The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER This Court's March 1, 2011 memorandum opinion and order has dealt with the post-final-pretrial-order ("FPTO") motions in limine filed by plaintiffs Darryl Jackson ("Jackson") and DWJ Petroleum, Inc. ("DWJ") in their action against Paul Cerpa ("Cerpa"), Gilbert Villegas ("Villegas"), Timothy Martin ("Martin") and the Illinois Department of Transportation ("IDOT"). As forecast there, this memorandum opinion and order speaks to the nine motions in limine filed by those defendants.*fn1
But before this opinion turns to parsing the individual motions, something must be said about the lack of a full understanding that some of the motions reflect as to a couple of the most basic principles of the law of evidence-- particularly the hearsay rule and the important distinction between the Fed. R. Evid. ("Evid. R.") 404(b) prohibition of propensity evidence and the nonexclusive listing in that Rule of matters that are outside the scope of that prohibition. To choose the most conspicuous example, it is absurd for defense counsel to contend that testimony as to a defendant's use of the word "nigger" is necessarily both hearsay and barred by Rule 404(b).
Hearsay? Not if a statement of that nature can properly be ascribed to Cerpa, for example.*fn2 How better to evidence a defendant's intent (his or her mindset) in a race-discrimination case brought by an African-American than by a showing that the defendant employs that term? And as for prejudice, such evidence is of course prejudicial (as is all relevant evidence), but it must be remembered that Evid. R. 403's balancing test compares probative force with unfair prejudice. In this instance Motion 6 (Dkt. 160) seeks to bar:
Any reference to, evidence about, or testimony regarding any of the individual defendants or other IDOT employees ever using the word nigger (hereafter the N-word).
In the blanket form in which that is framed, it would have to be denied out of hand.
True enough, Motion 6 properly quotes deposition excerpts that are classic examples of true hearsay--"X told me that he heard Cerpa refer to Jackson as a 'nigger pimp.'" But that appears to be tempered by the grudgingly inadequate statement of admissibility that follows in Motion 6 at 5 (emphasis as to the word "might" added):
If Mr. Buonaguidi had testified that he directly heard Mr. Cerpa utter the N-word, such testimony might be admissible as a statement by a party.
In all events, defendants' treatment of Evid. R. 404(b) is impermissibly restrictive.
In sum, Motion 6 is granted in part, but not in the expansive version claimed by defendants. And the foregoing discussion should be kept in mind as to defendants' otherwise overexpansive employment of the hearsay objection.
To return to defendants' motions in sequential order, Motion 1 (Dkt. 154) seeks to bar testimony by Brenda Gold ("Gold") on hearsay grounds. That motion is granted as to hearsay testimony of the classic nature already described, but plaintiffs' response correctly points out that defendants have not identified any proper predicate for excluding her testimony in its entirety. Admissibility of Gold's other testimony can best be addressed in the crucible of trial, so Motion 1 is granted only in the limited terms stated here, with further rulings to await trial.
Motion 2 (Dkt. 155) asks that testimony by Patricia Walker and Christie Means be barred. Plaintiffs' response disclaims any intention to call either of them in plaintiffs' case in chief, but it properly "reserve[s] the right to call either as rebuttal witnesses or to impeach the testimony of any witness who makes statements that either Ms. Means or Ms. Walker can testify to be false, incomplete or matters about which the witness claims not to remember." So Motion 2 is granted as limited by plaintiffs' response.
Motion 3 (Dkt. 156) asks that "references to political connections" be barred. That seems unexceptionable on its face, but plaintiffs' response at 5 points (for example) to matters in that respect that may reasonably be viewed by a factfinding jury as bearing importantly on Villegas' credibility in the very areas that are at issue in this case. Hence defendants' Motion 3 is denied in its blanket form, and this Court will consider and rule on issues of relevance of such testimony during the trial.
In another instance of overbreadth, Motion 4 (Dkt. 157) seeks "to bar mention of defendants' 'Hispanic Agenda.'" Framing the subject in terms of that label appears to mischaracterize plaintiffs' goal somewhat. Certainly evidence that Cerpa and Villegas are both of Hispanic origin and that they sought to favor others who share that ancestry can be probative and relevant in a case that claims discrimination against African-Americans. But once again the most appropriate handling is to deny Motion 4 without prejudice to its reassertion as to matters of that nature that are sought to be introduced at trial.
Next, Motion 5 (Dkt. 158) seeks "to bar references to disparate impact"--again an oversimplification. It is true that this Court's March 19, ...