Erickson, Elizabeth v. Department of Workforce Development et al

Filing 114

OPINION AND ORDER granting in part and denying in part 85 Motion in Limine; denying 88 Motion in Limine; granting 90 Motion for Reconsideration; granting in part and denying in part 96 Motion in Limine. Signed by District Judge William M. Conley on 11/1/2016. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ELIZABETH A. ERICKSON,

v.

Plaintiff,

OPINION AND ORDER

DEPARTMENT OF WORKFORCE
DEVELOPMENT, DIVISION OF
VOCATIONAL REHABILITATION OF
THE STATE OF WISCONSIN, MICHAEL
GRECO, JOHN HAUGH, and PATRICIA
NOLAND,

15-cv-320-wmc

Defendants.
This case is set for a court trial on November 7, 2016. In advance of the final
pretrial conference, the court issues the following decisions on the parties’ motions in
limine and on plaintiff’s motion for reconsideration of the court’s prior decision on the
availability of compensatory damages.

OPINION
I. Plaintiff’s Motions
A. Plaintiff’s MIL No. 1: Bar Certain Affirmative Defenses (dkt. #85)
Plaintiff seeks an order precluding defendants from presenting any evidence that:
(1) it would have been an “undue hardship” for DWD to accommodate Erickson; and (2)
that Erickson failed to mitigate her damages.

In support of the motion, plaintiff

contends that Erickson failed to plead these affirmative defenses or otherwise raise the
defenses during discovery, at summary judgment or in other motions.
For their part, defendants acknowledge their failure to plead an “undue hardship”
defense or otherwise assert it, and therefore they do not intend to raise this defense at

trial.

(Defs.’ Resp. (dkt. #106) 1 n.1.)

In contrast, defendants assert that they

“expressly referenced a failure to mitigate damages defense in their Answer.” (Id. at 1-2.)
The Answer, however, simply provides that “Defendants reserve the defense of Plaintiff’s
failure to mitigate damages.” (Answ. (dkt. #14) p.12 (emphasis added).) While this
statement stopped short of actually asserting a mitigation defense in their pleadings,
defendants also direct the court to discovery requests, and in particular, questions posed
to Erickson during her deposition, in which defendants sought information about
Erickson’s attempts to obtain employment. (Defs.’ Opp’n (dkt. #106) 2-3 (describing
questions posed during deposition and discovery requests and responses).)

As such,

defendants have demonstrated that a failure to mitigate damages defense was in play,
and plaintiff’s counsel’s representation that it first learned of this defense during pre-trial
discussion is not credible.
Moreover, plaintiff has failed to explain how she has been prejudiced by
defendants’ delay in formally asserting the defense. The only prejudice appears tied to
the merits of the defense itself. To the extent there is any prejudice, the court will grant
plaintiff greater latitude in offering evidence material to this defense.
Accordingly, plaintiff’s motion is GRANTED as unopposed with respect to the
“undue hardship” defense and DENIED as to the “failure to mitigate” defense.
Defendant is granted leave to amend its answer to assert a failure to mitigate damages
defense.

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B. Plaintiff’s MIL No. 2: Bar Expert Testimony by Lay Witnesses (dkt. #88)
Next, plaintiff seeks an order excluding certain of defendants’ proposed findings of
fact as improper expert testimony under Federal Rule of Civil Procedure 37(c)(1).
Specifically, plaintiff takes issue with seven statements by Erickson’s former supervisors,
Richard Clark and Patricia Noland, each of which she characterizes as “opinions based on
specialized knowledge and experience in the field of vocational rehabilitation.” (Pl.’s Br.
(dkt. #89) 3.) Because defendants failed to disclose any experts, including experts who
are not required to provide a written report under Federal Rule of Civil Procedure
26(a)(2)(C), plaintiff contends that these statements should be excluded.
Generally speaking, the challenged statements listed in plaintiff’s brief involve:
(1) the duties of the vocational rehabilitation counsel (“VCR”) position; (2) how
performance of those duties is critical to the success of the DVR; and (3) how Erickson
lacked abilities to perform those duties. (Pl.’s Br. (dkt. #89) 3-4) (citing Defs.’ PFOFs
(dkt. #37) ¶¶ 18, 26, 45, 46, 48, 116).)

In addition to statements addressing those

subjects, plaintiff seeks to strike a proposed finding involving a review of Erickson’s case
filed by DVR’s Policy Analysts. (Id. at 5 (citing Defs.’ PFOFs (dkt. #37) ¶ 112.)
In response, defendants contend that Noland and Clark are not testifying as
experts on scientific, technical or other specialized knowledge that would fall within the
scope of 702. Instead, their testimony is specific to their first-hand knowledge of the role
of the VRC and Erickson’s performance in the role. The court agrees with defendants
that the challenged statements in defendants’ proposed findings of fact do not constitute
traditional expert testimony. At most, some of the statements amount to permissible lay
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opinion under Fed. R. Civ. P. 701 for which no advance disclosure is required. Fed. R.
Civ. P. 26(a)(2)(A). To the extent Noland or Clark’s testimony during trial crosses the
line into true expert testimony, plaintiff is free to object, but the court sees no basis to
strike the proposed findings as improper expert testimony.
As for plaintiff’s final challenge to references of a review of Erickson’s case files
conducted by DVR policy analysts, the court agrees with defendants that this is simply a
“fact of the case, not an expert opinion intended for use at trial.” Felix v. Wis. Dep’t of
Transp., 104 F. Supp. 3d 945, 954-55 (E.D. Wis. 2015). Whether the resulting report is
admissible is an issue for another day, but defendants can testify to their relying on the
report in determining that Erickson was not meeting performance expectations.
Accordingly, this motion is DENIED.
C.

Plaintiff’s Motion for Reconsideration (dkt. #90)

In an earlier opinion and order, the court concluded that plaintiff had failed to
assert any demand for compensatory damages, and therefore no basis existed for holding
a jury trial. In her present motion to reconsider, plaintiff does not seek to upset the
court’s determination that this case should proceed to a bench trial. Instead, plaintiff
seeks reconsideration of the court’s ruling barring plaintiff from seeking compensatory
damages as part of the bench trial.
In support of its motion, plaintiff directs the court to her Rule 26(a)(1) disclosure,
stating that she “will make a claim for loss of earning capacity by a vocational expert due
to the failure to accommodate her disability and her subsequent termination from her
employment as a vocational rehabilitation counselor-in-training.” (Pl.’s Br. (dkt. #91)
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3.)

From this, plaintiff argues that such a claim “is without doubt a claim for

compensatory

damages,”

citing

Seventh

Circuit

pattern

jury

instructions

for

compensatory damages in support. (Id. at 3-4 (distinguishing front pay from diminution
in expected earnings as a category of compensatory damages).)
In response, defendants principally argue that plaintiff cannot pursue damages for
emotional distress because she failed to plead such a claim or disclose such a claim in her
Rule 26(a)(1) disclosures.

While the court agrees with defendants that plaintiff’s

attempt to piece together a disclosure in her Rule 26(a)(1) submission is a bit of a
stretch, given the court’s liberal treatment of defendants’ pleadings with respect to its
failure to mitigate damages defense, the court will similarly allow plaintiff to pursue a
compensatory damages award for emotional distress, and specifically damages relating to
her diminution in expected earnings.
Accordingly, this motion is GRANTED.
II.

Defendants’ Motions (dkt. #96)
A. Defs.’ MIL Nos. 1, 2 and 4: Preclude Evidence of Disabilities
Defendants seek to exclude any reference or evidence of Erickson having (1)

persistent tinnitus, (2) a communication disorder, and (3) relative weakness in her
auditory working memory or auditory processing deficit or disorder. Defendants contend
that plaintiff never disclosed the first two disabilities and that they are “irrelevant,
immaterial and more prejudicial than probative under Fed. R. Evid. 401-403.” (Defs.’
MILs (dkt. #96) 1, 4.)

As for the third disability -- regarding Erickson’s auditory

working memory -- defendants argue that the court should exclude such evidence or
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argument because it is “irrelevant, immaterial and more prejudicial than probative.” (Id.
at 2.)
The court agrees with plaintiff that evidence relating to Erickson’s disability is
material to her ADA and Rehabilitation Act claims, and defendant has failed to articulate
how this evidence would be prejudicial, other than as probative evidence supporting
plaintiff’s claim. To the extent defendants were not on notice of certain aspects of her
hearing disability (e.g., tinnitus), defendants are free to present counter evidence and
make such argument as may be appropriate, but the court will not exclude evidence of
Erickson’s tinnitus, communication disorders, or auditory working memory deficits from
trial. Accordingly, these three motions are DENIED.
B. Defs.’ MIL No. 3: Exclude Testimony relating to Clark’s Experience with
an Alcoholic
In this motion, defendants seek an order excluding testimony about a purported
conversation between Erickson and Clark on the basis that the testimony would be
hearsay and that it is irrelevant and immaterial. Plaintiff does not oppose this motion.
Accordingly, the motion is GRANTED as unopposed.
C. Defs.’ MIL No. 5: Bar WERC Stipulation of Facts
Finally, defendants seek an order excluding any reference to or presentation of
evidence regarding the stipulation of facts Erickson entered into with an Office of State
Employment Relations employee.

Defendants contend that this stipulation is

inadmissible hearsay. They also seek to bar the stipulation on issue preclusion grounds.
As for the hearsay objection, assuming plaintiff can lay the proper foundation -- and
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given her response brief it appears that she can -- the stipulation appears admissible as a
statement by a party opponent under Federal Rule of Evidence 801(d)(2)(D). As for the
issue preclusion argument, the court is hard-pressed to understand defendants’ argument.
Plaintiff is not arguing that defendants are bound by the facts presented in the stipulation.
Instead, it appears that plaintiff simply seeks to introduce the stipulation as evidence
material to Erickson’s employment with DWD. Any further challenge to this document
is best considered during trial, when testimony and argument concerning this exhibit will
be presented.

Accordingly, this motion is DENIED, without prejudice to defendant

renewing a challenge at trial.

ORDER
IT IS ORDERED that:
1) Plaintiff Elizabeth Erickson’s motion in limine to bar affirmative defenses (dkt.
#85) is DENIED as to the failure to mitigate damages defense, and
GRANTED as unopposed as to the undue hardship defense.
2) Plaintiff’s motion in limine to bar expert testimony (dkt. #88) is DENIED.
3) Plaintiff’s motion for reconsideration of court’s ruling on compensatory
damages (dkt. #90) is GRANTED.
4) Defendants’ motions in limine (dkt. #96) are GRANTED IN PART AND
DENIED IN PART.
Entered this 1st day of November, 2016.
BY THE COURT:

/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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