The opinion of the court was delivered by: Mihm, Chief Judge.
Pending before the court is Plaintiff's motion in limine (#
110), Defendant's motion in limine (# 111), Defendant's second
supplemental motion for summary judgment (# 122), and
Defendant's motion for certification pursuant to 28 U.S.C. § 1292(b).
For the reasons set forth below, the court grants in
part and denies in part Plaintiff's motion in limine and
Defendant's motion in limine, denies Defendant's motion for
summary judgment, and grants Defendant's motion for
certification pursuant to 28 U.S.C. § 1292(b).
Plaintiff's Motion in Limine.
1. Total Number of Exhibits. The court denies Plaintiff's
motion regarding the restriction of the total number of
exhibits to be used by the Defendant, or to otherwise determine
whether Defendant needs to use over 300 exhibits.
2. Summaries of Committee Meeting Minutes. The court denies
Plaintiff's motion regarding the exclusion of Defendant's
Exhibits 229-239, which are summaries of discussions held in
the directors' loan committee meetings. The court finds that
these summaries are admissible under Federal Rule of Evidence
1006 as summaries of voluminous writings and therefore will be
allowed. However, these summaries will not be admissible to the
extent that they are determined at trial to be inaccurate or
3. Bealer's Business Records. The court grants Plaintiff's
motion to exclude from evidence a variety of internal financial
records of Mr. Bealer and his companies, Exhibits 146-159 and
162-166, to the extent that Defendant fails to show the
relevance of these exhibits at trial by establishing, for
instance, that Plaintiff saw the records contained in these
exhibits prior to extending credit to Bealer. The court will
not allow in any manner any reference to the record contained
in Defendant's Exhibits 146-150 and 162-166 in opening
4. Bank's Loan Policy Documents. The court denies Plaintiff's
motion regarding Defendant's Exhibit 136, the Bank's loan
policy containing modifications made after Mueller's
termination in 1986, and Defendant's Exhibit 139, portions of
the Bank's lending policy. However, the court will require that
a proper foundation be laid for these exhibits, and Defendant
must redact any portion of Defendant's Exhibit 136 which
reflects post-termination revisions of the loan policy. As to
Defendant's Exhibit 139, Plaintiff may request at trial,
pursuant to Federal Rule of Evidence 106, that Defendant be
required to submit the entire loan policy from which
Defendant's Exhibit 139 was taken.
5. Behrens's Expert Report. The court will reserve until
trial its ruling on the admissibility of Defendant's Exhibit
141, a written opinion offered by expert witness Robert
6. Defendant's Reports, Exhibits 144, 167, 168, and 169. The
court denies Plaintiff's motion regarding Exhibit 144, a 1988
"Uniform Bank Performance Report" as it is admissible under
Federal Rule of Evidence 803(8), which is the "public records"
exception to the hearsay rule. The court denies Plaintiff's
motion regarding Defendant's Exhibits 167 and 168, two booklets
published by the Comptroller of Currency, as they are
admissible under Federal Rule of Evidence 902(5) as
self-authenticating and Federal Rule of Evidence 803(8) under
the "public records" exception to the hearsay rule. The court
denies Plaintiff's motion regarding Exhibit 169, a "news
of the remarks of Robert L. Clark as it is admissible under
Federal Rule of Evidence 902(5) as self-authenticating and
Federal Rule of Evidence 803(8) under the "public records"
exception of the hearsay rule. The court reserves its ruling on
the relevance of Defendant's Exhibits 144, 167, 168, and 169
7. Bealer Title Opinions. The court grants Plaintiff's motion
regarding Exhibits 225-228 to the extent that they go beyond
the underlying abstracts of title. The expert's written
opinions in such documents are inadmissible as hearsay.
8. Job Advertisements. The court denies Plaintiff's motion
regarding Defendant's Exhibits 255-260, 267-269, and 297-301,
which are various job advertisements for newspapers and
magazines. However, the court will require a proper showing of
foundation at trial that these positions were available to and
represented actual job openings for Plaintiff. Further, the
court will reserve its ruling on the admissibility of
Defendant's Exhibit 255, statistics on banks in the United
9. Experts' Resumes. The court denies Plaintiff's motion
regarding the exclusion of the resumes of Defendant's experts,
Defendant's Exhibits 289-294.
10. Post-Discharge Discovery. The court denies Plaintiff's
motion regarding evidence discovered by the Bank after
Plaintiff's May 1, 1986 termination. However, before
introducing such evidence, Defendant's counsel must inform the
court and opposing counsel so that the court can reassess the
admissibility of this evidence at that time.
11. Comptroller of the Currency Form WP502-1-A. The court
denies Plaintiff's motion regarding the introduction of
Comptroller of Currency Form WP502-1-A, Salary
Appraisal-Officers, intended to rebut Plaintiff's Exhibit 19.
Defendant's Motion in Limine.
1. Testimony Regarding Other Bank Employees' Own Employment.
The court grants Defendant's motion regarding the exclusion of
all testimony of other former or current Bank employees
regarding statements made to them or occurrences regarding
their own employment. Plaintiff concedes this point as no such
testimony is anticipated.
2. Testimony By Other Employees Regarding Discrimination. The
court grants Defendant's motion regarding testimony by other
former or current Bank employees as to their belief that they
were discriminated against. Plaintiff concedes this point as no
such testimony is anticipated.
3. Employee Handbook. The court reserves ruling on the
testimony and evidence regarding Defendant's Employee Handbook,
Plaintiff's Exhibits 29, 42, and 43. The court holds that if
testimony and evidence regarding the handbook is allowed and
introduced for a limited purpose, the parties may submit a
limiting jury instruction.
4. Plaintiff's Exhibit 19. The court reserves ruling on
Plaintiff's Exhibit 19 concerning a purported re-creation of a
document Plaintiff and his counsel believe they saw in
reviewing documents the Bank produced in response to
Plaintiff's discovery requests. Neither party shall refer to
such evidence until the ...