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February 18, 2004.

GERALD O. STRAUCH, M.D., Plaintiff,

The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge


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 Motions

  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 Page 2 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 Page 3 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 Page 4 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 involved here.

  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 Page 5 129:24). 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 FPTO.

  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 just Page 6 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 ...

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