The opinion of the court was delivered by: Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant's first motion in limine (DE 83), Defendants' second motion in limine (DE 89), and Plaintiff's motion in limine (DE 93). The motions are fully briefed. Collectively the parties' motions seek resolution of more than twenty evidentiary issues prior to the trial set to commence April 21, 2008. This Court already denied as moot Defendants' first motion in limine with respect to certain witnesses whom Defendants sought to exclude from testifying. This opinion addresses the remaining issues raised in Defendants' first motion in limine as well as Defendants' second motion in limine and Plaintiff's motion in limine. For the reasons set forth in detail below, Defendants' first motion in limine is GRANTED in part and DENIED in part, Defendants' second motion in limine is GRANTED in part and DENIED in part, and Plaintiff's motion in limine is GRANTED in part and DENIED in part.
I. Defendants' First Motion in Limine
Defendants move in limine to exclude certain documents and exhibits designated by Plaintiff in the remainder of their first motion in limine. Initially, Defendants raise an objection to Plaintiff's general designation in the Pretrial Order to the "entire production" as part of its exhibit list for trial. Plaintiff submitted his exhibits to the Court as part of the Pretrial submissions. See DE 88. The parties were required to designate the specific exhibits anticipated for use at trial as part of their Pre-Trial submissions. Plaintiff's designation of his entire production does not comply with that mandate and is contrary to the purpose of narrowing the universe of relevant and admissible materials as exhibits in advance of trial. To the extent that documents contained in Plaintiff's document production are not designated and included in the exhibits made part of the record at Docket Entry 88, they are excluded and may not be introduced at trial, other than for rebuttal purposes.
Defendants seek to bar introduction of Plaintiff's medical records, most of which are designated as part of Plaintiff's Exhibit 7. Defendants initially argue that Plaintiff's medical records are inadmissible because Plaintiff failed to authenticate them as required under Fed. R. Evid. 901. Defendants further argue that Plaintiff will be unable to do so because he has failed to list any witnesses in the Pretrial Order who can authenticate the records - such as the treating physician or a custodian of records. Defendants also contend that the records cannot be authenticated under Fed. R. Evid. 902. Defendants finally assert that the medical records are inadmissible hearsay under Fed. R. Evid. 802. Plaintiff sought certification of certain medical records pursuant to Fed. R. Evid. 902(11) in order to cure the authenticity problem and was able to do so for Exhibits 7(c), 7(e), and 7(f).
a. Exhibits 7(a), 7(b), 7(d), 7(g)
In its March 14, 2008 order, the Court directed counsel for Plaintiff to advise the Court and defense counsel whether Plaintiff intended to seek certification of certain medical records in order to address the authenticity issues raised by Defendants in their motion in limine. In a letter dated March 28, 2008 Plaintiff indicated that he was in the process of seeking certification for Plaintiff's Exhibits 7(a), 7(c), 7(e), and 7(f) from two separate medical facilities. On March 31, 2008 the Court received notice of Plaintiff's certification of records contained at Exhibits 7(c), 7(e), and 7(f) from Couret Medical & Urgent Care, S.C. As of this date, the Court received no further notice of Plaintiff's efforts to certify Exhibit 7(a). Because Plaintiff has not listed as a witness the custodian of records at any of the medical providers noted on Exhibits 7(a), 7(b), 7(d), and 7(g), those exhibits will be excluded and Plaintiff will be barred from using them at trial unless Plaintiff can obtain certification.
Defendants argue that Exhibit 7(c), Bates labeled 109, does not fall within the business record exception to the hearsay rule (Fed. R. Evid. 803(6)). Exhibit 7(c) is a letter from Dr. Couret addressing Plaintiff's complaints of harassment at work and its effect on his medical condition. Plaintiff failed to respond to Defendants' assertions regarding the inadmissibility of this document. The Court agrees that this letter does not fall within the business record exception to the hearsay rule set forth at Fed. R. Evid. 803(6). This record does not appear to have been prepared in the ordinary course of a medical facility's operations. Furthermore, this letter does not fall within the exception set forth at Fed. R. Evid. 803(4), which excepts medical records containing statements that would otherwise be hearsay but are directed at diagnosis and treatment of the declarant's medical condition. This letter does not appear to be a record taken while Mr. El Bakly's was being treated, but rather is a letter summarizing Dr. Couret's assessments of the cause of Mr. El Bakly's condition. This is inadmissible hearsay outside of any allowable exceptions and accordingly Plaintiff's Exhibit 7(c) is excluded.
Defendants argue that, even if authenticated, Exhibits 7(e) and 7(f) nevertheless are inadmissible hearsay. Exhibit 7(e) consists of two "return to work" letters issued from Dr. Couret's office, while Exhibit 7(f) includes approximately ten handwritten notes recording medical and other information apparently gathered during Plaintiff's visits to Dr. Couret's office. Defendants specifically object to the portions of Exhibit 7(f) that are Bates numbered 119, 121, 122, 124, 147, and 149, which appear to have been written between February and May of 2004 and reflect statements by Plaintiff that "co-workers are harassing" and "call[ing] [Plaintiff] names." Defendants insist that no hearsay exception applies pursuant to which such statements might be admissible. In particular, Defendants assert that (i) the statements are not the admissions of a party opponent when offered by Plaintiff himself; (ii) do not fall within Rule 803(1) or (3) because they are not contemporaneous; and (iii) do not fall within Rule 803(4) because they do not relate to the heart condition for which Plaintiff was being treated by Dr. Couret and because the statements purport not only to report a condition, but also to assess fault.
Plaintiff offered no written response to Defendants' arguments concerning Exhibits 7(e) and 7(f). At the Pre-Trial Conference, Plaintiff's counsel explained that Plaintiff simply seeks to use the records to substantiate Plaintiff's condition and to explain his unavailability to attend an AutoZone diversity training meeting. Pre-trial Conference Transcript ("PTC Tr.") at 16. When advised of that limited purpose, the Court suggested that the parties consider a stipulation as to the possible use of the medical records (or a stipulation that would obviate the need to use them at all). As of the date of this ruling, no such stipulation has been tendered and thus the Court reserves its ruling as to Exhibit 7(e).
The Court provisionally rules that the documents in Exhibit 7(f) are not admissible. The only hearsay exception that presents a close call is Fed. R. Evid. 803(4), and even under that exception the statements purporting to assess blame on Plaintiff's co-workers for "harassing" and calling Plaintiff names probably would not be admissible and would need to be redacted. However, because (i) the records are handwritten, (ii) it is unclear who made the records, and (iii) neither Dr. Couret nor any other treater from his office is identified on Plaintiff's witness list, the probative value of the records is minimal and is substantially outweighed by the prejudicial impact of admitting them without affording Defendants any possibility of cross-examination. Accordingly, the Court provisionally rules that the records at Exhibit 7(f) will be excluded under Fed. R. Evid. 403.
In sum, the Court denies Defendant's motion in limine with respect to Exhibit 7(e) and reserves its ruling on the admissibility of that exhibit. However, the Court grants Defendant's motion with respect to Exhibit 7(f), absent some stipulation by the parties with respect to this exhibit.
2. Affidavit of Daniel Probo
Plaintiff proposes, as Plaintiff's Exhibit 5, the affidavit of Daniel Probo. Defendants seek to exclude Mr. Probo's affidavit on the grounds that it is inadmissible hearsay under Fed. R. Evid. 801. Plaintiff argues that the affidavit overcomes the hearsay rule as a party admission under Fed. R. Evid. 801(a)(2). The Court agrees with Defendants. As an initial matter, it appears that the affidavit in question was never properly sworn before a notary and thus is not reliable. Moreover, even if the affidavit had been properly executed, affidavits of witnesses generally are not admissible into evidence at trial to resolve disputed issues of fact even if the affidavit was used during summary judgment because they are hearsay under Fed. R. Evid. 801. See Winskunas v. Birnbaum, 23 F.3d 1264, 1268 (7th Cir. 1993) ("affidavits are ordinarily not admissible evidence at trial"); see also Presto v. Illinois Dept. of Human Services, 2003 WL 21196237, at *2 (N.D. Ill. May 21, 2003). Plaintiff's assertion that Daniel Probo's affidavit qualifies as a party admission pursuant to Fed. R. Evid. 801(a)(2) is belied by the affidavit itself. The affidavit was signed in 2005 and states on its face that Daniel Probo has not worked at AutoZone since October of 2003. A statement qualifies as a party admission under Fed. R. Evid. 801(a)(2) only when the statement is "made during the period of agency" by the declarant. Young v. James Green Mgmt., Inc., 327 Fd 616, 623 (7th Cir. 2003). Accordingly, the affidavit of Daniel Probo, proposed as Plaintiff's Exhibit 5, is excluded.
Plaintiff lists his EEOC charge as proposed Plaintiff's Exhibit 1. At the Pre-Trial Conference held on April 2, 2008, Defendants withdrew their objections and their motion in limine with respect to Plaintiff's EEOC charge. Therefore, under the operative language of the Pre-Trial Order, Plaintiff's Exhibit 1 will be received into evidence.
4. Plaintiff's Tax Returns from 1999-2002
Plaintiff offers his tax returns from 1999 through 2005 as proposed Plaintiff's Exhibit 2. Defendants argue that Plaintiff's tax returns from 1999 through 2002 are irrelevant because Plaintiff only claims damages from 2004 forward, and that the returns do not relate to his claims or damages in any event. The Court concludes that Plaintiff's tax returns and W-2s from 1999-2001 are irrelevant to his claims or damages. According to the records provided, it appears that Plaintiff was a student and not yet working at AutoZone through the end of 2001. According to the stipulated uncontested facts in the Pretrial Trial Order, Plaintiff started with AutoZone on May 3, 2002. See DE 85, proposed Pretrial Order ("PTO") at 2. Plaintiff provides the W-2 issued by AutoZone to him in 2002, as well as his tax returns from 2002, reflecting the amount of wages earned that year. At this time, the Court believes that, depending on Plaintiff's theory, these documents reflecting wages earned in 2002 and 2003 may be relevant for purposes of determining Plaintiff's damages. The Court notes that Defendants did not object to Plaintiff's W-2s and tax returns for 2004 forward. Accordingly, Defendants' motion is granted in part and the W-2s and tax returns from 1999 to 2001 are excluded. Defendants' motion is denied part with respect to the tax returns and W-2s provided for 2002 and 2003 while Plaintiff was working at AutoZone and those records from 2002 forward in Plaintiff's Exhibit 2 will be received into evidence along with the 2004-2005 information already part of that exhibit to which Defendants did not previously object.
5. AutoZone's Financial Statements
Plaintiff provides some financial information related to Defendant AutoZone's profits and net worth at proposed Exhibit 6 (Bates labeled 87-95, 101). Defendant AutoZone acknowledges that such information may be relevant to Plaintiff's claim for punitive damages. Defendant argues, however, that this information has the potential to create unfair prejudice against Defendant AutoZone and to confuse the jury under Fed. R. Evid. 401 and 403. Defendant AutoZone therefore asks the Court to prohibit Plaintiff from introducing evidence of AutoZone's financial condition or net worth pursuant to Fed. R. Evid. 401 and 403, at least until (1) this Court rules that Plaintiff has made a case for punitive damages or (2) the jury has returned a verdict in Plaintiff's favor and awarded him compensatory damages.
At this stage, the Court notes that Plaintiff may have claims for punitive damages with respect to his Title VII claims and his Illinois state law defamation per se claim. The Title VII statutory scheme in conjunction with the Civil Rights Act of 1991 allows for punitive damages where a plaintiff can show that the defendant engaged "in a discriminatory practice . . . with malice or with reckless indifference to the federally protected rights of an aggrieved individual."
42 U.S.C. § 1981a(b)(1). The Supreme Court interprets "malice" or "reckless disregard" as the employer's knowledge that it may be violating federal law, and not specifically as an awareness that it is engaging in discrimination. See Kolstad v. American Dental Ass'n, 527 U.S. 526, 535 (1999) ("[A]n employer must at least discriminate in the face of a perceived risk that its actions will violate federal law ...