Garren v. CVS Health Corporation

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

TOMMY D. GARREN, )

)

Plaintiff, ) Case No. 3:17-CV-149

)

v. ) Judge Collier

)

CVS RX SERVICES, INC., ) Magistrate Judge Poplin

)

Defendant. )

M E M O R A N D U M

Before the Court are thirteen consolidated motions in limine filed by Plaintiff, Tommy D.

Garren (Doc. 103), and ten individual motions in limine filed by Defendant, CVS Rx Services,

Inc. (Docs. 104–13). Each party has responded to the other’s motions. (Docs. 114, 115.) Neither

party has replied, and the time to do so has expired. See E.D. Tenn. L.R. 7.1(a)(3).

I. BACKGROUND

Plaintiff was employed by Defendant as a staff pharmacist at Defendant’s store in Tellico

Plains, Tennessee (“Tellico”). Plaintiff was approximately sixty-two years old at the times

relevant to this action. The other staff pharmacist at the Tellico store, Bryan Wooldridge, was

approximately fifty-three years old. Wooldridge was the Tellico pharmacy manager and Plaintiff’s

direct supervisor for part of Plaintiff’s employment.

In July 2015, a district manager for Defendant told Plaintiff he would be made a floater

pharmacist, meaning he would work shifts in different stores as needed. Defendant asserts Plaintiff

consented to the transfer, while Plaintiff asserts he only acquiesced in it. Plaintiff worked as a

floater pharmacist for six weeks in August and September 2015. During this time, Defendant

placed a new pharmacy graduate, who was twenty-seven years old, in Plaintiff’s previous position

at the Tellico store. On August 5, 2015, Plaintiff complained to a regional manager of age

discrimination against him. Defendant transferred Plaintiff back to his position as a staff

pharmacist in Tellico in September 2015, at Plaintiff’s request.

Approximately a week after Plaintiff’s return to the Tellico store, Defendant began an

investigation of Plaintiff, including a morale survey of Plaintiff’s impact at the store. The morale

survey was requested by the front-store manager, Shawn Plemons, who made an email complaint

about things Plaintiff had allegedly said about her to others since his return from the floater

position. The investigation also considered whether Plaintiff was making certain phone calls to

customers and prescribers regarding prescription refills. On October 19, 2015, Defendant

suspended Plaintiff pending an investigation. When Plaintiff returned to work on October 27,

2015, Defendant gave him a Level III final warning and an Improvement Action Plan. Plaintiff

made several additional complaints about age discrimination during the suspension and after

receiving the warning.

On November 6, 2015, Defendant terminated Plaintiff, asserting as grounds that he had

improperly called into a telephone survey line about the store using two customer receipts.

On April 20, 2017, Plaintiff filed suit against Defendant,1 asserting causes of action under

the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq., (the “ADEA”), and

the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq., (the “ADA”). (Doc. 1

¶¶ 76–112.) On August 28, 2020, the Court granted in part Defendant’s motion for summary

judgment, dismissing Plaintiff’s claim for harassment under the ADEA and all his claims under

1 The initial complaint named two other entities and CVS Health Corporation, Inc. (Doc.

1). The amended complaint substituted Defendant, CVS Rx Services, Inc., for CVS Health

Corporation, Inc. (Doc. 8.) The two other entities have been dismissed. (See Doc. 120.)

the ADA. (Doc. 120.) Plaintiff’s remaining causes of action are for discrimination and retaliation

in violation of the ADEA. (See id.)

The case is set for trial on September 13, 2021. (Doc. 129.)

II. ANALYSIS

Plaintiff has filed thirteen consolidated motions in limine (Doc. 103), and Defendant has

filed ten (Docs. 104–13).

A. Plaintiff’s Motions in Limine

Plaintiff has filed thirteen consolidated motions in limine. (Doc. 103.) Several of

Plaintiff’s motions relate to procedural, rather than evidentiary, issues. Defendant does not object

to nine of Plaintiff’s motions on the condition that the Court’s rulings would apply equally to both

parties. (Doc. 115 at 1–2.) Defendant does not object to three other of Plaintiff’s motions, but on

more extensive conditions. (Id.) Defendant objects to one of Plaintiff’s motions, the thirteenth, in

its entirety. (Id.)

1. Plaintiff’s First Motion: Dismissed Claims

Plaintiff’s first motion asks the Court to exclude any reference to claims he has voluntarily

dismissed or which the Court has dismissed. (Doc. 103 at 1–2.) Plaintiff cites Rules 402 and 403

of the Federal Rules of Evidence in support. (Id. at 2.) Defendant does not object to the motion

on the condition that the Court’s ruling would apply equally to both parties. (Doc. 115 at 1.)

Rule 402 states that “[i]rrelevant evidence is not admissible.” The rules define evidence

as “relevant if: (a) it has any tendency to make a fact more or less probable than it would be without

the evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401.

The Court has dismissed three sets of claims: Plaintiff’s disability claims under the ADA,

his harassment claims under the ADEA, and his claims against two other entities. (Doc. 120.) The

dismissal of these claims does not tend to make more or less probable any facts of consequence in

determining the remaining claims. Therefore, evidence regarding the dismissal of any of

Plaintiff’s claims is irrelevant under Rule 401 and inadmissible under Rule 402. Plaintiff’s

consolidated motions in limine (Doc. 103) will be GRANTED IN PART as to Plaintiff’s first

motion in limine. Defendant shall not introduce evidence regarding, refer to, or make any

argument regarding Plaintiff’s dismissed claims.

2. Plaintiff’s Second Motion: Settlement Discussions and Mediation

Plaintiff’s second motion seeks to exclude any reference to settlement discussions or

mediation regarding the parties’ dispute pursuant to Rule 408 of the Federal Rules of Evidence.

(Doc. 103 at 2.) Defendant does not object to Plaintiff’s motion on the condition that the Court’s

ruling would apply equally to both parties. (Doc. 115 at 1.)

Rule 408 prohibits the use of settlement communications “either to prove or disprove the

validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a

contradiction,” with certain exceptions not relevant here. Fed. R. Evid. 408.

There does not appear to be a current dispute about the admissibility of any potential

evidence under Rule 408. Plaintiff does not identify any disputed evidence for the Court to

evaluate, nor does he say he has reason to believe Defendant will attempt to admit any evidence

that is inadmissible under Rule 408. (See Doc. 103 at 2.) Defendant agrees that the parties should

not introduce evidence of settlement communications. (Doc. 115 at 1.) Plaintiff thus appears to

be asking the Court for an advisory order on the Court’s intention to apply a rule of evidence as

written. Such an order is unnecessary. Plaintiff’s consolidated motions in limine (Doc. 103) will

be DENIED IN PART AS MOOT as to Plaintiff’s second motion in limine.

3. Plaintiff’s Third Motion: Leading Questions on Direct Examination

Plaintiff’s third motion asks the Court to allow him to conduct direct examinations of

present or former management employees of Defendant by leading questions. (Doc. 103 at 2–3.)

Plaintiff particularly identifies “Randall Hatfield, Jeff Broyles, Stephen Burd, Shawn Plemmons,

Mary Ellen Gibson, Linda Mitchell, David Sanford, Melissa Bellew, Melissa Dotson, Katrina

Standridge, Suzan Schrader, Angela (Lane) Householder, Robert (Bryan) Wooldridge, and Geoffe

Dupes,” as well as all witnesses as to whom Defendants’ initial disclosures gave an address of in

care of Defendant’s counsel. (Id.) Plaintiff relies on Rule 611 of the Federal Rules of Evidence,

arguing these witnesses are management employees or decision-makers regarding Plaintiff’s

employment and therefore identified with Defendant. (Id. at 3.) Defendant does not object to

Plaintiff’s motion but “preserve[s] [its] right under [Rule 611(c)] to ask leading questions on cross-

examination of these witnesses.” (Doc. 115 at 2.)

While leading questions are generally not allowed on direct examination, a court should

ordinarily “allow leading questions . . . when a party calls a hostile witness, an adverse party, or a

witness identified with an adverse party.” Fed. R. Evid. 611(c)(2). Defendant does not appear to

dispute that the referenced witnesses are identified with Defendant for purposes of Rule 611(c)(2).

Accordingly, Plaintiff’s consolidated motions in limine (Doc. 103) will be GRANTED IN PART

as to Plaintiff’s third motion in limine. Plaintiff may ask leading questions on direct examination

of the witnesses identified in Plaintiff’s motion (Doc. 103 at 2–3).

4. Plaintiff’s Fourth Motion: Leading Questions for Affirmative Defenses

Plaintiff’s fourth motion asks the Court to prevent Defendant from asking leading questions

when cross-examining “non-hostile witnesses” on matters that go beyond the scope of their direct

examinations and seek instead to establish one of Defendant’s affirmative defenses. (Doc. 103 at

3–4.) Plaintiff relies on Rule 611(c) of the Federal Rules of Evidence. (Id. at 3.) Defendant does

not address Plaintiff’s fourth motion specifically. However, in response to Plaintiff’s third motion,

Defendant seeks to “preserve [its] right under [Rule 611(c)] to ask leading questions on cross-

examination of” witnesses identified in Plaintiff’s third motion. (Doc. 115 at 2.)

Leading questions are ordinarily allowed on cross-examination. Fed. R. Evid. 611(c)(1).

“Cross-examination should not go beyond the subject matter of the direct examination and matters

affecting the witness’s credibility.” Fed. R. Evid. 611(b). However, during cross-examination, a

court may allow inquiry into matters beyond the scope of the direct examination “as if on direct

examination”—in other words, without the use of leading questions. See Fed. R. Evid. 611(b, c).

The Court does not have enough information to resolve any dispute there may be as to

Plaintiff’s fourth motion. First, there is no legal dispute: Plaintiff relies on Rule 611, and

Defendant merely preserves its rights under the same Rule. If the parties disagree on what Rule

611 means as a matter of law, they have not given the Court enough information to recognize their

dispute. Second, a ruling on the application of Rule 611 in a given examination would be

premature, because Plaintiff’s fourth motion sets out only a general scenario: Defendant asking

non-hostile witnesses about matters beyond the scope of their direct examinations but relevant

instead to Defendant’s affirmative defenses. It would require the context of the examinations

themselves for the Court to determine whether a certain line of questioning by Defendant is, in

fact, beyond the scope of direct and relevant instead to an affirmative defense. Plaintiff thus

appears to be asking the Court for an advisory order on the Court’s intention to apply a rule of

evidence as written. Such an order is unnecessary. Accordingly, Plaintiff’s consolidated motions

in limine (Doc. 103) will be DENIED IN PART AS MOOT as to Plaintiff’s fourth motion in

limine.

5. Plaintiff’s Fifth Motion: Number of Documents Produced or Witnesses

Deposed

Plaintiff’s fifth motion asks the Court to exclude any reference by parties or witnesses to

the number of documents produced in discovery or the number of witnesses who were deposed.

(Doc. 103 at 4.) Plaintiff does not cite any authority in support of his motion. (See id.) Defendant

does not object to Plaintiff’s motion on the condition that the Court’s ruling would apply equally

to both parties. (Doc. 115 at 1.) Lacking any proffered legal basis, Plaintiff’s consolidated motions

in limine (Doc. 103) will be DENIED IN PART as to Plaintiff’s fifth motion in limine.

6. Plaintiff’s Sixth Motion: Matters Not Pleaded or Preserved

Plaintiff’s sixth motion seeks to exclude any evidence or argument regarding defenses

Defendant did not plead in its answer or preserve in the final pretrial order, which is yet to be

entered. (Doc. 103 at 5.) Plaintiff does not cite any authority in support of his motion, but he

argues any new defenses by Defendant would prejudice Plaintiff unduly. (Id.) Defendant does

not object to Plaintiff’s motion on the condition that the Court’s ruling would apply equally to both

parties. (Doc. 115 at 1.)

There does not appear to be a current dispute between the parties about the appropriateness

of evidence or argument regarding defenses Defendant did not plead or will not have preserved by

the time of trial. Plaintiff does not identify any disputed evidence for the Court to evaluate, nor

does he say he has reason to believe Defendant will attempt to admit any such evidence or make

any such argument. (See Doc. 103 at 5.) Defendant, for its part, agrees that the parties should not

introduce evidence of matters that that were not pleaded or preserved. (Doc. 115 at 1.) Plaintiff

thus appears to be asking the Court for an advisory order on the admissibility of matters that were

not pleaded or preserved. Such an order is unnecessary. Plaintiff’s consolidated motions in limine

(Doc. 103) will be DENIED IN PART AS MOOT as to Plaintiff’s sixth motion in limine.

7. Plaintiff’s Seventh Motion: Evidence Not Timely Produced

Plaintiff’s seventh motion seeks to exclude any evidence or witness which fell within the

scope of a proper discovery request but which was not timely produced or identified. (Doc. 103

at 5.) Plaintiff does not cite any authority in support of his motion and does not identify any

evidence, category of evidence, or witnesses as falling within the reach of his motion. (Id.)

Defendant responds that it disclosed all witnesses and evidence on time. (Doc. 115 at 2.)

Defendant specifically opposes Plaintiff’s motion to the extent Plaintiff may intend to object to

Defendant’s intention to call Travis Houweling, an employee of Defendant’s third-party vender,

Toluna CEM, as a records custodian at trial. (Id. at 2–3.)

Plaintiff does not identify any evidence or witnesses for the Court to exclude based on

untimely production or disclosure. (See Doc. 103 at 5.) To the extent Plaintiff would seek to

exclude Houweling, the motion must fail. On September 17, 2020, Magistrate Judge Debra Poplin

allowed Defendant to amend its witness list, over Plaintiff’s objection, to name Houweling as a

representative of Toluna CEM. (Doc. 123.) Any dispute as to whether Defendant may call

Houweling as a witness based on the timeliness of Defendant’s disclosures has been resolved, and

Plaintiff has not identified any other ground for exclusion. Plaintiff’s consolidated motions in

limine (Doc. 103) will therefore be DENIED IN PART AS MOOT as to Plaintiff’s seventh

motion in limine.

8. Plaintiff’s Eighth Motion: Documents or Witnesses Not Included in

Rule 26 Disclosures

Plaintiff’s eighth motion seeks to exclude any documents or witnesses Defendant did not

disclose under Rule 26 of the Federal Rules of Civil Procedure before the close of discovery. (Doc.

103 at 5–6.) Plaintiff argues Rule 26(a)(1)(A)(i) requires disclosure of the name, address, and

telephone number of individuals with discoverable information a party may use in its support, and

that merely mentioning the name of a potential witness during a deposition is not sufficient. (Id.

at 6.) Plaintiff argues Rule 26(a)(1)(A)(ii) sets out similar requirements for documents in a party’s

possession, custody, or control. (Id.) Plaintiff, however, does not identify any witnesses or

documents he contends were not properly disclosed or were mentioned only in depositions. (See

id. at 5–6.)

Defendant responds to Plaintiff’s eighth motion as it did to Plaintiff’s seventh motion: it

claims it disclosed all witnesses and evidence on time, and it says it should be allowed to call

Houweling at trial as a document custodian. (Doc. 115 at 2–3.)

For the same reasons discussed as to Plaintiff’s seventh motion in limine (supra § II(A)(7)),

Plaintiff’s consolidated motions in limine (Doc. 103) will be DENIED IN PART AS MOOT as

to Plaintiff’s eighth motion in limine.

9. Plaintiff’s Ninth Motion: Sequestering Witnesses

Plaintiff invokes the witness-sequestration rule in Rule 615 of the Federal Rules of

Evidence in his ninth motion in limine. (Doc. 103 at 6–9.) Defendant does not object to Plaintiff’s

invocation of Rule 615 on the condition that it would apply equally to both parties. (Doc. 115 at

1.)

“At a party’s request, the court must order witnesses excluded so that they cannot hear

other witnesses’ testimony.” Fed. R. Evid. 615. Exclusion does not apply to:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being

designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the

party’s claim or defense; or

(d) a person authorized by statute to be present.

Id.

Plaintiff’s consolidated motions in limine (Doc. 103) will be GRANTED IN PART as to

Plaintiff’s ninth motion in limine. The Court will apply Rule 615 at the trial.

10. Plaintiff’s Tenth Motion: Opening the Door

Plaintiff’s tenth motion is also procedural. Plaintiff asks for an order that, if a party believes

the other party has opened the door to otherwise inadmissible evidence, the party seeking to

introduce the otherwise inadmissible evidence will raise the matter with the Court outside the

presence of the jury. (Doc. 103 at 9–10.) Defendant does not object to Plaintiff’s motion on the

condition that it would apply equally to both parties. (Doc. 115 at 1.)

“To the extent practicable, the court must conduct a jury trial so that inadmissible evidence

is not suggested to the jury by any means.” Fed. R. Evid. 103(d). It is also the Court’s

responsibility to “decide any preliminary question about whether . . . evidence is admissible.” Fed.

R. Evid. 104(a).

Plaintiff’s consolidated motions in limine (Doc. 103) will be GRANTED IN PART as to

Plaintiff’s tenth motion in limine. If a party believes the other party has opened the door to

otherwise inadmissible evidence, the party seeking to introduce the evidence must raise the matter

with the Court outside the hearing of the jury before suggesting the evidence to the jury by any

means. (See Fed. R. Evid. 103(d).) The parties are further directed to paragraph 23 of the

undersigned’s judicial preferences, which addresses sidebar conferences. Available at

https://www.tned.uscourts.gov/content/curtis-l-collier-senior-united-states-district-judge.

11. Plaintiff’s Eleventh Motion: After-Acquired Evidence

Plaintiff’s eleventh motion seeks to exclude any evidence of Plaintiff’s wrongdoing which

Defendant did not acquire until after it terminated Plaintiff. (Doc. 103 at 10–12.) Plaintiff argues

such evidence is irrelevant and inadmissible before the jury because it is relevant only to fashioning

a remedy. (Id. at 11 (citing McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352 (1995)).)

Defendant does not object to Plaintiff’s motion on the condition that the Court’s ruling would

apply equally to both parties. (Doc. 115 at 1.)

There does not appear to be a current dispute between the parties about the introduction of

after-acquired evidence to the jury. Plaintiff does not identify any disputed evidence for the Court

to evaluate, nor does he say he has reason to believe Defendant will attempt to admit any such

evidence or make any such argument. (See Doc. 103 at 10–12.) Defendant, for its part, agrees

that the parties should not introduce after-acquired evidence to the jury. (Doc. 115 at 1.) Plaintiff

thus appears to be asking the Court for an advisory order on the admissibility of after-acquired

evidence. Such an order is unnecessary. Plaintiff’s consolidated motions in limine (Doc. 103)

will be DENIED IN PART AS MOOT as to Plaintiff’s eleventh motion in limine.

12. Plaintiff’s Twelfth Motion: Evidence Unknown to Decisionmakers

Plaintiff’s twelfth motion seeks to exclude any evidence not known to decisionmakers at

the time they made “the decision” that is at issue in this lawsuit. (Doc. 103 at 12.) It is unclear

whether Plaintiff refers to the transfer decision, the termination decision, or both. Plaintiff does

not cite authority in support of his motion. (See id.) Defendant does not object to Plaintiff’s

motion on the condition that the Court’s ruling would apply equally to both parties. (Doc. 115 at

1.)

Plaintiff’s twelfth motion appears substantially the same as his eleventh motion.2

Therefore, for the same reasons discussed as to Plaintiff’s eleventh motion (supra § II(A)(11)),

2 Plaintiff’s twelfth motion could be broader than the eleventh, in that it seeks to exclude

not just evidence of other alleged wrongdoing by Plaintiff, but also all evidence unknown to

Defendant’s decisionmakers. Taken literally, this motion could apply to categories of evidence

Plaintiff is unlikely to want to exclude, such as evidence to prove Plaintiff’s damages. The Court

rejects this broader reading as leading to illogical results Plaintiff is unlikely to have intended.

Plaintiff’s consolidated motions in limine (Doc. 103) will be DENIED IN PART AS MOOT as

to Plaintiff’s twelfth motion in limine.

13. Plaintiff’s Thirteenth Motion: Plaintiff’s Assets and Income

Plaintiff’s thirteenth motion seeks to exclude any reference to Plaintiff’s assets,

investments, income, or losses, except as may be relevant to calculating backpay. (Doc. 103 at

12–13.) Plaintiff specifically identifies “Plaintiff’s ownership of land, his home, stocks and other

securities, his family’s farm, the Garren Stables business, and Plaintiff’s horses.” (Id. at 12.)

Relying on Rules 105, 401, 402, and 403 of the Federal Rules of Evidence, Plaintiff argues this

information is irrelevant and confidential and risks causing undue prejudice to Plaintiff, confusing

or misleading the jury, and wasting time. (Id. at 12–13.)

Defendant opposes the motion, arguing the evidence is relevant in two ways. (Doc. 115 at

3–4.) First, Defendant argues evidence about Garren Stables, Plaintiff’s farm, and Plaintiff’s

horses is relevant to Plaintiff’s disability claims because of the associated manual labor. (Id.)

However, the Court has dismissed Plaintiff’s disability claims (Doc. 120), so whether Plaintiff was

disabled is no longer of consequence in determining this action. Therefore, evidence that is only

useful for proving whether Plaintiff was disabled is no longer relevant in this action. See Fed. R.

Evid. 401.

Second, Defendant argues the evidence is relevant to Plaintiff’s mitigation of damages.

(Doc. 115 at 4.) Defendant alleges Plaintiff was unemployed for thirteen months after his

termination and applied for only five positions during this time. (Id. (citing Doc. 115-2 at 15–16

[Pl.’s Answer to Def.’s 2d Interrogs. No. 12]).) Defendant accordingly argues “the time and effort

Plaintiff expended in relation to his horses and farm along with his other assets and investments is

pertinent to his efforts and desire to find subsequent employment.” (Id. (emphasis added).)

Defendant is correct that an ADEA plaintiff generally has “a duty to mitigate his damages by

seeking new employment,” and a damages award may be reduced to the extent the employer shows

the employee failed to do so. See Skalka v. Fernald Env’t Restoration Mgmt. Corp., 178 F.3d 414,

426 (6th Cir. 1999). But Defendant cites no authority for the proposition that a plaintiff’s

motivation to mitigate damages is relevant, as opposed to his actual actions to mitigate damages.

The Court concludes it is Plaintiff’s actions or lack of actions that are relevant to mitigation of

damages. Plaintiff’s subjective motivation to mitigate, the other activities on which he may have

spent his time, and the assets off of which he might have been living are not of consequence in

determining this action and therefore not relevant. See Fed. R. Evid. 401.

Plaintiff’s consolidated motions in limine (Doc. 103) are GRANTED IN PART as to

Plaintiff’s thirteenth motion in limine. Defendant shall not introduce evidence or make arguments

or references to Plaintiff’s assets, investments, income, or losses, including without limitation his

real property, his investments, his family’s farm, the Garren Stables business, or his horses.

B. Defendant’s Motions in Limine

Defendant has filed ten motions in limine (Docs. 104–13), each of which Plaintiff opposes,

in whole or in part (Doc. 114).

1. Defendant’s First Motion: News and Internet Articles

Defendant moves to exclude evidence, argument, and references to news or internet articles

regarding the opioid epidemic, opioid litigation, or the compensation of Defendant’s executives.

(Doc. 104.) Defendant points to seven articles identified in Plaintiff’s Amended Exhibit List (Doc.

104-1), specifically Plaintiff’s Proposed Exhibits 17, 70–74, and 81. (Doc. 104 at 3.) Defendant

argues the articles are inadmissible hearsay or double hearsay under Rule 802. (Id. at 4–5.) In the

alternative, Defendant argues the articles are irrelevant under Rule 401 and would lead to unfair

prejudice, confusion of the issues, and misleading the jury under Rule 403. (Id. at 5–7.)

Plaintiff responds that the articles are not hearsay because he will not offer them for the

truth of the matters asserted, but rather to prove “what decision-makers believed and their intent

and motives concerning the challenged employment actions.” (Doc. 114 at 7–8.) Plaintiff argues

the articles about the opioid epidemic and opioid litigation are relevant, as they support his theory

that Defendant preferred younger pharmacists because it presumed younger pharmacists would be

more likely to fill “pill mill” opioid prescriptions without asking questions. (Id. at 8.) Plaintiff

does not address the relevance of the article regarding the compensation of one of Defendant’s

executives. Finally, Plaintiff disagrees with Defendant’s alternative argument that Rule 403

warrants exclusion, saying a limiting instruction could correct any unfair prejudice. (Id.)

Hearsay is generally not admissible. Fed. R. Evid. 802. Hearsay is “a statement that: (1)

the declarant does not make while testifying at the current trial or hearing; and (2) a party offers

in evidence to prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c). A

“statement” is “a person’s . . . written assertion.” Fed. R. Evid. 801(a). Hearsay within hearsay,

also known as double hearsay, “is not excluded by the rule against hearsay if each part of the

combined statements conforms with an exception to the rule.” Fed. R. Evid. 805; see also United

States v. Demjanjuk, 367 F.3d 623, 631 (6th Cir. 2004). An exception to the inadmissibility of

hearsay exists for “[a] statement of the declarant’s then-existing state of mind (such as motive,

intent, or plan) . . . , but not including a statement of memory or belief to prove the fact remembered

or believed unless it relates to the validity or terms of the declarant’s will.” Fed. R. Evid. 803(3).

The articles Defendant identifies are hearsay. First, they are statements, in that they are

written assertions made by various authors. See Fed. R. Evid. 801(a). Some of the articles also

repeat statements of persons other than the authors of the articles, implicating the double-hearsay

rule. (See, e.g., Doc. 104-2 at 3–5 (Vox article repeats statements of spokespersons for Defendant

and other pharmacies, reporting by other media outlets, and statistics published by government

agencies).) Second, the articles are not statements that are being made or will be made at trial.

See Fed. R. Evid. 801(c)(1). Third, Plaintiff would be offering the articles to prove the truth of the

matters asserted in the articles, notwithstanding Plaintiff’s argument to the contrary. See Fed. R.

Evid. 801(c)(2).

Plaintiff argues he would offer the statements not for their truth, but to show the intent,

motives, and beliefs of the individuals who made decisions about his employment. (Doc. 114 at

8.) But Plaintiff’s state-of-mind argument addresses only the purported statements by

representatives of Defendant, ignoring the hearsay nature of the articles themselves. For hearsay

within hearsay to be admissible, each part of the combined statements must be admissible, not just

one part. See Fed. R. Evid. 805. Plaintiff offers no argument or hearsay exception directed to the

articles themselves. In other words, even if the statements attributed to the decisionmakers could

show something relevant about the decisionmakers’ states of mind regardless of their truth, the

decisionmakers’ statements could only be useful for the jury if it were assumed that the articles

themselves are truthful assertions about what the decisionmakers said. Such an assumption would

run afoul of the rule against hearsay.

The articles are hearsay, and Defendant’s first motion in limine (Doc. 104) will therefore

be GRANTED. Plaintiff shall not introduce evidence or make arguments or references to the

news or internet articles designated as Plaintiff’s Proposed Exhibits 17, 70–74, and 81.

2. Defendant’s Second Motion: Information About Parties and Counsel

Defendant moves to exclude evidence, argument, and references “to the size or wealth of

. . . Defendant[], Plaintiff’s wealth or lack thereof, the fact that . . . Defendant is [not] headquartered

in Tennessee, the fact that Defendant[’s] counsel from Littler Mendelson, P.C. (‘Littler’) are from

outside of Chattanooga, Littler’s specialty, or the size and locations of Littler’s offices.” (Doc.

105 at 1.) Defendant argues these matters are irrelevant under Rule 401 and excludable under Rule

403. (Id.)

Plaintiff responds that evidence regarding Defendant’s “financial condition, size, sales and

. . . [net] worth is relevant” to Plaintiff’s claim for punitive damages. (Doc. 114 at 8.) Plaintiff

does not oppose the remainder of Defendant’s second motion in limine. (Id. at 10 n.1.)

Evidence of a party’s financial condition is generally not relevant. United States v. Zipkin,

729 F.2d 384, 390–91 (6th Cir. 1984). It generally is relevant, however, to the amount of an award

of punitive damages. Romanski v. Detroit Ent., L.L.C., 428 F.3d 629, 649 (6th Cir. 2005).

Plaintiff has made a claim for punitive damages. (Doc. 8 [Am. Compl.] at 3, 19.)

Defendant’s motion, however, does not address that claim. (See Doc. 105 at 3–4.) Instead,

Defendant bases its argument on the inadmissibility of “David and Goliath” evidence, or evidence

meant to prejudice the jury against Defendant and for Plaintiff based on their relative size and

resources. (Id.) Most of the cases Defendant cites similarly fail to address the effect of a

punitive-damages claim on the admissibility of financial-condition evidence. (See id. and cases

cited therein.) In the one cited case which discusses the interaction of financial-condition evidence

and a punitive-damages claim, the court excluded financial evidence at the liability phase of the

trial, but noted “such evidence would be admissible if the case proceeds to a punitive damages

phase,” in a case in which state law required the two phases be separate. Green v. Logan’s

Roadhouse, Inc., No. 2:13-CV-238-KS-MTP, 2015 WL 200977, at *2 (S.D. Miss. Jan. 14, 2015).

Here, there has been no motion to separate the jury’s consideration of liability from its

consideration of punitive damages.

Given Plaintiff’s pending claim for punitive damages, evidence of Defendant’s financial

condition is not irrelevant, nor is its relevance substantially outweighed by the risk of unfair

prejudice to Defendant. Defendant’s second motion in limine (Doc. 105) will therefore be

GRANTED IN PART and DENIED IN PART. Plaintiff shall not introduce evidence or make

arguments or references to Plaintiff’s financial condition, the location of Defendant’s headquarters,

or Defendant’s counsel’s locations, size, or specialty.

3. Defendant’s Third Motion: Other Suits or Verdicts

Defendant moves to exclude evidence, argument, and references to other lawsuits or

verdicts against Defendant, or any related entity, involving claims of age- or disability-based

discrimination or its arbitration program.3 (Doc. 106.) Defendant points out that Plaintiff included

in his Amended Witness List the jury interrogatories or verdict form from two lawsuits decided

against CVS in the Northern District of Alabama, Roger Harris v. CVS, No. 1:11-CV-732-VEH,

and James King v. CVS, No. 1:12-CV-1715-VEH, along with a negative decision by the National

Labor Relations Board (the “NLRB”) regarding Defendant’s arbitration program (the “NLRB

Decision”). (Id. at 5 (citing Doc. 106-1 [Pl.’s Am. Ex. List] at 5 (listing Pl.’s Am. Compl. as Pl.’s

Ex. 68) and Doc. 8-1 [Am. Compl.] at 19–36.) Defendant argues other lawsuits and verdicts are

3 Defendant’s third motion also asks to exclude mention of any lawsuits regarding the

opioid epidemic. (Doc. 106 at 4, 6.) However, the motion does not specifically identify any such

lawsuits. In addition, the legal authority on which Defendant’s third motion relies and the bulk of

its argument concern the admissibility of information about employment lawsuits. Defendant’s

seventh motion, however, addresses the admissibility of evidence about the opioid epidemic and

the filling of opioid prescriptions by Defendant. Therefore, the Court will defer consideration of

opioid-epidemic matters to Section III(B)(7).

irrelevant under Rule 401 and excludable under Rule 403. (Id. at 1.) Defendant also argues such

matters are inadmissible both as character evidence under Rule 404(b) and as hearsay under Rule

802. (Id.)

The Court will first consider the admissibility of the NLRB Decision and will then turn to

the admissibility of information regarding other employment lawsuits.

a. The NLRB Decision

Defendant argues the NLRB Decision is irrelevant because the arbitration dispute in this

case has already been decided. (Doc. 106 at 5.) Plaintiff’s response does not address the relevance

of the NLRB decision. (See Doc. 114 at 10–12.)

As Defendant states, the parties’ dispute over arbitration in this case has already been

decided and will not be before the jury. (Doc. 106 at 5; see also Doc. 55 [Verdict Form].) A

decision by the NLRB regarding Defendant’s arbitration program therefore does not tend to make

any fact of consequence to the current action more or less probable than it would be without it.

See Fed. R. Evid. 401. The NLRB decision is irrelevant and not admissible in this action.

b. Other Employment Lawsuits or Verdicts

Defendant argues the existence of other lawsuits against CVS “does not make any fact

more or less probable in this case and has no bearing on a fact of consequence to this action’s

determination.” (Doc. 106 at 3.) As to the King and Harris lawsuits specifically, Defendant notes

they were filed in 2011 and 2012, three or four years before Plaintiff’s 2015 termination; they

arose out of employment in a different state and with different supervisors than Plaintiff’s; and the

amount of the verdict in the King matter is irrelevant in any case. (Id. at 5.)

Plaintiff responds that the verdicts are admissible under Rule 404(b)(1) to prove

Defendant’s motive, intent, plan, and knowledge under Rule 404(b)(1). (Doc. 114 at 10–11.) He

argues the verdicts are also relevant to Plaintiff’s claims for punitive damages and willful violation

of the ADEA, as well as to Defendant’s good-faith affirmative defenses and Defendant’s

discriminatory attitude in general. (Id. at 11.) He argues that the prejudice to Defendant in

admitting the verdicts is not undue under Rule 403 and can be mitigated by a limiting instruction.

(Id. at 10–11.) Finally, he argues jury verdicts are adjudicative facts of which the Court may take

judicial notice under Rule 201, and that Defendant is collaterally estopped from denying that

Defendant terminated the plaintiffs in the Harris and King cases because of age discrimination.

(Id. at 10–12.)

“Evidence of any other crime, wrong, or act is not admissible to prove a person’s character

in order to show that on a particular occasion the person acted in accordance with the character.”

Fed. R. Evid. 404(b)(1). But such evidence “may be admissible for another purpose, such as

proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or

lack of accident.” Fed. R. Evid. 404(b)(2).

A Rule 404(b) inquiry has three parts: (1) “a preliminary determination as to whether

sufficient evidence exists that the prior act occurred”; (2) “a determination as to whether the ‘other

act’ is admissible for a proper purpose under Rule 404(b)”; and (3) a determination of “whether

the ‘other acts’ evidence is more prejudicial than probative under Rule 403.” United States v.

Mack, 258 F.3d 548, 553 (6th Cir. 2001). With regard to the second requirement, past acts must

be “substantially similar and reasonably near in time to” the matters at issue in the current trial.

United States v. Blankenship, 775 F.2d 735, 739 (6th Cir. 1985); see also McLeod v. Parsons

Corp., 73 F. App’x 846, 854 (6th Cir. 2003) (articulating four-step test, including that “the other

act must be similar enough and close enough in time to be relevant to the matter at issue”).

In McLeod, the Court of Appeals for the Sixth Circuit affirmed the exclusion from an

ADEA lawsuit of evidence regarding other employment discrimination lawsuits filed against the

defendant-employer. McLeod, 73 F. App’x at 854. The court held that “there was no clear nexus

between” the other lawsuits and the case on appeal because “[t]he employees who filed these

actions worked at several different offices, and were discharged for a variety of reasons.” Id. The

court also noted that “the potential for prejudice that would have accompanied th[e] evidence

would have substantially outweighed its probative value, and this evidence would have misled the

jury.” Id.

Defendant relies on McLeod and asserts that the Harris and King lawsuits concern events

in different states than Plaintiff’s employment, address decisions made by different supervisors

than those Plaintiff had, and involve events that took place three or four years or more before

Plaintiff’s transfer and termination. (Doc. 106 at 3–4.) Plaintiff does not dispute these assertions,

nor does he explain how Harris and King are “similar enough and close enough in time to be

relevant to” his case. See McLeod, 73 F. App’x at 854. Plaintiff does not, in fact, discuss McLeod

at all. The cases Plaintiff does cite in which prior verdicts or acts were admissible come from other

circuits and do not involve employment discrimination lawsuits. See United States v. Boulware,

384 F.3d 794, 808 (9th Cir. 2004) (trial court erred in excluding state-court judgment showing

defendant’s company still owned assets the government claimed defendant had given away);

United States v. Cardinas Garcia, 596 F.3d 788, 797 (10th Cir. 2010) (testimony regarding

previous drug sales by defendant held admissible to prove defendant’s intent to distribute other

drugs in his possession). These cases are not applicable to the situation at hand.

Plaintiff also relies on a decision of the Supreme Court of the United States for the

proposition that “evidence of an employer’s discriminatory attitude in general is relevant and

admissible to prove discrimination.” (Doc. 114 at 10–11 (citing U.S. Postal Serv. Bd. of Governors

v. Aikens, 460 U.S. 711, 713–14 n.2 (1983)).) The Aikens Court did not make such a broad

statement, however, and was not addressing an evidentiary question in any case. Rather, the Court

merely summarized the evidence the plaintiff had presented for his prima facie case, including the

excellence of the plaintiff’s own record as an employee, the multiple people who had been

promoted above him, and that the person who made the decision to promote others above the

plaintiff “had made numerous derogatory comments about blacks in general and [the plaintiff] in

particular.” See Aikens, 460 U.S. at 713 n.2. Based on this summary, the Supreme Court said that

it would not have been reversible error for the district court to have made a finding of

discrimination based on that evidence. Id. This Court sees no support in Aikens for a general rule

that evidence of discrimination by some people within an entity is admissible to show that other,

unconnected people within the entity engaged in illegal discrimination.

Given the distance in time and the lack of identity between the decisionmakers in Harris

and King and in Plaintiff’s case, the Court concludes Harris and King are not similar enough to

Plaintiff’s case to be admissible for a proper purpose under Rule 404(b). Further, even if the

Harris or King lawsuits did have any relevance, the danger of unfair prejudice to Defendant or of

misleading the jury would substantially outweigh the probative value of these other lawsuits under

Rule 403.

Finally, Plaintiff asserts Harris and King are relevant to his claims for punitive damages

and willful violation of the ADEA, as well as to Defendant’s good-faith affirmative defenses.

(Doc. 114 at 10–11.) Plaintiff does not explain in what this relevance consists or identify the facts

of consequence to Plaintiff’s action that would be made more or less probable by the Harris and

King decisions. In addition, as stated above, the danger of unfair prejudice to Defendant or of

misleading the jury would substantially outweigh the probative value of these other lawsuits under

Rule 403.

Defendant’s third motion in limine (Doc. 106) will be GRANTED. Plaintiff shall not

introduce evidence or make arguments or references to the NLRB Decision, Harris, or King.

4. Defendant’s Fourth Motion: Plaintiff’s Unemployment Documents

Defendant moves to exclude evidence, argument, and references to Plaintiff’s claim for

unemployment benefits or the documents associated with his unemployment claim. (Doc. 107.)

Defendant notes that Plaintiff has listed such documents on his Amended Exhibit List. (Id. at 1

(citing Docs. 107-1–107-4 (containing, among other statements, findings that there was no

evidence of willful misconduct by Plaintiff and insufficient evidence of work-related misconduct

by Plaintiff).) Defendant argues these documents are inadmissible under Tennessee law and Sixth

Circuit precedent. (Id. at 3–4.) Defendant relies on Tennessee Code Annotated § 50-7-304(k),

which provides that unemployment-compensation findings are not conclusive in any other action.

(Id. at 3.) Defendant also relies on decisions, both within and outside of the Sixth Circuit,

excluding evidence of unemployment hearings and reports. See, e.g., Reed v. Inland Intermodal

Logistics Servs. LLC, No. 09-2607, 2011 WL 4565450, at *8 (W.D. Tenn. Sept. 29, 2011) (“The

Sixth Circuit has held that [Tennessee Department of Labor] reports are inadmissible in

discrimination litigation because they are the products of ‘quick and inexpensive hearings’ with

different standards of proof than civil trials.”) (quoting Pascual v. Anchor Advances Prod., Inc.,

117 F.3d 1421, 1997 WL 397221, at *4 (6th Cir. Jul. 10, 1997) (Table) (affirming the exclusion

of unemployment decision and noting such decisions may be admitted into evidence but normally

should not be).) In the alternative, Defendant argues the documents are irrelevant under Rule 401

and excludable under Rule 403. (Id. at 4–5.)

Plaintiff responds that the exhibits in question “include . . . information concerning CVS’s

alleged reasons for firing Plaintiff” and asserts that he “has a right to bring before the jury any

documents or testimony related to CVS’s motive for the actions Plaintiff alleges were

discriminatory and/or retaliatory.” (Doc. 114 at 12–13.) Plaintiff’s response cites no legal

authority other than Rule 403 and does not engage with Defendant’s arguments or authority

regarding the general inadmissibility of unemployment-compensation reports. (See id.)

Plaintiff is incorrect in asserting that he has a right to introduce any evidence as long as it

is relevant. A party’s right to introduce relevant evidence is limited by the Federal Rules of

Evidence and other applicable law. See Fed. R. Evid. 402. (“Relevant evidence is admissible

unless any of the following provides otherwise: the United States Constitution; a federal statute;

these rules; or other rules prescribed by the Supreme Court.”) Plaintiff has not attempted to

distinguish the statute or cases Defendant cites regarding the inadmissibility of

unemployment-compensation documents. Merely asserting the documents are relevant is not

enough in the face of Defendant’s properly supported argument. Given the “quick and

inexpensive” nature of unemployment-benefit proceedings, as well as the focus of the

unemployment office on the conduct of the employee, rather than the conduct of the employer, the

documents are not admissible. See Pascual, 117 F.3d 1421, 1997 WL 397221, at *4; see also

Tenn. Code Ann. § 50-7-304(k).

Defendant’s fourth motion in limine (Doc. 107) will be GRANTED. Plaintiff shall not

introduce evidence or make arguments or references to Plaintiff’s claim for unemployment

benefits or the documents associated with his unemployment claim.

5. Defendant’s Fifth Motion: Other Acts

Defendant moves to exclude evidence, argument, and references to alleged “other acts” or

“me too” evidence, unless Plaintiff first receives a favorable ruling from the Court outside the

presence of the jury. (Doc. 108.) Defendant notes that Plaintiff has listed witnesses whose areas

of testimony are described as “CVS’s pattern of age discrimination after witnessing other

employees be terminated because of their age” and “CVS’s practice of floating and harassing older

pharmacists.” (Id. at 1 (quoting Doc. 108-1 at 5, 7–9).) Defendant argues that this testimony

would be irrelevant and unduly prejudicial. (Id. at 2.)

Plaintiff responds that the evidence is relevant and admissible under Rule 404(b) and Rule

406, and that it is relevant to Plaintiff’s claim of willful misconduct by Defendant, his claim for

punitive damages, and Defendant’s “good faith” defenses. (Doc. 114 at 13–17.)

Defendant’s motion and Plaintiff’s response discuss specific and complex principles of

law, but only discuss the evidence Defendant seeks to exclude in generalities. Defendant cites

sixteen paragraphs of Plaintiff’s disclosure of potential witnesses (Doc. 108 at 1 (citing Doc. 108-

1 at 5, 7–9)), but it mentions only one witness by name or with specifics about the nature of his

testimony, and that in a single footnote (Id. at 6 n.2). Defendant has thus not provided the Court

with enough information to apply the relevant standards and reach a conclusion. However,

Defendant has shown enough for the Court to conclude that this category of testimony has the

potential to contain evidence that may not be relevant and as to which any probative value would

be substantially outweighed by the danger of unfair prejudice to Defendant. Therefore, the Court

will GRANT IN PART Defendant’s fifth motion (Doc. 108) to the extent it seeks a requirement

that Plaintiff bring “me too” or “other acts” evidence to the attention of the Court outside the

presence of the jury and obtain a ruling on the specific testimony to be offered before introducing

the matter to the jury.

6. Defendant’s Sixth Motion: Comparators

Defendant’s sixth motion in limine asserts that, “[t]o establish his prima facie claims of

age . . . discrimination in this matter, Plaintiff must demonstrate that Defendant[] treated him less

favorably than similarly situated individuals who are not members of the protected class.” (Doc.

109 at 1 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).) Defendant then asks

the Court to exclude evidence, argument, and references to “non-similarly situated employees who

are not valid comparators.” (Id.) Defendant argues there are no valid comparators for Plaintiff’s

prima facie case, arguing that Wooldridge, the other staff pharmacist at the Tellico store, is not a

valid comparator because Wooldridge did not “engage[] in similar conduct as Plaintiff.” (Id. at 1,

3–4.) While the “Legal Standard” section of Defendant’s motion discusses Rules 401, 402, and

403 of the Federal Rules of Evidence, his motion does not apply these or any other Rules of

Evidence to the substance of his request.

Plaintiff responds that Wooldridge “had essentially the same job as Plaintiff, and he worked

in the same store under the same policies with the same reporting structure.” (Doc. 114 at 17.)

Wooldridge and other unnamed employees were also “younger than Plaintiff . . . and . . . made no

complaints about age discrimination.” (Id.) Wooldridge was not made a floater pharmacist,

disciplined, suspended, or fired. (Id. at 17–18.) Plaintiff also denies engaging in any of the

misconduct Defendant accuses him of and on the basis of which Defendant seeks to distinguish

Wooldridge. (Id. at 17.) Finally, Plaintiff asserts that evidence of Defendant’s “more favorable

treatment of other younger pharmacists in Plaintiff’s reporting structure who were outside his

protected class and who did not complain about discrimination” is relevant and admissible. (Id. at

18.)

Before addressing the merits of Defendant’s motion, the Court pauses to note that it rests

on two mistaken legal premises. First, Defendant asserts that one of the elements of Plaintiff’s

prima facie case is to show Defendant treated Plaintiff “less favorably than similarly situated

individuals who are not members of the protected class.” (Doc. 109 at 1 (citing McDonnell

Douglas, 411 U.S. 792).) However, as the Court explained in ruling on Defendant’s motion for

summary judgment, the fourth element of Plaintiff’s prima facie case is not limited to whether

similarly situated individuals were treated more favorably than Plaintiff. (See Doc. 119

§ III(C)(1).) Rather, it requires a showing of “circumstances that support an inference of

discrimination,” which may include, but are not limited to, evidence of more favorable treatment

of a similarly situated, non-protected employee. Willard v. Huntington Ford, Inc., 952 F.3d 795,

808 (6th Cir. 2020).

Second, Defendant assumes Plaintiff will be required to prove his prima facie case under

the McDonnell Douglas burden-shifting framework at trial. (See Doc. 109 at 1 (citing McDonnell

Douglas, 411 U.S. 792).) However, “when the defendant fails to persuade the district court to

dismiss the action for lack of a prima facie case” and the case goes to trial, “the McDonnell-

Burdine presumption ‘drops from the case’ and ‘the factual inquiry proceeds to a new level of

specificity.’” Aikens, 460 U.S. at 714–15 (internal citation omitted) (quoting Tex. Dep’t of Cmty.

Affs. v. Burdine, 450 U.S. 248, 255 & n.10 (1981)). Thus, the question at trial will be whether

Defendant illegally discriminated against Plaintiff. The jury will be allowed “to consider the

evidence establishing the plaintiff’s prima facie case and inferences properly drawn therefrom on

the issue whether the defendant’s articulated legitimate, nondiscriminatory reason for the adverse

employment action is pretextual.” Bilski v. McCarthy, 790 F. App’x 756, 762 (6th Cir. 2019). But

the jury will not be tied to the formalistic structure of the McDonnell Douglas framework, which

distinguishes this case from the cases Defendant cites on comparators, all of which come from

cases at the summary-judgment stage. (See Doc. 109 at 1, 3–4, and cases cited therein.)

Turning to the merits of Defendant’s motion, Defendant has failed to show the Court it

should exclude comparator evidence regarding Wooldridge or other employees. First, Defendant

has not argued or shown such evidence is excludable under any of the Federal Rules of Evidence.

Second, as Plaintiff points out (Doc. 114 at 17), Wooldridge’s situation is similar enough to

Plaintiff’s for information about Wooldridge’s employment to be relevant to whether Plaintiff was

discriminated or retaliated against. Wooldridge held the same position as Plaintiff, in the same

store, and with the same higher supervisors. He was younger than Plaintiff and did not complain

of age discrimination, and he was apparently neither transferred to a floater position, nor

suspended, nor warned, nor terminated. Third, Defendant’s argument that Wooldridge did not

engage in similar conduct as Plaintiff is unpersuasive (Doc. 109 at 4), as Defendant does not

identify any conduct by which to distinguish the two (see id.).4 Fourth, as to other allegedly

4 Although Defendant does not identify Plaintiff’s allegedly distinguishing conduct, it does

list the three adverse employment actions at issue: (1) Plaintiff’s transfer to a floater position,

(2) the October 2015 suspension and final warning, and (3) Plaintiff’s termination. (See id.) First,

Defendant does not allege Plaintiff’s transition to a floater position to have been based on any

conduct by Plaintiff. (See Doc. 81 at 14 (Defendant argues Plaintiff was transferred to floater

position based on policy that new graduates could not be floaters).) Therefore, Wooldridge’s

alleged lack of similar conduct does not distinguish him from Plaintiff as to the transfer. Second,

Plaintiff denies that the morale survey and October 2015 discipline were the result of any of his

conduct, at least aside from his complaints of age discrimination, and the Court found in ruling on

Defendant’s motion for summary judgment that Plaintiff had met his burden to show the morale

survey could have been a pretext for discrimination. (See Doc. 119 at 24.) Again, therefore,

Wooldridge’s alleged lack of similar conduct does not distinguish him from Plaintiff as to the

October 2015 discipline. Third, as to Defendant’s reason for terminating Plaintiff, the Court

previously found a genuine issue of fact as to whether other employees completed customer

surveys without adverse consequences, making an adequate showing that the customer surveys

improper comparators, Defendant has not identified them or provided any specifics about how

their situations differ from Plaintiff’s.

Because Defendant has not shown grounds for the exclusion of evidence regarding

Wooldridge or other unnamed comparators, Defendant’s sixth motion in limine (Doc. 109) will be

DENIED.

7. Defendant’s Seventh Motion: Opioid Epidemic and Prescriptions

Defendant moves to exclude evidence, argument, and references to the opioid epidemic or

the filling of opioid and other controlled-substance prescriptions by Defendant, unless Plaintiff

first receives a favorable ruling from the Court outside the presence of the jury. (Doc. 110.)

Defendant argues these matters are irrelevant because Defendant “never disciplined Plaintiff for

his role in filling opioids or any controlled substances and did not terminate him for any such

conduct.” (Id. at 3.) In the alternative, Defendant argues the evidence should be excluded as

unfairly prejudicial, misleading, and confusing, in that it would invoke the jury’s passion and

sympathy. (Id. at 4.)

Plaintiff responds that it is his theory that Defendant “preferred younger pharmacists in

part because they were presumed more willing to accept fraudulent ‘pill mill’ prescriptions for

opioids and other addictive controlled substances.” (Doc. 114 at 18.) Plaintiff alleges he refused

to fill such prescriptions, but his younger colleagues and the younger pharmacists who replaced

him did fill them. (Id.) Plaintiff further asserts that both Wooldridge and the front-store manager,

Plemons, “routinely told customers whose questionable prescriptions Plaintiff refused to fill to

return to the pharmacy when Plaintiff was not working to obtain the desired controlled substances,”

were a pretext for discrimination. (See id. at 25–26.)

with the goal of increasing Defendant’s sales. (Id. at 7.) Plaintiff therefore argues evidence

regarding opioids and controlled-substance prescriptions is relevant in that it tends to show

Defendant’s motive and intent in discriminating against Plaintiff. (Id. at 18.) Plaintiff argues any

undue prejudice against Defendant could be cured with a limiting instruction. (Id. at 18–19.)

The Court will first consider evidence regarding the filling of opioid and other

controlled-substance prescriptions by Defendant, and will then consider evidence regarding the

opioid epidemic in general.

Plaintiff has articulated a way in which evidence about the filling of opioid and other

controlled-substance prescriptions by Plaintiff and by Defendant’s other pharmacists could be

relevant at trial. “Evidence is relevant if: (a) it has any tendency to make a fact more or less

probable than it would be without the evidence; and (b) the fact is of consequence in determining

the action.” Fed. R. Evid. 401. Defendant argues evidence of the filling of opioid and controlled-

substance prescriptions is irrelevant because Defendant did not discipline Plaintiff for filling such

prescriptions. But Plaintiff’s theory comes at the question of opioid prescriptions from the other

direction. Plaintiff argues the evidence is relevant because Defendant in a sense did discipline

Plaintiff for conduct related to the filling of such prescriptions—it was just for his unwillingness

to fill such prescriptions, rather than for his filling of them. Plaintiff’s theory further posits that

the willingness to fill such prescriptions is linked to a pharmacist’s age, which could make the

filling or non-filling of such prescriptions a fact of consequence to this age-discrimination action.

Plaintiff’s theory is sufficient to show relevance for the evidence, provided that the pharmacists in

question are closely enough related to Plaintiff in the reporting structure that their practices would

bear on the decisions of the decisionmakers in Plaintiff’s case.

Beyond that scope, the practices of Defendant’s pharmacists would lose their relationship

to the facts of consequence in this action. The Court will therefore GRANT the motion (Doc.

110) IN PART as to evidence regarding pharmacists so remote from Plaintiff in the reporting

structure that their practices would not bear on the decisions of the decisionmakers in Plaintiff’s

case. The Court does not have enough information to draw this line more precisely. The Court

expects the parties to discuss any questionable evidence in advance and bring the matter to the

Court’s attention at an appropriate time, outside the presence of the jury, if they cannot agree.

The Court must next consider Defendant’s alternative argument for exclusion of evidence

about the filling of opioid and other controlled-substance prescriptions: that such evidence would

be unfairly prejudicial, misleading, and confusing. (Doc. 110 at 4.) Rule 403 allows a court to

“exclude relevant evidence if its probative value is substantially outweighed by a danger of one or

more of the following: unfair prejudice, confusing the issues, [or] misleading the jury . . . .” Fed.

R. Evid. 403.

Defendant’s argument remains at a general level: that “[p]utting these issues before the

jury would most certainly invoke the jury’s passion and sympathy, no matter the cautionary

instructions provided.” (Doc. 110 at 4.) Once evidence of the filling of opioid prescriptions is

limited to pharmacists whose conduct could have relevance to the decisionmakers in Plaintiff’s

case, the Court does not agree. The probative value of such evidence, limited as explained above,

is not substantially outweighed by the danger of unfair prejudice, confusing the issues, or

misleading the jury. Therefore, the Court will DENY the motion (Doc. 110) IN PART as to

evidence about the filling of opioid and other controlled-substance prescriptions by Plaintiff and

other of Defendant’s pharmacists who were close enough to Plaintiff in the reporting structure that

their practices would bear on the decisions of the decisionmakers in Plaintiff’s case.

The Court turns next to evidence about the opioid epidemic in general. Plaintiff has not

articulated any way in which evidence about the opioid epidemic in general could make any facts

of consequence to his claims more or less probable. In addition, to the extent evidence about the

opioid epidemic in general could have any marginal probative value, the Court finds that it would

be substantially outweighed by the danger of unfair prejudice against Defendant, as a supplier of

opioids and other controlled substances. Accordingly, the Court will GRANT the motion (Doc.

110) IN PART to the extent it addresses evidence about the opioid epidemic in general,

unconnected to the filling of prescriptions by Defendant’s pharmacists, as described above.

8. Defendant’s Eighth Motion: Improperly Disclosed Witnesses

Defendant moves to exclude the testimony of several potential witnesses identified by

Plaintiff. (Doc. 111.) Defendant claims Plaintiff has not provided any contact information for

thirteen of these witnesses and he has provided only phone numbers, but not addresses, for four

more.5 (Id. at 2–3.) In addition, Defendant argues Plaintiff was late in identifying one of the

witnesses, Jesse Lovingood. (Id. at 3.) Defendant asks for the exclusion of these witnesses under

Rule 37(c)(1) of the Federal Rules of Evidence. (Id. at 2–3.)

Plaintiff opposes the motion but offers no legal authority to support his position. (Doc.

114.) As to the thirteen individuals without contact information, Plaintiff asserts he does not have

the information and Defendant is in a better position to locate these witnesses, as they are all former

employees of Defendant. (Id. at 19.) Plaintiff argues his failure to locate the witnesses is both

harmless and substantially justified. (Id.) As to the four potential witnesses with no listed

5 Defendant does not identify the inadequately disclosed witnesses by name or by

paragraph number. (See Doc. 111 at 2.) There are, in fact, five individuals as to whom Plaintiff

gives only a phone number, making a total of eighteen witnesses on Plaintiff’s witness list with

incomplete information. (See Doc. 111-1 ¶¶ A(11), (17), (18), B(21), (22).)

addresses, Plaintiff asserts that he does not have the missing information and Defendant has not

been harmed because it could have used the phone numbers to contact these individuals. (Id. at

19–20.)

At the beginning of discovery, each party must give the other parties “the name and, if

known, the address and telephone number of each individual likely to have discoverable

information . . . that the disclosing party may use to support its claims or defenses, unless the use

would be solely for impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(i). The deadline for the parties to

do so in this case was February 14, 2019. (Doc. 62 ¶ 5(c).) Timely supplementation is required if

additional or corrective information becomes available. Fed. R. Civ. P. 26(e)(1)(A). Before trial,

each party must give the other parties a witness list containing “the name and, if not previously

provided, the address and telephone number of each witness—separately identifying those the

party expects to present and those it may call if the need arises.” Fed. R. Civ. P. 26(a)(3)(A)(i).

The deadline for the parties to do so in this case was February 10, 2020. (Doc. 62 ¶ 5(e).)

“If a party fails to . . . identify a witness as required by Rule 26(a) or (e), the party is not

allowed to use that . . . witness to supply evidence . . . at a trial, unless the failure was substantially

justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The burden is on the “potentially sanctioned

party” to demonstrate harmlessness. R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262,

271–72 (6th Cir. 2010). “[T]he advisory committee note to Rule 37 ‘strongly suggests that

‘harmless’ involves an honest mistake on the part of a party coupled with sufficient knowledge on

the part of the other party.” Borg v. Chase Manhattan Bank USA, N.A., 247 F. App’x 627, 637 (6th

Cir. 2007) (quoting Vance ex rel Hammons, No. 98-5488, 182 F.3d 920 (Table), 1999 WL 455435,

at *5 (6th Cir. 1999)).

Plaintiff’s witness list includes thirteen individuals as to whom Plaintiff lists no contact

information. (Doc. 111-1 ¶¶ A(14), (16), B(19), (20), (23–28), (32–34).) Two of these individuals

are designated as witnesses Plaintiff “Will Call,” and the other eleven are designated as witnesses

Plaintiff “May Call.” (Id.) Jesse Lovingood is one of the “May Call” witnesses. (Id. ¶ B(33).)

Plaintiff’s witness list also includes five individuals as to whom Plaintiff provides only a phone

number. (Id. ¶¶ A(11), (17–18), B(21–22).) Three of these individuals are designated as witnesses

Plaintiff “Will Call,” and the other two are designated as witnesses Plaintiff “May Call.” (Id.)

The burden is on Plaintiff to show his failure to provide addresses and phone numbers for

these eighteen individuals is harmless or substantially justified. See R.C. Olmstead, 606 F.3d at

271–72. Thirteen of these potential witnesses being Defendant’s former employees, on its own,

does not satisfy Plaintiff’s burden. Nor does it satisfy Plaintiff’s burden for him to simply give

Defendant the phone numbers for five more potential witnesses.

To begin, it appears unlikely Plaintiff actually expects to call any of these individuals as

witnesses. This case has been scheduled for a trial on the merits since January 31, 2019. (See

Doc. 62 ¶¶ 1, 8.) Crediting Plaintiff’s assertion that he has given Defendant all the information he

has about these individuals, this means Plaintiff either has not communicated with these

individuals regarding this case or he has communicated with them without getting their contact

information. In either case, the likelihood is low that Plaintiff has a realistic expectation of calling

these individuals as witnesses, notwithstanding that five of them are listed as witnesses Plaintiff

“will call.” (Doc. 111-1 ¶¶ A(11), (14), (16–18).)

Next, the Court notes that it is certainly possible Defendant has information in its

employment files from which it could have at least started the process of tracking down the thirteen

named former employees. Plaintiff is also correct that Defendant could have called the phone

numbers Plaintiff gave for the other five individuals. “Harmlessness, however, is the key under

Rule 37, not prejudice.” Sommer v. Davis, 317 F.3d 686, 692 (6th Cir. 2003). Requiring

Defendant to track down eighteen individuals, in the absence of proper disclosures from Plaintiff

and with the accompanying unlikelihood Plaintiff actually intends to call any of these individuals

as witnesses, would have caused harm to Defendant in the form of needless expenditure of time

and money.

Defendant asks to exclude Lovingood on the additional ground that Plaintiff failed to

disclose Lovingood as a witness in a timely fashion. (Doc. 111 at 3.) Plaintiff does not respond

to this argument. (See Doc. 114 at 19–20.) Plaintiff did not disclose Lovingood in his initial

disclosures under Rule 26(a)(1)(A)(i) but included Lovingood on his witness list under Rule

26(a)(3)(A)(i).6 (See Doc. 111-1, 111-2.) Plaintiff has not shown either substantial justification

or harmlessness for this failure. See R.C. Olmstead, 606 F.3d at 271–72.

Defendant’s eighth motion in limine (Doc. 111) will be GRANTED. Plaintiff will not be

allowed to use the witnesses at Paragraphs 11, 14, 16–28, or 32–34 of Sections A and B of

Plaintiff’s Witness and Exhibit List (Doc. 111-1) to supply evidence at trial.

9. Defendant’s Ninth and Tenth Motions: Disability and Accommodation

Defendant moves to exclude evidence, argument, and references to Plaintiff’s alleged

disability, his medical records, or his alleged request for a stool as a reasonable accommodation.

(Docs. 112, 113.) Plaintiff opposes both motions, arguing the evidence is relevant to his disability

claims under the ADA. (Doc. 114 at 20–22.)

6 Neither party has identified a supplemental disclosure under Rule 26(e)(1)(A) that listed

Lovingood.

Since Defendant filed these motions in limine, the Court dismissed Plaintiff’s disability

claims under the ADA. (See Doc. 120.) As a result, evidence regarding Plaintiff’s alleged

disability, his medical records, or his alleged request for a stool as a reasonable accommodation is

irrelevant and inadmissible. See Fed. R. Evid. 401, 402. Defendant’s ninth and tenth motions in

limine (Docs. 112, 113) will therefore be GRANTED.

III. CONCLUSION

Plaintiff’s consolidated motions in limine (Doc. 103) will be GRANTED IN PART and

DENIED IN PART. The consolidated motions will be GRANTED as to Plaintiff’s first, third,

ninth, tenth, and thirteenth motions in limine. Defendant shall not introduce evidence or make

arguments or references to Plaintiff’s dismissed claims or regarding Plaintiff’s assets, investments,

income, or losses, including without limitation his real property, his investments, his family’s farm,

the Garren Stables business, or his horses. Plaintiff may ask leading questions on direct

examination of the witnesses he has identified in his third motion in limine (Doc. 103 at 2–3). The

Court will apply Rule 615 at the trial. If a party believes the other party has opened the door to

otherwise inadmissible evidence, the party seeking to introduce the evidence must raise the matter

with the Court outside the presence of the jury before suggesting the evidence to the jury by any

means. Plaintiff’s consolidated motions in limine will be DENIED as to Plaintiff’s fifth motion

in limine and DENIED AS MOOT as to Plaintiff’s second, fourth, sixth, seventh, eighth, eleventh,

and twelfth motions in limine.

Defendant’s first, third, fourth, eighth, ninth, and tenth motions in limine (Docs. 104, 106,

107, 111, 112, 113) will be GRANTED. Plaintiff shall not introduce evidence or make arguments

or references to the news or internet articles identified as Plaintiff’s Proposed Exhibits 17, 70–74,

and 81; the NLRB Decision or the Harris or King lawsuits, and Plaintiff’s claim for unemployment

benefits or the documents associated with his unemployment claim; Plaintiff’s alleged disability

or medical records; or Plaintiff’s alleged request for a stool as a reasonable accommodation.

Plaintiff will not be allowed to use the witnesses at Paragraphs 11, 14, 16–28, or 32–34 of Sections

A and B of Plaintiff’s Witness and Exhibit List (Doc. 111-1) to supply evidence at trial.

Defendant’s second, fifth, and seventh motions in limine (Docs. 105, 108, 110) will be

GRANTED IN PART and DENIED IN PART. Plaintiff shall not introduce evidence or make

arguments or references to Plaintiff’s financial condition, the location of Defendant’s headquarters,

or Defendant’s counsel’s locations, size, or specialty. Plaintiff shall bring “me too” or “other acts”

evidence to the attention of the Court outside the presence of the jury and obtain a ruling on the

specific testimony to be offered before introducing the matter to the jury. Plaintiff shall not

introduce evidence or make arguments or references to the opioid epidemic in general or the filling

or non-filling of opioid and other controlled-substance prescriptions by pharmacists so remote

from Plaintiff in Defendant’s reporting structure that their practices would not bear on the

decisions of the decisionmakers in Plaintiff’s case.

Defendant’s sixth motion in limine (Doc. 109) will be DENIED.

An appropriate order will enter.

/s/____________________________

CURTIS L. COLLIER

UNITED STATES DISTRICT JUDGE