United States District Court, W.D. Wisconsin
ELIZABETH A. ERICKSON, Plaintiff,
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
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
Plaintiff's MIL No. 1: Bar Certain Affirmative Defenses
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.
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
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.
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.
Plaintiff's MIL No. 2: Bar Expert Testimony by Lay
Witnesses (dkt. #88)
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.
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) ¶
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.
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 ...