Doe v. Purdue University

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

LAFAYETTE DIVISION

MARY DOE AND NANCY ROE, )

Plaintiffs, )

)

v. ) CAUSE NO.: 4-18-CV-89-JEM

)

PURDUE UNIVERSITY, et al. )

Defendants. )

OPINION AND ORDER

This matter is before the Court on Plaintiffs’ Motion in Limine [DE 87] and Defendants’

Motion in Limine [DE 88], both filed June 6, 2022. Defendants filed their response to Plaintiffs’

motion on June 21, 2022, Plaintiffs did not file a reply, and the time to do so has expired. Plaintiffs

filed their response to Defendants’ Motion on June 21, 2022, and Defendants filed their reply on

June 28, 2022.

I. Analysis

A motion in limine will be granted “only when evidence is clearly inadmissible on all

potential grounds.” Hawthorne Partners v. AT & T Techs., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill.

1993); see also Dartey v. Ford Motor Co., 104 F. Supp. 2d 1017, 1020 (N.D. Ind. 2000). Most

evidentiary rulings will be resolved at trial in context, and this “ruling is subject to change when the

case unfolds.” Luce v. United States, 469 U.S. 38, 41-42 (1984). The Court considers each request in

turn.

Some requests for exclusion were either agreed or not objected to. On review of the requests,

the Court concludes that evidence, testimony, or argument on the following topics will be excluded:

A. Insurance, unless Defendants offer evidence or argument as to hardships to

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Defendants as a result of any judgment, or that a verdict will cost taxpayers money; and

B. Reference to the “Golden Rule,” putting jurors in Plaintiffs’ shoes, or similar

arguments.

There were also some requests to which the other party objected, which the Court will

address in turn.

A. Plaintiffs’ prior sexual history

Plaintiffs request that any testimony, evidence, or argument regarding their prior sexual

history be excluded. Plaintiffs argue that any such history should be excluded under Federal Rules of

Evidence 402, 403, 404, and 412(a). Defendants argue that Plaintiffs have not specifically identified

what evidence of Plaintiffs’ prior sexual history they want excluded; that Plaintiffs have put their

sexual history at issue; their prior statements about their sexual history, or failure to disclose their

sexual history are at the heart of this dispute; and Rule 412(a) is not applicable because this is not a

case about alleged sexual misconduct.

Although character evidence or evidence of prior acts is generally excluded, see Fed. R.

Evid. 404(b), Defendants argue that Plaintiffs’ prior sexual history is admissible both because

Plaintiffs have made it an issue, and because Plaintiffs’ disclosure/nondisclosure of it is at the heart

of this case. The Federal Rules of Evidence prohibit evidence of prior acts to establish character or

actions in conformity with those behaviors. Fed. R. Evid. 404(b) and 412(a). Credibility may be

addressed by evidence as to truthfulness or untruthfulness only after the character of the witness for

truthfulness has been attacked by opinion or reputation or otherwise. Fed. R. Evid. 608. Accordingly,

evidence of prior acts of the Plaintiffs will be excluded, except for those acts directly put at issue by

the pleadings in this matter, including the fact that Plaintiff Roe was a victim of a previous sexual

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assault, Plaintiff Roe’s two incidents of sexual activity at issue in this matter, the fact that Plaintiff

Doe had previously had a consensual sexual relationship with the male student at issue in her

incident, and that Plaintiff Doe did not disclose it at the beginning of the inquiry but subsequently

did disclose it. Otherwise, Plaintiffs’ sexual histories are excluded “unless and until Defendant alerts

the Court and opposing counsel outside the presence of the jury that it seeks to admit particular

evidence under Federal Rule of Evidence 404(b).” Cimaglia v. Union Pac. R. Co., 2009 U.S. Dist.

LEXIS 14518, at *7, 2009 WL 499287, at *7 (C.D. Ill. Feb. 25, 2009).

B. Evidence or argument regarding Purdue’s False Statement Rule

Defendants move to exclude evidence or argument that asks the jury to determine anew

whether Plaintiffs violated Purdue’s False Statement Rule1 or that they applied the False Statement

Rule in retaliation. Plaintiffs argue that the issues in this case are whether Purdue was properly

applying its False Statement Rule or whether the processes in these investigations were infected with

discriminatory conduct, and therefore that they should be permitted to put on evidence of Doe’s and

Roe’s veracity.

Motions in limine are not proper tools to litigate contested issues of fact or law. Mid-America

Tablewares v. Mogi Trading Co., 100 F.3d 1353, 1363 (7th Cir. 1996) (“While this might be a

proper argument for summary judgment of for judgment as a matter of law, it is not a proper basis

for a motion to exclude evidence prior to trial.”). Plaintiffs claim that Purdue conducted shoddy

investigations into their allegations, ignored relevant evidence, made improper outcome-

1 Purdue’s False Statement Rule provides: This policy may not be used to bring knowingly false or malicious charges

against any faculty, staff, students or recognized student organizations, including fraternities, sororities and/or

cooperatives. Disciplinary action will be taken against any person or group found to have brought a charge of

Harassment in bad faith or any person who, in bad faith, is found to have encouraged another person or group to bring

such a charge.

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determinative conclusions, failed to advise them that they were being investigated and subject to

discipline, and then suspended them in retaliation for making claims that Purdue disbelieved on the

basis of those flawed investigations. Whether Defendants made those decisions on the basis of

gender or gender-related considerations is at the core of Plaintiffs’ claims. Defendants will be

permitted to introduce evidence and make arguments as to their compliance with both the Rule and

Title IX’s requirements to investigate and determine responsibility, as well as applicable Department

of Education rules and regulations. Plaintiffs will be permitted to introduce evidence and make

arguments as to Defendants’ failure to apply the Rule to them, whether Defendants’ conduct was

protected by either Purdue’s Rule or applicable Department of Education rules and regulations, and

whether Defendants’ conduct in its efforts to apply the Rule was discriminatory and/or violative of

due process.

C. Evidence or argument challenging the sufficiency of Purdue’s response to Plaintiffs’

allegations

Defendants move to exclude evidence or argument challenging the sufficiency of Purdue’s

response to Plaintiffs’ allegations and argue that Plaintiffs should be precluded from trying to argue

or show that Defendants violated the deliberate indifference standard for a response to a report of

sexual harassment. Plaintiffs allege that Defendants acted with deliberate indifference to the assaults

on Plaintiffs by disciplining Plaintiffs for reporting those assaults in a manner which discriminates

against women who complain of sexual assault.

Defendants’ requested limitation on evidence and argument goes to the contested issues of

fact and law at issue in this case; it is not granted. See Mid-America Tablewares, 100 F.3d at 1363.

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D. Evidence or argument that invites a propensity inference between the respective

interactions Purdue had with each Plaintiff and concerning Purdue University

discipline of any non-party or of any non-party’s Title IX allegations or lawsuits

Defendants argue that Rules 403 and 404 preclude evidence or argument inviting a

propensity inference between Purdue’s interactions with each Plaintiff on the basis that the Plaintiffs

have admitted the underlying assaults are unrelated, and therefore attempting to draw inferences on

the basis of the other assault would be unduly prejudicial. Waite v. Wood Cty., No. 16-cv-646-wmc,

2017 U.S. LEXIS 224615 *1 (W.D. Wis. Dec. 20, 2017). Despite their earlier requests being denied,

Defendants again argue that bifurcation would be appropriate.2 Defendants also move to exclude

evidence or argument about discipline imposed on non-parties, particularly the two males involved

in the incidents at issue, and further move to exclude evidence or arguments as to the existence of,

allegations or evidence of, rulings in, or resolution of, other Title IX claims or lawsuits it is involved

in, as irrelevant, confusing for the jury and prejudicial to the Defendants.

Plaintiffs argue that evidence of treatment toward other members of a protected group is

“circumstantial evidence of intentional discrimination.” Troupe v May Dep’t Stores Co., 20 F.3d

734, 736 (7th Cir. 1994). Plaintiffs argue that evidence of discipline imposed on non-party females

would be circumstantial evidence of intentional discrimination against women and disparate

treatment of Plaintiffs, and that the discipline of the two non-party males involved in the incidents at

issue goes to the heart of their case, is being offered to establish intent or motive and should not be

excluded.

Because the issue of whether male students were treated differently than female students is a

central tenet of Plaintiffs’ claims, evidence or arguments that male students were disciplined, and the

nature and extent of that discipline, will not be precluded. See Mid-America Tablewares, 100 F.3d at

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1363. Whether other female students were treated similarly to Plaintiffs is also related to Plaintiffs’

discrimination claims. “‘[B]ehavior toward or comments directed at other [members] in the protected

group’ is one type of circumstantial evidence that can support an inference of discrimination.” Hasan

v. Foley & Lardner LLP, 552 F.3d 520, 529 (7th Cir. 2008) (quoting Hemsworth v. Quotesmith.Com,

Inc., 476 F.3d 487, 491 (7th Cir.2007)); see also Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S.

379, 388 (2008) (explaining that evidence of discrimination experienced by other witnesses may be

relevant based on the facts and circumstances of a particular case). In this case, other female students

reporting assaults are members of the protected group. As such, evidence of behavior and comments

directed at them during Purdue’s Title IX investigations into their claims is relevant to whether

Defendants engaged in prohibited discrimination.

As a blanket request, precluding any evidence or argument on these issues would be

overbroad. Evidence may be adduced as to the commonality of decision-makers, decisions,

processes, the non-existence of separate investigations into Plaintiffs’ conduct, and the timing of the

incidents/investigations. Evidence or arguments about other Title IX allegations, claims and

evidence of Title IX violations may also be presented, so long as any relevant privacy restrictions are

maintained. Evidence of the existence of other lawsuits that have not resulted in judgments would be

prejudicial and is excluded. Evidence of any consensual resolution of other lawsuits is also

precluded.

E. Evidence or argument concerning an alleged policy of retaliatory discipline

Defendants request that evidence or argument of a policy of retaliatory discipline should be

precluded because Plaintiffs have not shown how many other students were subject to this purported

policy. Plaintiffs argue that Defendants have misunderstand the legal meaning of policy in the

2 Defendants have brought two motions to bifurcate the Plaintiffs’ claims; both have been denied. [DE 26, 83].

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Section 1983 context, i.e., government policy made through “those whose edicts or acts may fairly

be said to represent official policy.” Monell v. Dep’s of Soc. Servs., 436 U.S. 658, 694 (1978).

The existence of the purported policy is a core issue for the jury to decide. Motions in limine

are not proper tools to litigate contested issues of fact or law. Mid-America Tablewares, 100 F.3d at

1363. Either party may raise objections to specific exhibits, testimony, or argument during trial, and

in context, those objections will be ruled upon, but as a blanket prohibition the request will be

denied.

F. Evidence or argument regarding Purdue CARE staff

Defendants request that evidence or argument regarding whether Purdue’s CARE staff, non-

party mental health providers, credited Plaintiffs’ accounts or assault or other abuse should be

excluded since it would be prejudicial to Defendants, confuse the jury, and waive the privilege of

confidentiality which exists between CARE staff and Plaintiffs. Plaintiffs argue that the privilege is

theirs to waive, and that CARE staff’s observations of Plaintiffs’ emotional states, conduct during

the investigation, and the process of Purdue’s investigatory process is unrelated to staff members’

assessment of Plaintiffs’ credibility and should be admissible.

Evidence or argument as to whether Purdue’s CARE staff believed the Plaintiffs will be

precluded, but evidence or argument of CARE staff members’ observations of Plaintiffs’ emotional

state or conduct during the investigation and their personal knowledge of evidence submitted by

Plaintiffs to Purdue will not be precluded.

G. Evidence or argument regarding emotional distress or harm

Defendants move to preclude evidence or argument regarding Plaintiffs’ emotional distress

or harm, arguing that the United State Supreme Court’s recent ruling in Cummings v. Premier Rehab

Keller, P.L.L.C., No. 20-291, 596 U.S. ___, 142 S. Ct. 1562 (April 28, 2022), precludes recovery of

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emotional distress damages under Title IX. Plaintiffs argue that Cummings applies only to

Rehabilitation Act and Patient Protection and Affordable Care Act claims. Cummings, 142 S. Ct. at

1576. Because Cummings was not a Title IX action, it does not make evidence of emotional distress

or harm inadmissible in this case. Id. Therefore, evidence of such damages will not be precluded.

H. Evidence or argument regarding consequential damages

Defendants also move to preclude evidence of consequential damages, asserting as bases for

exclusion that Plaintiffs failed to comply with Rule 26(a)(1)(A)(iii) and provide a “computation of

each category of damages claim by the disclosing party;” that any claim for tuition, room, or board

are state law contract claims and must be brought in state court because Cummings limits their

damages to those claims; and since Plaintiffs could have returned after the suspensions expired, their

claims for costs of other education are immaterial.

As discussed below, to the extent any party has failed to disclose any substantive evidence,

the Court notes that such evidence will be inadmissible, except for permissible impeachment or

rebuttal purposes. Fed. R. Civ. P. 37(c)(1).

As noted above, since Cummings does not hold that it limits Title IX damages, it does not

justify precluding evidence of Plaintiffs’ consequential damages. Cummings, 142 S. Ct. at 1576.

Finally, the issue of whether Plaintiffs suffered any damages and/or failed to mitigate any

damages is an ultimate issue for the jury to decide, and not appropriate for a motion to exclude. See

Mid-America Tablewares, 100 F.3d at 1363.

I. Evidence or argument regarding punitive damages, sending a message to Defendant

or punishing the Defendants

Defendants also move to preclude evidence or argument regarding punitive damages, relying

again on the recent Cummings decision. Defendants contend that the Section 1983 punitive damage

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claims should be bifurcated for trial if the jury decides individual Defendants are liable to either

Plaintiff to avoid jury confusion. Defendants also argue that phrases such as “send defendants a

message” are prejudicial and irrelevant. Lauderdale v. Russell, No. 1:16-cv-02684-TWP-TAB, 2020

U.S. Dist. LEXIS 2670, *9 (S.D. Ind. Jan. 8, 2020).

As noted, Cummings does not apply to this case. Additionally, Defendants’ prior efforts to

bifurcate this case have all been denied, and they have provided no new arguments in favor of

reconsidering those decisions. Evidence or arguments relative to punitive damages will not be

excluded. Because punitive damages are available if Plaintiffs meet their burden of demonstrating

that they are entitled to them, evidence or arguments about punishing defendants or sending them a

message are not improper.

J. Evidence or testimony regarding any diagnosis or other clinical determination

Defendants move to exclude Plaintiffs’ or lay witness evidence or testimony as to whether

Plaintiff Roe was “clinically incapacitated by alcohol” at the time of the incident at issue on the basis

that Roe is not qualified to make that determination and has not disclosed any “expert diagnostic

opinion establishing her incapacity as a matter of medical science.” Plaintiffs point out that Purdue

relied on no medical or expert testimony about Roe’s incapacity before it issued its discipline against

her, and Defendant Sermersheim made an assessment of what incapacitated meant in determining

Roe’s discipline.

Because Roe’s incapacity is at the heart of her claim, and the issue of whether she was

incapacitated was both part of the investigation, and assessed by Sermersheim, evidence of both

Roe’s and Sermersheim’s assessment of Roe’s incapacity will not be precluded.

K. History, purpose, or intent of Title IX or Section 1983

Defendants request that Plaintiffs not be allowed to tell the jury the history, purpose or intent

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of Title IX or Section 1983, arguing that “there is no jury factfinding task involving the history,

purpose or intent of Title IX” and that those topics are “freighted with political considerations.”

Plaintiffs argue that there is no legal basis for excluding such statements about the law.

Plaintiffs can discuss the history and purpose of Title IX and Section 1983 but cannot

infringe on the Court’s authority to issue instructions and advise the jury of the law. (“[W]hether

comments during opening statement and closing argument are proper is a matter that the Court must

determine in context. It will decide these issues as they arise at trial.”) (quoting Cimaglia, 2009 WL

499287, at *7 (C.D. Ill. Feb. 25, 2009)).

L. Evidence or argument directed to constitutional due process

Defendants argue that evidence or argument directed to constitutional due process should be

precluded because there is no subject matter over Plaintiffs’ Section 1983 damages claims, there is

no private right of action under Title IX other than for enforcement of Title IX, and that Plaintiffs

have no constitutionally protected property interest or liberty interest in their Purdue enrollment. As

Plaintiffs argue, the issues of private right of action and the property interest were resolved by the

Court’s rulings on Defendants’ Motions for Summary Judgment. In addition, the Court denied

Defendants’ Motion to Dismiss. Evidence and argument as to constitutional due process with not be

barred.

M. Certain opinions from Plaintiffs’ designated expert witness, Dr. Melinda Manning

Defendants argue that some of Dr. Melinda Manning’s opinions should be precluded, based

on the Daubert standard. Defendants did not file a Daubert motion, and any Daubert arguments are

therefore untimely. Furthermore, the arguments themselves are without merit. Defendants do not

challenge Manning’s professional qualification as an expert in Title IX compliance issues, only her

medical qualifications.

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Defendants argue Manning’s opinions on the training and professional competency of

personnel as Title IX compliance topics concern the standard of care, which is not applicable to

issues of intent. Plaintiffs argue that the adequacy of Purdue’s process is at issue, Manning’s

opinions as to whether Purdue’s personnel were properly trained and competent is material.

Defendants also argue that Manning is not medically qualified to assess whether Roe was

incapacitated. Plaintiffs argue that because Purdue has a definition of incapacity in its Title IX policy

and Defendant Sermersheim opined on whether Roe was incapacitated using a different standard,

Manning should be permitted to testify as to whether Purdue’s application of its standard to Roe was

consistent with Title IX. Defendants also move to exclude Manning’s opinions on the “presence of

retaliatory intent” since there is no recognized expertise for the question of retaliatory intent.

Plaintiffs argue that it is appropriate for them to ask the jury to infer that retaliation has occurred

based on Manning’s testimony regarding recognized Title IX procedures that should be in place to

guard against retaliation.

Manning may offer opinions on what proper, recognized Title IX procedures should be in

place to guard against retaliation. She may opine on whether Purdue’s definition of incapacitated in

its Title IX policy is consistent with Title IX, whether Sermersheim’s expressed opinion of Roe’s

incapacity was consistent with either Purdue’s Title IX policy or Title IX itself, and whether

Purdue’s application of the incapacitation standard to Roe was consistent with either Purdue’s Title

IX policy or Title IX. Manning’s opinions as to whether Purdue’s personnel were properly trained

and competent likewise are not excluded.

Manning may not opine on whether Defendants had retaliatory intent toward Plaintiffs.

Counsel may make proper arguments as to the meaning of any evidence, including opinions.

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N. Evidence not produced in discovery

Defendants move for an order barring undisclosed substantive evidence. Plaintiffs argue that

this is better addressed by objections to their proposed exhibit and/or witness list. Undisclosed

information and witnesses will not be permitted. Fed. R. Civ. P. 37(c)(1) (“If a party fails to provide

information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that

information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure

was substantially justified or is harmless.”). The Court precludes any substantive evidence not

previously disclosed, except for impeachment or rebuttal purposes.

II. Conclusion

For the foregoing reasons, the Court hereby GRANTS in part Plaintiffs’ Motion in Limine

[DE 87] and GRANTS in part Defendants’ Motion in Limine [DE 88], as described above.

So ORDERED this 20th day of July, 2022.

s/ John E. Martin

MAGISTRATE JUDGE JOHN E. MARTIN

UNITED STATES DISTRICT COURT

cc: All counsel of record

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