Opinion
Case No. 5:03-CV-175.
March 31, 2005
OPINION
This matter is before the Court to resolve Defendant's Motions in Limine before trial. The instant trial involves one claim of wrongful termination and two claims of slander per se brought under Michigan law and in this Court by diversity jurisdiction.
I. General Standards
The Court exercises discretion over matters involving the admissibility and relevancy of evidence at trial. United States v. Seago, 930 F.2d 482, 494 (6th Cir. 1991). The preferred method for doing so is, as in this case, by rulings in advance of trial so as to save court resources, permit an efficient presentation of proofs to the jury, and avoid jury prejudice. See Fed.R.Evid. 103.
Evidentiary rulings depend in large part on the trial court's assessment of the relevance of the proffered evidence and the extent of any prejudice caused by its admission. Under Federal Rule of Evidence 401, "relevant evidence" is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Under Federal Rule of Evidence 403, 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."
II. Defendant's Motion in Limine Regarding Certain Testimony
Defendant's first Motion in Limine concerns testimony of Mark Chadwick and Michele Lieder. Specifically, Defendant seeks to bar testimony of Mark Chadwick on page 15, lines 1-25 and page 16, lines 1-6 of the transcript of Chadwick's deposition. (Def.'s Mot., Dkt. No. 102, Ex. 1.) Those statements are relevant and probative to Plaintiff's claim of wrongful termination and are, therefore, admissible for those purposes.
Defendant also seeks to bar two sections of deposition testimony of Michelle Lieder. (Def.'s Mot., Dkt. No. 102 at 3 Ex. 2.) Lieder testifies in the first section that she heard from a store cashier that Plaintiff was terminated because he sexually harassed Lieder. (Lieder Dep. at 10, lines 1-13, 21-25 11, lines 1-4.) The Court sees no relevance of this testimony and Plaintiff fails to set forth a proper purpose of this testimony. Therefore, that portion of Lieder's testimony is inadmissible. ( See Lieder Dep. at 10, lines 1-13, 21-25 11, lines 1-4.)
The second section of Lieder's testimony at issue is a partial question of Plaintiff's Attorney A.B. Dalimonte concerning Plaintiff's abilities to carry out his duties as an assistant store manager. (Lieder Dep. at 11, lines 22-25.) This testimony is not unfairly prejudicial to Defendant and is relevant to Plaintiff's claim of wrongful termination. Therefore, it shall be admitted for those purposes.
For those reasons, Defendant's Motion will be granted in part and denied in part.
III. Defendant's Motion in Limine Regarding Plaintiff's Exhibit 11
Defendant's second Motion in Limine requests the barring of Plaintiff's Exhibit 11. (Def.'s Mot., Dkt. No. 103 at 1 Ex. 1.) Exhibit 11 is a November 26, 2002 letter from Plaintiff's attorney to Joe Jennings, the alleged slanderer, requesting Jennings issue a statement retracting "statements [Jennings] made regarding [Plaintiff's] moral character . . . [including] that he sexually harassed an employee . . . and that he falsified company records." Id. Exhibit 11 also includes a response letter dated December 24, 2002 from Lowe's Senior Corporate Counsel Anthony Dillon stating that he has reviewed the "credible evidence" and finds that there is no support for Plaintiff's assertions. Id.
Plaintiff asserts that Exhibit 11 is admissible and relevant to the proof of exemplary damages under Michigan Compiled Law § 600.2911(2)(b). (Pl.'s Resp., Dkt. No. 117 at 2.) The case law and plain wording of the statute (discussing "retractions" and referencing mass media) indicate that M.C.L. § 600.2911(2)(b) is intended to address libel actions against media defendants and allows for exemplary damages only if such a defendant is given reasonable time to publish a retraction in the same manner as the original libel. Id.; see also Brantley v. Zantop Int'l Airlines, Inc., 617 F. Supp. 1032, 1034-36 (E.D. Mich. 1985) ("The current statute retains enough of the original wording to indicate that its exemplary and punitive damage provisions continue to apply only to media defendants."). This construction of the statute is consistent with federal case law, which reads damages statutes pertaining to speech narrowly to preserve First Amendment interests. See Edward J. DeBartolo Corp. v. N.L.R.B., 463 U.S. 147, 157 n. 10 (1983) (". . . when Congress legislates in a fashion that restricts communicative activity, it expects the statutory language to be construed narrowly.").
Since Defendant is not a media defendant and the charges are of slander, not libel, the Court finds that Exhibit 11 bears no relevance to the determination of either liability or damages. Therefore, the Court determines that Plaintiff has not presented an appropriate basis for Exhibit 11's admissibility and Defendant's Motion will be granted. IV. Defendant's Motion in Limine Regarding Plaintiff's Exhibit 4
Defendant's third Motion in Limine requests the barring of Plaintiff's Exhibit 4. (Def.'s Mot., Dkt. No. 104 at 1 Ex. 1.) Exhibit 4 is a journal written by Plaintiff tracking his attempts to find employment after his termination from Lowe's. ( See Def.'s Mot., Dkt. No. 104, Ex. 1.) The journal also includes statements of Plaintiff's mental state during that time period. Id. Such evidence is not relevant to the determination of liability as to Plaintiff's wrongful termination or slander claims. However, such evidence may be relevant and admissible for the purpose of proving damages. For example, Exhibit 4 may be admissible to show Plaintiff's attempts to mitigate damages.
Upon review, the Court determines that Exhibit 4 is not admissible for the purpose of proving liability. However, the Court reserves determination of the admissibility of Exhibit 4 for the purpose of proving damages pending proofs at trial. Therefore, Defendant's Motion will be denied without prejudice pursuant to later review.
V. Defendant's Motion in Limine Regarding Use of Unemployment Hearing Transcript
Defendant seeks to bar the use of the transcript of Plaintiff's Unemployment Hearing pursuant to Michigan Compiled Law § 421.11(b). (Def.'s Mot., Dkt. No. 105 at 1 Ex. 1.) Plaintiff indicates that he does not contest the exclusion of the transcript for the purpose of proving slander and is only intending to use the transcript for the "limited purpose of impeachment" if Joe Jennings' trial testimony differs from his testimony given at the Unemployment Hearing. (Pl.'s Resp., Dkt. No. 113 at 1.) Such a limited use is appropriate under Sias v. General Motors, 127 N.W.2d 357, 360-61 (Mich. 1964). However, the Court reserves determination of the admissibility of the transcript for impeachment purposes as it may pertain to a particular witness. Therefore, Defendant's Motion will be denied without prejudice pursuant to later review. VI. Plaintiff's Motion in Limine Regarding Certain Testimony
Plaintiff seeks to bar the testimony of Paul Figueroa, Mary Frankland, and Jennifer Burnham under Federal Rule of Evidence 403 because "it is cumulative in nature, is of nominal importance to the matters at issue, and would cause unnecessary delay." (Pl.'s Mot., Dkt. No. 107 at 2.) Defendant agrees that Burnham's testimony is no longer necessary, but reserves the possibility of the necessity of Burnham's testimony to rebut Plaintiff's case-in-chief. (Def.'s. Resp., Dkt. No. 109 at 3.)
However, the cumulativeness of the testimony at issue depends on the presentation at trial including the order of proofs. Therefore, the Court will deny Plaintiff's Motion without prejudice and reserve determination pending trial.
VII. Plaintiff's Motion to Allow Voir Dire Questionnaire
Plaintiff requests the Court to allow the submission of a written questionnaire to the jury pool as a supplement to the oral voir dire conducted by the Court. (Pl.'s Mot, Dkt. No. 124, at 1.) As the Court indicated in the February 16, 2005 hearing, parties shall submit proposed written voir dire questions to the Court and, generally unless the questions are argumentative, the Court will pose those questions to the jury. The Court will then allow parties' attorneys to ask additional questions, orally, as long as the questions are not argumentative. Furthermore, Court cannot assess the propriety of the questionnaire when Plaintiff has failed to provide the Court with a proposed questionnaire. Therefore, the Court will deny Plaintiff's request to submit a written questionnaire to the jury and deny Plaintiff's Motion.
VIII. Conclusion
For the reasons stated above: Defendant's Motion in Limine Regarding Certain Testimony will be granted in part and denied in part; Defendant's Motion in Limine Regarding Plaintiff's Exhibit 11 will be granted; Defendant's Motion in Limine Regarding Plaintiff's Exhibit 4 will be denied without prejudice; Defendant's Motion in Limine Regarding Use of Unemployment Hearing Transcript will be denied without prejudice; Plaintiff's Motion in Limine Regarding Certain Testimony will be denied without prejudice; Plaintiff's Motion to Allow Voir Dire Questionnaire will be denied.
An Order consistent with this Opinion shall issue.