United States District Court, N.D. Illinois
February 18, 2004.
GERALD O. STRAUCH, M.D., Plaintiff,
AMERICAN COLLEGE OF SURGEONS, Defendant
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
MEMORANDUM OPINION AND ORDER
On December 23, 2003 this Court held a pretrial conference with the
parties' counsel during which it approved their jointly submitted Final
Pretrial Order ("FPTO"). In part the minute order entered on the same
date also set a timetable for the parties' cross-submissions of (1) their
respective motions in limine and (2) their responses to those motions.
Seven motions by plaintiff Dr. Gerald 0. Strauch ("Strauch") and ten by
defendant American College of Surgeons ("College") and its codefendant
Staff Members' Retirement Plan ("Plan")*fn1 have eventuated, and with
the parties' responses now in hand the several motions can be addressed.
Strauch's first motion (Dkt. No. 88-1) seeks to bar any argument or
evidence as to criticisms of Strauch's performance as a director for
College. College responds that Strauch has put
that subject in issue by his rejection of a proposed stipulation
that his performance had been satisfactory, so that College now seeks to
offer evidence as to a number of claimed performance deficiencies during
the last few years of Strauch's employment that had assertedly been
overlooked because he had made his intention to retire known to College.
College asserts that Strauch cannot have it both ways by adducing
evidence as to his claimed exemplary performance while at the same time
barring any evidence to the contrary. That contention is persuasive but
it cuts in both directions. Because the substantive battleground mapped
out by the litigants focuses on the other issues that this Court has
dealt with in its prior opinions, any controverted testimony about the
quality of Strauch's performance would really be a digression diverting
attention from the true substantive issues in the case.
Accordingly Strauch's first motion is granted, but on condition that
neither side will be permitted at trial to bring into evidence the
quality (or asserted lack of quality) of his performance. This does not
of course prevent either or both sides from apprising the jury that the
nature and quality of Strauch's services played no part in College's
decision to terminate him.
Strauch's second motion (Dkt. No. 89-1) relatedly seeks the exclusion
of any memoranda prepared after his employment was terminated, or after
this litigation was begun, that addressed
alleged deficiencies in Strauch's performance (as well, of course,
as asking to bar any testimony in that respect). What has already been
said as to the earlier motion applies here with equal force and calls for
the same ruling. Hence that motion is also granted.
As for whether those memoranda may be used for possible impeachment
purposes, as College urges in its response, that contingency is not ripe
for current decision. Although any such possibility would seem to
implicate potential hearsay or other problems, it would be perilous to
address that subject in the hypothetical vacuum that now exists, as
contrasted with dealing with the matter in the trial environment.
Strauch's third motion (Dkt. No. 90-1) seeks to bar the introduction of
evidence as to (and hence any reference to) College's affirmative defense
of Strauch's asserted failure to mitigate damages. That was the sole
affirmative defense that survived this Court's ruling embodied in its
July 14, 2003 minute order. But it is well established that the FPTO,
focusing as it does in detail on the matters to be dealt with at trial,
supersedes the pleadings in the case in that respect (see, e.g., such
cases as Marschand v. Norfolk & W. Ry., 81 F.3d 714, 716 (7th Cir.
1996), Gorlikowski v. Tolbert, 51 F.3d 1439, 1443-44 (7th Cir. 1995) and
other cases cited in each of those opinions).
In this instance the FPTO was crafted in meticulous detail by highly
qualified counsel. Its Ex. 2(b) set out with obvious
care both the agreed and nonagreed issues of fact and issues of law to be
resolved at trial. And what is conspicuous by its absence from those
detailed listings is any reference to a mitigation defense an absence
made more striking by the many other issues that College chose to include
in that laundry list.*fn2
Despite that omission (which would alone call for an at-trial ruling
barring the attempted introduction of such evidence, even if no motion in
limine had been filed), College says it should be allowed to challenge
Strauch in two respects. One would argue that Strauch did not make
adequate efforts to search for a new job post-termination, and the other
would point to Strauch's failure to post security to obtain the lump sum
pension payment at issue in the case. Interestingly, although both sides
seek to call the decision in United States v. Tokash, 282 F.3d 962, 967
(7ch Cir. 2002) to their aid, this Court's review of that opinion's
general discussion of affirmative defenses suggests that it provides
little comfort to either side under the very different circumstances
As to the first matter complained of by College, it has proffered no
evidence of its own in any event, proposing to rely instead on some of
Strauch's deposition testimony (Dep. 127:24 to
129:24). This Court has reviewed that testimony, and it is really
insufficient to support an argument as to the inadequacy of the
nearly-70-year-old Strauch's efforts to find other alternative employment
for the short-term period until his expressly-contemplated date of
retirement. In candor, any contention in that respect is such a slim reed
that it is not to be wondered that College's counsel left it out of the
As for Strauch's asserted failure to post security, it must be
remembered that the evidence previously identified for consideration by
this Court is that before College insisted that Strauch had to do so it
had imposed no such requirement on anyone else as the price of a lump sum
benefit distribution from the Plan and that such lump sum distributions
had indeed been made to others without any such requirement. And Strauch
is right in stating that neither the Treasury Regulation nor the Revenue
Ruling on which College and the Plan seek to rely imposes any such
obligation on employee benefit plan participants.
Moreover, it is uncontested that if College and the Plan wished to
avoid any possible loss of its qualification for tax purposes, College
had ample funds to maintain the Plan's funding level at the required 110%
of its assets or to post any required security that the Treasury
Regulation or Revenue Ruling might require. Any response that seeks to
divert the consideration of such matters by recharacterizing the issue as
a failure of mitigation is even more attenuated than the other matter
discussed, and again it is unsurprising that College's counsel left
the subject off of the list of contested issues.
In sum, Strauch's third motion is limine is granted. No evidence of the
type it seeks to bar may be proffered at trial.
Strauch's fourth motion (Dkt. No. 91-1), captioned "Retirement Plan
Issues," is closely related to the just-discussed third Strauch motion.
Accordingly it is necessary to discuss only two additional matters raised
by the fourth motion.
For one thing, there is no dispute that College "has at all times had
sufficient assets and/or resources to fund the Plan so that Plan's
current assets were equal to or exceeded 110% of current liabilities in
order to enable Strauch to receive the lump sum distribution of
retirement benefit as requested" (FPTO Ex. 2(a) ¶ 44). Prom that premise
Strauch seeks a ruling that no legal impediment prevented College, as
both employer and Plan sponsor, from posting any security or providing
any funding that would be needed to allow the lump sum distribution to
Strauch while still retaining Plan's tax-qualified status. Neither
College nor the Plan really takes issue with that position, urging
instead that College had no legal obligation to act as Strauch contends
it should have. Although College says that demonstrates Strauch's
misstatement of its position, it seems plain that College has in turn
impermissibly recharacterized Strauch's position.
In short, Strauch's motion will be granted in the respect
just discussed, but without preventing either side (1) from arguing
that the other should have provided the wherewithal to allow the lump sum
distribution without sacrificing the Plan's tax qualification or (2) from
responding that the Internal Revenue Code and its regulations imposed no
obligation to do so. Again the issue is whether College's failure to take
any such steps, as it had the power and ability to do, constituted
retaliation for Strauch's complaints of age discrimination.*fn3
Next, Dkt. No. 91-1 also seeks to bar evidence as to College's handling
of a request for lump sum distribution made by Joanne Sylvester
("Sylvester") after the denial of Strauch's request for his own
distribution. College responds that its assertion that Sylvester had to
post security demonstrates a consistency of treatment on its part once it
realized the legal requirements for continued Plan qualification (of
which it had assertedly been unaware earlier), In that regard College
points out that the requirement directed to Sylvester antedated Strauch's
filing of his retaliation claim, so it contends that
any argument that it was improperly attempting to insulate itself
against Strauch's argument would have less (or perhaps even no) force.
In this instance it cannot be said that evidence as to the Sylvester
situation is devoid of any probative force as a matter of law. It will be
admissible in evidence, but with each side's able counsel entitled to
argue the matter on the one hand (Strauch's) that College's response to
Sylvester's request was simply an effort to paper over College's
retaliatory conduct as to Strauch (even though no formal claim of
retaliation had yet been filed, Strauch may urge that the pre-Sylvester
existence of this lawsuit and the clearly known areas of dispute between
the parties made the issue an obvious one) and on the other hand
(College's) that it was dealing with retirees consistently.
In short, both aspects of Strauch's fourth motion will permit the
subjects they address to be considered at trial. As the motion is framed,
that calls for the granting of the first branch of Strauch's motion and
the denial of its second branch.
Strauch's fifth motion (Dkt. No. 92-1) seeks to preclude the
introduction of evidence as to the qualifications of the individuals who
were hired to replace him. In that respect it is important to remember
that College has consistently taken the position that the decision to
terminate Strauch's employment (prematurely, as he would have it) was
not related to his performance, a position that was set out in College's
Strauch's interrogatory on that subject and was reconfirmed at several
points in the FPTO's statement of uncontested facts (Ex. 2(a) ¶¶ 14 and
College irritatingly attempts to take an end run around its own
commitments on that score by asserting (Response Mem. 16) that Strauch
"was not, at the time of his termination, fully qualified for the
remaining position" and then attempting to bum-rap him in comparative
terms vis-a-vis his replacements. That really ignores the issues in this
case: whether, for example, College's handling of the proposed
Reorganization in a fashion and with timing that called for Strauch's
assertedly premature departure was age-discriminatory, or perhaps whether
in the absence of age discrimination College should have despite any
accelerated hiring and training of replacements worked things out to
accommodate Strauch's announced plans for retirement. In any event, just
as this opinion has earlier ruled that Strauch may not particularize as
to the quality of his own performance, so too College may not engage in
the just-described end run. Strauch's fifth motion is also granted.
Strauch's sixth motion (Dkt. No. 93-1) is captioned "Deviation from
Deposition Testimony" and seeks to preclude College's witness, Dr. Thomas
Russell, from altering his original deposition testimony in two respects
to conform to the revised versions that emerged only after what Strauch's
counsel has labeled as coaching by College's counsel during breaks in the
Russell deposition. This Court has already expressed its views as
to the impropriety of the so-called "clarifications" by Russell, a
euphemism that would mask what really amounted to changes in his
previously sworn answers. It adheres to that view.
At the same time, this Court certainly wishes to avoid any presentation
to the jury that would tend to muddy up defense counsel by reference to
such coaching and thus create a possibly unfair disadvantage for College
in consequence of such a collateral issue. This Court therefore expects
that Russell will be instructed in advance of testifying at trial that
his testimony is to be in accordance with his earlier
(pre-"clarification") deposition testimony on the two subjects at issue.
If he were not to do so, the original deposition testimony would become
available to Strauch's counsel by way of impeachment but Strauch's
counsel will not be permitted in that respect to argue then that any
different version was assertedly concocted for Russell's presentation at
trial, for such an argument would in turn open up the admissibility of
what would then become a prior consistent statement (that is, the revised
"clarification" after Russell had conferred with defense counsel during
the course of the deposition).
Finally, Strauch's seventh motion (Dkt. No. 94-1) seeks to bar the
trial testimony of Dr. Margaret Mooney ("Mooney") as not previously
disclosed in appropriate fashion (College has listed
Mooney as a "may call" witness in FPTO Ex. 2(d)). This dispute does
not bear upon Strauch's termination, but rather on the termination of Dr.
Olga Jonasson ("Jonasson").
In that regard Strauch says that in response to his request for the
reasons for Jonasson's termination and for the identity of "each and
every individual with knowledge or information relating to the reasons
for" such termination, College stated only that Jonasson was terminated
as a result of the Reorganization and has identified only Russell, Gay
Vincent and Jean DeYoung as having knowledge of such reasons. College's
Response Mem. 23 sets out this lawyerlike quibble:*fn4
Plaintiff's argument fails because Plaintiff has never
sought a list of individuals who could offer factual
information relating to Dr. Jonasson's job performance
issues. The interrogatory Plaintiff cites (Motion at
p.2) requested the identity of individuals with
"knowledge or information relating to the reasons for"
(emphasis added) the termination of a number of other
former employees of the College, including Dr.
Jonasson. The interrogatory did not request the
identity of all individuals who could attest to any
facts supporting those termination decisions. Dr.
Mooney was not involved in Dr. Jonasson's termination
or the decision to restructure her position, and to
Defendants' knowledge does not know the reason for
Dr. Jonasson's discharge.
That attempted distinction is entirely unpersuasive. It is not at all an
answer for College to say that Mooney, who was assertedly knowledgeable
of performance deficiencies on
Jonasson's part, was not someone with "knowledge or information relating
to the reasons for" Jonasson's termination, where such termination was in
fact attributed to such performance deficiencies where those were
stated by College to be "the reasons for" her termination. It is
irrelevant that Mooney was not herself a decisionmaker in that respect or
that she does not know that Jonasson's discharge was, in the
decisionmakers' view, caused by such deficiencies. Strauch's seventh
motion is granted as well.
Initially College, invoking Fed.R.Evid. ("Rule") 408, seeks to preclude
testimony about settlement negotiations between counsel after Strauch's
termination (Dkt. No. 87-1). But Strauch properly responds that Rule 408
is not in play here because the challenged evidence is not offered "to
prove liability for or invalidity of the claim or its amount" (the
language of the Rule), but rather as "proof of retaliation and [to]
demonstrate that defendants were not legally precluded from providing
Dr. Strauch with his Plan benefits" (Strauch Response Mem. 1). In that
respect Strauch points to some of Russell's deposition testimony as well
as to other evidence related to the settlement discussions that
assertedly supports a claim of retaliation.
This Court does not of course take any substantive position on the
retaliation claim, something that will be for the jury to
resolve. But it is plain that the jury should have access to the
evidence for that purpose. College's initial motion is denied.
Next College asks to bar as hypothetical any testimony as to what
College "would have done" if Strauch had not stated his intention to
retire (Dkt. No. 87-2). But that issue the question whether Russell's
handling of the timing and his implementation of the Reorganization were
impacted by Strauch's statement as to anticipated retirement is not at
all hypothetical or speculative. Instead it is for the jury to determine
whether the answers to that line of inquiry do or do not support
Strauch's age discrimination claim. That motion is also denied.
Next College asks that evidence of discovery disputes that arose during
the course of the litigation be excluded from admissibility at trial
(Dkt. No. 87-3). But if and to the extent that such matters might be
viewed by a reasonable factfinder as evidencing retaliation, such a
prohibition would be inappropriate and hence a blanket ruling of
the type sought by College and the Plan is inappropriate. And Strauch's
Response Mem. 15-22 urges persuasively that the matters referred to there
may be relevant to the issues of wilfulness and possible impeachment.
Accordingly that motion is denied in its generic form, without prejudice
to its reassertion in a more particularized form as the issue may arise
during the course of trial.
College offers as a fourth motion (Dkt. No. 87-4) the contention that
Strauch should not be permitted to argue that he has been harmed by (1)
the alleged delay in payment of his benefits under the Severance Pay Plan
or (2) the failure to pay a lump-sum benefit under the Staff Members'
Retirement Plan (except, in the latter regard, as to Strauch's having to
incur attorneys' fees to obtain the payment). To that end College
attempts to rely on Strauch's abandonment of any claim of lost income and
investment opportunities and interest incurred for personal loans that he
took out when payment was not made.
But it is one thing for Strauch to disclaim an effort to obtain damages
quantified in that fashion and quite another to prevent Strauch from
complaining that such conduct by College and the Plan was retaliatory and
hence unlawful. That evidence may be put before the jury, and it remains
for the time of trial to consider just how the issue may be posed in
terms of its resolution of the issues. Again the motion in its generic
form is denied.
Next College seeks to bar any introduction of evidence as to the
failure to pay Strauch severance benefits under College's Severance
Policy (Dkt. No. 87-5). That motion is puzzling, both because such a
claim is clearly relevant to Strauch's age discrimination claim*fn5 and
because Strauch's response to the
College-Plan written interrogatories expressly included such benefits in
Strauch's damages calculation indeed, defense counsel specifically
interrogated Strauch in that respect during his deposition (Dep. 185:12
to 187:3). That surprising motion is denied.*fn6
College's next two motions (Dkt. Nos. 87-6 and 87-7) seek to bar
introduction of evidence as to the job performance and termination of
Jonasson and Lynch (both of whom were terminated on the same day as
Strauch). If and to the extent that Strauch were to seek the
admissibility of such evidence in the broad form just stated (thus
essentially creating some mini-trials that could deflect attention from
the real issues in this litigation), the motions would be granted. But
analysis confirms that the blunderbuss motions should be denied in the
limited respects next discussed.
First, this Court has held in its February 3, 2004 memorandum opinion,
and reconfirms here, that Russell's comments
to (or as to) Jonasson and Lynch that a rational factfinder might
consider as age-oriented are admissible because they might be viewed as
probative regarding College's motivation. That does not, however, extend
to the admissibility of Jonasson's own opinion that her discharge was
age-related something as to which the jury must reach its own decision
on the basis of the Russell statements and other relevant facts that
might be elicited from Jonasson.
What has been said as to Jonasson also applies to Lynch. In that
respect, though College's position is that he departed voluntarily,
Strauch has identified evidence (including Lynch's separation agreement)
that puts that characterization at issue.
Next College and the Plan seek to bar any evidence about their
respective assets (Dkt. No. 87-8). On that score they point to their
stipulation in the FPTO "that at all times the College has owned
sufficient assets to fund the Plan at 110% in order to allow Plaintiff's
lump-sum payout" (Motions Mem. 20). Strauch's Response Mem. 31 agrees
that the issue should be rendered moot if the stipulation occupies this
somewhat broader scope:
1. that Strauch's termination was not related to
College's financial condition;
2. that College's financial condition was such
that it could have without hardship funded the
Plan in an amount equal to 110% of liabilities (or
alternatively could have,
again without hardship, posted the requisite security)
to allow lump sum distribution of Strauch's benefits;
3. that College's financial condition (and the
financial condition of the Plan) is such as to
enable them to pay without hardship any liquidated
damages that may be awarded.
That modest expansion seems entirely reasonable, and with those matters
being conveyed to the jury this Court will treat the motion as moot.
College's penultimate motion (Dkt. No. 87-9) seeks to limit the
introduction and use of documents that have previously been disclosed on
a "for counsel's eyes only" basis pursuant to the protective order
entered on September 25, 2002. Strauch properly responds that any such
blanket ruling would be premature, with the admissibility of any such
document to be considered only as and when offered (something that has
not yet been done) in the trial context. Accordingly the motion is
denied, but obviously without prejudice to its potential reassertion as
and when any such issue may arise at trial.
In like fashion, College and the Plan advance their final motion (Dkt.
No. 87-10), this time seeking an order "to limit and/or redact certain
exhibits to preserve third-party confidentiality and/or exclude
irrelevant issues" (Motions Mem. 27). They then list a half-dozen
documents that Strauch has identified as exhibits in the FPTO, but
Here too Strauch correctly answers (Response Mem. 33-34) that any
evidentiary rulings on that score should be deferred until they may be
viewed in the trial matrix. What College and the Plan have advanced does
not bear on the admissibility of the exhibits as such, and the relevant
particulars can best be judged at trial. Accordingly this last motion is
also denied without prejudice to a more particularized renewal at trial.
What is set out in this brief concluding section is not, of course,
intended to modify the detailed treatment that has gone before. Instead
it serves only as a capsule (and hence imprecise) summary of the rulings
in this opinion.
As to the Strauch motions:
1. Dkt. Nos. 88-1, 89-1, 90-1, 92-1, 93-1 and 94-1 are granted.
2. Dkt. No. 91-1 is granted in part and denied in. part.
As to the College motions:
1. Dkt. Nos. 87-1, 87-2 and 87-5 are denied.
2. Dkt. No. 87-4 is denied in the generic form in which it has been
3. Dkt. Nos. 87-3, 87-9 and 87-10 are denied without prejudice to their
possible reassertion in more particularized form at trial.
4. Dkt. Nos. 87-6 and 87-7 are granted in part and denied in part.
5. Dkt. No. 87-8, as modified, is denied as moot.
Finally, as to all of the foregoing rulings that have been framed in
definitive form, see the last sentence of Rule 103(a).