Opinion
CASE NO. 5:02CV 1706
January 8, 2002
Edward L. Gilbert, EDWARD L. GILBERT CO., LPA, Akron, Ohio, for Plaintiffs
Vincent J. Tersigni and Ashley M. Manfull, BUCKINGHAM, DOOLITTLE BURROUGHS, LLP, Akron, Ohio, for Defendants
DEFENDANTS' MOTION IN LIMINE TO EXCLUDE PLAINTIFF'S WITNESSES NOT PREVIOUSLY IDENTIFIED
Defendants, Akron Metropolitan Housing Authority and Anthony O'Leary, by and through their undersigned counsel, for the reasons set forth herein, hereby move this Court in limine to exclude from the trial of this case any alleged evidence or testimony by the following individuals, who were listed for the first time in Plaintiffs Witness List submitted to the Court: Elmer Mahone, Robert Williams, Anthony Turner, Richard Gibson, and Richard Linville.
MEMORANDUM IN SUPPORT
Any Alleged Evidence Or Testimony From Elmer Mahone, Robert Williams, Anthony Turner, Richard Gibson, and Richard Linville Should Be Excluded From The Trial Of This Case.
On May 14, 2003, Plaintiff filed his Witness List, setting forth the following individuals who have never been identified as witnesses in the course of discovery and a synopsis of their testimony:
11. Elmer Mahone, will testify how discriminatory acts of Defendant is compared to Plaintiff for the same acts.
12. Robert Williams, will testify how discriminatory acts of Defendant is compared to Plaintiff for the same acts.
13. Anthony L. Turner, will testify how discriminatory acts of Defendant is compared to Plaintiff for the same acts.
14. Richard Gibson, will testify how discriminatory acts of Defendant is compared to Plaintiff for the same acts.
* * *
24. Richard Linville, co-worker, will testify as to the discrimination that he has observed in regards to Defendants toward Plaintiff and other African-Americans, as well as policy and procedure.
None of the foregoing individuals were previously identified as witnesses in this case. In Plaintiffs Initial Disclosures Pursuant to Civil Rule 26(a)(1), Plaintiff only identified himself, Christine Yuhasz, Michael Reinhart, and Anthony O'Leary as individuals likely to have discoverable information in this case. (See Exhibit A, attached hereto) In Plaintiffs Response to Defendant's First Set of Interrogatories, Plaintiff was asked to identify each and every person with discoverable knowledge of Plaintiffs claims in this case, the specific nature and extent of their knowledge, and their address and phone number. In response, Plaintiff listed the following individuals: Plaintiff; Anthony O'Leary; Christine Yuhasz; Michael Reinhart and Allan Thomas; John Morris, Garrett Williams, Tom Spurlock, and Art Beris; and Sara Seeley, Dr. James Orlando, and Dr. James Frye. (See Exhibit B, attached hereto) Plaintiff has never supplemented this list of persons with discoverable knowledge during the course of discovery.
Rule 26(a)(1) provides that Plaintiff must provide the name of each individual likely to have discoverable information that he may use to support his claims or defenses. Plaintiff refusal to provide the names of these individuals and then including them on his Witness List for the first time approximately one week before trial is unfairly prejudicial to Defendants.
Richard Linville's name has not come up in any of the depositions in this case or in any of the alleged evidence presented by Plaintiff. Defendants have no knowledge of what Mr. Linville will testify to and Defendants have not had any opportunity to depose Mr. Linville.
Elmer Mahone, Anthony Turner, Robert Williams, and Richard Gibson have apparently prepared statements upon the request of Plaintiffs counsel relating to how they received their work keys while employed by the AMHA. These statements were attached to Plaintiffs Response to Defendants' Motion for Summary Judgment. The method by which these individuals received their work keys has no bearing on the issues in this case. None of the statements provided to Plaintiffs counsel demonstrate that these individuals were in possession of master keys or were issued master keys by an AMHA supervisor. Further, the statements do not provide any information as to "how discriminatory acts of Defendants is compared to Plaintiff for the same acts." Therefore, it is entirely unclear as to what these individuals would testify to at the trial of this matter. In addition, Plaintiff attached to his Response to Defendants' Motion for Summary Judgment an Affidavit signed by Anthony Turner, whereby he states that he witnessed two Caucasian employees fighting sometime during the course of a four year period. Plaintiff has never introduced this evidence at any point prior to filing his Response to Defendants' Motion for Summary Judgment. Because none of these individuals have ever been listed as persons with relevant information in this case, Defendants also have not had the opportunity to depose Elmer Mahone, Robert Williams, Anthony Turner, or Richard Gibson. Defendants have no other information as to what any of these individuals would testify to at trial.
Therefore, at this late stage in the case, it would be extremely prejudicial to allow Plaintiff to submit the testimony of thesefive individuals when Plaintiff willfully refused to identify these individuals during the course of discovery. Further, if the Court allows Plaintiff to submit the testimony of these five individuals, it will require Defendants to revise their Witness List to add even more witnesses in order to rebut the alleged evidence or testimony of these individuals. For example, if Plaintiff is permitted to introduce the method by which four miscellaneous maintenance employees received their work keys, Defendants will conceivably be required to call upon each of the employees' supervisors to rebut their contentions. If Plaintiff is permitted to introduce evidence regarding an alleged fight that occurred approximately seven to ten years ago, Defendants will need to call upon other employees and/or supervisors who allegedly witnessed the incident. At this late stage in the case, Defendants should not be required to litigate each of these separate allegations by five separate witnesses which are completely unrelated to the issues in this case.
Finally, if this Court does allow Plaintiff to submit the testimony of these five individuals, Defendants request leave to depose each of these individuals between now and the date of trial, so that it can adequately discover the witnesses' testimony in this case and file any necessary subsequent Motions in Limine.
For all of the foregoing reasons, Defendants request that this Court grant their Motion In Limine to exclude the testimony of Elmer Mahone, Robert Williams, Anthony Turner, Richard Gibson, and Richard Linville, or in the alternative provide Defendants the opportunity to depose these individuals prior to trial.
PLAINTIFF'S INITIAL DISCLOSURES UNDER FED. R. CIV. PRO. 26 (a)(1)
I. Individuals likely to have discoverable information
William Singfield
Christine C. Yuhasz
Mike Rinehart
Anthony W. O'Leary
II. Copy of documents, etc, to support Plaintiffs' claims and defenses
See attached.
III. Computation of damages
A. Violations of Title VII of the Civil Rights Act of 1964 in that race was a determining factor as to Plaintiffs suspension, hold out from work, and ultimate termination, including, pain, suffering, humiliation, and anguish caused as a result of these violations $600,000.00
B. Violations of 4112 of the Ohio Revised Code in the form of racial discrimination and retaliation, including, pain, suffering, humiliation, and anguish caused as a result of these violations $2,000,000.00
C. Violations of 42 U.S.C. § 1983, and violations of the Plaintiffs' Right to Equal Protection and Due Process under the Fourteenth Amendment, including, pain, suffering, humiliation, and anguish caused as a result of these violations $3,000,000.00
Total of above $5,600,000.00
PLAINTIFF'S RESPONSE TO DEFENDANT'S FIRST SET OF INTERROGATORIES
Now comes the Plaintiff, by and through the undersigned, and hereby propound the following Responses to Defendants' First Set of Interrogatories to the Defendants.INTERROGATORIES
INTERROGATORY NO. 1: Identify each and every person providing information used in responding to these Interrogatories, Requests for Admission, and Requests for Production of Documents.
ANSWER: William Singfield INTERROGATORY NO. 2: Identify any and all documents which in any way relate to or support Plaintiffs claims against the Defendant Akron Metropolitan Housing Authority. For each such document, identify the date Plaintiff received the document and any person who provided the document to Plaintiff.
ANSWER: The Plaintiff will supplement upon receipt of documents from Defendants.
INTERROGATORY NO. 3: Identify any and all documents which in any way support Plaintiffs claims against the Defendant Anthony O'Leary. For each such document, identify the date Plaintiff received the document and any person who provided the document to Plaintiff
ANSWER: See answer to Interrogatory No. 2, above.
INTERROGATORY NO. 4: identify each and every person with discoverable knowledge of Plaintiffs claims in this case, the specific nature and extent of their knowledge, and their address and phone number.
ANSWER:
1. Plaintiff, William Singfield.
2. Anthony O'Leary, Chief Executive Office of AMHA and the decision maker in regards to the discipline of Plaintiff.
3. Christine Yuhasz, Human Resource Director who advised Mr. O'Leary and conducted the discriminatory investigation.
4. Michael Reinhart and Alan Thomas, the immediate supervisors of Plaintiff and alleged witnesses to the alleged acts.
5. John Morris, Garrett Williams, Tom Spirlock, and Art Barris are alleged direct witnesses who, on information and belief, provided statements to Defendant that led to Plaintiffs disciplinary action.
6. Sara Seely, Dr. James Orlando, and James Frye, individuals that work for the Summit Psychological Associates, Inc. These individuals are psychologists who were obtained by Defendant to provide false information to support the illegal action against Plaintiff.
The Plaintiff reserves the right to supplement in accordance with the Federal Rules of Civil Procedure.
INTERROGATORY NO. 5: Identify the amount of each and every item of damage claimed in Plaintiffs Complaint, including how such damages were calculated.
ANSWER:
1. For the actions of the Defendants that are clearly a violation of Title VII of the Civil Rights Act of 1964 in that race was a determining factor as to Plaintiffs suspension, hold out from work, and ultimate termination, compensatory damages of $300,000, punitive damages of $300,000, attorney fees, cost and any other relief this Court may deem is fair and equitable, including injunctive relief and reinstatement.
2. For the actions of the Defendants that are a violation of 4112 of the Ohio Revised Code in the form of racial discrimination and retaliation, compensatory damages of $1,000,000, punitive damages of $1,000,000, attorney fees, cost and any other relief this Court may deem is fair and equitable, including injunctive relief and reinstatement.
3. For the actions of the Defendants that are in violation of 42 U.S.C. § 1983, that denied Plaintiff his constitutional rights to equal protection and due process under the Fourteenth Amendment to the United States Constitution, compensatory damages of $2,000,000, punitive damages of $1,000,000, attorney fees, cost and any other relief this Court may deem is fair and equitable, including injunctive relief and reinstatement. INTERROGATORY NO. 6: Identify any and all witnesses and/ or documents upon which Plaintiff intends to rely in support of his claims at the trial of this case.
ANSWER:
See answer to Interrogatory Number 4. No other witness list or exhibit list has been developed at this time.
Plaintiff reserves the right to supplement this list when it is determined what witnesses will be called to testify.
INTERROGATORY NO. 7: Identify each and every expert witness whose testimony Plaintiff intends to use at the trial in this case, and describe the subject matter of each such expert witness's anticipated testimony, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds of each opinion.
ANSWER:
No expert has been retained at this time. Plaintiff reserves the right to supplement in accordance with the Federal Rules of Civil Procedure.
INTERROGATORY NO. 8: Identify all persons who provided documents to Plaintiff and/ or his counsel that may be used in the trial of this matter and identify each document provided.
ANSWER:
The Plaintiff will supplement when discovery proceeds. INTERROGATORY NO. 9: Identify all documents not within Plaintiffs custody, control, or possession which relate, in any way, to any of the allegations set forth in Plaintiffs Complaint.
ANSWER:
OBJECTION: This Interrogatory is overly broad, unduly burdensome, and best suited for a deposition. However, not waiving the foregoing objections, and in good faith, the Plaintiff is not aware of any non-privileged documents that are not in his possession, or control that relate to this case, and the Complaint.
INTERROGATORY NO. 10: Identify each and every lay witness whose testimony Plaintiff intends to use in this case, and describe the subject matter of each such witness' anticipated testimony.
ANSWER:
See Answer to Interrogatory Number 4. No other witness list or exhibit list has been developed at this time.
Plaintiff reserves the right to provide this list when it is determined what witnesses will be called to testify.
INTERROGATORY NO. 11: Does Plaintiff have in his custody, direction, or control and statements pertaining to this matter from any current or former employees of Defendant, whether in writing or on tape? If your answer is in the affirmative, please identify the person(s) who provided the statement and identify when the statement(s) was obtained.
ANSWER:
There are no non-privileged documents. Plaintiff will supplement as discovery proceeds. INTERROGATORY NO. 12: Describe the extent of all psychological, psychiatric treatment, and/ or anger management counseling that Plaintiff has received to date. Identify all health care providers who have provided any service to Plaintiff and the dates of treatment.ANSWER:
OBJECTION: This Interrogatory is overly broad, unduly burdensome, calls for information that may be protected by privilege, and is best suited for a deposition. However, not waiving the foregoing objections, the Plaintiff reserves the right to supplement, and will supplement subject to a protective order.
INTERROGATORY NO, 13: Identify all psychological and medical expenses incurred by
Plaintiff which are, allegedly related to any actions taken by the Defendants.
ANSWER:
OBJECTION: This Interrogatory is overly broad, unduly burdensome, calls for information that may be protected by privilege, and is best suited for a deposition. However, not waiving the foregoing objections, the Plaintiff reserves the right to supplement, and will supplement subject to a protective order.
INTERROGATORY NO. 14: State whether Plaintiff has received psychological or psychiatric care, counseling and/ or treatment for any psychological or psychiatric disorder prior to being required by Defendant AMHA to attend anger management counseling.
ANSWER:
OBJECTION: This Interrogatory is overly broad, unduly burdensome, calls for information that may be protected by privilege, and is best suited for a deposition. However, not waiving the foregoing objections, the Plaintiff reserves the right to supplement, and will supplement subject to a protective order. INTERROGATORY NO. 15: If Plaintiffs answer to Interrogatory #14 is in the affirmative, state the nature and extent of the treatment, when the care and/ or treatment was performed, and the name, address, and telephone number of each and every physician, psychiatrist, psychologist, counselor, hospital, health care practitioner and/ or health care institution which provided Plaintiff with such care and/ or treatment.ANSWER:
OBJECTION: This Interrogatory is overly broad, unduly burdensome, calls for information that may be protected by privilege, and is best suited for a deposition. However, not waiving the foregoing objections, the Plaintiff reserves the right to supplement, and will supplement subject to a protective order.
INTERROGATORY NO. 16: Has Plaintiff ever previously been a plaintiff in a lawsuit or complaining witness or charging party for an administrative charge? If your answer is in the affirmative, please state the name of the defendants/ respondents; the year the actions were filed; the forums in which the matter were pursued; the case numbers of the matters; the causes of action against the defendants/ respondents; and how the claims were resolved.
ANSWER:
OBJECTION: This Interrogatory is overly broad, unduly burdensome, and best suited for a deposition.
Without waiving the foregoing objection, the Plaintiff states that he does not recall any prior litigation. INTERROGATORY NO. 17: Has Plaintiff ever been convicted of a misdemeanor, felony, or any crime involving violence, intimidation, theft, embezzlement, perjury, fraud, or other acts of dishonesty? If your answer is in the affirmative, please state the date of the conviction; the offense; the court and the case number; and the sentence.
ANSWER:
OBJECTION: This Interrogatory is overly broad, unduly burdensome, and best suited for a deposition, Without waiving the foregoing objection, the Plaintiff states that he does not recall any criminal convictions.
INTERROGATORY NO. 18: Has Plaintiff ever accused an employer, other than Defendant, of any type of discrimination or unfair treatment? If your answer is in the affirmative, please state the name of the employer; the date of the alleged discrimination; whether any legal action was commenced because of the alleged discrimination; and how the matter was resolved.
ANSWER:
OBJECTION: This Interrogatory is overly broad, unduly burdensome, and best suited for a deposition.
Without waiving the foregoing objection, the Plaintiff states that he does not recall working for any racists employers other than the AHMA. INTERROGATORY NO. 19: Identify all Caucasian employees of Akron Metropolitan Housing Authority who have had master keys in their possess to perform their duties, as alleged in Paragraph 11 of Plaintiffs Complaint.
ANSWER:
OBJECTION: This Interrogatory is overly broad, unduly burdensome, and best suited for a deposition.
Without waiving the foregoing objection, the Plaintiff states that he does not recall the names of all Caucasian employees who have keys.
INTERROGATORY NO. 20: Identify the individual or individuals who gave a master key to Plaintiff to perform his work duties, as well as the date on which Plaintiff was given the master key and whether anyone else was aware that he had a master key in his possession.
ANSWER:
OBJECTION: This Interrogatory is overly broad, unduly burdensome, and best suited for a deposition.
Without waiving the foregoing objection, the Plaintiff states that he recalls Tom Miller providing the keys.
INTERROGATORY NO. 21: Identify all statements made by employees of Akron Metropolitan Housing Authority in response to Defendant's investigation which are "false and exacerbated", including the name of the individual who made the statement and the reason why such statement is "false or exacerbated," as alleged in Paragraph 15 of Plaintiffs Complaint.
ANSWER:
OBJECTION: This interrogatory is overly broad, unduly burdensome, and calls for a legal conclusion.
Without waiving the foregoing objection, the Plaintiff states that he can not recall any non-privileged information at this time. INTERROGATORY NO. 22: Identify all evidence that AMHA has a "history, pattern, practice, and custom of violating the constitutional rights of employees and discriminating against Black employees," as alleged in Paragraph 17 of Plaintiffs Complaint.
ANSWER:
OBJECTION: This interrogatory is overly broad, unduly burdensome, and calls for a legal conclusion.
Without waiving the foregoing objection, the Plaintiff states that he will supplement this response as discovery continues,
INTERROGATORY NO. 23: Describe all efforts made by Plaintiff to obtain employment since leaving the employ of Akron Metropolitan Housing Authority, including dates of employment with all subsequent employers and a description of his compensation, if any.
ANSWER:
OBJECTION: This Interrogatory is overly broad, unduly burdensome, and best suited for a deposition.
Without waiving the foregoing objection, the Plaintiff states that he has utilized the newspapers, resumes, and personal contacts. However, no one will hire him because of the Defendants racists references. I also do odd jobs with a maximum earned of approximately $2,000.
INTERROGATORY NO. 24: Identify each and every source of income Plaintiff has received since he has ceased working at Akron Metropolitan Housing Authority, designating the amount of income received from each source.
ANSWER:
OBJECTION: This Interrogatory is overly broad, unduly burdensome, and best suited for a deposition.
Without waiving the foregoing objection, see the Answer to Interrogatory Number 23.
VERIFICATION
I, WILLIAM SINGFIELD, hereby state that the answers to the foregoing Interrogatories are true and accurate to the best of my knowledge.
STATE OF OHIO; COUNTY OF SUMMIT:
Sworn before me and subscribed in my presence on this the8th day of January, 2002.
OBJECTIONS: As to the objections, counsel certifies that the objections are valid under the rules.