United States District Court, W.D. Missouri, Western Division
ORDER (1) GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION IN LIMINE, AND (2) GRANTING IN PART
AND DENYING IN PART PLAINTIFF'S MOTION IN LIMINE
D. SMITH, SENIOR JUDGE UNITED STATES DISTRICT COURT.
are Defendant's Motion in Limine (Doc. #51), and
Plaintiff's Motion in Limine (Doc. #53). As set forth
below, both motions are granted in part and denied in part.
The parties are reminded these rulings are interlocutory.
Thus, the denial of a request to bar evidence at this
juncture preserves nothing for review, and the parties may
re-assert their objections at trial if they deem it
appropriate to do so. Evidence barred by this Order shall not
be discussed in the jury's presence (including during
opening statements) without leave of the Court. The parties
are free to suggest (out of the jury's presence) that
something has occurred during the trial justifying a change
in the Court's interlocutory ruling.
Motion in Limine
“David and Goliath” evidence or
seeks to exclude comments or references to Defendant's
size or wealth, Plaintiff's wealth, or comparing
Defendant's wealth or size to Plaintiff's wealth.
Additionally, Defendant asks the Court to prohibit Plaintiff
from making comments that characterize this case as one
involving an individual against a large corporation;
referring to Defendant's ability to pay a judgment or
afford counsel; indicating the number of attorneys appearing
on behalf of Defendant; or mentioning the cost of defense,
the number of attorneys or offices of Defendant's
counsel, nature or number of exhibits, demonstrative
exhibits, and witness fees.
opposes the motion, arguing he should be able to argue
Plaintiff, an individual, is standing up for his rights that
Defendant, a corporation, did not respect. Plaintiff also
maintains he should be permitted to inquire during voir dire
if any of the jurors know of any of the defense attorneys or
attorneys at their law firm. Finally, Plaintiff contends he
should be permitted to introduce evidence of Defendant's
finances, size, and ability to pay punitive damages.
Court grants Defendant's motion. In the eyes of the law,
there is no difference between Plaintiff and Defendant. With
regard to Plaintiff's second concern, the Court will
inquire during voir dire if any panel member knows the
attorneys or law firms involved in the case. With regard to
Plaintiff's third concern, if the Court decides to submit
the issue of punitive damages to the jury, Plaintiff will be
permitted to elicit and present relevant evidence.
asks that all hearsay statements be excluded. Plaintiff does
not oppose this motion. Pursuant to Rule 802 of the Federal
Rules of Evidence, hearsay statements will not be admitted,
unless they meet an exception to the hearsay rule. This
motion is granted.
Evidence purportedly showing an inference of
anticipates Plaintiff may attempt to elicit testimony and/or
introduce documents related to other employees disciplined by
Defendant to show an inference of discrimination. Defendant
believes Plaintiff will introduce evidence regarding other
employees of Defendant who were treated differently.
Defendant makes no reference in this motion to Stanford
Fassett, whose lawsuit is also pending in this Court. But
Defendant informs the Court in a footnote to Motion in Limine
No. 4 that it does not intend to preclude either party from
referencing Fassett's case. Plaintiff opposes this
motion. He argues the MHRA is more expansive as to the types
of evidence that can be utilized to show race contributed to
an employer's decision, and evidence that similarly
situated individuals who were treated differently than
Plaintiff was could be admissible to show an inference of
the substantive law of Missouri governs this diversity case,
“[t]he Federal Rules of Evidence govern the
admissibility of evidence.” Sosna v.
Binnington, 321 F.3d 742, 744-45 (8th Cir. 2003).
“Evidence of other employer actions is admissible when
it supports an inference of discrimination.”
Bradford v. Norfolk S. Corp., 54 F.3d 1412, 1419
(8th Cir. 1995) (citation omitted). This evidence “must
assist in the development of a reasonable inference of
discrimination within the context of each case's
respective facts.” Id. “A plaintiff may
prove allegations of disparate treatment by demonstrating
that he was treated less favorably than similarly situated
employees outside the plaintiff's protected class.”
E.E.O.C. v. Kohler Co., 335 F.3d 766, 776 (8th Cir.
2003) (citations omitted). “Employees are similarly
situated when they are involved in or accused of the same
offense and are disciplined in different ways.”
Id. (citations omitted); see also Jain v. CVS
Pharmacy, Inc., 779 F.3d 753, 759 (8th Cir. 2015).
parties focus their arguments on four individuals: Bohrn,
Anderson, Brown, and Hill. Bohrn was accused of making
inappropriate remarks to female visitors, and looking at
female visitors in an inappropriate manner. Anderson was
accused of harassing an individual based upon her disability.
According to Plaintiff, Brown was accused of eating on the
job, and not showing up in uniform, and sleeping on the job.
Plaintiff also represents a customer asked that Brown be no
longer assigned at a particular federal facility. According
to Plaintiff, a different customer complained about Hill for
requiring individuals to sign in at a federal facility.
upon the limited information the Court has about these
individuals at this time, the Court will permit evidence
related to Bohrn and Anderson, but will exclude evidence
related to Brown and Hill. The accusations against Bohrn and
Anderson appear similar to the accusation against Plaintiff.
However, the allegations against Brown and Hill are not
similar to the accusation against Plaintiff. For these
reasons, Defendant's motion is granted in part and denied
Evidence of other legal proceedings or administrative charges
than Stanford Fassett's lawsuit, which is also pending in
this Court, Defendant asks the Court to exclude evidence of
other legal proceedings or administrative charges against
Defendant. Plaintiff opposes the motion, arguing
Defendant's harm to others is relevant to punitive
damages. Plaintiff identifies a charge of discrimination and
lawsuit filed by William Vannattan in the United States
District Court for the District of Kansas, and states the
matter involves allegations of age and disability
not provided by the parties, the Court acquired and reviewed
the Complaint filed in Vannattan's case, No.
2-16-CV-2147, JWL (D. Kan. Mar. 7, 2016). Therein, Vannattan
alleges Defendant and two other entities discriminated
against him on the basis of his age when it discharged him,
and retaliated against him for opposing unlawful employment
practices. Vannattan also alleged he was discriminated on the
basis of his disability in several respects. Vannattan's
allegations against Defendant are dissimilar to
Plaintiff's allegations in the case before this Court.
There is no allegation of race discrimination, lengthy
suspension, or a complaint of harassment against Vannattan.
Based upon the information known to the Court at this time,
evidence of or testimony about Vannattan's charge of
discrimination and lawsuit will not be permitted.
Accordingly, Defendant's motion is granted.
Evidence regarding failure to call an equally available
witness or the probable testimony of an absent
seeks to exclude comment or reference by Plaintiff that
Defendant did not call a witness to testify, when that
witness is equally available to both parties. Defendant also
asks the Court to exclude Plaintiff from speculating as to
the probable testimony of any witness who did not testify.
Plaintiff does not oppose this motion so long as the motion
applies to both parties. Defendant's motion and
Plaintiff's request are granted.
“Golden Rule” arguments or testimony
asks the Court to exclude argument or testimony that the jury
should place itself in Plaintiff's position, or the
damages be based on a scenario whereby the jurors
hypothetically sustain injuries or damages similar to that
purportedly sustained by Plaintiff. In response to
Defendant's motion, Plaintiff concedes he will not use
the phrase “put yourself in his shoes, ” and asks
that Defendant also be precluded from using that phrase.
Plaintiff also seeks wide latitude in closing argument.
Court grants Defendant's motion. The parties are
prohibited from asking the jurors to put themselves in the
party's position, and arguing the jurors should assess
damages based upon a scenario where the jurors hypothetically
sustain the injuries and damages Plaintiff sustained.
Plaintiff's request for wide latitude in closing argument
is denied at this time because the Court does not have
sufficient information to consider the request.
Tax implications for damages
moves to preclude comments about or reference to any tax
implications for a jury award. Plaintiff does not oppose the
motion so long as Defendant does not place the matter in
controversy by suggesting Plaintiff's verdict would be
tax free or would ...