The opinion of the court was delivered by: Michael M. Mihm United States District Judge
Before the Court are Plaintiff Xavier Kakkanathu's ("Kakkanathu") Motions in Limine and Defendant Rohn Industries, Inc.'s ("Rohn") Motions in Limine. For purposes of this Order, the Court assumes familiarity with the underlying facts of this employment discrimination case and will not repeat them here. The parties submitted their Motions after the final pre-trial conference, where they submitted a Statement of Uncontested Facts and their proposed Jury Instructions. Each motion will be addressed in turn.
Kakkanathu's Motions in Limine
Prior to ruling on these Motions, the Court thinks it prudent to clarify the distinction between a denial of an allegation, which leaves the burden of proof with a plaintiff and an affirmative defense, which must be affirmatively pled by a defendant. In the Complaint, Kakkanathu alleges, in part: "As a direct and proximate result of the discriminatory treatment above, Kakkanathu, has suffered damages. . ." Rohn responded: "The Defendant denies the averments of [that] paragraph." The Court construes Rohn's response to be a denial of an allegation and therefore, it is Kakkanathu's burden to prove he suffered damages at trial. Evidence that supports or discredits Kakkanathu's assertion that he suffered damages is relevant at trial.
Rohn submitted a Proposed Jury Instruction regarding Mitigation of Damages. The Instruction reads, in part:
"In determining the amount of damages, if any, the Plaintiff is entitled to recover, the law provides that the Plaintiff must make every reasonable effort to minimize or reduce his/her damages for loss of compensation by seeking employment. This is called mitigation of damages. However, it is the Defendant's burden to prove by a preponderance of the evidence that the Plaintiff failed to mitigate his damages."
Rohn contends that this jury instruction supports its position that Kakkanathu has suffered no damages. The Court finds the defense of "no damages" is distinct from the affirmative defense of "failure to mitigate damages." Failure to mitigate is an affirmative defense. Sheehan v. Donlen Corp. 173 F.3d 1039, 1048-1049 (7th Cir. 1999). The employer bears the burden of persuasion and must show that the plaintiff was not reasonably diligent in seeking other employment and that there was a reasonable chance that plaintiff might have found a comparable position. Id. at 1049. Therefore, the Court must address whether Rohn is permitted to argue Kakkanathu failed to mitigate his damages, even though it never pled this affirmative defense.
In responding to a pleading, a defendant must "affirmatively state any avoidance or affirmative defense" in its Answer to the Complaint. Fed. R. Civ. P. 8(c). Generally, failure to plead a defense results in its waiver. Pinto Trucking Serv., Inc. v. Motor Dispatch, Inc., 649 F.2d 530, 534 (7th Cir. 1981); see also Johnson v. Sullivan, 922 F.2d 346, 355 (7th Cir. 1990) (holding that failure to raise the statute of limitations defense in answer constituted waiver).
However, the Seventh Circuit also stated that "delay in asserting an affirmative defense waives the defense only if the plaintiff was harmed as a result." Curtis v. Timberlake, 436 F.3d 709, 711 (7th Cir. 2005). In Curtis, the Court of Appeals affirmed the district court's permitting the affirmative defense to be raised for the first time at summary judgment. Id. "[W]here the plaintiff has an opportunity to respond to a late affirmative defense, he cannot establish prejudice merely by showing that the case has progressed significantly since the defendants answered his complaint." Williams v. Lampe, 399 F.3d 867, 871 (7th Cir. 2005).
After a careful review of the pleadings, the deposition transcripts before it, and Rohn's expert report, the Court concludes that Rohn did not waive its failure to mitigate damages defense. Specifically, Rohn put Kakkanathu on notice during his deposition when it asked him questions about his job searches and when it disclosed its expert report that opined that, in light of the market labor trends, Kakkanathu should have found alternative employment. The Court will reserve judgment as to whether to give the proposed jury instruction regarding mitigation of damages until after the close of evidence at trial.
Therefore, because Rohn will be allowed to offer evidence in support of its affirmative defense that Kakkanathu failed to mitigate his damages, the Court rules as follows:
First Motion in Limine by Plaintiff Xavier Kakkanathu (#38)
Kakkanathu moves to exclude Rohn's expert testimony and report, arguing that neither is relevant nor reliable. Rhon's expert, Anthony R. Wheeler, concluded in his report: "[Kakkanathu]'s inability to find fulltime employment in Central Illinois is not a function of the prevailing labor market between May 2006 to the present time. [Kakkanathu]'s terminal unemployment likely results from [his] selectivity during job search. Moreover, [Kakkanathu]'s continuously failed job search in and of itself further decreases the likelihood of a successful job search in the future."
First, Kakkanathu argues the expert opinion should be barred because the expert's conclusions relate to an irrelevant time period. Kakkanathu received notice of his termination in January 2002, effective March 2002. Kakkanathu testified that he stopped looking for employment in May 2006, when he became sixty-five years old and eligible for Social Security benefits. Kakkanathu argues that because he was not looking for employment in May 2006, the expert opinion that relies on the labor market in Central Illinois between May 2006 and the present is not relevant. In a footnote in its Response Brief, Rohn states that Wheeler's analysis "clearly covers the period 2002 through ...