Opinion
Case No.: 05-74511.
January 20, 2010
ORDER
This is a case in which the Plaintiff, Maryann K. Bruder, contends that the Defendants, Macomb County Prosecutor Eric Smith and Macomb County (Michigan), violated her civil rights under the Fifth and Fourteenth Amendments to the United States Constitution. In her complaint, she maintains that the Defendants knowingly and intentionally (1) deprived her of a fundamental right to due process under the United States Constitution, and (2) committed unlawful and illegal acts of retaliation against her as an employee of the Prosecutor's Office in Macomb County, Michigan. In an anticipation of the trial, the parties have filed several motions in limine, all of which are now ready for a ruling by the Court.
II.
First, the Court will address the remaining portion of the Defendants' motion of December 29, 2009 in which they sought authority to (1) file a motion for the belated entry of a partial summary judgment, (2) quash the two subpoenas that had been executed by the Plaintiff, and (3) preclude her from introducing evidence of an alleged extramarital and/or sexual relationship between Eric Smith and a prospective witness in this case. On January 5, 2010, the Court entered an order which denied a motion by the Defendants who had sought permission to file a delayed motion for the entry of a partial summary judgment. However, the Court took the remaining portion of the Defendants' motion under advisement for the purpose of giving the Plaintiff an opportunity to respond.
As the Court observed in its January 5, 2010 order, the Defendants filed their motion in response to a previously undisclosed claim by the Plaintiff that (1) "Smith's attitude toward [her] was significantly impacted when she observed [him and a witness] in a very compromising situation on or around January 17, 2005," and (2) Smith used this episode as a pretext for terminating her employment. The Defendants labeled this accusation by the Plaintiff as irrelevant to her theory of retaliation, an unfairly prejudicial character assassination, as well as an inadmissible "other bad act" under Federal Rule of Evidence 404(b). They collectively complain that the Plaintiff never disclosed this allegation to either of them at any time during the discovery period. Moreover, both of the individuals, who were allegedly involved in the tryst, have emphatically denied these accusations against them.
The Plaintiff initially responds by providing that which she describes as a factual basis in support of her charge. In a signed affidavit, she claims to have observed a sexual encounter between Smith and Brandi Milke (a projected witness in this case) in the Macomb County Prosecutor's office on the birthday of Rev. Martin Luther King, Jr. in 2005. The Plaintiff avers that, despite efforts to avoid detection, it is her belief that she was seen by Smith upon her attempt to leave the office facility.
From that time forward, the Plaintiff submits that Smith treated her differently than during those days which preceded his alleged encounter with Milke. Bruder acknowledges that she never disclosed this information to anyone until recently, believing that she had no legal or ethical obligation to reveal it. Nevertheless, the Plaintiff contends that this information is vital to her due process and retaliatory discharge claims, in that it would reveal Smith's true motive in initiating disciplinary action against her.
After considering the parties' respective arguments, the Court determines that the Plaintiff's allegations are needlessly inflammatory and should not be admitted into evidence. Although this case was initiated on November 29, 2005, the Plaintiff inexplicably waited until the very eve of the trial in this action to raise what she describes as "relevant background evidence" which would shed light on "a most basic fact in this controversy." (Plaintiff's Response at 2, 4). The Court also believes that if the Plaintiff had truly regarded this potentially explosive evidence as being fundamental to her case, she would have developed the factual record on this issue well in advance of the pending trial. Inasmuch as the Plaintiff's unjustified belated disclosure of Smith's alleged improper encounter with a prospective female witness — if admitted at this time — would have the practical effect of foreclosing the Defendants from investigating her allegations through discovery. Thus, any probative value in admitting the evidence would be substantially outweighed by the danger of unfair prejudice to the opposition. Fed.R.Evid. 403. Accordingly, the Defendants' motion in limine to preclude the Plaintiff from eliciting testimony or presenting other evidence of an alleged sexual encounter between Smith and Brandi Milke is granted.
In its entirety, the rule provides that "[a]though 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."
Turning now to the Defendants' motion in limine, in which they seek to preclude the introduction of any evidence that will touch upon the issues arising out of the preliminary injunction hearing that was addressed and resolved by the Court prior to this date.
In support of their motion, the Defendants argue that the admission of any evidence arising from the preliminary injunction proceedings wherein the Plaintiff was only obligated to demonstrate a strong likelihood of success on the merits would (1) be more prejudicial than probative, and (2) confuse the jury as to the issues to be decided, the appropriate burdens of proof, as well as the elements of the claims and defenses herein. Furthermore, the Defendants assert that if the Court believes that such evidence pertaining to the preliminary injunction is appropriate, then they urge the presentation of the following limiting instruction to the jury:
[You will learn/have learned that] as a result of a legal ruling by this Court shortly after plaintiff filed this lawsuit, plaintiff was temporarily reinstated as an employee at the Prosecutor's office. That earlier legal ruling is not pertinent to the issues you will be asked to decide in this case, and should not in any way influence your decision.
(Defendants' Motion at 6).
The Plaintiff concurs with the Defendants' request for relief. In her response to the Defendants' motion, the Plaintiff asks the Court to issue an order that will restrict all parties, witnesses and attorneys from introducing any evidence regarding the issuance of a preliminary injunction and related proceedings, including the Plaintiff's temporary return to work. Notwithstanding, the Plaintiff has expressed her opposition to the Defendants' request for a limiting instruction to the jury. In the Plaintiff's view, such an instruction would only confuse the jury by alerting them to an issue upon which no evidence will have been presented at trial.
Because the parties agree that the trial should proceed without any reference to the issuance of a preliminary injunction by the Court, the Defendants' motion in limine is granted. On the basis of this decision, the parties are directed that neither they nor anyone who is directly or indirectly associated with them are to make any reference to the preliminary injunction hearing in this action or the results therefrom. Finally, the Court finds the Defendants' request for a limiting instruction to the jury to be unwarranted. Since the jury will have heard no evidence relating to any decisions by the Court pertaining to the preliminary injunction hearing in this case, such an instruction would be unnecessarily confusing.
On a related point, the Plaintiff has filed a motion in limine in which she seeks to preclude the admission of any evidence or argument relating to the proceedings by the Hearing Board on her wrongful termination claims. She contends that the focus at trial should be on the fundamental issues of whether(1) her procedural rights to due process were denied on October 5, 2005 and (2) she was wrongfully terminated on October 27, 2005 as an act of retaliation. Moreover, the Plaintiff maintains that the Hearing Board proceedings in January and February of 2006 are irrelevant since they are remote in time from the challenged employment actions. Moreover, the Hearing Board neither considered nor evaluated the issues that will be ultimately decided by the jury. It is also her contention that admitting this evidence would unfairly prejudice her claims which, in turn, would cause jury confusion that could not be cured by a limiting instruction.
The Defendants have filed pleadings which challenge the validity of the Plaintiff's remarks. To support their position, they submit that the Hearing Board ultimately determined that the Plaintiff (1) was terminated for just cause, (2) had been insubordinate, and (3) lied during the performance of her duties as an Assistant Prosecuting Attorney. It is their view that they are entitled to impeach the Plaintiff with any of the statements that were made by her during these hearings.
The Court disagrees with the Defendants' contention, inasmuch as they largely seek to admit the Hearing Board determinations as a substantive assessment of the merits of the Plaintiff's wrongful termination claims. See, e.g. Defendants' Response at 3 ("it would be prejudicial error to the defendants if they cannot admit evidence of what occurred at the hearing board which established that the original decision to terminate the plaintiff was correct."). Contrary to their representations, the factual and legal findings by the Hearing Board cannot and should not be allowed to bind, influence or intrude upon the jury's obligations as the triers of the facts in this controversy.
The Court believes that it would be extremely difficult for a jury to independently evaluate the evidence after learning that a properly convened hearing panel had already investigated the Plaintiff's claim and, thereafter, rendered a determination regarding the merit of the challenged termination. Moreover, the jury may not understand or comprehend the limitations of such an administrative process which was not undertaken by a neutral and specialized agency — such as the Equal Employment Opportunity Commission — but by a board that had been convened by one of the parties to the litigation. Therefore, the Plaintiff's motion in limine to exclude any evidence or argument regarding the Hearing Board proceedings and determinations must be, and is, granted.
The Hearing Board process occurred after the dates on which Bruder was allegedly denied due process and terminated from her employment. Thus, the introduction of evidence relating to these proceedings would, under the circumstances, be irrelevant.
Finally, the Defendants have a filed a motion in limine in which they seek to prevent the Plaintiff from presenting the testimony of seven witnesses. According to the Defendants, (1) four of these witnesses (Jodi Debbrecht, Brandy Milke, Heather Milke, and Theresa Lingl) were never disclosed to them as prospective witnesses; (2) six of the witnesses (Hon. James Biernat, Pastor Robert Johnson, Hon. Ed Servitto, Jodi Debbrecht, Brandy Milke and Heather Milke) do not have any personal knowledge of the relevant issues in this case; (3) one of the witnesses (Pastor Robert Johnson) can only respond to questions that would produce inadmissible hearsay; (4) five of the witnesses (Hon. James Biernat, Hon. Ed Servitto, Jodi Debbrecht, Brandy Milke and Heather Milke) will, upon being called, offer testimony that is irrelevant to the issues under consideration; and (5) at least two witnesses (Brandy Milke and Heather Milke) will testify to information that will be unjustly prejudicial to the Defendants.
In response, the Plaintiff contends that she will elicit testimony from Judge Biernat relating to (1) his decision to authorize the issuance of the material witness warrant, and (2) the Plaintiff's credibility. Similarly, she intends to call Judge Servitto in an effort to (1) establish a foundation for her credibility, and (2) testify to his knowledge (or lack thereof) regarding the Prosecutor's Office policy which prohibited the requests for material witness warrants during the relevant time period. Both of these witnesses were disclosed by the Plaintiff during discovery, and the Court is not persuaded by the Defendants' terse arguments that Judges Biernat and Servitto lack personal knowledge about relevant facts or that calling them would be cumulative, cause confusion to the jury or constitute a waste of time and judicial resources. Thus, as to these two judicial officers, the Defendants' motion in limine to exclude their testimony is denied.
As to witnesses Brandy Milke and Heather Milke, the Plaintiff acknowledges that neither woman was identified as part of her disclosures under Fed.R.Civ.P. 26 or in her answers to the Defendants' interrogatories. Nevertheless, the Plaintiff alleges that these witnesses possess critical knowledge about Smith's alleged inappropriate activity in the workplace, as noted above. In light of the decision by the Court to preclude the production of evidence about this alleged incident, supra, the Defendants' motion to preclude Brandi Milke and Heather Milke from testifying at trial is granted.
In response to the Defendants' arguments about Pastor Robert Johnson and Jodi Debbrecht, the Plaintiff proclaims that both of these witnesses will testify to their personal observations of her physical demeanor and/or emotional state after having experienced the alleged due process violations. The Plaintiff acknowledges that Jodi Debbrecht was not identified as a witness in the Rule 26 disclosures. Nevertheless, she asserts that Debbrecht appeared on a witness list (filed in October of 2007). According to the Defendants, the Plaintiff not only failed to provide them with any disclosures about this witness, but she never conveyed the anticipated substance of Debbrecht's testimony.
The Court disagrees with this contention by the Defendants that they did not have notice of this particular witness until the eve of trial. Inasmuch as it appears that the Plaintiff neglected to prepare the requisite Rule 26 disclosures or describe the nature of Debbrecht's projected testimony during the discovery phase of this litigation, the Court will grant the Defendants' request to preclude this witness from testifying at trial.
The Defendants' motion as to Pastor Robert Johnson is denied since this substance of this witness' testimony was previously disclosed, and the validity of his remarks presents a question of weight, rather than admissibility of the evidence.
Finally, in response to the Defendants' contentions regarding the lack of notice about Theresa Lingl, the Plaintiff asserts that this witness is her therapist whose treatment only began in August of 2009. The Plaintiff submits Lingl will not be proffered as an expert witness, and, as such, she submits there is no duty to provide disclosures pursuant to Fed.R.Civ.P. 26.
As a preliminary matter, the Court accepts the Plaintiff's representation that she does not intend to offer Ms. Lingl as a witness who can offer specialized opinion testimony as to the nature of Ms. Bruder's psychological state. Accordingly, the Court finds that Lingl is not subject to Fed.R.Civ.P. 26(a)(2)'s requirements governing expert disclosures. Furthermore, the Court is not persuaded by the Defendants' characterization of the Plaintiff's "complete lack of disclosure of Ms. Lingl until the eve of trial." (Defendants' Motion at 7). To the contrary, it appears that the Defendants were placed on notice as early as October 6, 2009 that Lingl might appear as a witness on the Plaintiff's behalf. See Exhibit I to the Defendants' 10/08/09 Second Motion to Dismiss, located at Docket Entry No. 82. Significantly, it does not appear that the Plaintiff deliberately withheld Lingl's name in an effort to "ambush" the Defendants immediately before trial. Given that Lingl was identified as a therapist soon after she began her treatment of the Plaintiff, the Defendants could have filed an appropriate pleading with the Court if they felt compelled to obtain Lingl's records, deposition, or an independent medical examination after the close of discovery. The Defendants' claim that Lingl only began to treat with the Plaintiff three years after her termination presents a credibility determination that will most appropriately be resolved by the jury. The Defendants' motion in limine to preclude the Plaintiff from presenting Lingl's testimony is denied.
III.
For all of the reasons that have been stated above, the Court grants the Defendants' motions in limine (1) to preclude the Plaintiff from eliciting testimony or presenting other evidence of an alleged sexual encounter between Smith and Brandi Milke; and (2) to exclude any reference to the issuance of a preliminary injunction and any related proceedings, but the Defendants' accompanying motion for a special limiting instruction to the jury about these proceedings is denied. Similarly, the Court grants the Plaintiff's motion in limine to exclude any evidence or argument regarding the Hearing Board proceedings and determinations that took place.
Finally, the Defendants' motion in limine to preclude the testimony of certain witnesses is denied in part and granted in part. The Court grants the motion as to the Plaintiff's proposed witnesses Jodi Debbrecht, Brandy Milke, and Heather Milke, who may not testify in any capacity at trial. The Court denies the Defendants' motions as to Judge Biernat, Pastor Robert Johnson, Theresa Lingl and Judge Servitto.
IT IS SO ORDERED.