The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
CAROLYN ANN JONES, )
)
Plaintiff, )
) Case No. 2:22-cv-02683-JPM-tmp
v. )
)
BWAY CORPORATION d.b.a. )
MAUSER PACKAGING SOLUTIONS )
& RANDY DUERKSEN )
)
Defendants. )
______________________________________________________________________________
ORDER GRANTING IN PART AND DENYING IN PART PARTIES’ MOTIONS IN
LIMINE
______________________________________________________________________________
Before the Court are Defendants BWAY Corporation d.b.a. Mauser Packaging Solutions’
(“BWAY’s”) and Randy Duerksen’s (“Duerksen’s”) (collectively, “Defendants’”) Motions in
Limine (ECF Nos. 69-72) and Plaintiff Carolyn Ann Jones (“Jones’” or “Plaintiff’s”) Omnibus
Motion in Limine. (ECF Nos. 69-72, 77.) Also before the Court are Plaintiff’s Response in
Opposition to Defendants’ Motions in Limine, Defendants’ Response in Opposition to Plaintiff’s
Omnibus Motion in Limine, Defendants’ Reply in Support of Their Motions in Limine, and
Plaintiff’s Supplemental Reply on ECF No. 70. (ECF Nos. 78-80, 82.) Parties appeared for a Pre
Trial Conference on April 10, 2024, at which the Court heard limited oral argument on certain
Motions in Limine. (ECF No. 81.) For the reasons discussed below, Plaintiff’s Omnibus Motion
in Limine is GRANTED IN PART AND DENIED IN PART. Defendants’ Motions in Limine
are GRANTED IN PART AND DENIED IN PART.
I. BACKGROUND
The Complaint in this case was filed on August 23, 2022 in the Chancery Court of Shelby
County, Tennessee. (ECF No. 1-2.) The case was removed to federal court on October 5, 2022.
(ECF No. 1.) Plaintiff alleged that Duerksen approached her while she was working and rubbed
his penis/groin against her buttocks for three to four seconds. She alleges that Duerksen is
therefore liable for battery, and BWAY is liable for harassment and retaliation under the Tennessee
Human Rights Act, is vicariously liable for Duerksen’s battery, and is separately liable for
retaliation related to her workers’ compensation claim. (ECF No. 1-2.) The Court dismissed the
workers’ compensation retaliation claim in response to Parties’ Motions for Summary Judgment.
(ECF No. 67.)
Defendant BWAY hired Plaintiff as a Quality Assurance Technician on August 3, 2016. (ECF
No. 54-1 ¶ 4.) Defendant Randy Duerksen was hired by BWAY in 2003. (ECF No. 55-1 ¶ 1.)
On December 20, 2018, Plaintiff filed a claim for workers’ compensation benefits pertaining to a
workplace head injury. (ECF No. 54-1 ¶ 11.) Plaintiff alleges that after filing for workers’
compensation, she was closely monitored by BWAY supervisors, failed to receive preferred shift
assignments, and was written up several times, a pattern of behavior she characterizes as
harassment. (See ECF No. 54.)
Defendant Randy Duerksen reported by email that at 6:40 a.m. on August 24, 2021, he and
Plaintiff were working on the factory floor and he went to investigate an issue with a machine
where Plaintiff was working. (ECF No. 54-1 ¶ 18.) At 8:37 a.m., Deurksen reported by email to
Roxanne Mayes, a BWAY Human Resources Manager, that Plaintiff had threatened him. (ECF
No. 54-1 ¶ 24.) At 3:17 p.m., on August 24, 2021, following a discussion with Human Resources,
Plaintiff sent an email to BWAY alleging that Deurksen had inappropriately touched her that
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morning. (ECF No. 54-1 ¶ 30.) Plaintiff later stated in her deposition that Duerksen “bumped her
with his groin area” for “three or four seconds” while passing her on the factory floor. (ECF No.
55-1 ¶ 18.) Duerksen “did not touch [Plaintiff] with his hands and . . . she did not see him approach
her.” (ECF No. 55-1 ¶ 19.) Duerksen denied touching Plaintiff. (ECF No. 54-1 ¶ 34.)
Plaintiff and Defendants agree that back pay damages should be calculated based on a
period ending no later than January 2023. (ECF Nos. 48 at PageID 317, 54 at PageID 319.)
I. LEGAL STANDARD
“[F]ederal district courts [generally] have the power to exclude evidence in limine pursuant
to their inherent authority to manage trials.” Hensley v. Methodist Healthcare Hosps., No. 13-
2435-STA-CGC, 2015 WL 5076982, at *1 (W.D. Tenn. Aug. 27, 2015) (quoting Luce v. United
States, 469 U.S. 38, 41 n.4 (1984)). “Motions in limine allow the court to rule on evidentiary issues
prior to trial in order to avoid delay.” Id. (citing United States v. Brawner, 173 F.3d 966, 970 (6th
Cir. 1999)). The Sixth Circuit has held that motions “in limine which exclude broad categories of
evidence should rarely 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).
“The Court has the power to exclude evidence in limine only when [the evidence in
question] is clearly inadmissible on all potential grounds.” Bouchard v. American Home Products
Corp., 213 F.Supp.2d 802, 810 (N.D. Ohio 2002) (citing Luce v. United States, 469 U.S. 38, 41
(1984)). “Denial of a motion in limine does not necessarily mean that all evidence contemplated
by the motion will be admitted at trial [but] merely means that without the context of trial, the
court is unable to determine whether the evidence in questions should be excluded.” Id. (citing
Luce, 469 U.S. at 41.)
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Relevant evidence has a “tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be without the
evidence.” FED. R. EVID. 401. “[R]elevant evidence is admissible” unless “its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” FED. R. EVID. 402, 403.
II. ANALYSIS
a. Defendants’ Motion to Prohibit Evidence, Testimony, and Argument from Lay
Witnesses on Causes of Emotional Distress Damages
Defendants move the Court to exclude “evidence, testimony, and argument from lay
witnesses, including Plaintiff, as to any alleged causal relationship between her claimed
emotional distress and any conduct by Defendants.” (ECF No. 69-1 at PageID 1063.)
Defendants further move to prohibit “evidence, testimony, and argument regarding any medical
or psychological conditions more generally where an expert has not testified to a causal
connection between the alleged condition(s) and the alleged conduct by Defendants.” (Id.)
Defendants argue that Plaintiff has not disclosed any expert witness or expert report, but that
they anticipate Plaintiff will seek to offer lay testimony that she suffered from certain mental
health symptoms, and that those conditions were caused by the conduct of the Defendants. (ECF
No. 69-1 at PageID 1063-64.) They cite to Rule 701 for the proposition that both the diagnosis
of specific conditions and the causation inference are based on scientific, technical, or other
specialized knowledge within the scope of Rule 702. (Id. at PageID 1064.) They argue that this
distinction is especially important when there are multiple sufficient causes for Plaintiff’s alleged
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conditions. Defendants also contend that this evidence would be more prejudicial than probative
and should be barred under Federal Rule of Evidence 403. (Id. at PageID 1067-68.)
Plaintiff’s response distinguishes the Ohio cases cited by Defendant, but not the other
applications of Rule 701 in the Sixth Circuit. (ECF No. 79 at *1.)
Defendants use their reply to clarify their position that “without evidence that the alleged
emotional distress was caused by Defendants’ wrongful conduct, all evidence of the emotional
distress becomes irrelevant and inadmissible.” (ECF No. 80 (citing Leath v. Webb, 2018 U.S.
Dist. LEXIS 147674, *8-9 (E.D. Ky. Sep. 17, 2018).) They cite two district court cases from
other districts within the Sixth Circuit, for the proposition that evidence of emotional distress
causation requires expert testimony.
To the extent that Defendants seek to exclude all testimony on emotional distress damages
because Plaintiff has not disclosed an expert witness, they seek a dispositive ruling in the guise of
a motion in limine. Courts in the Western District and elsewhere in the Sixth Circuit have held
that when motions in limine are used to convey dispositive motions, denial is proper on that basis
alone. Koshani v. Barton, 3:17-cv-0265, 2019 U.S. Dist. LEXIS 202203 at *11 (E.D. Tenn. Feb.
6, 2012); Mitchell v. Alexander, No. 09-2496, 2010 U.S. Dist. LEXIS 63974 (W.D. Tenn. June
25, 2010). See also Goldman v. Healthcare Mgmt. Sys., Inc., 559 F. Supp. 853, 873 (W.D. Mich.
2008).
Lay witness testimony “in the form of opinions or inferences is limited to those opinions or
witnesses which are []rationally based on the perception of the witness, []helpful to a clear
understanding of the witness’ testimony or the determination of a fact on issue, and []not based on
scientific, technical, or other specialized knowledge within the scope of Rule 702.” FED. R. EVID.
701. Diagnosis of a specific condition would require scientific, technical, or specialized
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knowledge, and therefore an opinion witness. While Plaintiff is not a psychologist or psychiatrist,
her testimony on her own emotions and mental health symptoms would be within her own
perception and generally would not require specialized knowledge. Further, as Defendants have
themselves argued, Plaintiff’s statements on her symptoms—especially memory loss—are both
helpful to understanding her testimony and to the determination of facts in issue. Testimony from
others as to observable symptoms would be similarly appropriate.
Defendants also argue that any testimony about emotional distress damages and causation
should be excluded under Rule 403 as more prejudicial than probative. (ECF No. 69-1.) Plaintiff’s
mental health symptoms are probative for at least two reasons identified by the parties: first, to
assess Plaintiff’s credibility and ability to accurately recall the incident in question; and second, in
the assessment of emotional distress damages. While there may have been other sufficient or
intervening causes of Plaintiff’s symptoms, Defendants have not identified any unduly
inflammatory evidence, instead seeking to exclude a broad category of evidence on prejudice
grounds. Without further development of the record, therefore, the broad exclusion Defendants
seek would be inappropriate.
Defendants’ Motion in Limine is therefore GRANTED IN PART AND DENIED IN PART.
Plaintiff and other lay witnesses may testify to their personal observations of Plaintiff’s symptoms,
along with the timing of those symptoms in relation to her termination from BWAY and other
events. Lay witnesses may not testify to their own, unsupported diagnoses of specific mental health
conditions, or to causation of Plaintiff’s symptoms or conditions.
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b. Defendants’ Motion to Exclude Statements Plaintiff Claims to Have Made to
Claude Roddy or Curtis Moore, Jr.
Defendants move to “instruct Plaintiff and her counsel not to mention, refer to, interrogate
concerning, offer into evidence, or convey to the jury in any manner . . . any out of court
statement that Plaintiff allegedly made to Claude Roddy or Curtis Moore, Jr. on August 24, 2021
that Duerksen allegedly groped her or that she was terminated after complaining about
Duerksen’s alleged battery.” (ECF No. 70 at PageID 1082.) Allegedly, on the day of the
incident, Plaintiff made statements to Mr. Roddy and Mr. Moore, Jr. that she was “upset with
Duerksen because he allegedly groped her.” (ECF No. 70-1 at PageID 1086.)
Defendants argue that these statements, if offered by the Plaintiff, are hearsay, are irrelevant,
and are more prejudicial than probative. (Id.) Defendants argue that Plaintiff’s version of the
conversations with Roddy and Moore are irrelevant because they differ from Moore and Roddy’s
accounts of the same conversation in deposition. (Id. at PageID 1088.) Defendants also argue
that the testimony is unreliable because Plaintiff has made multiple statements to the effect that
her memory was ineffective after her December 2018 workplace injury, and that the statements
should not be offered for notice because the statements were allegedly made after Plaintiff had
already been terminated or was suspended pending termination. (Id. at PageID 1088-89.)
Plaintiff argues that Plaintiff “is not offering this testimony to prove the truth of the matter
asserted” but rather to show that Plaintiff’s statements were “made to a co-worker
contemporaneously around the time Duerksen assaulted her.” (ECF No. 79 at *3.) Plaintiff also
argues that these statements are relevant to the nature and thoroughness of Defendants’
investigation into the case. (ECF No. 78 at *4.)
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Defendants respond that these statements remain irrelevant and prejudicial, and they would
“only bolster her credibility if they were true when they were made . . . . [and therefore are]
clearly being offered for the truth of the matter asserted.” (ECF No. 80 at *4.)
Out of court statements generally may be offered for the fact of their timing if they are not
offered for the truth of the matter asserted. See FED R. EVID. 802; Dutton v. Evans, 500 U.S. 74,
88 (1970). Federal Rule of Evidence 801 provides that “a statement is not hearsay if [it is]
consistent with the declarant’s testimony and is offered to rebut an express or implied charge
against the declarant of recent fabrication or improper influence or motive.” FED. R. EVID.
801(d)(1)(B). The consistent statements must have been made before the alleged influence, or
motive to fabricate, arose. Tome v. United States, 513 U.S. 150, 157-58 (1995).
Neither party gives the time at which Plaintiff allegedly made statements to Mr. Roddy and
Mr. Moore. Here, the alleged influence or motive to fabricate could have arisen at the time of the
altercation if Duerksen threatened to report Plaintiff to HR, at the time of Duerksen’s early
morning email to HR if Plaintiff had notice of that email, or with Plaintiff’s notification that she
was suspended or terminated. Without a fuller development of the record, the Court is unable to
determine whether Plaintiff’s out of court statements to Mr. Roddy and Mr. Moore are
admissible under 801(d)(1)(B) or are inadmissible hearsay. Defendants’ Motion is DENIED.
c. Defendants’ Motion to Exclude Evidence or Argument Regarding Non-Sexual
Events to Prove Sexual Harassment
Defendants move the court to “order Plaintiff, her attorneys, witnesses and other
representatives not to mention, suggest, or bring before the jury . . . any non-sexual conduct by
Defendants underlying her now-dismissed Worker’s Compensation retaliation claim to prove
that she suffered sexual harassment.” (ECF No. 71-1 at PageID 1105.)
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In the Joint Proposed Pretrial Order, Plaintiff states that “after filing her workers’
compensation claim, [she] endured weekly or daily harassment about how she was performing
her job,” was “removed from her shift and replaced by a new hire in a role that demanded an
experienced employee to fill,” and was “written up essentially for speaking out about a quality
issue in the workplace that she strongly disagreed with.” (ECF No. 73 at PageID 1121-22.)
Defendants argue that “Plaintiff [] implicitly links these events to the alleged conduct by
Duerksen in arguing that she was sexually harassed,” and that testimony on these issues are
irrelevant and are prejudicial in violation of Rules of Evidence 401-403. (ECF No. 71-1 at
PageID 1106.) Defendants argue that because the claims are not related to sexual harassment
and are not alleged to be based on any anti-female animus, they are not relevant and are
potentially prejudicial. (Id.)
Plaintiff counters that these events are “background evidence” which will “shed light on
Plaintiff’s issues related to her memory that affected her work performance,” or that Defendants
intend to offer write-ups into evidence to show that Plaintiff was a “problem employee,” and the
allegations should be allowed to rebut. (ECF No. 78 at *5.)
Defendants reply that this evidence, even if admissible, should be barred by 403 as risking
confusion of the issues. (ECF No. 80 at *4.)
It is not uncommon for courts to restrict reference to dismissed claims. See, e.g. Johnson v.
Watkins, 2010 U.S. Dist. LEXIS 77863, *14 (S.D. Miss., June 30, 2010); Elston v. UPMC-
Presbyterian-Shadyside, 2008 U.S. Dist. LEXIS 17831, *6-7 (W.D. Pa. Mar. 7, 2008); Bryce v.
Trace, Inc., 2008 U.S. Dist. LEXIS 27310, *6 (W.D. Okla. Mar. 31, 2008). Here, while the fact
of Plaintiff’s memory loss is relevant to this case, the cause of Plaintiff’s memory loss is not. More
importantly, the fact of prior mistreatment unrelated to the claimed sexual harassment does not
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tend to show a fact of consequence to determining the action was more or less likely, and has
strong prejudicial value.1 Alleged harassment related to a worker’s compensation claim has a
strong risk of inflaming juror sentiments, and while there may be limited probative value to rebut
what Plaintiff speculates will be Defendants’ non-discriminatory justification for Plaintiff’s
termination, the joint pre-trial order does not reflect a theory of the case that includes Plaintiff’s
prior write-ups. The use of harassment to refer to non-sexual harassment incidents also presents a
high risk of juror confusion and the creation of mini-trials. Therefore, at this stage, any probative
value of Defendant BWAY’s alleged mistreatment of Plaintiff after her Worker’s Compensation
claim is substantially outweighed by the risk of prejudice, confusion, and waste of time.
Defendants’ Motion is GRANTED.
d. Defendants’ Motion to Exclude Cause of Death of Plaintiff’s Son
Defendants move the court to exclude any mention of the details of the cause of death of
Plaintiff’s son. (ECF No. 72.) Plaintiff’s son died in a gun accident three days after the
Plaintiff’s dismissal from BWAY. (ECF No. 72-1 at PageID 1115.) Defendants argue that the
cause of death is irrelevant and prejudicial. (Id.)
Plaintiff does not oppose this Motion, and states that she does not intend to mention the cause
of death. (ECF No. 78 at *5.) The Motion is therefore GRANTED. Parties may not mention any
of the details of the cause of death of Plaintiff’s son, but may reference the fact and date of his
death.
1 This is especially true because, as the Court identified at Summary Judgment, the Plaintiff failed to support her
allegations of daily or weekly “harassment” by BWAY staff with material in the record. (See ECF No. 67.)
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e. Plaintiff’s Motion to Exclude Plaintiff’s Medical Records
Plaintiff argues that Defendants plan to introduce Plaintiff’s medical records into evidence
“to assert that Plaintiff’s memory loss is not true . . . pursuant to T.C.A. § 68-11-401 et seq.”
(ECF No. 77-1 at PageID 1198.) Plaintiff argues that Defendants should have taken the
deposition of the physician involved “to allow Plaintiff a fair opportunity to cross examine the
physician regarding what is contained in those records,” otherwise the records are “tantamount to
allowing a hearsay opinion into evidence without cross examination[.]” (Id.) Plaintiff continues,
writing “[t]he Defendants are, nevertheless, free to cross examine Plaintiff on this issue and
[elicit] Plaintiff’s testimony regarding what she recalls the physician[s] may have said to her if
that door is opened.” (Id. at PageID 1198.)
Defendants state that they would seek to introduce evidence of Plaintiff’s medical condition,
including anxiety and emotional distress resulting from her workplace injury, only on the issue
of the causation of her alleged emotional distress damages. (ECF No. 78 at PageID 1206.) They
also argue that the medical records “corroborate Plaintiff’s testimony that Plaintiff has severe
memory loss as a result of a December 2017 car accident and 2018 BWAY injury” and is
relevant to the jury’s determination of Plaintiff’s credibility. (Id.)
Statements made for or reasonably pertinent to medical diagnosis and treatment, and which
“describe medical history; past or present symptoms or sensations; their inception; or their
general cause” are not hearsay. FED. R. EVID. 803(4). Because Plaintiff’s argument for
inadmissibility is in tension with both Tennessee law and the Federal Rules,Plaintiff’s Motion in
Limine is DENIED.
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f. Plaintiff’s Motion to Exclude Evidence that Plaintiff Filed a National Labor
Relations Board Complaint
Plaintiff argues that Defendants proffered evidence related to Plaintiff’s National Labor
Relations Board Complaint is irrelevant and prejudicial because “the jury may believe that
Plaintiff is some sort of habitual complainer and deserved to be terminated for making
unwarranted complaints, even though this complaint against Defendant Duerksen, was made in
good faith.” (ECF No. 77-1 at PageID 1199.) Plaintiff also argues that the evidence “may tend to
mislead the jury . . . [because] the jury may focus on Plaintiff’s complaint to the National Labor
Relations Board which has nothing to do with the claims before the Court.” (Id.)
Defendants argue that the NLRB Complaint is relevant because it goes directly to the sexual
harassment retaliation claim under the Tennessee Human Rights Act (THRA). In the NRLB
Complaint, Plaintiff alleges that she was terminated due to anti-union animus, without
mentioning the Duerksen incident. (ECF No. 78 at PageID 1207.) Defendants argue that it is
therefore both relevant in assessing her credibility and because it is relevant to showing that the
sexual harassment complaint was not the “but-for” cause of Plaintiff’s termination. (Id.)
The fact that Plaintiff pursued a complaint with a different theory on the cause of her
termination prior to this action is relevant to her credibility and motivation to bring the current
claim. The facts of the claim may also be relevant to proving “but-for” causation on Plaintiff’s
retaliation claim. The risk of misleading the jury, confusing the issues, and extending pleadings
into mini-trials through the introduction of this material is, however, substantial. As Defendants
argue, the NRLB complaint could, if true, show that anti-union animus was the “but-for” cause
of Plaintiff’s termination. The relevance of the complaint on this issue is dependent on its truth.
As such, proving the relevance of the complaint could require a mini-trial on the claims made
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before the NRLB, and would implicate variety of hearsay concerns, bring in prejudicial
information regarding the alleged anti-union sentiment of the Defendants or pro-union sentiment
of Plaintiff, and require presentation of evidence largely irrelevant to the case before the jury.
Because the NRLB complaint may have substantial probative value depending on the context in
which it is offered, the Court reserves ruling on its admission until trial. Plaintiff’s Motion is
DENIED.
g. Plaintiff’s Motion to Exclude Evidence Regarding Plaintiff’s Employment at
Rooms-to-Go
Plaintiff argues that “Defendants intend to introduce evidence of Plaintiff’s termination from
Rooms-to-Go on the basis that said termination is consistent with the alleged reason why
Plaintiff was terminated from BWAY.” (ECF No. 77-1 at PageID 1200.) Plaintiff argues that
this use is incompatible with Federal Rule of Evidence 404, and that “Plaintiff’s termination
from a job she took after she was terminated from BWAY is [] not relevant to the issues before
the Court in this case” and is more prejudicial than probative. (ECF No. 77-1 at PageID 1201.)
Defendants respond that they intend to offer the Rooms-to-Go records to show that Plaintiff
failed to mitigate damages, because federal courts interpreting Tennessee law “have recognized
that a back pay award should be cut off when an employee loses their subsequent job ‘through
willful misconduct’ or voluntary resignation.” (ECF No. 78 at PageID 1208 (citing Claybrook v.
Sunoco GP LLC, 2023 U.S. Dist. LEXIS 52847, *27 (E.D. Tenn. Mar. 27, 2023).) Defendants
argue that because the records show Rooms-To-Go “disciplined Plaintiff for insubordination and
Plaintiff quit in response . . . [a] back pay award should be cut off after her termination from
Rooms-To-Go in February 2022.” (Id.) They also argue that this evidence should be admissible
under 608(b) on cross-examination, despite 608(b)’s general prohibition on extrinsic evidence, to
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impeach the witness if she denies or misrepresents the reason for leaving Rooms-To-Go. (ECF
No. 78 at PageID 1209 (citing, inter alia, Hixon v. TVA Bd. of Dirs., 558 F. Supp. 3d 573, 582
(E.D. Tenn. Sept. 7, 2021).)
If offered exclusively for the purpose of showing that Plaintiff had a character for workplace
misconduct consistent with Defendants’ theory of the case, the evidence of Plaintiff’s
performance at Rooms-to-Go would likely be inadmissible. FED. R. EVID. 404(b). Because the
Rooms-to-Go records and the cause of Plaintiff’s termination are relevant to the issue of damage
mitigation, however, they are likely admissible, in conjunction with an appropriate jury
instruction. While Plaintiff and Defendants agree that the back pay award is limited to January
2023 at the latest, the period from February 2022-January 2023 is only recoverable if Plaintiff
did not voluntarily resign or commit willful misconduct at Rooms-to-Go. Claybrook, 2023 U.S.
Dist. LEXIS 52847 at *27. Given the fact-intensive inquiry required to determine whether
Plaintiff’s conduct was “willful” or her resignation was voluntary, the potential prejudicial effect
of this evidence does not substantially outweigh its probative value. As a result, Plaintiff’s
Motion is DENIED.
h. Plaintiff’s Motion to Exclude Testimony from Taquita White
Plaintiff moves to exclude the testimony of Taquita White. (ECF No. 77-1 at PageID 1201.)
Plaintiff argues that “Taquita White’s . . . testimony is not relevant[.]” (ECF No. 77-1 at PageID
1201.) Plaintiff allegedly called Ms. White after the alleged incident with Duerksen. (ECF No.
77-1 at PageID 1201.) Plaintiff argues that any statement Ms. White made about being harassed
by Duerksen would be inadmissible, and that the mere fact that Plaintiff asked Ms. White if she
was harassed are irrelevant and could mislead the jury. (Id.)
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Defendants counter that Plaintiff’s summary of the call in her Motion in Limine is
incomplete. Defendants state that they “plan to offer White’s testimony to show Plaintiff’s
motive for bringing this action,” and that White will testify not only that Jones contacted her “to
insist that [White] had been harassed by Mr. Duerksen” but also “said she was trying to set Mr.
Duerksen up because she believes he was the reason she was fired.” (ECF No. 78 at PageID
1210 (citing ECF No. 48-8 ¶¶ 4-6.).)
The Sixth Circuit recognizes an exception to the general prohibition on hearsay for
admissions of a party opponent. Medical Ctr. at Elizabeth Place, LLC v. Atrium Health Sys.,
817 F.3d 934, 944 (6th Cir. 2016). If Plaintiff had merely asked Ms. White if she was harassed,
their conversation would likely be irrelevant. However, Ms. White’s testimony, if consistent with
her declarations, would tend to show that it was more likely Plaintiff fabricated her allegations
against Duerksen, a fact of considerable consequence in determining this action. See FED R.
EVID. 402. Testimony on whether Ms. White had been harassed by Duerksen, however, would
be barred by Federal Rule of Evidence 404(b). FED. R. EVID. 404(b). Plaintiff’s Motion is
therefore GRANTED IN PART AND DENIED IN PART. Taquita White may testify about
her conversation with Plaintiff, but may not testify to being harassed by Duerksen.
III. CONCLUSION
Parties’ Motions in Limine are GRANTED IN PART AND DENIED IN PART. The
following is ORDERED:
1. Plaintiff and other lay witnesses may testify to their personal observations of Plaintiff’s
symptoms, along with the timing of those symptoms in relation to her termination from
BWAY and other events. Lay witnesses may not testify to their own, unsupported
15
diagnoses of specific mental health conditions, or to causation of Plaintiff’s symptoms
or conditions.
2. Plaintiff, her attorneys, witnesses and other representatives may not reference any non-
sexual conduct by Defendants underlying her now-dismissed Worker’s Compensation
retaliation claim to prove that she suffered sexual harassment.
3. Parties may not mention any of the details of the cause of death of Plaintiff’s son, but
may reference the fact and date of his death.
4. Taquita White may testify about her conversation with Plaintiff, but may not testify to
being harassed by Duerksen.
IT IS SO ORDERED this 16th day of April, 2024.
____/s/ Jon P. McCalla____________
JON P. MCCALLA
UNITED STATES DISTRICT JUDGE
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