Opinion
No. 99 C 4475.
October 2, 2001
Rulings on Motions in Limine
1. Plaintiff's motion in limine to bar evidence as to observations and opinions of Dr. Marvin Schwarz is denied. Plaintiff objects to the testimony of Schwarz on the basis that he behaved unprofessionally during a a Rule 35 psychiatric medical examination of plaintiff. Plaintiff accuses Dr. Schwarz of having conducted himself in an adversarial manner "designed to elicit panic, anxiety and mental distress." Defendants respond that plaintiff made known to defense counsel after an initial session of about 25 minutes that she was distressed by Dr. Schwarz's conduct and that defense counsel offered to submit an alternative examining expert. Plaintiff agreed to proceed with Dr. Schwarz, on condition that a paralegal witness from each side of the case be present. The examination continued at a later date and thereafter for approximately an additional four hours, apparently. Plaintiff s affidavit does not indicate that she experienced distress during the subsequent sessions. Although the statements attributed to Dr. Schwarz concerning interrogating plaintiff about whether she filed tax returns is disturbing, the remainder of the reported inquiries appear to be related to the controversy at issue. Therefore, the court concludes that, even accepting the first session as inappropriate conduct by Dr. Schwarz, the problems were sufficiently resolved that the expert witness can testify.
2. Plaintiff's motion in limine to bar evidence as to the reasons for plaintiff's termination other than those stated in defendant Zank's letter of termination dated July 8, 1998 is denied. Plaintiff's complaint alleges retaliation after plaintiff complained to Zank's superior that Zank was confronting plaintiff with sexually provocative material. Plaintiff contends, inter alia, that Zank modified her work schedule from flex time to regular time in retaliation and ultimately fired her for failure to comply with an order to stay at work until 5:00 on July 6, 1998. Plaintiff also alleges that she was denied privileges granted to other employees including flex time, bringing her children to the office, and working part time for medical reasons. Any evidence related to the alleged retaliatory conduct is admissible, and it is apparent that some of that evidence is based on events occurring before July 6, 1998. Plaintiff is correct that Zank's deposition testimony is an admission. That does not mean that no other or related evidence can be received. of course, the reasons given at the time of the termination and the testimony of the witnesses are also relevant to defendants' credibility, and if a disparity exists in reasons given from reasons asserted later, a jury might infer from inconsistent explanations that defendant's professes reasons were not believable.
3. Plaintiff's motion in limine to bar evidence as to observations and opinions of Dr. John Glennon is denied on condition that Dr. Glennon be made available for deposition in advance of trial. Plaintiff represents that defendants failed to disclose a psychologist, Glennon, as an expert witness in accord with the scheduling order entered by this court requiring expert witnesses to be disclosed by December 23, 1999. Only Dr. Marvin Schwarz, a psychiatrist was disclosed on that date, and without an expert report because the independent medical examination had not yet occurred. Dr. Glennon performed psychological tests in conjunction with Dr. Schwarz "s examination and Dr. Schwarz relied on those tests in formulating his opinion. Plaintiff believes that failure to disclose Dr. Glennon on December 23, 1999 precludes him from testifying. Defendants respond that they advised plaintiffs counsel that Dr. Glennon would be present at the Rule 35 examination to administer written psychological tests under the supervision of Dr. Schwarz, plaintiff did not object, and in fact agreed to it. Defendants believe it is unjust to bar his testimony when plaintiff certainly knew that Dr. Glennon was working with Dr. Schwarz. Neither party cites authority for their position other than plaintiff citing Mid-American Tablewares, Inc. v. Mogi Trading Co., Ltd., 100 F.3d 1353, 1363 (7th Cir. 1996), for the proposition that a party violating Rule 26 disclosure time limits must show that the violation was somehow justified. It is this court's experience that a psychiatric examination may include testing performed by a psychologist. Thus, in order for Dr. Schwarz to testify meaningfully, the evidence generated by Dr. Glennon may be essential. Plaintiffs counsel was aware of Dr. Glennon participation in the Rule 35 examination; plaintiff had a witness present during Dr. Glennon's examination, and plaintiff received a report of Dr. Glennon's findings along with the report of Dr. Schwarz. All of these factors suggest that plaintiff is neither surprised nor prejudiced by the testimony of Dr. Glennon. The court will, however, require defendants to produce Dr. Glennon for deposition at least one week before he testifies if plaintiff so requests.
4. Plaintiff's motion in limine to bar evidence as to the subjective belief of plaintiff's coworkers regarding defendant Zank's alleged conduct is denied. Just as plaintiff may call co-workers to testify to their observations about the allegedly hostile work environment, defendants may also call witnesses to testify as to the frequency of the allegedly offensive conduct, its severity, and whether the co-worker believed the conduct offensive and pervasive enough to alter their working environment. The witnesses may be examined for bias and prejudice, so as to permit the jury to infer whether the environment would be considered hostile by a reasonable employee in that situation.
5. Plaintiff's motion in limine to bar evidence as to the criminal guilty plea of James Coniglio is denied. In Green v. Bock Laundry Machine Co., 490 U.S. 504, 527 (1989), the Supreme Court held "that Federal Rule of Evidence 609(a)(1) requires a judge to permit impeachment of a civil witness with evidence of prior felony convictions regardless of ensuant unfair prejudice to the witness or the party offering the testimony." Defendants may elicit, however, only the crime charged, the date, and the disposition. See Gora v. Costa, 971 F.2d 1325, 1330 (7th Cir. 1992).
6. Defendants motion in limine to bar introduction of certain cartoons is denied, if plaintiffs witnesses can testify that these or similar cartoons were frequently resent in the workplace. Whether defendant Zank was responsible for their presence may or may not be inferred from the circumstantial evidence.
7. Defendants' motion to bar all medical records of plaintiffs treating physicians is granted as requested. Defendants do not object to the medical records being part of the materials considered by plaintiffs expert psychiatrist in formulating his opinion. Plaintiff represents that she will not offer the records as substantive evidence.
8. Defendants' motion to bar admission of the expert report of Dr. Lyle H. Rossiter, Jr. is granted without objection.
9. Defendants' motion to bar testimony of Dr. Rossiter is reserved until the court can read the expert's report, a copy of which shall be promptly submitted to chambers.
10. Defendants' motion to bar evidence regarding any conduct or conversations occurring prior to 300 days preceding the film of Plaintiff's administrative discrimination complaint is denied. Defendants rely on Miller v. American Family Mutual Ins. Co., 203 F.3d 997 (7th Cir. 2000), in urging the court to exclude any evidence of acts occurring more before December 13, 1997. Miller treated the ""continuing violation" doctrine, under which a plaintiff may `get relief for a time-barred act by linking it with an act that is within the limitations period.'" Id. at 1003, quoting Speer v. Rand McNally, 123 F.3d 658, 663 (7th Cir. 1997). Miller does not govern what evidence is admissible to prove a complaint based on a timely-filed charge. Although plaintiff cannot recover for any act of retaliation occurring before December 13, 1997, she may offer evidence that is relevant to prove those acts, whether within or without that time period. For example, if plaintiff intends to prove that she reported Zank's conduct before December 13, 1997 but his retaliation occurred after, she may prove up her report even though it occurred more than 300 days before her charge was filed.