Denoewer v. Union County Board of Developmental Disabilities

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MICHAEL A. DENOEWER, :

: Case No. 2:17-cv-0660

Plaintiff, :

: JUDGE ALGENON L. MARBLEY

v. :

: Magistrate Judge Jolson

UCO INDUSTRIES, INC., :

:

Defendant. :

OPINION & ORDER

This matter is before the Court on Plaintiff’s and Defendant’s Motions in Limine. (ECF

Nos. 118, 119, 120, 121, 127). For the reasons set forth below, the Court DENIES Plaintiff’s

Motions, GRANTS IN PART AND DENIES IN PART Defendant’s Motions, and withholds

ruling on one of Defendant’s Motions.

II. APPLICABLE LAW

A. Motions in Limine

The purpose of motions in limine is “to narrow the issues remaining for trial and to

minimize disruptions at trial.” United States v. Brawner, 173 F.3d 966, 970 (6th Cir. 1999). In

disposing of a motion in limine, the guiding principle is to “ensure evenhanded and expeditious

management of trials.” Ind. Ins. Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio July

16, 2004). Courts should “exclude evidence on a motion in limine only when that evidence is

determined to be clearly inadmissible on all potential grounds.” Delay v. Rosenthal Collins Grp.,

LLC, 2012 WL 5878873, at *2 (S.D. Ohio Nov. 21, 2012). Thus, “[w]hen a court is unable to

determine whether or not certain evidence is clearly inadmissible, evidentiary rulings should be

deferred until trial so that questions of foundation, relevancy and potential prejudice can be

resolved in the proper context.” Id. “Orders in limine which exclude broad categories of evidence

should seldom be employed. A better practice is to deal with questions of admissibility as they

arise.” Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975); see also

Morrison v. Stephenson, 2008 WL 343176, at *1 (S.D. Ohio Feb. 5, 2008) (“Courts . . . are

generally reluctant to grant broad exclusions of evidence in limine, because a court is almost

always better situated during the actual trial to assess the value and utility of evidence.”) (internal

quotation omitted). “Whether or not to grant a motion in limine falls within the sound discretion

of the trial court.” Delay, 2012 WL 5878873, at *2.

B. Rules of Evidence

Together, the parties’ motions implicate the Federal Rules of Evidence on relevance (Rules

401, 402, 403), lay and expert witnesses (Rules 602, 701, 702, 703, 704), and hearsay (Rules 801,

802), as well as Federal Rule of Civil Procedure 26(a)(2) on pretrial disclosures.

The relevance rules provide that evidence is relevant, and thus generally admissible, if it

has “any tendency” to make a “fact . . . of consequence in determining the action” “more or less

probable than it would be without the evidence.” Fed. R. Evid. 401, 402. Relevant evidence may

be excluded, however, when the court determines that “its probative value is substantially

outweighed” by “unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting

time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.

Lay witnesses are restricted in offering opinion testimony, as it must be “rationally based

on the witness’s perception,” “helpful to understanding the witness’s testimony or to determining

a fact in issue,” and “not based on scientific, technical, or other specialized knowledge.” Fed. R.

Evid. 701. Lay witnesses also are required to have personal knowledge of the matter to which they

testify. Fed. R. Evid. 602. By contrast, expert witnesses generally can testify in the form of an

opinion. Fed. R. Evid. 702. Opinion testimony by an expert is “not objectionable just because it

embraces an ultimate issue,” provided that it stops short of giving legal conclusions. Fed. R. Evid.

704(a). Experts need not have personal knowledge of the matter, and they may base an opinion on

facts or data brought to their awareness. Fed. R. Evid. 602, 703. If the expert’s opinion rests on

otherwise inadmissible evidence, however, the expert may disclose them “only if their probative

value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.” Id.

Hearsay is an out-of-court statement offered for the truth of the matter asserted, and it

generally is inadmissible. Fed. R. Evid. 801(c), 802. One of the exceptions to this rule, at issue

here, is the statement of an opposing party. A statement that “was made by the party’s agent or

employee on a matter within the scope of that relationship and while it existed” is excluded from

the hearsay definition, and thus is admissible, when offered against that party. Fed. R. Evid.

801(d)(2)(D).

Federal Rule of Civil Procedure 26(a)(2) concerns the pretrial disclosures of an expert

witness. The rule generally requires a written report containing “a complete statement of all the

opinions the witness will express and the basis and reasons for them.” Fed. R. Civ. P.

26(a)(2)(B)(i). The report “must only convey the substance of the expert’s opinion,” and it “need

not replicate every word that the expert might say on the stand.” Evans v. Cardinal Health, 2020

WL 8459004, at *5 (E.D. Mich. Nov. 19, 2020) (internal quotations omitted).

III. ANALYSIS

A. Plaintiff’s Motions in Limine

Plaintiff submitted four Motions in Limine (ECF Nos. 118, 119, 120, 121). For the reasons

that follow, these Motions are DENIED.

1. To Preclude Defendant from Raising the Affirmative Defense of Direct Threat at Trial

(ECF No. 118)

Plaintiff first asks the Court to preclude Defendant from raising the affirmative defense of

“direct threat.” Plaintiff argues that Defendant raised direct threat only in the context of the “File

13” job, which did not survive summary judgment, and not in the context of the “production line”

job presently at issue. (ECF No. 118 at 3). Defendant acknowledges that the direct threat defense

is moot with respect to the File 13 job but denies that it waived the defense with respect to the

production line job. (ECF No. 135 at 2).

The Court previously granted Defendant leave to amend its answer and plead direct threat

with respect to both jobs. (ECF No. 100 at 28–29). The amended answer pled direct threat in

general terms and did not confine the argument to the File 13 job. (ECF No. 105 ¶ 62). Moreover,

Plaintiff has been on notice of this argument since Defendant’s first answer to the original

complaint. Defendant consistently has pled that it possessed legitimate, nondiscriminatory reasons

for its actions (ECF No. 13 ¶ 10; ECF No. 30 ¶ 55; ECF No. 46 ¶ 55; ECF No. 49 ¶ 50; ECF No.

105 ¶ 50); and an employee’s threatening behavior can be such a reason. See, e.g., McNamara v.

Gen. Motors, LLC, 189 F. Supp. 3d 685, 697 (N.D. Ohio May 27, 2016).

Because Plaintiff’s first Motion is premised on a misplaced assumption that Defendant

waived the direct threat defense as applied to the production line job, the Motion is DENIED.

2. Plaintiff’s Motion in Limine to Preclude Defendant from Presenting Evidence of Plaintiff’s

Personal Care Needs and Behavior Outside of the Workplace (ECF No. 119)

Next, Plaintiff asks the Court to preclude Defendant from presenting evidence of Plaintiff’s

behavior outside the workplace, including his personal care needs. Plaintiff argues that such

evidence tarnishes his reputation without bearing on his job qualifications, so it is irrelevant under

Rule 401 or unfairly prejudicial under Rule 403. (ECF No. 119 at 3–4). Defendant retorts that

Plaintiff put such evidence at issue through its experts. Dr. Mills relied on Plaintiff’s personal care

skills to assess his qualification for the jobs at issue (ECF No. 135 at 4); and Dr. Mills and Dr.

Calculator each concluded that Defendant caused Plaintiff’s disruptive behavior. (Id. at 6).

Evidence of personal care needs and of disruptive behavior outside the workplace (i.e., in the

absence of the alleged trigger) would tend to challenge the experts’ conclusions.

Defendant has identified some plausible ground that would permit the evidence of personal

care needs and behavior outside the workplace to be heard. Specifically, Defendant offers the

evidence as rebuttal to Plaintiff’s experts, not affirmatively to tarnish Plaintiff’s reputation.

Plaintiff’s second Motion is DENIED.

3. Plaintiff’s Motion in Limine to Preclude Defendant from Referring to Plaintiff’s Behaviors in

the Workplace as “Violent” (ECF No. 120)

Plaintiff asks the Court to preclude Defendant from characterizing Plaintiff’s behavior at

UCO as “violent,” asserting that only an expert can interpret Plaintiff’s intent. (ECF No. 120 at 4).

Defendant contends that lay testimony is appropriate and should not be excluded. (ECF No. 135

at 8).

Defendant correctly identifies that the Federal Rules on expert testimony are permissive,

not mandatory. Just because an issue may be appropriate for expert testimony does not mean that

lay testimony is barred. Rule 701 permits opinion testimony by a lay witness that is “rationally

based on the witness’s perception.” Defendant seeks to offer testimony from witnesses who

observed Plaintiff grabbing, head-butting, and biting others in the workplace, and who perceived

these behaviors as “violent.” (Id.). Such testimony will be helpful to the jury as a summary of

observations, and it will not carry any aura of expertise. See also United States v. Gyamfi, 805 F.3d

668, 672 (6th Cir. 2015) (Body language and physical demeanor observed by a lay witness may

be characterized as “nervous” because “testimony related to a person’s manner of conduct is also

categorized as a prototypical example of Rule 701 evidence.”); Yowan Yang v. ActioNet, Inc., 2016

WL 8929250, at *7–8 (In a case involving assault at a workplace, “lay witness testimony recalling

violence by [the assailant] that occurred in the witness’s presence” is relevant and admissible,

provided that it concerns “specific instances of conduct that they have observed” and not “whether

someone has a ‘propensity for violence.’”).

Plaintiff’s expert, Dr. Calculator, may undermine the weight of this evidence by testifying

that the behaviors were “purposeful and communicative” expressions of a nonverbal individual.

(ECF No. 120 at 2). But Plaintiff may not bar the admission of lay testimony altogether. Plaintiff’s

third Motion is DENIED.

4. Plaintiff’s Motion in Limine to Preclude Defendant from Arguing that “No Good Deed Goes

Unpunished” and Making Similar Arguments that Risk Jury Nullification (ECF No. 121)

Finally, Plaintiff seeks to preclude arguments that risk jury nullification, such as the adage

in Defendant’s Motion for Summary Judgment that “No good deed goes unpunished.” Plaintiff

argues that Defendant’s mission to employ people with developmental disabilities is the type of

evidence that would encourage jurors to decide the case based on “what UCO is instead of what

UCO did vis-à-vis Mr. Denoewer.” (ECF No. 121 at 2). Defendant responds that its mission is

relevant to malice and punitive damages, which Plaintiff put at issue. (ECF No. 135 at 13).

Defendant’s mission would tend to disprove Plaintiff’s assertion that punitive damages are

necessary to prevent it from discriminating again against developmentally disabled workers.

Accordingly, Defendant has identified some potential ground for admissibility. If the arguments

start to verge on coded pleas for jury nullification, the Court will intervene at trial. Plaintiff’s final

Motion is DENIED.

B. Defendant’s Motion in Limine (ECF No. 127)

Defendant submitted a single Motion in Limine containing ten objections, most of which

related to Plaintiff’s expert testimony. For the reasons that follow, Defendant’s fifth and tenth

objections are SUSTAINED, ruling is withheld on the sixth objection, and the remaining

objections are OVERRULED.

1. Objections relating to Plaintiff’s expert witnesses

Defendant’s first objection seeks to preclude Plaintiff’s experts from testifying as to legal

conclusions. (ECF No. 127 at 2). Defendant argues that Dr. Mills and Dr. Calculator “cross the

line” when they testify, inter alia, on whether particular accommodations are “reasonable,” (Id. at

3), whether Plaintiff was “qualified,” (Id.), and whether particular job functions are “essential,”

(Id. at 4). Federal Rule 704(a) provides that, in general, an expert opinion “is not objectionable

just because it embraces an ultimate issue.” Plaintiff, citing this rule and Sixth Circuit caselaw,

states that its experts will “suggest the answer” to legal questions but will not opine on whether

Defendant violated the law. (ECF No. 132 at 4–5). See also Babb v. Maryville Anesthesiologists

P.C., 942 F.3d 308, 317 (6th Cir. 2019). This is permissible; and to the extent that the experts cross

this line, the Court will hear objections at trial. Further, Plaintiff notes that several of the terms to

which Defendants object (e.g., “disabled,” “qualified,” “accommodation”) are also within the

experts’ professional vernacular. (ECF No. 132 at 5). Proper jury instructions will clarify that the

jury should not take the experts as legal authorities. Defendant’s first objection is OVERRULED.

Defendant’s second objection challenges the relevance of Dr. Mills’s opinions on how

Plaintiff’s career trajectory was affected by the alleged discrimination. (ECF No. 127 at 4–5).

Defendant views Dr. Mills’s report as suggesting a legal duty on its part to help Plaintiff achieve

competitive wage employment. (Id. at 5). This misconstrues the report. Dr. Mills will offer

opinions on the damages Defendant caused by their alleged discrimination. (ECF No. 132 at 6).

The legal duty is nondiscrimination; the loss of competitive wage employment is a damages theory

thereunder. To the extent Defendant is concerned about misleading the jury with inapplicable legal

duties, clear jury instructions are the preferable remedy. Defendant’s second objection is

OVERRULED.

Defendant’s third, fourth, and fifth objections concern Plaintiff’s expert testimony on

reasonable accommodations. (ECF No. 127 at 6, 8, 10). Defendant has conceded in its proposed

jury instructions that “no accommodation was necessary because Mr. Denoewer could perform

that essential functions of the production line job without accommodations and UCO never

prohibited him from working on the production line because of his disability.” (ECF No. 128 at

3). Defendant seeks now to exclude reasonable accommodations evidence as irrelevant or not

disclosed. Plaintiff agrees that the testimony complained of in objection five is no longer needed

since the facts it sought to prove are no longer in dispute. (ECF No. 132 at 11).

As to objections three and four, however, Plaintiff seeks still to present the testimony on

reasonable accommodations as either background evidence, rebuttal to Defendant’s testimony

about Plaintiff’s low productivity, or evidence of other wrongs suggestive of motive or absence of

mistake. (Id. at 7). The strongest ground for admissibility is rebuttal. Despite their concession,

Defendant continues to argue that it declined to promote Plaintiff to the production line job out of

“concern[] that Mr. Denoewer would not maintain the team speed necessary to succeed on the

production line because he was one of the slowest workers in the pre-production area.” (ECF No.

128 at 3). An absence of reasonable accommodations at the pre-production area would be relevant

to whether Defendant’s concern was legitimate or self-fulfilling. Moreover, Plaintiff has put other

wrongs at issue by seeking punitive damages. As to disclosure, Plaintiff complied with Federal

Rule of Civil Procedure 26 by indicating that Dr. Mills’s testimony would cover reasonable

accommodations available to Defendant. (ECF No. 127-1 at 2). Defendant complains that the

specific proposed accommodations were not disclosed; but, as Plaintiffs note, Defendant could

have learned this information by deposing Dr. Mills. (ECF No. 132 at 8–9).

The Court appreciates that excluding all evidence of reasonable accommodations would

simplify issues for the jury; but Plaintiff has identified legitimate uses for some of the expert

testimony. Accordingly, Defendant’s fifth objection is SUSTAINED, but its third and fourth

objections are OVERRULED.

Defendant’s sixth objection asks the Court to prevent Plaintiff’s experts from testifying

that Defendant could have or should have tolerated Plaintiff’s “violent” behavior. (ECF No. 127

at 12). The Court has observed in this very case that the ADA duty to accommodate does not run

in favor of employees who threaten or commit violence because they are considered unqualified

for the job. (ECF No. 100 at 15–16). Defendants, however, have not identified which (if any)

portions of the expert reports and expected testimony will suggest that there is a legal duty to

accommodate violent behavior. Rather than rule prematurely, the Court will WITHHOLD ruling

on this objection and assess the issue at trial, when it can be considered in proper context.

Defendant’s seventh objection seeks to preclude Plaintiff’s experts from testifying beyond

the scope of their expertise. Defendant argues that Dr. Mills and Dr. Calculator are not qualified

to opine on what caused Plaintiff’s disruptive behavior at the workplace. (ECF No. 127 at 13).

Defendant also notes that Plaintiff’s treating psychiatrist and primary physician reached

conclusions in tension with those of Dr. Mills and Dr. Calculator. (Id. at 14–15). Opinions can,

and often do, differ between experts; just because Plaintiff’s treating doctors reached different

conclusions does not mean that Dr. Mills and Dr. Calculator are unqualified. On the contrary, the

experts have greater than seventy years’ combined experience working with people with

developmental disabilities. (ECF No. 132 at 12). Defendant may probe the experts’ qualifications

and conclusions during cross examination, but the seventh objection is OVERRULED.

Defendant’s eighth and ninth objections challenge Plaintiff’s expert testimony related to

lost earning capacity. Defendants state that Dr. Sabo and Dr. Boyd will offer opinions that are

irrelevant to the case, which they also failed to disclose as required by Federal Rule of Civil

Procedure 26(a)(2). (ECF No. 127 at 15, 19). The challenged opinions relate to Plaintiff’s lost

future earning capacity resulting from Defendant’s discrimination (ECF No. 132 at 13), not, as

Defendants argue, to Plaintiff’s suitability to work in the production line. (ECF No. 127 at 16). In

other words, the experts will testify to consequential damages, which are relevant as one of

Plaintiff’s key theories of the case. Moreover, Plaintiff disclosed in their Rule 26 report that Dr.

Sabo and Dr. Boyd would give opinions about Plaintiff’s potential to achieve competitive wage

employment and about the present value of lost earnings. (ECF No. 127-1 at 3, 4). Therefore, the

opinions are relevant and were disclosed properly. Defendant’s objections as to the experts’

methodology, such as the similarity of the jobs and wages they considered, are appropriate for

cross-examination. Defendant’s eighth and ninth objections are OVERRULED.

2. Hearsay objection

Defendant’s tenth and final objection seeks to exclude hearsay testimony from Ms. Cauley,

an employee of the Union County Board of Developmental Disabilities (“UCBDD”). (ECF No.

127 at 20; ECF No. 132 at 14). UCBDD previously was a co-defendant in this case since it

controlled Defendant UCO until a privatization effort in 2013. (Id. at 15). Ms. Cauley would testify

about statements allegedly made by her supervisor Mr. Murphy, also a County employee, that

suggest Defendant denied Plaintiff the opportunity to work on the production line in retaliation for

Plaintiff’s parents having opposed privatization. (ECF No. 127 at 20).

The statements in question occurred prior to privatization, when Mr. Murphy still

supervised UCO employees. (ECF No. 132 at 15). Plaintiff seeks to admit the statement as the

admission of a party opponent. (Id.). But in so doing, Plaintiff would have Mr. Murphy’s statement

attributed down the chain of supervision. Rule 801(d)(2)(D) attributes statements by the agent or

employee up the chain to the principal or employer. It does not work in the reverse. See, e.g.,

Mahlandt v. Wild Canid Survival & Res. Ctr., Inc., 588 F.2d 626, 631 (8th Cir. 1978) (statement

contained in minutes of corporate board meeting are not admissible against employee of

corporation, whereas employee’s statements are admissible against corporation). Mr. Murphy’s

statement would be admissible against UCBDD, but not against Defendant UCO.

Separately, the statement is of questionable relevance. The statement suggests that

Plaintiff’s firing was retaliatory, not discriminatory. Plaintiff’s case sounds under disability

discrimination and does not allege any form of retaliation. (See ECF No. 45). Moreover, the event

allegedly prompting the retaliation is Plaintiff’s parents’ exercise of free speech rights, not

Plaintiff’s exercise of any rights under federal or state discrimination laws. Even if the statement

were allowed as nonhearsay, it still could be excluded as nonrelevant. Fed. R. Evid. 401(b), 402.

An additional challenge occurs because Dr. Mills relied on Ms. Cauley’s testimony about

Mr. Murphy’s statement in forming her opinion. (ECF No. 127 at 20). Per Rule 703, experts can

rely on otherwise inadmissible evidence, but it can be disclosed to the jury “only if [the] probative

value in helping the jury evaluate the opinion substantially outweighs [the] prejudicial effect.”

There is significant probative value to the Court and jury in leaving Dr. Mills’s report intact and

allowing her to testify completely as to the grounds for her opinion. The prejudice to Defendant is

minimal, since the statement concerns retaliation, not discrimination, and is attributable to

UCBDD, not Defendant. With the aid of cross examination, the jury can be depended on to keep

these issues separate. Therefore, the balance under Rule 703 disfavors restricting the expert

testimony. Defendant’s tenth objection is SUSTAINED, but only as to direct testimony.

IV. CONCLUSION

For the reasons stated herein, Plaintiffs Motions in Limine (ECF Nos. 118, 119, 120, 121)

are DENIED. Defendant’s Motion in Limine (ECF No. 127) is GRANTED IN PART as to the

fifth and tenth objections. Ruling is withheld as to the sixth objection, and the remaining objections

are DENIED.

IT IS SO ORDERED.

ALGENON ZL. MARBL

CHIEF UNITED STATES DISTRICT JUDGE

DATED: September 29, 2019

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