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Erickson v. Department of Workforce Development

United States District Court, W.D. Wisconsin

November 1, 2016

ELIZABETH A. ERICKSON, Plaintiff,
v.
DEPARTMENT OF WORKFORCE DEVELOPMENT, DIVISION OF VOCATIONAL REHABILITATION OF THE STATE OF WISCONSIN, MICHAEL GRECO, JOHN HAUGH, and PATRICIA NOLAND, Defendants.

          OPINION AND ORDER

          WILLIAM M. CONLEY District Judge

         This case is set for a court trial on November 7, 2016. In advance of the final pretrial conference, the court issues the following decisions on the parties' motions in limine and on plaintiff's motion for reconsideration of the court's prior decision on the availability of compensatory damages.

         OPINION

         I. Plaintiff's Motions

         A. Plaintiff's MIL No. 1: Bar Certain Affirmative Defenses (dkt. #85)

         Plaintiff seeks an order precluding defendants from presenting any evidence that: (1) it would have been an “undue hardship” for DWD to accommodate Erickson; and (2) that Erickson failed to mitigate her damages. In support of the motion, plaintiff contends that Erickson failed to plead these affirmative defenses or otherwise raise the defenses during discovery, at summary judgment or in other motions.

         For their part, defendants acknowledge their failure to plead an “undue hardship” defense or otherwise assert it, and therefore they do not intend to raise this defense at trial. (Defs.' Resp. (dkt. #106) 1 n.1.) In contrast, defendants assert that they “expressly referenced a failure to mitigate damages defense in their Answer.” (Id. at 1-2.) The Answer, however, simply provides that “Defendants reserve the defense of Plaintiff's failure to mitigate damages.” (Answ. (dkt. #14) p.12 (emphasis added).) While this statement stopped short of actually asserting a mitigation defense in their pleadings, defendants also direct the court to discovery requests, and in particular, questions posed to Erickson during her deposition, in which defendants sought information about Erickson's attempts to obtain employment. (Defs.' Opp'n (dkt. #106) 2-3 (describing questions posed during deposition and discovery requests and responses).) As such, defendants have demonstrated that a failure to mitigate damages defense was in play, and plaintiff's counsel's representation that it first learned of this defense during pre-trial discussion is not credible.

         Moreover, plaintiff has failed to explain how she has been prejudiced by defendants' delay in formally asserting the defense. The only prejudice appears tied to the merits of the defense itself. To the extent there is any prejudice, the court will grant plaintiff greater latitude in offering evidence material to this defense.

         Accordingly, plaintiff's motion is GRANTED as unopposed with respect to the “undue hardship” defense and DENIED as to the “failure to mitigate” defense. Defendant is granted leave to amend its answer to assert a failure to mitigate damages defense.

         B. Plaintiff's MIL No. 2: Bar Expert Testimony by Lay Witnesses (dkt. #88)

         Next, plaintiff seeks an order excluding certain of defendants' proposed findings of fact as improper expert testimony under Federal Rule of Civil Procedure 37(c)(1). Specifically, plaintiff takes issue with seven statements by Erickson's former supervisors, Richard Clark and Patricia Noland, each of which she characterizes as “opinions based on specialized knowledge and experience in the field of vocational rehabilitation.” (Pl.'s Br. (dkt. #89) 3.) Because defendants failed to disclose any experts, including experts who are not required to provide a written report under Federal Rule of Civil Procedure 26(a)(2)(C), plaintiff contends that these statements should be excluded.

         Generally speaking, the challenged statements listed in plaintiff's brief involve: (1) the duties of the vocational rehabilitation counsel (“VCR”) position; (2) how performance of those duties is critical to the success of the DVR; and (3) how Erickson lacked abilities to perform those duties. (Pl.'s Br. (dkt. #89) 3-4) (citing Defs.' PFOFs (dkt. #37) ¶¶ 18, 26, 45, 46, 48, 116).) In addition to statements addressing those subjects, plaintiff seeks to strike a proposed finding involving a review of Erickson's case filed by DVR's Policy Analysts. (Id. at 5 (citing Defs.' PFOFs (dkt. #37) ¶ 112.)

         In response, defendants contend that Noland and Clark are not testifying as experts on scientific, technical or other specialized knowledge that would fall within the scope of 702. Instead, their testimony is specific to their first-hand knowledge of the role of the VRC and Erickson's performance in the role. The court agrees with defendants that the challenged statements in defendants' proposed findings of fact do not constitute traditional expert testimony. At most, some of the statements amount to permissible lay opinion under Fed.R.Civ.P. 701 for which no advance disclosure is required. Fed.R.Civ.P. 26(a)(2)(A). To the extent Noland or Clark's testimony during trial crosses the line into true expert testimony, plaintiff is free to object, but the court sees no basis to strike the proposed findings as improper expert testimony.

         As for plaintiff's final challenge to references of a review of Erickson's case files conducted by DVR policy analysts, the court agrees with defendants that this is simply a “fact of the case, not an expert opinion intended for use at trial.” Felix v. Wis. Dep't of Transp., 104 F.Supp.3d 945, 954-55 (E.D. Wis. 2015). Whether the resulting report is admissible is an issue for another day, but ...


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