Senior United States District Judge.
A final Pretrial Order was entered in this case on November 23, 1999, and the case has been scheduled for a jury trial commencing on January 24, 2000. Plaintiff Iolana Klotsman ("Klotsman") has here sued Whole Foods Market Group, Inc. ("Whole Foods"), Bill Wilhelm ("Wilhelm") and Joe Flueckiger ("Flueckiger"). Both plaintiff and defendants have now filed motions in limine and/or to exclude evidence.
A final pretrial conference was held as scheduled on October 22, 1999, and counsel's versions of the Pretrial Order were discussed. When counsel could not agree on all the provisions to be included in the final Order, another conference was held on November 16, 1999. The final Pretrial Order was entered on November 23, 1999.
Now pending before the Court is plaintiff's motion in limine requesting the Court (1) to preclude defendants from attacking the character of the plaintiff or members of her family; (2) to preclude defendants from mentioning at the trial evidence of prior criminal or civil court matters of any kind with respect to the plaintiff or members of her family; (3) to order that some 19 witnesses not be permitted to testify at the trial because they were not previously disclosed to the plaintiff during discovery; (4) to order that there be no reference at the trial to television, newscast or newspaper articles regarding the subject suit; (5) to order that no one shall be permitted to proffer theories as to plaintiff's intentions in filing this suit; and (6) to exclude Document No. 9 listed as one of defendants' exhibits.
Defendants in turn have filed the following motions: (1) motion of all three defendants to exclude plaintiff's expert witnesses; (2) motion of defendant Whole Foods to exclude photographs which plaintiff seeks to introduce in evidence at the trial; (3) motion in limine of defendant Wilhelm to exclude relevant prejudicial testimony pertaining to his personal life; (4) motion in limine of defendant Whole Foods to exclude irrelevant and prejudicial testimony relating to alleged relationships between various store employees; (5) motion of defendant Whole Foods to exclude the July 25, 1999 fact finding report issued by the Maryland Department of Labor, Licensing Regulation; and (6) motion of defendant Whole Foods to exclude hearsay testimony relating to plaintiff having been called a thief.
Extensive memoranda and numerous exhibits have been filed by the parties in support of and in opposition to the pending motions. Included among the exhibits are numerous excerpts from depositions taken during discovery in the case. No hearing is necessary. See Local Rule 105.6. Following its review of the pleadings, memoranda and exhibits, the Court has concluded that some of the pending motions must be granted and others must be denied.
I Applicable Principles
A ruling on a motion in limine is no more than a preliminary, or advisory, opinion that falls entirely within the discretion of the district court. United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994). The primary purpose of an in limine ruling is to streamline the case for trial and to provide guidance to counsel regarding evidentiary issues. United States v. Luce, 713 F.2d 1236, 1239 (6th Cir. 1983), aff'd 469 U.S. 38 (1984).
In seeking to exclude evidence which the other side proposes to introduce at the trial, each side in this case has relied heavily on Rule 403, F.R.E. In its entirety, Rule 403 provides as follows:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
The decision to exclude relevant evidence pursuant to Rule 403 is committed to the sound discretion of the trial court.United States v. Love, 134 F.3d 595, 603 (4th Cir. 1998); Reed v. Tiffin Motor Homes, Inc., 697 F.2d 1192, 1199 (4th Cir. 1992). In its consideration of issues presented by Rule 403, the Fourth Circuit has indicated that undue prejudice may be found "if there is a `genuine risk that the emotions of a jury will be excited to irrational behavior, and this risk is disproportionate to the probative value of the offered evidence.'" United States v. Wells, 163 F.3d 889, 896 (4th Cir. 1998) (quoting United States v. Bailey, 990 F.3d 119, 123 (4th Cir. 1993)).
II Plaintiff's Motions (a) Character of Plaintiff and Members of Her Family
In support of her motion in limine, plaintiff Klotsman first requests that defendants should be precluded at the trial from inquiring into the character and life history of plaintiff and members of her family. In particular, plaintiff asserts that defendants should be forbidden from asking questions about the national origin of plaintiff and members of her family.
Plaintiff's request will be granted in part and denied in part. Defendants may not attack the character of plaintiff or members of her family by asking general questions concerning their national origin or their past life history or sexual experiences. Defendants agree that plaintiff's sex life is irrelevant to the question of whether she was subjected to sexual harassment and that there is no reason to inquire into specific aspects of her sexual activity. Plaintiff, like defendant Wilhelm, has properly objected to questions relating to her prior sex life or sex practices. Evidence pertaining to such matters must be excluded under Rule 403.
Nevertheless, proper questions attacking the credibility of plaintiff and other witnesses called by her may be asked during cross-examination, so long as the inquiry relates to the testimony given during the direct examination and pertains to the credibility of the plaintiff or to that of other witnesses called by her. Objections to such questions based on Rule 403 will be ruled on at the trial.
(b) Prior Criminal or Civil Court Matters Or Other Bad Acts
Plaintiff contends that defendants should be prohibited from introducing evidence pertaining to her prior arrest history, prior criminal history, disputes with others, prior convictions, prior civil judgments, or lifestyle prior to and after the institution of this case. There is no indication in the record here that defendants intend to introduce this sort of evidence insofar as members of plaintiff's family are concerned. However, defendants do intend to introduce evidence of conduct of plaintiff which would be probative of her truthfulness.
Pursuant to Rule 608(b), specific instances of plaintiff's conduct may be inquired into on cross-examination of plaintiff concerning her truthfulness, provided that such evidence is probative of untruthfulness. It is quite apparent that a primary issue in this case is the credibility of plaintiff herself. Defendants intend to introduce evidence which will attack plaintiff's truthfulness. At her deposition, plaintiff testified (1) that she had never been arrested, charged or convicted of any crime; (2) that she had never been involved in any criminal proceedings; (3) that she had never filed criminal charges or made a criminal complaint against anyone; (4) that she had never called the police or otherwise initiated criminal proceedings against anyone; (5) that she never had any dealings with the police while they were investigating criminal matters; (6) that she had never brought a civil lawsuit against anyone; and (7) that she had never been sued in a civil matter by anyone. There is evidence in the record to support defendants' contention that these statements are false. Under Rule 608(b), defendants may introduce evidence indicating that plaintiff was untruthful when she testified at her deposition as to the above matters at her deposition. Plaintiff's request that the evidence in question be excluded will therefore be denied.
(c) Witnesses to be Called by Defendants
In her motion, plaintiff Klotsman has asked that nineteen persons listed in her motion be forbidden to testify for defendants at the trial because they have not been previously disclosed to plaintiff during discovery. In making this request, counsel for plaintiff has paid little attention to the witnesses which were in fact listed by defendants in the Pretrial Order.
Fourteen of the nineteen persons listed by plaintiff in her motion were not included by defendants in the Pretrial Order as witnesses whom defendants intended to call to testify at the trial. There are, however, five witnesses who were listed by defendants in the Pretrial Order and whom plaintiff seeks to exclude. These individuals are the following: Rodney Bangert, Gwendolyn Britt, Jessica Schuler, Helena Zadjel and Khalid Kaluti. Plaintiff's request to exclude witnesses will therefore be considered only as to these five witnesses.
Following its review of the parties' memoranda, the Court concludes that this request must be granted in part and denied in part. Defendants may call Zadjel, Bangert and Britt. They were identified by defendants during discovery and were deposed by defendants, with counsel for plaintiff being present at the depositions. Under the circumstances, plaintiff can hardly claim surprise or prejudice.
The Court concludes, however, that Schuler and Kaluti may not be called to testify at the trial. Their depositions were not taken, and they were not specifically identified in discovery as witnesses whom defendants would be calling to testify at the trial.
Counsel for defendants knew the names of these witnesses some three weeks before the close of discovery in this case but did not timely supplement defendants' responses to discovery.
(d) Television or Newspaper References To this Suit
Evidence of record indicates that after filing this civil action, plaintiff sent a copy of her complaint to a television station. She was interviewed and made statements concerning the allegations contained in her complaint. Plaintiff seeks in her motion the exclusion of evidence pertaining to this interview and pertaining to the publicity which resulted from her having contacted the television station.
The evidence in question is admissible at the trial. Statements made by plaintiff during the interview or during the broadcast are admissible for purposes of impeachment under Rule 613. Plaintiff is here seeking damages, inter alia, for the embarrassment which resulted from the sexual harassment to which she was allegedly subjected. Her willingness to seek publicity concerning the incidents at issue is relevant to her claim for damages for embarrassment. Plaintiff's request for the exclusion of this evidence will therefore be denied.
(e) Theories As To Plaintiff's Intentions In Filing Suit
Plaintiff argues that no witness should be permitted to speculate or proffer theories as to the intentions of plaintiff in instituting this civil action, and that defendant should not be permitted to argue that plaintiff, in filing this suit, had any other reason except to obtain legal redress for the wrongs alleged. Without knowing exactly what evidence or arguments will be made concerning plaintiff's intentions in filing this action, this Court cannot rule on plaintiff's objection prior to trial.
Based on the evidence presented at a trial in a civil case, a defendant often argues that the desire for monetary gain is the sole factor supporting the plaintiff's claim. Depending on the evidence produced at the trial in this case, such an argument may be permitted. Plaintiff may object at the trial to any testimony which amounts to conjecture or speculation concerning her motives in filing suit in this case.
(f) Defendants' Exhibit No. 9
In the Pretrial Order, defendants have listed as Exhibit No. 9 "Job Dialog Feedback Memo by Bill Wilhelm." Plaintiff seeks to exclude this exhibit on the ground that it was not previously disclosed to the plaintiff.
In their opposition to plaintiff's motion, defendant has shown that the exhibit in question was identified during plaintiff's deposition. An additional copy has now been attached to defendants' opposition to plaintiff's motion. Under the circumstances, plaintiff's request that this exhibit be excluded will be denied.
II Defendants' Motions (a) Plaintiff's Expert Witnesses
Defendants have moved to exclude the following five individuals as expert witnesses: Dr. Harvey Paul, Dr. Stuart J. Clayman, Dr. Richard Othenstein, Stella Vodnos, C.D.E. and Diane Soronson, LCSW-C. Like plaintiff, counsel for defendants has not correctly noted applicable contents of the Pretrial Order. In the Pretrial Order, plaintiff has listed only the following experts which she intends to call at the trial: Dr. Harvey Paul, Stella E. Vodnos, C.D.E., Diane Soronson, LCSW-C and Dr. Michael Spodak. According to defendants, plaintiffs have failed to comply with Rule 26(a)(2), F.R.Civ.P., and all the expert witnesses listed by defendant in the Pretrial Order should accordingly be excluded. The Court would agree. Defendants' motion will be considered only as to the four expert witnesses listed by plaintiff in the Pretrial Order.
Once again, counsel for the plaintiff has disregarded the deadlines established by the Scheduling Order in this case. The Scheduling Order of April 5, 1999 required plaintiff to provide Rule 26(a)(2) disclosures within sixteen days of the date of the Order. This was not done. Rule 26(a)(2)(B) requires that a party who has retained a witness to provide expert testimony in a case must furnish a written report to the other side. This also was not done. The required report must contain a statement of opinions to be expressed, the basis therefore, the data or other information considered and other details pertaining to the expert opinion to be given. When no such report was provided by the plaintiff in this case, counsel for defendants was justified in not deposing the expert witnesses listed by plaintiff in the Pretrial Order. Were the Court to now permit these witnesses to testify, defendants would be unfairly prejudiced.
In its Memorandum and Order of October 1, 1999, the Court denied plaintiff's motion for leave to file a first amended and supplemental complaint because her motion was filed after the cut-off date in the Scheduling Order for the amendment of pleadings and after the close of discovery.
In opposing defendants' motion, plaintiff contends first that counsel for defendants agreed to defer Rule 26(a)(2) disclosures. There is no indication in the record that any such agreement was reached or that any such agreement was approved by the Court. No request was ever made to the Court for approval of an extension of the time for plaintiff to make proper disclosures under Rule 26(a)(2). Moreover, it appears that no such disclosures were ever made. The exhibit relied upon by plaintiff in opposing defendants' motion indicates that Dr. Paul, Stella Vodnos and Dr. Richard Ruth might be called as expert witnesses at the trial. However, the information required by Rule 26(a)(2)(B) to be furnished as to these proposed expert witnesses was not set forth in that document. Nor is there any reference at all in that document to Diane Soronson or Dr. Michael Spodak.
Accordingly, defendants' motion to exclude plaintiff's expert witnesses will be granted. Plaintiff may not at the trial present the testimony of any of the witnesses listed by her as experts in the Pretrial Order.
(b) Photographs
Defendant Whole Foods has moved to exclude a series of photographs which plaintiff intends to offer in evidence at the trial. Attached to defendant's motion are copies of twenty-four photographs of plaintiff while working at the Mt. Washington store and two photographs of plaintiff's dog.
The Court is satisfied that the pictures of plaintiff's dog must be excluded pursuant to Rule 403. The marginal relevance of those photographs is outweighed by the prejudice which would result. The fact that during the times at issue in this case plaintiff was grieving over the death of her dog is hardly a basis for introducing at the trial photographs of her dog.
However, plaintiff may introduce a few of the other photographs provided that they are properly identified as pictures taken of plaintiff working inside and outside the store. That witnesses will be describing the scene of the alleged sexual harassment does not require that the Court exclude properly identified photographs of the location where various events occurred. Certainly, there is no need for cumulative photographs, and only a few of the most pertinent ones may be admitted in evidence.
For these reasons, the motion of defendant Whole Foods to exclude photographs will be granted in part and denied in part.
(c) Wilhelm's Personal Life
By way of a motion in limine filed by him, defendant Wilhelm seeks to preclude plaintiff's counsel from questioning him and other witnesses regarding (1) his past marriage, his divorce and his current marriage; (2) his sexual practices with his wife; (3) accusations of infidelity; (4) his sexual preferences and other sexually explicit questions not directly related to his interactions with plaintiff; (5) his son and circumstances surrounding his son's arrest and/or convictions of crimes; and (6) Wilhelm's decision to file for bankruptcy in 1986. On the record here, the Court concludes that, pursuant to Rule 403, this motion must be granted in its entirety.
The evidence in question is only marginally relevant to the issues in this case. Its probative value is substantially outweighed by the danger of unfair prejudice and confusion of the issues. See Rule 403. Were the evidence to be admitted, it would be necessary for defendants to present a substantial amount of contradictory evidence in order to explain the occurrences in question. The result would be a considerable waste of time and the presentation of evidence having little to do with plaintiff's claim of sexual harassment. Plaintiff herself has argued in support of her motion in limine that details pertaining to her sex life and that of members of her family should be excluded. The Court has agreed. For similar reasons, plaintiff may not inquire into specific matters relating to Wilhelm's prior or present marriage, his sex life or his bankruptcy proceedings. Nor may plaintiff inquire into matters relating to criminal proceedings involving Wilhelm's son.
Evidence of record here does not support plaintiff's brazen assertion that Wilhelm was a "sexual freak."
Accordingly, the motion in limine of defendant Wilhelm to exclude certain irrelevant and prejudicial testimony will be granted.
(d) Sexual Relationships Between Various Store Employees
Defendant Whole Foods has also filed a motion in limine seeking to exclude certain irrelevant and prejudicial testimony relating to alleged sexual relationships between various store employees. Defendant seeks an Order excluding the introduction of evidence concerning alleged personal relationships between Caren Green ("Green") and Ken Herb ("Herb"), between Stephanie Coleman ("Coleman") and Chris Slick ("Slick") and between other employees of the store. According to defendant, the testimony in question should be excluded pursuant to Rule 403. The Court would agree.
At the deposition of Herb, counsel for plaintiff questioned him concerning an alleged sexual relationship between him and Green. At her deposition, Tanisha McClelland ("McClelland") testified about a sexual relationship which she believed was going on between Coleman and Slick. Green and Herb are employees of defendants' store; Coleman is Customer Service Supervisor, and Slick is grocery team leader. McClelland also testified about other employees in the store whom she believed to have been involved in sexual relationships with one another at some time in the past.
At his deposition, Herb denied ever having a personal or sexual relationship with Green.
That other employees of Whole Foods may have been involved in sexual relationships with each other is only marginally relevant to the issues in this case. Plaintiff is claiming in this case that defendants Wilhelm and Flueckiger sexually harassed her and that defendant Whole Foods is legally responsible for such wrongful conduct. That other employees of the store had sexual relationships with each other or were not faithful to their spouses has little to do with the essential issues in this case. The probative value of the evidence in question is substantially outweighed by the danger of unfair prejudice to defendant Whole Foods. Were the Court to permit the evidence to be introduced, there would be a danger that the jury would be prejudiced against defendant Whole Foods as a result of the salacious nature of the testimony and would be confused and misled concerning the essential issues in the case. Were the evidence in question to be admitted, there would be a genuine risk that the emotions of the jury would be excited. See Wells, 163 F.3d at 896. The evidence challenged here by defendants is of the sort which "excites emotionalism in a jury so as to lead it to an irrational verdict."Bailey, 990 F.2d at 135. Moreover, time would be wasted because defendants would be required to present contradictory or explanatory evidence pertaining to the details of the sexual relationships referred to in the testimony.
Plaintiff's assertion that Whole Foods supervisors turned the workplace into a "brothel and strip club" is no more than crude hyperbole which is not supported by admissible evidence of record. Throughout the pretrial proceedings in this case, counsel for plaintiff has pruriently sought information from witnesses concerning various sexual matters which have little to do with the claims asserted by plaintiff in the complaint. In spite of the extensive discovery undertaken by the parties, evidence does not exist in the record supporting plaintiff's assertion that Whole Food's supervisors encouraged employees to engage in sexual relationships with higher ups and lateral employees.
Suzanne Alexander testified at her deposition that she had heard rumors that there were orgies at the Mt. Washington store and that there may have been strippers in the store during company time. Rumors of this sort do not amount to admissible evidence.
For these reasons, the motion in limine of defendant Whole Foods to exclude irrelevant and prejudicial testimony relating to alleged relationships between various store employees will be granted.
(e) Fact Finding Report Issued By The Maryland Department of Labor, Licensing and Regulation
Plaintiff has listed as one of her exhibits a fact finding report which is dated July 25, 1999 and which was issued by the Maryland Department of Labor, Licensing and Regulation. This exhibit relates to plaintiff's application for unemployment benefits following the termination of her employment on July 16, 1999. Defendant Whole Foods has moved to exclude the introduction of this report at the trial.
On the record here, this Court concludes that the report in question is not relevant to issues in this case. The report deals with the circumstances surrounding the termination of plaintiff's employment for dishonesty. However, counsel for plaintiff has chosen not to include in this case a claim of retaliatory discharge. In its Memorandum and Order of October 21, 1999, the Court permitted plaintiff to amend her complaint to assert a claim of retaliatory discharge. At the pretrial conference held on October 22, 1999, counsel for plaintiff stated that plaintiff did not wish to assert in this case a claim of retaliatory discharge. Since the fact finding report relates solely to matters surrounding the termination of plaintiff's employment on July 16, 1999, it is not relevant to other issues in the case.
Moreover, statements made by a claimant in a fact finding report issued in an unemployment benefits administrative proceeding, like EEOC records, are not admissible in a Title VII action. See Cox v. Babcock and Wilcox Company, 471 F.2d 15 (4th cir. 1972); Moss v. Lane Co., Inc., 471 F.2d 853, 856 (4th Cir. 1973). The report in question must be excluded under Rule 403. It deals with facts pertaining to plaintiff's discharge, an issue which will not be presented to the jury at the trial. The probative value of the report is substantially outweighed by the danger that the jury would confuse the issues to be decided by it and would be misled by facts that have little relevance to the claims of plaintiff to be presented to the jury. Evidence developed in an unemployment benefits case should not be admitted in a federal discrimination suit. Bradshaw v. Golden Road Motor Inn, 885 F. Supp. 1370, 1375 (D. Nev. 1995).
In the oppositions to defendants' motions filed by counsel for plaintiff, there is an indication that plaintiff intends to testify that the termination of her employment was retaliatory. No such testimony will be permitted. In its Memorandum and Order of October 1, 1999 and at the pretrial conference held on October 22, 1999, the Court indicated that it would permit plaintiff to amend her complaint as a part of the Pretrial Order and add to her other claims one for damages and other relief for her alleged retaliatory discharge. Such a claim would have permitted plaintiff to claim damages for back pay, front pay and reinstatement. Counsel for plaintiff specifically stated (apparently for tactical reasons) that plaintiff did not want to assert such a claim and that damages for back pay and front pay were not being sought in this case. It was understood at the time that, if an additional claim for retaliatory discharge were added to the other claims asserted by plaintiff in this case, a considerable amount of additional discovery would have to be undertaken by defendants, including a further deposition of plaintiff and depositions of other witnesses. Were this to occur, it would have been necessary to defer the submission of a final Pretrial Order and the scheduling of the case for trial. Counsel for plaintiff was not in favor of the delay which would have resulted and did not want the jury to hear evidence pertaining to plaintiff's discharge for alleged dishonesty. Accordingly, the parties were directed to prepare a draft of the final Pretrial Order which would not include a claim for retaliatory discharge.
Counsel for plaintiff has now belatedly objected to the statement in the Pretrial Order that plaintiff is not asserting retaliatory discharge as a claim in this case, and plaintiff is now for the first time seeking back pay and front pay. However, it is much too late for these requested changes. There has been no discovery undertaken by the parties pertaining to the circumstances surrounding plaintiff's discharge on July 16, 1999. Nor has there been any discovery relating to the amount of back pay and front pay recoverable by plaintiff because she was allegedly wrongfully discharged by Whole Foods. Discovery was closed more than four months ago. Since the trial is scheduled to commence in several weeks, it is much too late to reopen discovery.
For these reasons, evidence pertaining to the termination of plaintiff's employment may not be presented at the trial.
(f) Hearsay Testimony About Plaintiff Being Called a Thief
Defendant Whole Foods has also filed a motion seeking to exclude hearsay testimony about plaintiff being called a thief. That motion will be granted.
In Count IX of her complaint, plaintiff asserted a claim of defamation. She alleged that she was defamed when defendants Wilhelm and Flueckiger made oral statements to other employees indicating that plaintiff was stealing from the store. In its Memorandum and Order of October 1, 1999, this Court held that there was no competent evidence in the record indicating that a defamatory statement was ever made by a supervisor or by other management personnel employed by Whole Foods. (Slip op. at 9). Plaintiff's allegations of defamation were based entirely on certain hearsay statements which the Court held did not amount to material evidence of defamation on the part of any of the defendants. (Id. at 10).
As the Court has previously ruled, the hearsay evidence that plaintiff was called a thief may not be admitted at the trial. In opposing this motion, plaintiff argues that the evidence in question bears on issues of credibility in the case and, relying on the fact finding report issued in the unemployment compensation case, plaintiff contends that the evidence is admissible as impeachment of certain witnesses. There is no merit to this contention. Defendants claim that plaintiff was discharged because she was dishonest and had lied to her supervisor. She was not at the time accused of being a thief. No credibility issue exists in this case which would permit plaintiff to present testimony that representatives of defendant Whole Foods had called her a thief. The evidence which plaintiff seeks to introduce is based entirely on inadmissible hearsay statements.
For these reasons, the motion of defendant Whole Foods to exclude hearsay testimony about plaintiff being called a thief will be granted.
III Conclusion
For all the reasons stated, it is this _____ day of December, 1999 by the United States District Court for the District of Maryland, ORDERED:
1. That plaintiff's motion
in limine is hereby granted in part and denied in part;
2. That defendants' motion to exclude plaintiff's expert witnesses is hereby granted;
3. That the motion of defendant Whole Foods to exclude photographs is hereby granted in part and denied in part;
4. That the motion
in limine of defendant Wilhelm to exclude certain irrelevant and prejudicial testimony pertaining to his personal life is hereby granted;
5. That the motion
in limine of defendant Whole Foods to exclude certain irrelevant and prejudicial testimony relating to alleged relationships between various store employees is hereby granted;
6. That the motion of defendant Whole Foods to exclude the July 25, 1999 fact finding report issued by the Maryland Department of Labor, Licensing and Regulations is hereby granted; and
7. That the motion of defendant Whole Foods to exclude hearsay testimony about plaintiff being called a thief is hereby granted.