United States District Court, D. New Jersey
MEMORANDUM OPINION ON MOTIONS IN LIMINE
KEVIN McNULTY, District Judge.
There are fourteen motions in limine, many of which contain multiple parts, pending in this matter. Two were filed by Plaintiff Helen Ford, six were filed by Defendant Oscar Aviles, and six were filed by Defendants County of Hudson ("County"), Hudson County Department of Corrections ("DOC"), and David Krusznis. In lieu of oral rulings, I file this informal, unpublished opinion for the guidance of the parties, who are familiar with the facts and allegations in the case. Suffice it to say that this is a 42 U.S.C. § 1983 claim (with pendent state law claims) brought by Ford, a corrections officer, against her superiors, the DOC, and the County. She alleges, inter alia, that defendants tok unfounded disciplinary action against her on retaliatory and discriminatory grounds, in breach of the First and Fourteenth Amendments.
In general, the most useful of these motions in limine concern the permissible scope of expert testimony.
Motions in limine filed by Defendant Oscar Aviles ("Aviles") [ECF No. 121]
1) Motion to Dismiss Plaintiff's Claims for Punitive Damages
This motion pertains to the various grounds on which Plaintiff is seeking punitive damages. Ms. Ford seeks them against the individual defendants based on both § 1983 and the New Jersey Law Against Discrimination (LAD), and against the County of Hudson in conjunction with her theory of municipal liability under § 1983. Aviles argues that all of these punitive damages demands must be thrown out.
As to the claims against individuals, Aviles essentially argues that there is no evidence of "evil motive or intent, " "or of reckless or callous indifference to federally protected rights, " or of "especially egregious" behavior. Aviles cites no threshold legal bar to such claims; rather, his argument is based on uncited assertions about the sufficiency of the evidence. In essence, then, this is a belated motion for summary judgment or a premature motion for a directed verdict. At trial, based on a fully developed record, I will decide whether there is sufficient evidence of evil motive, callous indifference, or egregiousness to submit the punitive damages issue to the jury.
As to the § 1983 claim against the County, Aviles has a better legal argument. "[A] municipality is immune from punitive damages under 42 U.S.C. § 1983." Newport v. Fact Concerts, 453 U.S. 247, 271 (1981). Plaintiff says little or nothing in response.
Accordingly, I will DENY this motion without prejudice to renewal at trial as it pertains to the claims against the individual defendants, but GRANT this motion as to the County.
2) Motion for a Bifurcated Trial Concerning Punitive Damages
Aviles contends and Plaintiff concedes that punitive damages issues should be tried separately, after the jury has returned its verdict on liability and compensatory damages. I agree, and will GRANT this motion. Any evidence going solely to the issue of punitive damages should not be offered in the initial phase of the trial.
3) Motion to Preclude Evidence Containing "Baseless, Irrelevant, and Prejudicial Hearsay Testimony Premised on Rumor or Conjecture or Which is Merely Designed to Improperly Undermine the Character of Any Witness."
Aviles brings what amounts to a blanket motion to enforce the Rules of Evidence. As formulated, it cannot be denied, but for the most part it is too general to be useful.
Aviles gives two examples of the kind of evidence he would like to bar. First, he states that Ms. Ford might testify that a jail personnel officer told her that that he "heard" that Aviles "opposed Plaintiff's return to the Training Unit, " even though "Plaintiff has no proof that these statements were ever made." Second, he worries that Ms. Ford might testify, as she did at her deposition, that one officer told another officer that "Aviles hit the window and said we are going to appeal. She is not coming back here'" when he heard of the OAL decision overturning Ms. Ford's dismissal and reinstating her. Aviles complains that this is triple hearsay.
Ms. Ford argues that this motion seeks an unnecessary blanket ruling, and she also hints at potential grounds to admit, or at least to argue for admission of, the evidence in the two cited examples.
These are routine evidentiary objections of the kind ordinarily addressed in the context of the evidence at trial. As to the two particular statements, Plaintiff's counsel will signal the court before eliciting them in the hearing of the jury.
I will therefore DENY this motion subject to appropriate renewal(s) at trial.
4) Motion to Preclude Plaintiff and Her Witnesses from Testifying as to the Ultimate Issues in the Case
Aviles seeks a ruling barring any testimony concerning whether someone was, for example, "discriminated against, " "harassed, " or "retaliated against, " because of the legal significance of these terms. He contends that, under Fed.R.Evid. 403, any such testimony would have little substantive value, which would be outweighed by undue prejudice, confusion of issues, and/or misleading of the jury.
Ms. Ford points to FRE 704, which permits opinion testimony which reaches the ultimate issue in a case, subject to the requirements of FRE 701, 702, and the balancing test of FRE 403. Plaintiff contends, properly I believe, that a blanket pretrial ruling applying FRE 403 to all potential ultimate issue testimony would be improper. Ms. Ford asserts that her contemplated testimony is based on her personal knowledge and will go to the heart of this case. If that is so-and that remains to be seen-such testimony might well satisfy FRE 701 (requiring that opinion testimony be "rationally based on the witness's perception... [and] helpful to clearly understand the witness's testimony or to determining a fact in issue...").
I think this motion is unduly broad and general. I certainly reject the notion that witnesses cannot, if otherwise appropriate, opine on the ultimate issue, see FRE 704(a), but I acknowledge that objections to particular proffers of evidence, based on FRE 701 or 702, and 403, could be appropriate and will be assessed as raised at trial. I will therefore DENY this motion subject to appropriate renewal(s) at trial.
5) Motion to Preclude Specific Opinion Testimony of Ms. Ford
Aviles' fifth motion is closely related to his fourth. Here, he cites specific lines of deposition testimony of Ms. Ford and seeks a ruling barring similar testimony at trial on FRE 701 grounds. He contends, for example, that Ms. Ford should not be able to testify that:
"There is systemic discrimination against women in the Hudson County Department of Corrections."
In particular, Aviles argues that Ms. Ford cannot make such an assertion because she is not being offered as an expert on discrimination or retaliation. In effect, then, Aviles' objection is based on R. 701(c). The issue is whether a general statement about the "systemic" existence of discrimination requires scientific, technical, or other specialized knowledge and thus may only be made via expert opinion.
This issue highlights the difference between lay opinion testimony and expert testimony, embodied in FRE 701(c). Lay opinion testimony is based on things perceived by the witness, while expert opinion requires specialized knowledge and cannot be derived from mere "common knowledge." See FRE 701(a), (c). I find that discrimination can be perceived, or inferred from one's perception, without specialized training or knowledge. Likewise, I find that one may comment on the whether discrimination is isolated or "systemic" based on observations and personal knowledge alone. Thus, I see no FRE 701(c) issue here.
I will require, however, that Ms. Ford state a sufficient foundation before offering such an opinion. I will police such testimony for a showing that it is "rationally based on" her knowledge and perceptions. FRE 701(a). It must also be "helpful" to the jury's understanding of her other testimony or its resolution of a fact in issue. FRE 701(b). I will not permit mere statements of negative opinion, untethered to specific factual examples.
I believe that the same analysis- that no expert is required, but that the foundation and helpfulness requirements of FRE 701(a)-(b) must be demonstrated- applies to the other potential testimony of Ms. Ford that Aviles is trying to preclude, concerning her:
Belief that she was discriminated against because she was a woman.
Belief that her affiliation with white males was part of the reason she was retaliated against
Belief that since she had filed complaints in the past about men, she was retaliated against in 2006 by being terminated
Belief that the Hudson County Law Department was motivated by retaliation to terminate her from her employment
Belief that complaints filed by men against Aviles that were not treated the same way as the Plaintiff[s]'
Belief that men are not disciplined in a similar fashion as women at the Correctional Facility...
Belief that Kirk Eady retaliated against her because she previously filed complaints against him
Belief that the history of Hudson County leads her to believe that prior complaints filed against supervisors resulted in her ultimate termination
Belief that Defendant Aviles was involved in the retaliation alleged in the Amended Pleading because he was Defendant Krusznis' boss
If any such testimony is actually proffered, I will hear any objection to foundation or helpfulness as appropriate at trial. I cannot prudently weigh these factors based on the limited pretrial record.
I discuss separately the proffer that an investigator, Jesse Brown, "is a racist." Such a statement is unduly prejudicial in that it really is intended to prove that the person acted in conformity with an inflammatory accusation about his general character. Factual testimony is, of course, another matter.
The same holds for two other lines of potential testimony about which Aviles specifically complains that FRE 701(a) and (b) (but not 701(c)) are violated:
Ms. Ford's potential reference to an incident between Defendant Aviles and Lieuntenant Stout, and her belief regarding the findings of an investigation into same, about which she allegedly has no personal knowledge, and
Ms. Ford's opinions and beliefs concerning the circumstances of a certain March 2006 letter.
In sum, what Plaintiff knows and does not know, and which of her opinions are rooted in her own perceptions, observations, or knowledge, will not be clear until the parties adduce testimony at trial. Only then can any issues under FRE 701 (and FRE 403, if raised) be profitably addressed. The briefing before me does not permit me to assess a) the foundation and b) the probativeness/prejudice of Ms. ...