Bostwick v. Baxter et al
Filing
67
DECISION AND ORDER signed by Judge Rudolph T Randa on 4/9/2015 granting in part and denying in part 63 Defendants' Motions in Limine. See Order for details. (cc: all counsel) (Zik, Linda)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SCOTT BOSTWICK,
Plaintiff,
-vs-
Case No. 13-C-1036
WATERTOWN UNIFIED SCHOOL
DISTRICT, BOARD OF EDUCATION
OF THE WATERTOWN UNIFIED
SCHOOL DISTRICT, KATE LAPIN,
CASSANDRA SCHUG, IVAN THOMPSON,
DOUGLAS KEISER, ROBERT BAXTER
and PAUL VANCE,
Defendants.
DECISION AND ORDER
This matter is scheduled for a one-week trial beginning on May 18.
The defendants move in limine to preclude or allow the introduction of
certain evidence. These motions are addressed herein.
***
1.
Defendants move to preclude notes typed by Jim Martin
during a conversation with the plaintiff, Scott Bostwick. The conversation
took place on February 17, 2012, shortly after Bostwick was presented with
a proposed early retirement agreement during a meeting with defendants
Cassandra Schug and Ivan Thompson. As he was leaving the meeting,
Bostwick stopped his car at a nearby gas station and called Martin to
discuss what happened. Martin told Bostwick to call him back a few
minutes later so Martin could get his laptop out and document Bostwick’s
recollection. Defendants argue that Martin’s notes are inadmissible
hearsay, but two exceptions are relevant: Fed. R. Evid. 803(2) (Excited
Utterance) and Fed. R. Evid. 803(5) (Recorded Recollection).
Rule 803(2) excepts from the hearsay rule statements “relating to a
startling event or condition, made while the declarant was under the stress
of
excitement
that
it
caused.”
This
exception
recognizes
that
“circumstances may produce a condition of excitement which temporarily
stills the capacity of reflection and produces utterances free of conscious
fabrication.” Fed. R. Evid. 808 advisory committee’s note. “In other words,
the statement must have been a spontaneous reaction to the startling
event and not the result of reflective thought.” United States v. Boyce, 742
F.3d 792, 796 (7th Cir. 2014). The statement “need not be contemporaneous
with
the
startling
event
…
[r]ather,
the
utterance
must
be
contemporaneous with the excitement engendered by the startling event.”
United States v. Joy, 192 F.3d 761, 765 (7th Cir. 1999).
At the meeting, Schug and Thompson presented Bostwick with a
-2-
choice between early retirement and a continued investigation into
unspecified allegations of wrongdoing. Bostwick was not prepared to retire
early, so he was frightened that his career as an educator might end
prematurely. This meeting was a startling event; Bostwick’s subsequent
statements to Martin relate to this event; and the statements were made
under the stress of the excitement caused by the event (Bostwick stopped
driving as he was leaving the meeting so he could discuss the incident with
Martin). Therefore, Martin’s notes are admissible under Rule 803(2).
Alternatively, Rule 803(5) provides an exception for a record that
“(A) is on a matter the witness once knew about but now cannot recall well
enough to testify fully and accurately; (B) was made or adopted by the
witness when the matter was fresh in the witness’s memory; (C) accurately
reflects the witness’s knowledge.” Martin took detailed, contemporaneous
notes of Bostwick’s statements. Martin’s memory of a conversation that
took place over three years ago is bound to be imperfect, so the notes can be
used to fill the gaps in Martin’s memory, and he can attest to the accuracy
of the notes. Therefore, the notes can be read into evidence. Fed. R. Evid.
803(5) (“If admitted, the record may be read into evidence but may be
received as an exhibit only if offered by an adverse party”).
2.
Defendants move to preclude Martin from providing expert
-3-
testimony and opinions about the nature of the investigation into
Bostwick’s conduct and the effect of the investigation on Bostwick.
Bostwick counters that Martin’s testimony qualifies as lay opinion
testimony, not expert testimony. See Fed. R. Evid. 701, 702.
Rule 701 permits lay opinion testimony that is (a) rationally based
on the witness’s perception; (b) helpful to clearly understanding the
witness’s testimony or to determining a fact in issue; and (c) not based on
scientific, technical, or other specialized knowledge within the scope of
Rule 702. The last requirement is “intended to eliminate the risk that the
reliability requirements set forth in Rule 702 will be evaded through the
simple expedient of proffering an expert in lay witness clothing.” Von der
Ruhr v. Immtech Int’l, Inc., 570 F.3d 858, 862 (7th Cir. 2009).
Martin’s testimony easily meets this standard. First, Martin has
extensive knowledge regarding the Bostwick investigation. This includes,
but is not limited to, Martin’s personal knowledge of Bostwick’s meeting
with Schug and Thompson, discussed above. Martin’s testimony will be
helpful to the trier of fact in determining a fact in issue – that is, whether
Bostwick’s termination was the result of impermissible discrimination. See
Fed. R. Evid. 704(a) (opinion testimony not automatically objectionable
“just because it embraces an ultimate issue”). Finally, Martin’s testimony
-4-
falls on the side of lay opinion testimony because it “results from a process
of reasoning familiar in everyday life,” not “a process of reasoning which
can be mastered only by specialists in the field.” Rule 701 advisory
committee’s note (2000 amends.).
Lay witnesses are generally allowed to opine as to the motivation or
mental state of others. See, e.g., United States v. Goodman, 633 F.3d 963,
968-69 (10th Cir. 2001). For example, in Lightfoot v. Union Carbide Corp.,
110 F.3d 898 (2d Cir. 1997), a long-time employee of the defendant was
allowed to testify regarding his belief that age discrimination was involved
in the plaintiff’s termination. “In holding the testimony admissible, the
court pointed out that the witness was ‘in a position to have acquired
knowledge of the facts that formed the basis of his opinion,’ and ‘had
established
a solid
foundation
of
his
intimate
involvement
with
[defendant’s] operation and his opinion was thus based on observations
about [defendant’s] decisionmaking process.’” Gossett v. Oklahoma ex rel.
Bd. of Regents for Langston Univ., 245 F.3d 1172, 1179 (10th Cir. 2001).
Similarly here, Martin served as the Human Resources Manager at
Watertown Unified High School for approximately 17 years until his
retirement in June 2006. Thus, his “position with the defendant entity
provide[d] the opportunity to personally observe and experience the
-5-
defendant’s policies and practices.” Gossett at 1179. Martin’s testimony is
admissible lay opinion testimony.
3.
Defendants move to admit testimony from Schug and
Thompson about what complaining School District employees told them
during the course of the Bostwick investigation. Bostwick stipulates that
Schug and Thompson may offer testimony as to what three District
employees allegedly told them (Diane Schultz, Michael Daniels, and Jolene
Massuch), but only to demonstrate Schug and Thompson’s state of mind.
Moreover, Bostwick reserves the right to challenge whether such
conversations actually occurred, and also reserves the right to raise
evidentiary challenges to testimony regarding what other individuals told
Schug and Thompson. Defendants’ motion will be granted subject to the
foregoing qualifications.
4.
Defendants argue that the Court should exercise its discretion
to bifurcate the trial into a liability phase followed, if necessary, by a
damages phase. The Court will not bifurcate the trial because witnesses
will invariably overlap between phases. Thus, bifurcation will not promote
convenience, avoid prejudice, or “expedite and economize.” Fed. R. Civ. P.
42(b).
5.
Finally, defendants argue that the Court should preclude
-6-
evidence related to the value of Bostwick’s fringe benefits, job-search
expenses, treatment costs and other out-of-pocket expenses because
Bostwick never provided such information to the defendants in his initial
disclosures. Fed. R. Civ. P. 26(a)(1)(A)(iii) (party must provide “a
computation of each category of damages claimed by the disclosing party
…”). Bostwick argues generally that the failure to disclose (or supplement)
was harmless because “the information on which these damages are
calculated [was] already in Defendant’s possession.” Maharaj v. Cal. Bank
& Trust, 288 F.R.D. 458, 463 (E.D. Cal. 2013); Fed. R. Civ. P. 37(c)(1)
(party not allowed to use evidence it failed to disclose “unless the failure
was substantially justified or is harmless”). The Court agrees with
Bostwick’s argument, but only with respect to fringe benefits. As in
Maharaj, the defendants “ha[ve] the records of the benefits it paid to
Plaintiff.” Id. However, the defendants do not have records regarding
Bostwick’s job-search expenses, treatment costs, and other out-of-pocket
expenses that he allegedly incurred as a result of his termination.
Therefore, this evidence must be excluded.
-7-
***
Defendants’ motions in limine [ECF No. 63] are GRANTED-INPART and DENIED-IN-PART, consistent with the foregoing opinion.
Dated at Milwaukee, Wisconsin, this 9th day of April, 2015.
SO ORDERED:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge
-8-
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?