Opinion
4:18-cv-0510 (WMW)
03-04-2022
Siegfreid Lewis, Plaintiff, v. Arkansas State Police, Defendant.
ORDER
Wilhelmina M. Wright United States District Judge
This matter is before the Court on Defendant's motions in limine and motion to exclude expert testimony. (Dkts. 61, 63, 67.) For the reasons addressed below, Defendant's motions are granted in part and denied in part.
BACKGROUND
Plaintiff Siegfreid Lewis is a resident of Arkansas. Defendant Arkansas State Police (ASP) is a statewide law-enforcement agency. Lewis began his employment with ASP in 1985 and, at all times relevant to this case, worked as a sergeant for ASP. Lewis commenced this employment-discrimination action against ASP and several of its employees in August 2018, alleging that Defendants discriminated against Lewis because he is African-American.
In a November 26, 2019 Order, this Court dismissed or granted summary judgment to Defendants as to all but one claim: that ASP unfairly demoted Lewis to a desk job with no supervisory responsibility because of his race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (Title VII). In doing so, the Court concluded that Lewis established a prima facie case of race discrimination by showing that (1) he is a member of a protected class; (2) he met the legitimate expectations of his employer; (3) he suffered an adverse employment action-namely, demotion to a desk job with no supervisory responsibility; and (4) he was treated differently than a similarly situated employee who is not a member of Lewis's protected class. The Court also determined that Lewis had identified evidence from which a jury reasonably could conclude that ASP's purported nondiscriminatory reason for Lewis's demotion was pretextual.
This case was reassigned to the undersigned United States District Judge on December 6, 2021, after all the district judges in the United States District Court for the Eastern District of Arkansas recused. Notwithstanding this reassignment, under the law-of-the-case doctrine, the prior rulings of the Court govern this case, subject to the Court's discretion and obligations to correctly apply the law and do justice. See Pepper v. United States, 562 U.S. 476, 506-07 (2011) (recognizing that the law-of-the-case doctrine “directs a court's discretion, [but] it does not limit the tribunal's power” and does not apply if the court concludes that a prior decision “is clearly erroneous and would work a manifest injustice” (internal quotation marks omitted)); see also Kruszka v. Novartis Pharms. Corp., 19 F.Supp.3d 875, 886 (D. Minn. 2014) (recognizing that “orders issued by a federal transferee court remain binding when the case is remanded to the transferor court” (internal quotation marks omitted)); Brown v. Overhead Door Corp., 843 F.Supp. 482, 484 (W.D. Ark. 1994) (recognizing that “[a]lthough a judge may not be bound by the rulings of [her] predecessor, [she] also is not free to ignore them” and “a judge ordinarily should not overrule the decisions of a prior judge in the same case without good cause” (quoting In re Exterior Siding & Aluminum Coil, 696 F.2d 613, 616 (8th Cir. 1982)). Absent good cause, the Court's prior rulings will govern this case.
Consequently, ASP is the sole remaining Defendant.
As to damages, the Court recognized that Lewis's demotion had not resulted in decreased pay. But the Court concluded that, at trial, “Lewis will be permitted to put on evidence, to the extent that there is any, that he lost other opportunities because he was transferred.” As such, the Court rejected ASP's argument that Lewis cannot recover economic damages.
ASP now moves to preclude Lewis from presenting certain evidence at trial. In particular, ASP seeks an order excluding from evidence (1) the testimony and opinions of Lewis's damages expert Barry Grant, as well as the materials relied on by Grant when preparing his expert report; (2) the testimony of Dr. Wynona Bryant-Williams; (3) any hearsay testimony from former ASP Captain Keith Eremea; (4) testimony or evidence unrelated to Lewis's remaining Title VII claim; (5) the testimony of witnesses who were not disclosed during discovery; and (6) testimony from ASP's Rule 30(b)(6) representative witness that exceeds the scope of Lewis's Rule 30(b)(6) deposition notice. Lewis opposes ASP's motions.
ANALYSIS
I. Damages Expert Testimony and Opinions
ASP moves to exclude the testimony and opinions of Lewis's damages expert, Grant, arguing that this evidence is irrelevant and unreliable. In addition, ASP moves to exclude some of the materials relied on by Grant when preparing his expert report, arguing that those materials were not produced or identified during discovery.
The admissibility of expert testimony is an issue of law for the district court to decide and is governed by Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.Fed. R. Evid. 702. “An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.” Fed.R.Evid. 703. “If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.” Id.
The proponent of expert testimony must prove its admissibility by a preponderance of the evidence. Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001). “Rule 702 reflects an attempt to liberalize the rules governing the admission of expert testimony” and favors admissibility over exclusion. Id. (internal quotation marks omitted). Determinations as to the admissibility of expert testimony are within a district court's discretion. See Arkwright Mut. Ins. Co. v. Gwinner Oil, Inc., 125 F.3d 1176, 1182 (8th Cir. 1997). A district court must ensure that testimony admitted under Rule 702 “is not only relevant, but reliable.” Daubert, 509 U.S. at 589.
ASP argues that Grant should not be permitted to opine about damages that allegedly accrued prior to Lewis's demotion, which occurred in June 2017. Grant's report references purported discrepancies in pay between Lewis and other sergeants during 2016, 2017 and 2018. ASP contends that these pay discrepancies have no relevance to the sole remaining Title VII claim in this case, which pertains to a June 2017 demotion that did not involve a pay decrease. ASP also argues that Grant should not be permitted to reference “pre-termination” or “post-termination” damages or testify about projected lost wages after Lewis's employment ended in July 2019 because Lewis voluntarily resigned his employment. According to ASP, because Lewis's Title VII claim does not involve the actual or constructive termination of his employment, such damages opinions have no relevance to the sole remaining claim in this case. ASP also seeks to exclude from evidence 36 exhibits that Grant relied on when preparing his expert report, but which Lewis did not produce or identify during discovery.
In response to ASP's arguments, Lewis makes no effort to demonstrate the relevance or admissibility of the foregoing evidence. Instead, in a September 16, 2021 filing, Lewis represented that he intended to provide ASP with a supplemental expert report on or before October 10, 2021, and that Grant would be made available for a supplemental deposition thereafter. The record does not reflect whether any of this supplementation occurred or what changes, if any, have been made to Grant's expert report. Nor have the parties addressed whether such supplementation is permissible in a trial-ready case more than two years after discovery has ended. And the Court agrees with ASP's contention that the opinions in Grant's expert report have no apparent relevance to the sole remaining Title VII claim in this case. As the proponent of Grant's expert testimony, Lewis must prove its admissibility by a preponderance of the evidence. Lauzon, 270 F.3d at 686. Because Lewis has not done so here, or even attempted to do so, ASP's motion is granted as to this evidence.
Notably, neither party addresses the scope of damages that a plaintiff may recover under Title VII. If the parties continue to litigate damages issues in this case, the Court expects the parties to tether their arguments to legal authority establishing the scope of recoverable monetary relief available to Lewis.
In addition, ASP seeks an order excluding 36 exhibits referenced in Grant's expert report that allegedly were not produced or identified during discovery. Lewis has not refuted ASP's assertion that these exhibits were not produced or identified during discovery. These exhibits do not appear to be included in the record, but the descriptions of these exhibits suggest that many of them are irrelevant for the same reasons that Grant's expert opinions and testimony are irrelevant. Because Lewis has made no effort to demonstrate the admissibility of these exhibits, ASP's motion is granted as to this evidence.
For these reasons, the Court grants ASP's motion to exclude Grant's expert opinions and testimony because such evidence is irrelevant to Lewis's Title VII claim and Lewis has not established a basis for the admissibility of this evidence. In addition, the Court grants ASP's motion to exclude the 36 exhibits referenced in Grant's expert report that were not produced or identified during discovery and which have no apparent relevance, and those exhibits are excluded from evidence.
II. Testimony of Dr. Bryant-Williams
ASP next seeks an order excluding from evidence the testimony of Dr. Bryant-Williams, a former ASP commissioner. According to ASP, Dr. Bryant-Williams lacks relevant personal knowledge and, to the extent that her testimony has any relevance, its probative value is substantially outweighed by the risks of unfair prejudice and confusing the issues.
“A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Fed.R.Evid. 602. In addition, only relevant evidence is admissible. Fed.R.Evid. 402. Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” Fed.R.Evid. 401. A district court may exclude relevant evidence, however, if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice or the confusion of issues. Fed.R.Evid. 403.
It is undisputed that Dr. Bryant-Williams's term as an ASP commissioner ended in 2004, more than twelve years before Lewis's allegedly discriminatory demotion in June 2017. At her deposition, Dr. Bryant-Williams testified that she is unfamiliar with the ASP officers who were involved in Lewis's demotion. And Dr. Bryant-Williams testified that, prior to her deposition, she had little or no prior knowledge about the documents or events pertaining to Lewis's Title VII discrimination claim. As such, Dr. Bryant-Williams appears to have no personal knowledge of facts directly relevant to this case.
Lewis counters that Dr. Bryant-Williams will testify about ASP's “historical general policy and practice with respect to minority employment” based on her experience as an ASP commissioner and the fact that her husband is a former Arkansas state trooper. According to Lewis, this evidence of ASP's historical treatment of minority employees is relevant to the jury's determination of whether ASP's nondiscriminatory explanation for demoting Lewis was “pretext for racial discrimination.”
In a Title VII lawsuit alleging discrimination, if the employer provides a nondiscriminatory reason for an adverse employment action, the plaintiff must “be afforded a fair opportunity to show that [the employer's] stated reason . . . was in fact pretext.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973). Evidence that could be relevant to the issue of pretext includes the employer's “general policy and practice with respect to minority employment.” Id. at 804-05. The timing of the employer's conduct is relevant to the issue of pretext, however. Logan v. Liberty Healthcare Corp., 416 F.3d 877, 881 (8th Cir. 2005). When “deciding whether a plaintiff has presented sufficient evidence to demonstrate pretext, ” a court must “evaluate the timing of an adverse [employment] action in light of other evidence.” Id. (internal quotation marks omitted). Evidence of an employer's “general minority employment practices and policies” may be “too attenuated to be probative” of alleged discriminatory motivation and pretext. Osborne v. Cleland, 620 F.2d 195, 199 (8th Cir. 1980).
Significantly, “evidence of pretext . . . is viewed in light of the employer's justification.” Smith v. Allen Health Sys., Inc., 302 F.3d 827, 834 (8th Cir. 2002) (internal quotation marks omitted). Here, ASP's proffered justification for demoting Lewis in June 2017 pertains to Lewis's alleged performance inadequacies. As the Court observed in its summary judgment order, Lewis's alleged performance inadequacies began approximately two to three years before his demotion, in approximately 2015. Dr. Bryant-Williams's knowledge of ASP's general policies and practices arises from her time as a commissioner from 1997 through 2004, however. She admittedly has no personal knowledge about the documents or issues pertaining to Lewis's alleged performance inadequacies and demotion, nor is she familiar with the individuals responsible for Lewis's demotion. As such, Dr. Bryant-Williams's testimony has little if any relevance to ASP's justification for demoting Lewis. Even if Dr. Bryant-Williams's testimony were relevant to a material issue in this case, such evidence clearly is so attenuated that its minimal probative value is substantially outweighed by the risks of unfair prejudice and confusing the issues.
Lewis attempts to avoid this result by arguing that Dr. Bryant-Williams will offer lay witness opinion testimony. Lay witness testimony in the form of an opinion is limited to those opinions that are “helpful to clearly understanding the witness's testimony or to determining a fact in issue.” Fed.R.Evid. 701. Because Dr. Bryant-Williams's testimony has little or no relevance for the reasons addressed above, her testimony would not be helpful “to determining a fact in issue.” See Id. Moreover, her testimony would continue to present a risk of unfair prejudice and confusion. As such, her testimony is not admissible on this basis.
Accordingly, the Court grants ASP's motion to exclude Dr. Bryant-Williams's testimony because such evidence is irrelevant and any probative value of this evidence is substantially outweighed by the risks of unfair prejudice and confusion.
III. Hearsay Testimony of Captain Eremea
ASP next seeks an order excluding from evidence the hearsay testimony of former ASP Captain Eremea.
Hearsay is an out-of-court statement offered for the truth of the matter asserted therein. Fed.R.Evid. 801(c). Generally, hearsay is inadmissible. Fed.R.Evid. 802. And even relevant and otherwise admissible evidence may be excluded if “its probative value is substantially outweighed” by its risks of unfair prejudice, confusing the issues or misleading the jury. Fed.R.Evid. 403.
At his deposition, Captain Eremea testified that he was told by ASP Lieutenant Whitlock that ASP Lieutenant Jeff Sheeler had used a racial slur. In situations involving “double hearsay, ” each “layer” of the out-of-court statement must be admissible under a recognized hearsay exception. Yates v. Rexton, Inc., 267 F.3d 793, 802 (8th Cir. 2001). Here, Lieutenant Sheeler's purported out-of-court statement-a racial slur-clearly would not be offered for the truth of the matter asserted and, therefore, is not hearsay. See, e.g., Talley v. Bravo Pitino Rest., Ltd., 61 F.3d 1241, 1249 (6th Cir. 1995) (observing that “disparaging and racists comments allegedly made” by a person are “not offered to prove the truth of the statements but to demonstrate the racial attitudes” of the speaker), overruled on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009). As such, Lieutenant Sheeler's alleged out-of-court statement is not hearsay.
Lewis argues that this statement also is not hearsay because it is the statement of a party opponent. But because Lieutenant Sheeler has been dismissed from this lawsuit, he is no longer a party opponent and the statement is not being offered against him. See Fed. R. Evid. 801(d)(2) (providing that a statement “offered against an opposing party” is not hearsay).
However, Lieutenant Sheeler's non-hearsay statement was relayed to Captain Eremea through another officer, Lieutenant Whitlock, who allegedly heard Lieutenant Sheeler use the racial slur. Lieutenant Whitlock's out-of-court statement would be offered for its truth-namely, that he heard Lieutenant Sheeler use the racial slur. Lewis does not identify an applicable hearsay exception as to Lieutenant Whitlock's out-of-court statement, and the Court can discern none.
Even if this evidence were not inadmissible hearsay, the statement allegedly occurred two years after Lewis's demotion. And Captain Eremea testified that he did not know the context of the alleged statement and did not know who, if anyone, was the target of the racial slur. Moreover, Captain Eremea's deposition testimony reflects that he had no other corroborating details to confirm that Lieutenant Sheeler had used a racial slur on any occasion. These factors minimize the probative value of this evidence. As such, its probative value is substantially outweighed by the risks of unfair prejudice and confusing or misleading the jury.
Accordingly, the Court grants ASP's motion to exclude Captain Eremea's hearsay testimony because such evidence is inadmissible hearsay and any probative value of this evidence is substantially outweighed by the risks of unfair prejudice and confusing or misleading the jury.
IV. Testimony or Evidence Unrelated to Lewis's Title VII Claim
ASP also seeks an order excluding from evidence any testimony pertaining to claims that have been dismissed from this case. Only relevant evidence is admissible. Fed.R.Evid. 402. Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” Fed.R.Evid. 401. Because Lewis's Title VII claim pertaining to his June 2017 demotion is the only remaining claim in this lawsuit, evidence that is not material to that claim is irrelevant. However, aside from the evidence addressed in Parts I through III of this order, ASP does not identify any particular evidence that should be excluded on this basis. Although the Court will apply the Federal Rules of Evidence and will not permit irrelevant evidence at trial, the Court lacks sufficient information to rule on the admissibility of hypothetical, unspecified evidence. Moreover, any such ruling would be an improper advisory opinion. Accordingly, this aspect of ASP's motion in limine is denied without prejudice.
ASP briefly references potential witness Cheryl McNeary and exhibits pertaining to prior lawsuits involving ASP. Because the record contains insufficient information for the Court to rule on the admissibility of this evidence, the Court declines to do so.
V. Testimony of Undisclosed Witnesses
ASP moves to exclude from evidence the testimony of witnesses who Lewis did not disclose during discovery. In particular, ASP seeks the exclusion of witnesses Hayse Miller, Kramellah Banks and Tafarra Haney.
If a party fails to provide information or identify a witness as required by the Federal Rules of Civil Procedure, that party “is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). When deciding whether nondisclosure of a witness is substantially justified or harmless, courts consider the importance of the testimony, the reason for the failure to timely disclose the witness, the potential prejudice that would arise from allowing the evidence to be used at trial, and the ability to cure the late disclosure. See Rodrick v. Wal-Mart Stores E., L.P., 666 F.3d 1093, 1096-97 (8th Cir. 2012); Citizens Bank v. Ford Motor Co., 16 F.3d 965, 966 (8th Cir. 1994). The party who failed to disclose a witness has the burden to show that this failure was substantially justified or harmless. Pitman Farms v. Kuehl Poultry LLC, 508 F.Supp.3d 465, 472 (D. Minn. 2020) (citing Fu v. Owens, 622 F.3d 880, 883-84 (8th Cir. 2010)).
Lewis does not dispute that he failed to disclose potential witnesses Miller, Banks and Haney. Nor does he make any effort to establish that this failure was substantially justified or harmless. Because it is Lewis's burden to make this showing, his failure to do so warrants exclusion of these witnesses' testimony at trial.
Accordingly, the Court grants ASP's motion to exclude from evidence the testimony of witnesses Miller, Banks and Haney.
VI. Scope of Rule 30(b)(6) Testimony
In a supplemental motion in limine, ASP seeks an order limiting the scope of the testimony elicited from ASP's Rule 30(b)(6) representative witness, Gregory C. Downs. According to ASP, when Lewis deposed Downs, the scope of questioning exceeded the scope of the topics in Lewis's Rule 30(b)(6) deposition notice and included irrelevant subject matter. The Court declines to perform a line-by-line review and analysis of Downs's deposition transcript, which spans more than 100 pages, to render rulings as to the admissibility of testimony that may not ever be elicited at trial. The Court will rule on objections to this evidence, if any, in the context of trial. Accordingly, the Court denies without prejudice ASP's supplemental motion in limine.
ORDER
Based on the foregoing analysis and all the files, records and proceedings herein, IT IS HEREBY ORDERED:
1. Defendant Arkansas State Police's motion in limine, (Dkt. 61), is GRANTED IN PART AND DENIED IN PART as follows:
a. Defendant's motion is granted to the extent that it seeks to exclude from evidence (1) the testimony and opinions of Lewis's damages expert, Barry Grant; (2) exhibits relied on by Grant that were not disclosed in discovery; (3) the testimony of Dr. Wynona Bryant-Williams; (4) any hearsay testimony from former Arkansas State Police Captain Keith Eremea; and (5) the testimony of witnesses Hayse Miller, Kramellah Banks and Tafarra Haney; and
b. Defendant's motion is denied without prejudice in all other respects.
2. Defendant Arkansas State Police's motion to exclude expert testimony, (Dkt. 63), is GRANTED.
3. Defendant Arkansas State Police's supplemental motion in limine, (Dkt. 67), is DENIED without prejudice.