Waite, Janis v. Wood County, Wisconsin

Filing 96

ORDER before January 4th conference. Signed by District Judge William M. Conley on 01/04/2018. (mfh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JANIS WAITE,
Plaintiff,

ORDER

v.
WOOD COUNTY, WISCONSIN,

16-cv-643-wmc

Defendant.
In light of the additional briefing submitted by the parties, as well as previous
argument by counsel, the court rules as follows on matters considered during the final
pretrial conference on December 21, 2017:


ITEM NO. 2

Neither party seeks to enter Exhibit 76 (Jochimsen text message) into evidence,
although plaintiff wishes to retain the right to use it for impeachment and refreshing
recollection. As indicated previously, this exhibit is excluded as hearsay. (See dkt. #87 ¶
2.) Plaintiff will be permitted to ask a focused, leading question whether before her
deposition Jochimsen held the opinion that she had been “used to get the outcome they
were looking for.” If Jochimsen responds in the negative, plaintiff may use the text message
to impeach. However, plaintiff will not be allowed to explore the statement further unless
defendant opens the door by asking Jochimsen for an explanation of that statement, the
reasons for it or any change of heart.
As to Exhibit 89 (Arndt Facebook notification email), the court reaffirms its ruling
that the document is hearsay. (See dkt. #87 at ¶ 2.) Given its multiple hearsay problems
and lack of any corroboration, this document is also excluded from reference at trial for all
other purposes.


ITEM NO. 6

As the court indicated in its decision on the motions in limine (dkt. #80 at 4 n.4) and
again at the pretrial conference, plaintiff’s assertion of Sheriff Reichert’s alleged expression
of a romantic interest in the plaintiff is too remote in time to the events at issue in this
case, and her theory that it was motivation for her termination is too attenuated, for its
introduction at trial unless the defendant opens the door to it.

Further, Exhibit 65 cannot be used by plaintiff “to force open the door.” The exhibit
is excluded and -- barring proffers outside the presence of the jury regarding specific
portions of the document -- it may only be used to refresh recollection or impeach. In
particular, plaintiff will not be permitted to introduce or allude to the alleged statement
“Always Been Close Friends” located approximately five lines from the bottom of the
document, nor the sheriff’s claim of friendship, nor plaintiff’s denial of friendship. If
defendant introduces the purported friendship in the first instance, this will open the door
to plaintiff testifying that she and the sheriff were not friends, and to the contrary, their
relationship became strained after she spurned his romantic overture.


ITEM NO. 7

Plaintiff Waite will be permitted to testify that CO Trzinski told her within the context
of Trzinski retraining the plaintiff as the result of the disciplinary process that Trzinski had
been directed to report if Waite used profanity. Again, if plaintiff establishes that it was
made in this context, then the statement is sufficiently related to the decisionmaking
process to qualify as a statement of a party opponent.


ITEM NO. 11

By agreement of the parties, plaintiff may use specific portions of Exhibits 42, 47, 61
and 62 for purposes of refreshing the plaintiff’s recollection.


OTHER MATTERS

Any other matters raised by the parties’ recent submissions may be taken up at this
morning’s 10:00 a.m. telephonic conference.
Entered this 4th day of January, 2018.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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