, Exhibits Q - T.)

As an initial matter, the Court is unimpressed that FGR took
advantage of an extension of time that was clearly provided for

Civil No. 13-1205 (FAB)

4

Taboas to update her portions of the PPO, in order to add new
evidence of its own.

Nevertheless, because FGR provided the new

exhibits to plaintiff on April 11, 2014 as part of its amended
answers to interrogatories and request for production of documents,
the

Court

finds

that

Taboas

is

not

prejudiced

by

the

tardy

amendment. Additionally, because FGR is not offering the recently
provided Board of Directors meeting minutes to prove any action
with regard to Taboas’s dismissal, but rather to provide the
context in which the firm discussed and implemented cost-cutting
measures,

the

Court

finds

the

evidence

to

be

relevant.

Accordingly, the Court DENIES plaintiff’s motion in limine to
exclude evidence added by FGR in the amended PPO (Docket No. 1141).
III. FGR’s Motion to Exclude Anecdotal Evidence Concerning Other
Employees
FGR

seeks

to

exclude

all

anecdotal

evidence,

including

comparator and “me too” evidence, concerning other former FGR
employees who were allegedly terminated by the firm.
No. 101.)

(Docket

Specifically, Taboas seeks to present evidence at trial

to prove that FGR dismissed another former FGR attorney, Rafael
Davila (“Davila”), when he was 55 years old. FGR maintains that
this evidence is inadmissible because (1) Taboas cannot establish
that the employees in question are similarly situated to her;
(2)

because

the

evidence

is

remote

in

time

—

and

therefore

irrelevant — to Taboas’s claims; (3) the evidence constitutes

Civil No. 13-1205 (FAB)

5

inadmissible hearsay; and (4) the probative value of the evidence
is outweighed by the risk of unfair prejudice.
A.

Id.

Similarly Situated
In an age discrimination case, a plaintiff must prove as

an element of her case that the defendant acted with discriminatory
animus.

See, e.g., Velez v. Thermo King de P.R., Inc., 585 F.3d

441, 446-47 (1st Cir. 2009).

A plaintiff may show a defendant’s

state of mind through circumstantial evidence, including through
evidence of the employer’s prior incidents of discrimination or the
employer’s discriminatory atmosphere.

See Sprint/United Mgmt. Co.

v. Mendelsohn, 552 U.S. 379, 386 (2008) (“The question whether
evidence of discrimination by other supervisors is relevant in an
individual ADEA case is fact based and depends on many factors,
including how closely related the evidence is to the plaintiff’s
circumstances and theory of the case.”); Conway v. Electro Switch
Corp., 825 F.2d 593, 597 (1st Cir. 1987) (citing U.S. Postal Serv.
Bd. of Governors, 460 U.S. 711, 714 n.3 (1983)); Mendelsohn v.
Sprint/United Mgmt. Co., 466 F.3d 1223, 1226 (10th Cir. 2006)
(compiling

cases

recognizing

testimony

of

other

employees

as

potentially probative of an employer’s discriminatory intent),
rev’d. on other grounds, Sprint, 552 U.S. at 388; Stair v. Lehigh
Valley Carpenters Local Union, 813 F. Supp. 1116, 1119 (E.D. Pa.
1993) (permitting the use of character evidence to show motive or
intent in a discrimination case.).

Determining whether comparator

Civil No. 13-1205 (FAB)

6

evidence is admissible at trial is a preliminary matter for the
Court to determine.

See Anderson v. Boston Sch. Comm., 105 F.3d

762, 765 (1st Cir. 1997) (affirming district court’s decision to
exclude plaintiff’s comparator evidence at trial because “plaintiff
had not carried his burden of showing that the white employee cases
were ‘similarly situated’ to that of plaintiff, in order to lay a
basis for the admission of the evidence.”)

In determining whether

employees are similarly situated, courts look to “whether a prudent
person, looking objectively at the incidents, would think them
roughly equivalent and the protagonists similarly situated.
an

exact

correlation

is

not

necessary,

the

demonstrate that the cases are fair congeners.”

proponent

While
must

Thermo King, 585

F.3d at 451 (quoting Perkins v. Brigham & Women’s Hosp., 78 F.3d
747, 752 (1st Cir. 1996)).
Here,

plaintiff

contends

that

she

and

Davila

were

similarly situated because they were both 55 years old at the time
of their dismissals, both Members at FGR, and both dismissed by
means of the same of counsel agreement.

(Docket No. 110 at p. 4.)

The First Circuit Court of Appeals has noted that “proof of a
general atmosphere of discrimination is not the equivalent of proof
of discrimination against an individual,” but that “it may be one
indication that the reasons given for the employment action at
issue were ‘implicitly influenced by the fact that the plaintiff
was of a given race, age, sex or religion.”

Conway, 825 F.2d

Civil No. 13-1205 (FAB)

7

at 598 (internal quotation marks and citation omitted).

Anecdotal

evidence suggesting that FGR was motivated by age-based animus when
it

dismissed

Davila

will

not

conclusively

prove

that

FGR

discriminated against Taboas, but it does tend to make Taboas’s
allegations

of

age-based

animus

more

probable.

See

Fed.

R.

Evid. 401.

Mindful that the jury is free to assign admissible

evidence as much or as little weight as it sees fit, the Court
finds

plaintiff’s

anecdotal

evidence

regarding

Davila

to

be

relevant to her showing of FGR’s state of mind vis à vis her
dismissal.
B.

Remoteness in Time
FGR

further

argues

that

Davila’s

termination

on

September 30, 2006 was too remote in time from Taboas’s to be
relevant to plaintiff’s claims.

(Docket No. 101 at p. 3.)

In

support of this argument, FGR cites two district court cases —
from outside the First Circuit — holding that the passage of four
and five years rendered the earlier dismissal too remote in time to
be relevant to Taboas’s claims.

See Stair, 813 F. Supp. at 1119-

20; Hayne v. Rutgers, State Univ., 1989 WL 106031 (D.N.J. 1989).
While FGR did not provide Taboas with definite notice of her
dismissal until 2011, FGR’s own characterization of the record
evidence suggests that FGR initially decided to dismiss Taboas in
late 2008 — just over two years after Davila’s dismissal.
Docket No. 108 at pp. 7-11.)

(See

Thus, even were the Court to find

Civil No. 13-1205 (FAB)

8

FGR’s case citations persuasive, the cases do not apply to the
facts of this case.

Absent any other authority on point, the Court

declines to find that evidence of Davila’s dismissal is too remote
in time to be at all relevant to Taboas’s claims.
C.

Evidence Based on Hearsay Statements
Next, FGR argues that because Taboas had no personal

knowledge of the circumstances surrounding Davila’s dismissal, her
testimony regarding Davila is based on hearsay statements, rather
than her own personal knowledge, rendering it inadmissible pursuant
to Federal Rule of Evidence 602.

As Taboas points out, however, to

the extent her testimony regarding Davila’s dismissal is based upon
statements made to her by Jose Acosta-Grubb, an agent of FGR1, the
statements
hearsay.

are

opposing

party

statements

and

accordingly

not

See Fed. R. Evid. 801(d)(2).

D.

FGR’s Rule 403 Argument
Lastly, FGR argues that anecdotal evidence of Davila’s

dismissal

should

be

excluded

because

its

probative

value

is

substantially outweighed by the danger of unfair prejudice to FGR
pursuant to Federal Rule of Evidence 403.
p. 4.)

(Docket No. 101 at

Because FGR fails to develop this argument at all, the

Court deems it waived and declines to consider it.

1

See United

Acosta is a Shareholder and the chair of the Litigation
Division at FGR. Additionally, he is a member of FGR’s Executive
Committee and Board of Directors. (Docket No. 51-27.) See also
www.fgrlaw.com/jose-a.-acosta-grubb.html.

Civil No. 13-1205 (FAB)

9

States v. Guzman-De Los Santos, 944 F. Supp. 2d 126, 128 (D.P.R.
2013) (Besosa, J.) (“A party may not merely ‘mention a possible
argument

in

the

most

skeletal

way,

leaving

the

Court

to

do

counsel’s work, create the ossature for the argument, and put flesh
on its bones.’”) (quoting United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990)).
For these reasons, the Court DENIES FGR’s motion in
limine to exclude anecdotal evidence regarding other employees
(Docket No. 101).
III. FGR’s Motion to Exclude the Testimony of Emma Cancio
FGR seeks to exclude the testimony of Taboas’s witness, Emma
Cancio, because “plaintiff willfully [sic] failed to previously
announce to FGR that she would serve as a witness during trial and,
thus, her testimony is surprising and incurably prejudicial to
FGR.”

(Docket No. 102 at p. 3.)

FGR maintains that Taboas failed to comply with her discovery
obligations.

Federal Rule of Civil Procedure 26 (“Rule 26”)

requires each party to, “without awaiting a discovery request,
provide to the other parties:

(i) the name and, if known the

address and telephone number of each individual likely to have
discoverable information . . . that the disclosing party may use to
support its claims or defenses.”

Fed. R. Civ. P. 26(a)(1)(A)(i).

Such disclosures must be made at least 30 days before trial.
R. Civ. P. 26(a)(3)(B).

Fed.

Rule 26 also requires the party to

Civil No. 13-1205 (FAB)

10

supplement or correct its disclosures “in a timely manner if the
party learns that in some material respect the disclosure or
response is incomplete or incorrect, and if the additional or
corrective information has not otherwise been made known to the
other parties during the discovery process.”
26(e)(1)(A).

Fed. R. Civ. P.

“If a party fails to provide information or identify

a witness as required by Rule 26(a) or (e),” Rule 37 prohibits that
party from using the information or witness at trial, “unless the
failure was substantially justified or harmless.”

Fed. R. Civ. P.

37(c)(1) (emphasis added).
Taboas concedes that she did not specifically name Emma Cancio
in her initial disclosures, and that she did not supplement her
disclosures subsequently.

(Docket No. 110 at p. 8 n.3.)

She

contends that FGR did, however, have knowledge that Emma Cancio was
one of plaintiff’s potential witnesses months ago, and as a result,
her failure to disclose was harmless.

The Court agrees.

On

December 4, 2013, plaintiff submitted her responses to FGR’s
interrogatories.
interrogatory

(Docket

seeking

a

No.

list

102-2.)
of

In response

plaintiff’s

trial

to FGR’s
witnesses,

plaintiff stated,
Subject to and without waiving any of the general
Objections, Plaintiff responds that, at present she has
not yet determined the persons that she will call as
witnesses in the trial of this case. However, Plaintiff
can anticipate that she may call as a witness in her case
in chief any of the persons identified in the preceding
answer.

Civil No. 13-1205 (FAB)
Id. at p. 45.

11

In the preceding answer, which required plaintiff to

state the names of all persons who may have knowledge of the
allegations in her complaint, plaintiff identified Emma Cancio.
Id. at pp. 4-5.

Additionally, FGR can hardly complain that it is

surprised and incurably prejudiced by the late announcement of Emma
Cancio as a witness; the parties repeatedly referred to Emma Cancio
during the summary judgment stage.

(See, e.g., Docket Nos. 63 at

pp. 31-33, 64, 69; 79-1 at pp. 47, 49-60.)

Because FGR had

knowledge well in advance of trial that Emma Cancio was one of
Taboas’s potential witnesses, the Court finds that her failure to
timely disclose the witness’s identity was harmless.
Civ. P. 37(c)(1).

See Fed. R.

Accordingly, FGR’s motion in limine to exclude

the testimony of Emma Cancio (Docket No. 102) is DENIED.
IV.

FGR’s Motion to Exclude Evidence of Taboas’s Cancer Diagnosis
and Treatment
FGR seeks to exclude evidence or testimony pertaining to

plaintiff’s cancer diagnosis, treatment or both as irrelevant and
unduly prejudicial pursuant to Federal Rules of Evidence 401, 402,
and 403.

(Docket No. 103.)

In 1997, Taboas was diagnosed with and

treated for non-Hodgkins lymphoma. Taboas does not allege that her
cancer diagnosis or treatment relates in any way to her dismissal
from FGR.
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.

Civil No. 13-1205 (FAB)
Evid.

401.

At

issue

12
in

this

litigation

is

whether

FGR

discriminated against Taboas on the basis of her age when it
dismissed her as an employee of the firm.

Because evidence of

Taboas’s diagnosis of and treatment for cancer will not make any
fact of consequence more or less probable, it is irrelevant to this
case. Accordingly, the Court, at this time, GRANTS FGR’s motion in
limine (Docket No. 103) to the extent that either party seeks to
introduce evidence of Taboas’s diagnosis and treatment in her case
in chief.

Should the evidence presented at trial give rise to

context in which evidence of Taboas’s diagnosis and treatment
becomes relevant, however, the Court at that time may find that
Taboas can present such evidence, for example to rebut any evidence
or

argument

regarding

Taboas’s

productivity

during

the

time

surrounding her illness.
V.

FGR’s Motion to Exclude Evidence of FGR’s Insurance Policy
FGR seeks to bar Taboas from introducing FGR’s insurance

policy into evidence, because the policy is irrelevant and its
admission would be more prejudicial than probative.
No. 104.)

(Docket

In support of this argument, FGR cites four state court

cases — from Nebraska, Maryland, and Florida — where insurance
policy limits were excluded as unfairly prejudicial.

Id. at p. 2.

Despite FGR’s failure to provide any persuasive authority in
support of its motion, Taboas has agreed to redact the policy
limits from the insurance policy documents at issue.

(Docket

Civil No. 13-1205 (FAB)

13

No. 110 at p. 10 (citing Elliott v. S.D. Warren Co., 134 F.3d 1, 8
(1st Cir. 1998)).)

Accordingly, on condition that the policy

limits are redacted from the insurance policy documents introduced
at trial, the Court DENIES FGR’s motion in limine to exclude
evidence of FGR’s insurance policy.
VI.

(Docket No. 104.)

FGR’s Motion to Exclude Any Evidence or Reference to the
Amount of Monetary Damages Sought by Taboas
Last, FGR seeks to preclude Taboas from introducing any

evidence or making any statement at trial regarding the amount of
monetary damages sought in her complaint.

(Docket No. 105.)

The

First Circuit Court of Appeals has made it clear that counsel is
forbidden during closing arguments “from asking jurors to consider
the amount of a party’s ad damnum in crafting a damage award” and
from stating “in summation the number they think jurors should
award for pain and suffering.”

Bielunas v. F/V Misty Dawn, Inc.,

621 F.3d 72, 79 (1st Cir. 2010) (internal citations omitted).

See

also Rodriguez v. Señor Frog’s de la Isla, Inc., 642 F.3d 28, 37-8
(1st Cir. 2011) (citing Bielunas, 621 F.3d at 78-9).

Accordingly,

Taboas’s counsel is prohibited from mentioning or requesting of the
jury the specific amount of monetary damages sought in Taboas’s
complaint, or from suggesting a specific amount of non-economic
damages.

Taboas is permitted, however, to present evidence and

argument to the jury to assist in the computation of economic

Civil No. 13-1205 (FAB)
damages, such as back-pay.2

14
Thus, FGR’s motion in limine (Docket

No. 105) is GRANTED to the extent explained here.
VII. Conclusion
For the reasons articulated above, the Court DENIES Taboas’s
two motions in limine (Docket Nos. 100 & 114-1), and three of FGR’s
motions in limine (Docket Nos. 101; 102; 104).

The Court GRANTS

two of FGR’s motions in limine (Docket Nos. 103 & 105.)
IT IS SO ORDERED.
San Juan, Puerto Rico, August 28, 2014.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
United States District Judge

2

This is particularly true in the context of plaintiff’s
Law 80 claim, which requires a computation of salary corresponding
to the plaintiff’s term of service. P.R. Laws Ann. tit. 29 § 185a.