excluding evidence of financial condition until plaintiffs establish submissible case of punitive damagesSummary of this case from Gust v. Wireless Vision, L.L.C.
Civil Action No. 01-2385-KHV, Civil Action No. 01-2386-KHV
March 31, 2003
The matter is before the Court on Defendant Southwest Airlines Co.'s Motion In Limine And Supporting Memorandum (Doc. #95) and Plaintiffs' Motion For Reconsideration (Doc. #96), both filed February 12, 2003, and Defendant Southwest Airlines Co.'s Motion For Leave To File Supplemental Disclosures And Supporting Memorandum (Doc. #111) filed March 10, 2003. For reasons stated below, the Court sustains defendant's motion in limine in part, overrules plaintiffs' motion, and sustains defendant's motion for leave to file supplemental disclosures.
I. Defendant's Motion In Limine
Defendant asks the Court to exclude the following evidence:
1. Evidence that Southwest is covered by liability insurance for any acts alleged in plaintiffs' petitions.
2. Evidence about punitive damages and Southwest's financial condition or financial history.
3. Evidence about other claims, lawsuits and incidents against Southwest.
4. Evidence about the causation between the "eenie, meenie, minie, mo" statement and Fuller's alleged seizures.
5. Evidence that Southwest was negligent in training or instructing flight attendants about use of the phrase "eenie, meenie, minie, mo."
6. Evidence about minor and unrelated incidents involving Jennifer Cundiff.
7. Evidence that Southwest's application of the ten-minute rule amounted to racial discrimination.
8. Evidence about communications between Southwest claims personnel and its insurer concerning handling of other claims.
9. Evidence about offers of compromise or settlement.
Defendant Southwest Airlines Co.'s Motion In Limine And Supporting Memorandum (Doc. #95). Defendant argues that the aforementioned evidence is irrelevant and inadmissible. Plaintiffs disagree.
The issues remaining in this case are whether Cundiff intentionally discriminated against plaintiffs on the basis of race; whether her conduct interfered with plaintiffs' enjoyment of benefits or privileges of contract which white passengers enjoyed, in violation of 42 U.S.C. § 1981; and whether and to what extent plaintiffs suffered damage on account of her conduct. Pretrial Order (Doc. #77) filed November 15, 2002 at 10-13.
A. Liability Insurance
Rule 411, Fed.R.Evid., provides that evidence of liability insurance is not admissible to prove that a party acted wrongfully. Plaintiffs state that they do not intend to introduce evidence of insurance, but argue that the deposition testimony of Mary Mortensen, defendant's witness under Rule 30(b)(6), Fed.R.Civ.P., uses the term "insured matter" and implies that defendant is insured against liability in this case. In that context, evidence of insurance will not be received as evidence that Southwest acted wrongfully. The Court therefore overrules defendant's motion as to proof of liability insurance.
B. Punitive Damages Financial Condition Or History
Defendant asks the Court to exclude evidence about punitive damages and Southwest's financial condition and history. Defendant argues that the Tenth Circuit standard for punitive damages under 42 U.S.C. § 1981 is whether the discrimination was malicious, willful and in gross disregard of plaintiffs' rights, see Hampton v. Dillards Dep't Stores, Inc., 247 F.3d 1091, 1115 (10th Cir. 2001), and it asks the Court to exclude such evidence until plaintiffs establish a submissible case on the question of punitive damages. The Court agrees. Evidence about Southwest's financial condition and history is therefore precluded until plaintiffs establish a submissible case on punitive damages. See Koch v. Koch Ind., Inc., 1992 WL 223816, at *2 (D. Kan. Aug. 24, 1992) (evidence of net worth admissible only after prima facie case for punitive damages established); Am. Maplan Corp. v. Heilmayr, 203 F.R.D. 499, 502-03 (D.Kan. 2001) (same). Defendant's motion is sustained as to this point.
Relying on Continental Trend Res., Inc. v. OXY USA Inc., 101 F.3d 634, 636 (10th Cir. 1996), defendant also argues that plaintiffs cannot make a submissible case on punitive damages because a punitive damages award must relate to conduct which occurred within the State of Kansas and the conduct at issue in this case did not occur within Kansas. In Continental Trend, the Tenth Circuit held that "[a] state may not sanction a tortfeasor with the intent of changing the tortfeasor's lawful conduct in other States." Id. (citations and quotations omitted). If the conduct would be unlawful in any state, however, the evidence of out-of-state conduct is relevant. Id. at 637. If Southwest is liable in this case, its conduct would be unlawful in any state, and punitive damages could be assessed by a federal court sitting in Kansas.
C. Other Claims, Lawsuits And Incidents
Defendant asks the Court to exclude evidence regarding other claims, lawsuits and incidents involving Southwest, arguing that such evidence is inadmissible under Rule 401, Fed.R.Evid., because it is not relevant to whether Cundiff intended to discriminate against plaintiffs on the basis of race. Defendant argues that such evidence would be admissible only if the surrounding circumstances were substantially similar to those in the present case, and insists that no prior claims or lawsuits meet this test. Plaintiffs argue that evidence of prior claims, lawsuits and incidents is relevant to show intent and knowledge on the part of Southwest, i.e., that it permits, encourages or promotes a racist environment, and that such evidence is evidence of "routine practice of an organization . . . relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the routine practice." Rule 406, Fed.R.Evid.
The Court generally agrees that if Southwest has committed other acts which reveal a routine practice, tolerance or encouragement of racist behavior on the part of flight attendants, such evidence might be relevant in this case. The record is woefully short, however, of specifics in this regard. Although defendant refers to complaint letters written by individuals and other lawsuits, it does not specify what type of evidence it seeks to exclude, i.e. hearsay, or live witnesses, or both. Plaintiffs likewise do not explain how they would propose to introduce such evidence, when such incidents occurred, or other facts which might establish the probative value of the intended evidence. Plaintiffs do not disagree with defendant's hearsay objection, so they apparently do not intend to rely on out-of-court statements to prove the truth of the matters asserted in various letters, complaints and lawsuits. Without further information on the nature and circumstances of the proposed evidence of other incidents, the Court cannot conclude that such evidence should be excluded. The Court therefore overrules defendant's motion as to the evidence outlined in paragraph 3.
Defendant asks the Court to exclude evidence that Cundiff's "eenie, meenie, minie, moe" statement caused Fuller's seizures. Defendant argues that under Rule 701(c), Fed.R. Evid, a lay witness may not give opinions "based on scientific, technical, or other specialized knowledge within the scope of Rule 702." The Court agrees that Fuller may not give scientific or technical knowledge, but she may have uniquely specialized personal knowledge of the circumstances which trigger her seizures. Her testimony is relevant to both liability and damages. Defendant's motion on this point is therefore overruled.
E. Negligent Training Or Instruction Of Flight Attendants
Defendant asks the Court to exclude evidence as to training and instruction of flight attendants on use of the phrase "eenie, meenie, minie, moe." Defendant argues that its training and instruction are not relevant to Cundiff's intent, and that the pretrial order does not include allegations related to deficient training and instruction about words and phrases. Plaintiffs argue that lack of training and instruction is relevant because it suggests that defendant intentionally or recklessly violated plaintiffs' rights, evidences a routine practice of an organization under Rule 406, Fed.R.Evid., and makes it more probable that defendant's treatment of plaintiffs was motivated by racial animus. Furthermore, plaintiffs argue that the pretrial order requested injunctive relief, consisting of mandatory sensitivity and racial and cultural diversity training for Southwest employees, and that plaintiffs did not have an obligation to further identify an evidentiary theory regarding failure to train.
The Court agrees that plaintiffs have not asserted a substantive claim based on failure to train. On the other hand, Cundiff's training and instruction is relevant because it sheds light on the thought process which she employed in directing plaintiffs to their seats through use of the nursery rhyme in question. Defendant's motion in limine on this issue is overruled, but only as to the training which Cundiff herself received. Defendant's general program of training and instruction is not relevant and evidence on this point is inadmissible under Rule 403, Fed.R.Evid.
F. Minor And Unrelated Incidents Involving Jennifer Cundiff
Defendant asks the Court to exclude evidence of minor and unrelated incidents involving Cundiff, e.g., an incident in which Cundiff failed to follow appropriate procedure in giving flight passes to her parents. Plaintiffs respond that Cundiff's "past untruthfulness and indiscretions" are relevant to the issue of credibility and admissible as other bad acts under Rule 404(b), Fed.R.Evid. The Court disagrees. The alleged misconduct is totally extrinsic to the issues in this case. Any slight relevance which it might have for purposes of impeachment is substantially outweighed by factors enumerated in Rule 403.
G. Application Of The Ten-Minute Rule
Because the Court granted defendant summary judgment on the issue, defendants ask the Court to exclude any evidence or implication that application of the ten-minute rule constituted racial discrimination as to plaintiffs. Plaintiffs argue that such evidence is admissible because it is inextricably intertwined with the facts and law in this case. Evidence related to events which occurred before plaintiffs boarded Flight 524 is irrelevant, however, and it is inadmissible except to the extent that Cundiff might have known and acted upon such events, or to the extent that it might somehow bear on plaintiffs' damages. The Court preliminarily sustains defendant's motion as to this point.
H. Communications Between Claims Personnel And Insurer
Defendant asks the Court to exclude communications between it and its insurer, noting that in its memorandum and order of December 23, 2002, the Court held that such communications were privileged. Plaintiffs disagree that the Court so held, but do not suggest why such evidence would be relevant or claim that they intend to introduce it. Communications between Southwest claims personnel and its insurer concerning handling of other claims appear to be irrelevant to the issues which remain in this case. Defendant's motion is therefore sustained as to the evidence outlined in paragraph 8.
I. Offers Of Compromise Or Settlement
Defendant argues that under Rule 408, Fed.R.Evid., evidence, statements or comments about attempts to compromise or settle plaintiffs' claims should be excluded. Plaintiffs agree that evidence regarding formal settlement attempts are inadmissible, but argue that evidence regarding defendant's refusal to settle or even apologize is admissible and that plaintiffs should be allowed to state personal opinions as to why Southwest refused to change its policies or apologize.
Rule 408, Fed.R.Evid., provides that evidence regarding offers of compromise or settlement is inadmissible to prove liability for or invalidity of the claim or its amount. Rule 408 does not require exclusion when the evidence is offered for other purposes. Plaintiffs do not propose a valid use of such evidence, nor do they suggest any legal relevance regarding their personal opinions as to why Southwest refused to change its policies or to apologize. The Court therefore sustains defendant's motion as to evidence, statements or comments about attempts to compromise or settle plaintiffs' claims.
II. Plaintiffs' Motion For Reconsideration
On November 15, 2002, Southwest filed a motion asking the Court to exclude the testimony of plaintiffs' expert, Dr. Valdenia Winn. On February 5, 2003, the Court ruled that some of Dr. Winn's opinions, including those stated in paragraphs 5, 6, 13 and part of paragraph 8 of Dr. Winn's report, were inadmissible. Plaintiffs ask the Court to reconsider whether paragraph 13 is inadmissible. Paragraph 13 opines that:
[t]he substitution of the word "tiger" for the word "nigger" highlights the original purpose and meaning of the "eenie, meenie, minie, moe" nursery rhyme. The nursery rhyme imparted to the listener that "niggers," like tigers, were dangerous animals that should be feared and destroyed.
Report of Dr. Valdenia Winn, Ph.D. at 2, Exhibit A in Plaintiff's Response To Defendant's Motion To Exclude Expert Testimony And Request For Hearing (Doc. #84) filed December 18, 2002.
Whether to grant or deny a motion for reconsideration is committed to the Court's discretion. See GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1386 (10th Cir. 1997); Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997). In exercising that discretion, courts have generally recognized three grounds justifying reconsideration: (1) an intervening change in controlling law; (2) availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice. See Johnson v. Unified Gov't of Wyandotte County/Kan. City, Kan., No. 99-2407-JWL, 2001 WL 699049, at *1 (D.Kan. June 15, 2001); D. Kan. R. 7.3(b) (listing three bases for reconsideration of order). Plaintiffs contends that the Court committed clear error because paragraph 13 contains relevant, important opinions which are central to this case and will be helpful to the jury. Specifically, plaintiffs argue that (1) the opinion in paragraph 13 is a logical extension of the opinions in paragraphs 2 and 4, which the Court deemed admissible, (2) the "eenie, meenie, minie, moe" phrase will be used by both sides throughout the trial, and (3) defendant's sole defense — that Cundiff did not intentionally discriminate — is predicated on her knowledge of the rhyme with the word "tiger," rather than "nigger." Defendant argues that the opinion in paragraph 13 is irrelevant and any probative value is substantially outweighed by considerations of undue delay and waste of time under Rule 403.
Paragraph 2 states that
[t]here are many derivations of the racist nursery rhyme, but almost all versions begin with "Eenie meenie minie moe / Catch a nigger by the toe. . . ."
Paragraph 4 states that
[t]he use of the word "nigger" in the nursery rhyme and the imagery of a "nigger" being something a white person could "catch" had the intended effect of dehumanizing blacks, and teaching white children that blacks were inferior.
Having reviewed the parties' briefs as well as its previous order as to paragraph 13, the Court is convinced that its ruling is correct. Plaintiffs have not explained how paragraph 13 is a logical extension of paragraphs 2 and 4, or why paragraph 13 should be admissible for that reason. Plaintiffs have not suggested that Cundiff used the word "tiger" or that she understood its use to have a dehumanizing effect as to any racial group. Paragraph 13 is simply not relevant to the language which Cundiff used or to the racial implication of which plaintiffs have complained in this case. Testimony on this subject will not help the jury understand the evidence or determine a factual issue before it and considerations of undue delay and waste of trial time would substantially outweigh the probable value of the opinion expressed in paragraph 13. Plaintiffs' motion for reconsideration is overruled.
III. Defendant's Motion For Leave To File Supplemental Disclosures
On March 10, 2003, defendant file its motion for leave to file supplemental disclosures regarding information and documentation which was not in its possession at the time of its earlier disclosures. The opposition deadline passed without opposition from plaintiffs. With serious doubts regarding the admissibility of such evidence at trial, the Court sustains defendant's motion for leave to file supplemental disclosures.
IT IS THEREFORE ORDERED that Defendant Southwest Airlines Co.'s Motion In Limine And Supporting Memorandum (Doc. #95) filed February 12, 2003, be and hereby is SUSTAINED in part and OVERRULED in part. Defendant's motion is OVERRULED as to the evidence outlined in paragraphs 1, 3, 4 and 5 (only as to the training which Cundiff received). Defendant's motion is otherwise SUSTAINED.
IT IS FURTHER ORDERED that Plaintiffs' Motion For Reconsideration (Doc. #96) filed February 12, 2003, be and hereby is OVERRULED.
IT IS FURTHER ORDERED that Defendant Southwest Airlines Co.'s Motion For Leave To File Supplemental Disclosures And Supporting Memorandum (Doc. #111) filed March 10, 2003, be and hereby is SUSTAINED.