opinions is inadmissible hearsay, not within any recognized
exception to the rule against hearsay. (R. 26, Pl.'s Reply Br. at
6-7.) Defendants respond that Swaine's testimony regarding
Skinner's opinions does not fall within the hearsay rule at all
because it is not being offered for the truth of the matter
asserted. (Defs.' Surreply Br. at 2-3.) We agree. This evidence
is being offered to explain why Swaine recommended Plaintiff's
termination and recommended to the Merit Board that it
investigate Plaintiff's alleged misconduct. Swaine's state of
mind in making these decisions clearly is at issue in this case.
Because the defense has articulated a legitimate basis for
admission of this evidence as non-hearsay, we will allow the
testimony. Smith v. Gildea, No. 97 C 1581, 1998 WL 703677, *7
(N.D.Ill. Sept.30, 1998).
Therefore, Swaine will be permitted to testify regarding the
opinions and conclusions of Skinner, but only to the extent that
he received her report, and that he relied on her report and her
conclusions in making employment decisions affecting Plaintiff.
Swaine may not testify regarding the veracity Skinner's
conclusions. In addition, because the evidence suggests that
Swaine had a good faith basis to rely on the newly discovered
documents he obtained in November 1998, which allegedly contain
Plaintiff's handwriting, this Court will allow these documents to
be admitted at trial as party-opponent admissions pursuant to
Federal Rule of Evidence 801(d)(2).
C. Skinner's December 14, 1998 Report
Pursuant to Federal Rules of Evidence 402 and 403, we will
exclude Skinner's December 14, 1998 report. First, under Rule
402, the report will be excluded because the report itself is not
relevant to the disposition of the pending matter. It is Swaine's
reliance on this report, not the report itself, that is relevant
to Defendants' ability to establish that it had a legitimate,
nondiscriminatory reason for the employment decisions they made
regarding Plaintiff. Second, under Rule 403, this report will be
excluded because its probative value is substantially outweighed
by its prejudicial effect. Given Swaine's expected testimony, the
report itself would be cumulative, only minimally probative, and
D. Exclusion of Other Experts' Testimony
Finally, pursuant to Federal Rule of Civil Procedure 26(a)(2),
and this Court's Order dated August 9, 2000, Defendants will be
barred from introducing the testimony of Jeanne S. Brundage, or
any other employee of the Illinois State Police, Division of
Forensic Services, concerning the results of Skinner's forensic
For the foregoing reasons, Plaintiff's Motion to Bar the
Testimony of Thomas Swaine is denied in part and granted in part.
(R. 26, Pl.'s Motion to Bar the Testimony of Thomas Swaine.) The
Court specifically indicates that these pretrial evidentiary
rulings are conditional in nature and may be revisited, outside
of the jury's presence, once the contours of the trial evidence
are further developed.
© 1992-2003 VersusLaw Inc.