United States District Court, W.D. Kentucky, Louisville
MEMORANDUM OPINION & ORDER
B. RUSSELL, SENIOR JUDGE.
matter comes before the Court upon two Objections lodged by
Defendant The Rawlings Company, LLC (âRawlingsâ). [DNs 134,
135.] These objections have been made with respect to the
introduction of two of Plaintiff Gloria Marshall's
proposed exhibits, [DN 134], and four of her proposed
witnesses. [DN 135.] The Court construes the Objections as
Motions in limine to exclude such evidence and will analyze
them as such.
its inherent authority to manage the course and direction of
the trial before it, this Court has the power to exclude
irrelevant, inadmissible, or prejudicial evidence through in
limine rulings. See Luce v. United States, 469 U.S.
38, 41 n.4 (1984) (citing Fed.R.Evid. 103(c)); Louzon v.
Ford Motor Co., 718 F.3d 556, 561 (6th Cir. 2013).
Unless the evidence at issue is patently “inadmissible
for any purpose, ” Jonasson v. Lutheran Child &
Family Servs., 115 F.3d 436, 440 (7th Cir. 1997),
though, the “better practice” is to defer
evidentiary rulings until trial. Sperberg v. Goodyear
Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir.
1975). This stance is favored so that “questions of
foundation, relevancy and potential prejudice may be resolved
in proper context.” Gresh v. Waste Servs. of Am.,
Inc., 738 F.Supp.2d 702, 706 (E.D. Ky. 2010). When this
Court issues a ruling in limine, it is “no more than a
preliminary, or advisory, opinion.” United States
v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994) (citing
United States v. Luce, 713 F.2d 1236, 1239 (6th Cir.
1983), aff'd, 469 U.S. 38). Thus, even where a motion in
limine is denied, the Court may return to its previous ruling
at trial “for whatever reason it deems
appropriate.” Id. (citing Luce, 713 F.2d at
Motion in Limine to Exclude Marshall's Exhibits 70 &
first Motion at issue is Rawlings' “objections to
Plaintiff's exhibits #70 and #72.” [DN 134.]
Specifically, Rawlings objects to the admission at trial of
two separate documents: the first is an email sent by
Rawlings employee Matt Monyhan to two other employees, Jeff
Bradshaw and Mike Elsner. [See DNs 37-27, 50.] As this Court
explained in its previous Memorandum Opinion and Order,
“[t]he email, sent on July 2, 2013, makes references to
Marshall being absent on FMLA leave, and notes that Human
Resources” prorates analyst goals in such situations.
[DN 146, at 19-20.] This means that, where an analyst misses
time due to FMLA-related reasons, their overall monetary
goals are lowered accordingly, making their bonus amounts
easier to reach. [Id. at 20.] In the email, Monyhan
argues that the related bonus he receives when the analysts
on his team reach their goals should also be prorated in
these situations because the time that Marshall was missing
was effectively costing him money because she could not hit
the original monetary goal due to missing work.
[Id.] The Court, ruling in limine, ordered that
Marshall could introduce this evidence at trial.
Rawlings' objection thereto is hereby noted by the Court,
but it will not change its decision at this time.
second document Rawlings objects to is an email Marshall sent
to herself in anticipation of a meeting with one of her
bosses, Laura Plumley, which contains (1) a list of notes she
compiled and wished to talk about with Plumley at the
meeting, (2) a bullet-pointed list compiled from research
Marshall conducted on workplace bullying, and (3) a
copied-and-pasted email sent to her from her brother, Tony.
[See DN 52-1, at 1; see also DN 63, at 1.] The Court, ruling
in limine, held that Marshall could not introduce this email
at trial, and granted Rawlings' Motion in Limine to
exclude it. [DN 146, at 30.] Thus, any objection to the
introduction of this document by Rawlings has been rendered
Motion in Limine to Exclude the Testimony of Four Witnesses
second Motion at issue is Rawlings' Objection to
Marshall's proposed use of four specific witnesses at
trial. As noted above, the Court will construe Rawlings'
Objection as a Motion in Limine to exclude from trial these
four individuals: Mark Tolly, Debra Ford, Susan Ballard, and
Kathy Barrens. [DN 135.] In essence, Rawlings claims that
Marshall disclosed the names of these four individuals far
too late in the litigation of this matter to allow them to
testify as witnesses at trial. In her Response, Marshall only
makes arguments with respect to Ford and Barrens, and so the
Court will assume that she has no designs of calling Tolly or
Ballard as witnesses at trial and will presently exclude
them. With respect to Ford and Barrens, the Court will permit
Marshall to call them at trial if she so chooses.
Court explained in its previous Memorandum Opinion and Order,
docketed at ¶ 146, formal discovery in this matter
closed on September 30, 2015. [DN 27.] Prior to that date,
initial disclosures were made by both parties, [DNs 16, 17],
and the parties engaged in, among other things, written
discovery. [See DN 112-1, at 3.] And as Rawlings notes in its
present Motion, Marshall did not supplement her disclosures
or any answers to interrogatories to provide the names of the
above-listed individuals. [See DN 135, at 2.] However, it
does appear that the parties discussed Barrens, at least in
passing, during Marshall's deposition on July 24, 2015.
[DN 135, at 3 (the parties also discussed Ballard, but
because Marshall does not address Ballard in her Response,
the Court considers any argument that she should be presented
as a witness at trial to be waived).]
26(a)(3)(A) “requires each party, as a part of its
pretrial disclosures, to provide the name of each witness,
including those the party expects to present and those it may
call if the need arises, unless the witness is offered solely
for impeachment.” Clements v. Prudential Protective
Servs., LLC, 659 F. App'x 820, 822-23 (6th Cir.
2016) (internal citations omitted). Relatedly, Rule 26(e)
provides parties with a duty to supplement such disclosures.
Fed.R.Civ.P. 26(e). Finally, Rule 37(c) provides that
“[i]f a party fails to provide information of identify
a witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness…at a trial,
unless the failure was substantially justified or is
harmless.” Fed.R.Civ.P. 37(c)(1).
respect to both Ford and Barrens, there does not appear to be
any dispute that Marshall failed to initially disclose their
names or supplement her later disclosures with their names.
Consequently, unless that failure was “substantially
justified or…harmless, ” id., the Court must
order their exclusion from trial. Notably, the burden of
proving harmlessness or substantial justification for the
original nondisclosure rests with the party seeking to admit
the witness or witnesses in question. See Roberts ex rel.
Johnson v. Galen of Virginia, 325 F.3d 776, 782 (6th
Cir. 2003). The Sixth Circuit has noted “that
commentary to Rule 37(c)(1) ‘strongly suggests that a
harmless violation involves an honest mistake on the part of
a party coupled with sufficient knowledge on the part of the
other party.'” Id. at 783 (quoting
Vaughn v. City of Lebanon, 18 F. App'x 252, 264
(6th Cir. 2003)) (internal citations omitted).
regarding Ford, the Court has determined that Marshall's
failure to disclose her was “substantially
justified” under the circumstances. See Dickerson
v. Cardiac and Thoracic Surgery of Eastern Tennessee,
388 F.3d 976, 983 (6th Cir. 2004). Marshall argues in her
Response to the instant Motion that Ford should have been
disclosed to her years ago in response to interrogatories she
propounded to Rawlings. [DN 150, at 2.] However, Rawlings
apparently “supplemented that answer to include Ms.
Ford only last November.” [Id.] That means
that, potentially, Marshall only learned Ford's identity
and/or relevant information she might possess roughly four
months ago. In the Court's view, the late timing of
Rawlings' supplement substantially justifies the late
inclusion of Ford as a witness in Marshall's newest
witness list. The Court's decision to allow Ford to
testify is bolstered by the fact that Ford is a current
employee of Rawlings, thus giving the company ready access to
her in preparation for the trial in this matter.
the Court will permit Marshall to call Barrens as a witness,
as the Court finds her inclusion to be harmless under Rule
37(c)(1). Marshall has laid out a persuasive argument in her
Response concerning the probative value of testimony that
Barrens could provide. However, more important is the fact
that (1) Barrens' name was brought up during
Marshall's deposition in July 2015, squarely within the
timeframe for discovery in this matter, and (2) Barrens is
still employed by Rawlings, and is therefore readily
available should Rawlings wish to interview her or otherwise
prepare matters concerning her testimony for trial. Her
current employment with Rawlings, as well as the fact that,
at least tangentially, Rawlings was aware that her name had
been brought up throughout the course of this litigation, is
sufficient to satisfy the Court that her inclusion would be
harmless. See Roberts ex rel. Johnson, 325 F.3d at 783
(quoting Vaughn, 18 F. App'x at 264). Finally, the Court
is aware that Barrens has apparently provided substantial
testimony while acting as ...