The opinion of the court was delivered by: Keys, Magistrate Judge.
MEMORANDUM OPINION AND ORDER
Before the Court are both parties' motions in limine. For the following
reasons, this Court grants Defendant's motion in limine to bar
Plaintiff's expert witness from testifying; grants Defendant's motion in
limine to bar Plaintiff from presenting undisclosed witnesses at trial;
grants in part and denies in part Defendant's motion in limine to bar
evidence and argument relating to the Plaintiff's claims for "lost
opportunity" damages; and denies Defendant's motion in limine to bar
Plaintiff from presenting lay opinions of whether or not Plaintiff was
properly terminated for misconduct under Sears' policies. Also, for the
reasons set forth below, the Court denies Plaintiff's motion in limine to
exclude testimony of Evelyn Freeman and other evidence.
This is an action for alleged wrongful termination in violation of
§ 510 (" § 510") of the Employee Retirement Income Security Act
("ERISA"), 29 U.S.C. § 1140 (West 2000).*fn1 Plaintiff, Steven K.
Anglin, brought this action against Sears, Roebuck and Company ("Sears")
and Margaret Edidin, a Department Manager at Sears. Sears employed
Plaintiff from February 1, 1977 until March 20, 1992, when he was
terminated by his supervisor, Ms. Edidin.
According to Mr. Anglin, when Ms. Edidin informed him of his
termination, she cited four specific reasons: his display of a "nude
picture" on the computer monitor on his desk; his use of the women's
washroom on one occasion; his use of obscene language toward another
employee; and his having yelled at his immediate supervisor.*fn2 Mr.
Anglin maintains that Sears characterized these alleged actions as
"wilful misconduct" in order to justify his termination, so Sears would
not have to pay him benefits pursuant to a "reduction in force" benefits
program entitled 1992 Closed Unit/Reorganization Package (the "Plan").
Therefore, according to Mr. Anglin, he was terminated with the specific
intent to interfere with his ERISA rights, in violation of § 510.*fn3
"In general, federal district courts have the power to exclude evidence
in limine pursuant to their inherent authority to manage trials." Farley
v. Miller Fluid Power Corp., No. 94 C 2273, 1997 WL 757863, at *1
(N.D.Ill. Nov. 24, 1997)
(citing Luce v. United States, 469 U.S. 38, 41
fn. 4 (1984)). A motion in limine may be used to insulate the jury from
potentially harmful or unfairly prejudicial evidence. McCORMICK ON
EVIDENCE, § 52 at 202-203 (4th ed. 1992). However, a court is limited
to excluding, in limine, only such evidence that is clearly inadmissible
on all possible grounds. Farley, 1997 WL 757863, at *1. As a result,
"when admissibility determinations are not clear, evidentiary rulings
must be deferred until trial so questions of foundation, relevancy, and
prejudice can be resolved in their proper context." Marlow v. Winston &
Strawn, No. 90 C 5715, 1994 WL 424124, at *1 (N.D.Ill. Aug. 11, 1994).
A. Defendant's Motion In Limine to Bar Plaintiff's Expert
Witness from Testifying at Trial.
This Court grants this motion in limine. On February 2, 2001, this
Court denied Plaintiff's Motion for Leave to Complete Damages Expert
Discovery, because Plaintiff had failed to produce his expert during
discovery, despite the Court's prior extensions of time to complete
discovery, as well as Defendants' many requests for Plaintiff's expert's
files and deposition. Indeed, as explained in Defendant's Opposition to
Plaintiff's Motion to Leave to Complete Expert Discovery, since 1995,
Sears had requested, on at least seven separate occasions (six times by
letter and at least once by telephone), that Plaintiff produce his expert
witness, Sandor Goldstein, for deposition. Although Plaintiff produced
Mr. Goldstein's expert report (apparently six days before the
Court-ordered discovery cut-off date of January 31, 2000), Plaintiff
failed to produce him for deposition, despite the Court having granted a
six-week extension of time to complete expert discovery. Nonetheless,
Plaintiff has listed Mr. Goldstein on his witness list in the Final
Pretrial Order, and, therefore, apparently intends to present him at
Courts in the Seventh Circuit routinely bar witnesses from testifying
at trial, where the witnesses have not been produced in accordance with a
court's discovery deadlines, thereby impeding opposing party's
opportunity to adequately prepare for trial. See, e.g., Hill v. Porter
Memorial Hosp., 90 F.3d 220, 224 (7th Cir. 1996) (affirming district
court's barring of plaintiff's expert witnesses, stating that
"[a]dherence to established deadlines is essential if all parties are to
have a fair opportunity to present their positions. In the absence of a
compelling excuse, a district court is well within its discretion to
exclude untimely proffered evidence or testimony."); In re Maurice,
21 F.3d 767, 773 (7th Cir. 1994) ("When one party fails to comply with a
court's pre-hearing order without justifiable excuse, thus frustrating
the purposes of the pre-hearing order, the court is certainly within its
authority to prohibit that party from introducing witnesses or evidence
as a sanction."); Coclanes v. City of Chicago, No. 93 C 557, 1994 WL
10007, at * 3 (N.D.Ill. Jan. 13, 1994) (barring plaintiff's expert
witness from testifying, finding that defendant had
been denied opportunity to adequately prepare).
Based on the aforementioned authority, and Plaintiff's failure
to produce his expert witness to be deposed in accordance with the
Court's deadlines (and extensions), Plaintiff's expert witness is
barred from testifying at trial.*fn5
B. Defendant's Motion In Limine to Bar Plaintiff from
Presenting Undisclosed Witnesses at Trial.
This motion in limine is also granted for similar reasons. Plaintiff
listed four witnesses in his Final Pretrial Order — Randy L.
Duncan, Lee R. Emetti, Robert Kator, and Laura Michels — who had
never been previously disclosed by Plaintiff, despite repeated requests
by Defendant. On or about June 8, 1995, Sears served Plaintiff with
interrogatories, which specifically requested, inter alia, the name,
address and telephone number of each person with knowledge of the facts
referring to any allegations contained in Plaintiff's Complaint. After
not receiving answers to its interrogatories, Sears repeatedly asked
Plaintiff to respond to discovery. Plaintiff, however, continually
insisted that he had already served his interrogatory answers on Sears.
Apparently, it was not until the parties' face-to-face pretrial
conference, on March 5, 2001 — two months after the close of
discovery (and almost six years after Sears' interrogatories were first
served on Plaintiff)— that Plaintiff's counsel revealed that
Plaintiff had never answered the interrogatories.*fn6 Nonetheless,
Plaintiff has listed these four witnesses in the Final Pretrial Order.
Clearly, Sears will be prejudiced if these witnesses are allowed to
testify, as Sears has not had adequate time to properly prepare a
defense. For instance, Sears was not able to depose these witnesses, as
Sears did not know about these witnesses until the Final Pretrial Order,
which was well after the close of discovery. The same rationale,
discussed supra, about barring Plaintiff's expert witness, Sandor
Goldstein, from testifying is equally applicable here, where Plaintiff
has failed to comply with court-ordered discovery deadlines. See, e.g.,
Santiago v. Furniture Chauffeurs, Piano Movers, Packers, and Handlers
Local 705, No. 99 C 2886, 2001 WL 11058, at * 7 (N.D.Ill. Jan. 4, 2001)
(barring witnesses from testifying because they were not disclosed until
after the discovery cut-off date); Scranton Gillette Communications,
Inc. v. Dannhausen, No. 96 8353, 1998 WL 566668, at * 3 (N.D.Ill. Aug,
26, 1998) (excluding nine witnesses because plaintiff had not shown
diligence during discovery in producing them, and had not shown that
allowing them to testify would not be unfair to defendants).
Accordingly, witnesses Randy L. Duncan, Lee R. Emetti, Robert Kator, and
Laura Michols are barred from testifying.
C. Defendant's Motion In Limine to Bar Evidence and Argument
Relating to Plaintiff's Claims for "Lost Opportunity"