Blue v. International Brotherhood of Electrical Workers - Local 159

Filing 68

ORDER denying 41 Motion in Limine; granting in part and denying in part 42 Motion in Limine; granting in part and denying in part 43 Motion in Limine; granting in part and denying in part 44 Motion in Limine; and granting 46 Motion in Limine. Expert qualifications due on 7/29/10 by noon. Signed by District Judge William M. Conley on 7/27/10. (krj)

B l u e v. International Brotherhood of Electrical Workers - Local 159

D o c . 68

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

SUSAN BLUE, Plaintiff, v. 09-cv-395-wmc INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 159, Defendant. The parties have filed motions in limine in advance of the scheduled August 2nd trial o n plaintiff's claim that IBEW Local 159 retaliated against her in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-3, and 42 U.S.C. § 1981. This order resolves those m otions, as well as addresses some additional housekeeping matters in advance of the final pretrial conference now scheduled to proceed in courtroom 250 at 2:00 p.m. on Thursday, July 29th. OPINION AND ORDER

I.

D e fen d an t's Motions in Limine D efendan t moves to exclude evidence of any emotional and psychological damages

allegedly suffered by plaintiff. Dkt. #41. That motion will be denied for two reasons. First, defendan t fails to cite any legal authority to support its contention that defendant needs a m edical expert to testify regarding such damages. Indeed, the Court of Appeals for the S even th Circuit has explained that the opposite is true: a plaintiff's request for damages for em otio na l distress may be sufficiently supported by the plaintiff's testimony alone. Pickett v. Sheridan Health Care Center, No. 09-3028, 2010 WL 2541186, at *10 (7th Cir. June 25,

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20 10 ) (citations omitted). Second, plaintiff timely named her treating physician, Colleen W o lff P.A., as an expert witness on this subject on December 14, 2009. D efendan t also moves to exclude information from both grievances plaintiff filed with her union (dkt. #42) and the file created in investigating plaintiff's complaint filed with the M adison Equal Opportunity Commission (dkt. #43). Those motions will be granted in part a n d denied in part. While the court will not grant a blanket request that all information from grievances or the MEOC file be excluded, there will be a general presumption against the admission of such information. An exception exists, and to this extent defendant's m o tio n will be denied, for the general subject matter of each grievance and complaint, as well as the dates of plaintiff's filings, which are directly relevant to plaintiff's retaliation claim and w ill be admitted. N o t only is the relevance of additional information (beyond the fact and timing of the filing of such grievances and complaints) questionable, but any probative value of such in fo rm atio n is likely to be substantially outweighed by the unfair prejudice defendant could su ffer. It is each juror's duty to weigh the merits of any adverse actions against plaintiff and info rm atio n regarding actions taken with respect to plaintiff's grievances or the MEOC co m p lain t, which were judged on different legal standards, could be given undue and inap pro priate weight as well as open the door to a trial within a trial. Should plaintiff believe additional information regarding these grievances or the MEOC complaint is relevan t, probative and not outweighed by potential prejudice, plaintiff must make a specific o ffer of proof outside the presence of the jury well in advance of its introduction at trial.

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Fina lly, defendant seeks to exclude statements Mark Hoffman made about his belief that plaintiff had been discriminated and retaliated against by defendant. Dkt. #44. This m otion will also be denied in part and granted in part. First, Hoffman need not testify as an expert to share his lay opinion about what he perceived to be defendant's treatment of plaintiff. See Fed. R. Evid. 701. Second, once Hoffman was elected business manager of Local 159, his statements about plaintiff being discriminated and retaliated against are ad m iss i ble admissions by a party opponent, as he spoke as a representative or agent of defendan t on a matter then within his scope of employment. See Fed. R. Evid. 801(2)(D). T he statements Hoffman made while running as a candidate for the office of business m an ager, however, will be excluded. Those statements are not admissions by a party

o p po nent because Hoffman was not speaking in a position of authority for Local 159 or w ithin the scope of his employment at that time.

II.

P lain tiff's Motion in Limine P lain tiff has moved to keep defendant from introducing any evidence, testimony or

ar gu m ent concerning settlement. Dkt. #46. Defendant does not object or oppose that m o tio n , which is unsurprising in light of Fed. R. Evid. 408. Accordingly, plaintiff's motion in limine will be granted.

I I I.

A ctin g in Accordance with this Order B o th parties are admonished to instruct their witnesses regarding testimony on

su bjects excluded by this order. The offering party will suffer the consequences resulting

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from the introduction of a witness's testimony in violation of this order, including a stronglyw ord ed, currative instruction where appropriate.

IV.

Exp ert Qualifications and Use of Deposition Transcripts O n or before noon on Thursday, July 29th, the parties shall provide opposing counsel

an d the court: (a) A short, written narrative statement of each expert's background and experience. These statements will be read to the jury and no proof will be received on the matters covered unless objection to the narrative statement is f i le d . A list of portions of depositions, to be offered at trial, by page and line referen ces for witnesses unavailable at trial. Extensive reading from depo sition s is strongly discouraged. Toward that end, the proponent of a deposition may -- though is not required -- to prepare a written narrative sum m ary of some or all deposition transcripts the party intends to offer into evide nce, with annotated page and line references in parenthesis after each sentence, in lieu of part or all of the narrative of questions and answers.

(b )

OR DER IT IS ORDERED that: (1 ) D e fen dan t's motion to exclude emotional and/or psychological evidence for dam ages (dkt. #41) is DENIED; D efendan t's motions to exclude information about plaintiff's grievances (dkt. # 42) and to exclude information from plaintiff's MEOC file (dkt. #43) are G R AN TE D IN PART and DENIED IN PART in accordance with the con dition s explained in the opinion above; D e fen dan t's motion to exclude statements by Mark Hoffman (dkt. #44) regard in g alleged discrimination and retaliation against plaintiff is DENIED w ith respect to Hoffman's statements made after being elected the business m an ager of Local 159 and GRANTED with respect to Hoffman's statements m ade while running as a candidate for the office of business manager;

(2)

(3 )

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(4)

Plaintiff's motion in limine to preclude defendant from introducing evidence co n cern in g settlement discussions (dkt. #46) is GRANTED; and T h e parties shall file expert qualifications in narrative form and citations to d ep o s itio n transcripts expected to be offered at trial in accordance with the requ irem ents explained above.

(5)

E n tered this 27 t h day of July, 2010. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ W IL L IA M M. CONLEY D istrict Judge

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