United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY DISTRICT JUDGE.
advance of the final pretrial conference scheduled for April
9, 2018, the court issues the following opinion and order on
the parties' motions in limine.
Plaintiff's Motions in Limine (dkt. ##47, 49, 51, 53,
Evidence or Testimony of Plaintiff's Criminal Convictions
contends that evidence and testimony related to her two
criminal convictions for misdemeanor theft in a business
setting of less than $2, 500 should be excluded under Rules
401, 402 and 609. As for Rules 401 and 402, plaintiff argues
that the criminal convictions have no relevance, since they
played no role in her termination. (Pl.'s Br. (dkt. #48)
2.) As for Rule 609, plaintiff argues her convictions may not
be used to impeach, since neither involved a crime
“punishable by death or imprisonment for more than one
year” or a situation where “establishing the
elements of the crime required proving - or the witness's
admitting - a dishonest act or false statement.”
(Id. at 2-3.) Indeed, Degner pleaded “no
contest” to two counts of violating Wis.Stat. §
943.20(1)(b) -- a class A misdemeanor punishable by “a
fine not to exceed $10, 000 or imprisonment not to exceed 9
months, or both.” (Id. at 3.)
response, defendant essentially concedes the lack of
relevance, except as it concerns impeachment for dishonesty.
For this purpose, defendant argues that evidence of the
convictions is admissible under Rule 609(b) even if the
elements of the Wisconsin criminal statute did not require a
dishonest act or false statement, because plaintiff's
specific business theft crimes involved efforts at
concealment. (Def.'s Opp'n (dkt. #80) 2-3.) Assuming
this court were willing to get into the weeds of the
underlying facts of criminal convictions that were never
fully adjudicated -- and it is not -- the use of these
generic misdemeanor “theft” offenses solely for
impeachment would be far more prejudicial than probative.
Accordingly, plaintiff's motion in limine is GRANTED.
Testimony of Dr. James Black regarding Plaintiff's
Leadership Skills or Performance (dkt. #49)
also seeks to exclude all evidence or testimony from Dr.
James Black regarding plaintiff's leadership skills or
work performance on grounds of relevance. According to the
declaration of Scott Ethun, Dr. Black reported in early 2014
that he had concerns about plaintiff's leadership, but
Ethun dismissed this feedback at that time. Indeed, Ethun
actually discontinued Dr. Black's contract,
feeling he was biased against plaintiff and would not help
her develop as a manager. (Pl.'s Br. (dkt. #50) 1-2.)
Plaintiff argues Ethun's immediate reaction to Dr.
Black's opinion undermines any claim that it later
affected Ethun's decision to terminate plaintiff,
rendering Dr. Black's testimony irrelevant, but that is a
question for the jury. Plaintiff also contends that because
Dr. Black's contract was discontinued at an unspecified
point in 2014, he would obviously be unaware of the specific
events leading to plaintiff's January 2016 termination.
court largely agrees that Dr. Black's testimony
would be of limited relevance, if any. Perhaps Black's
2014 opinions could have some relevance to the
extent that Ethun or some other decision maker relied on them
around the time of plaintiff's termination (Def.'s
Opp'n (dkt. #82) 2), but that is not the subject of this
motion in limine. Instead, plaintiff seeks to exclude Dr.
Black testifying himself, apparently either about his
conversation with Ethun or more general views as to the
plaintiff's leadership skills or performance.
the first category, Black's testimony would only be
necessary if plaintiff disputed Ethun's description of
what Black told him. As to the second, Black's testimony
would appear to be excluded by Fed.R.Evid. 404(a), which
prohibits admission of evidence “of a person's
character or trait of character . . . for the purpose of
proving action and conformity therewith on a particular
occasion.” Defendant provides the court with no
authority suggesting that this prohibition would not apply
here, and the only obvious exception to this prohibition
would be for habit under Rule 406 or impeachment under Rule
404(b). Since “leadership skills” or
“performance” do not come close to meeting the
requirements of a habit, that basis is easily rejected.
See Simplex, Inc. v. Diversified Energy Sys., Inc.
847 F.2d 1290, 1293 (7th Cir. 1988) (“before a court
may admit evidence of habit, the offering party must
establish the degree of specificity and frequency of uniform
response that ensures more than a mere ‘tendency'
to act in a given manner, but rather, conduct that is
'semi-automatic' in nature”). As for
impeachment, the only obvious exception would be character
for honesty, but there is no suggestion that Dr. Black with
be getting on the stand on that subject. Consequently,
plaintiff's motion in limine is GRANTED and Dr. Black
will not be permitted to testify about his impressions of
plaintiff's leadership skills or performance, unless
plaintiff opens the door by disputing the accuracy of any
recitation of Black's 2014 opinions admitted into
Testimony of David Rung regarding Plaintiff's Leadership
Skills or Performance (dkt. #51)
similarly argues that testimony by David Rung regarding her
leadership skills or performance should be excluded under
Rules 401, 402 and 403. As with Dr. Black, plaintiff asserts
that Rung's testimony is irrelevant, having retired from
Juneau County over two years before plaintiff was terminated.
(Pl.'s Br. (dkt. #52) 2.) Plaintiff also notes that Ethun
testified he felt Rung's criticism of plaintiff receiving
early tenure was “a little harsh on her because she was
new.” (Id. at 3.) Plaintiff separately argues
Rung's testimony would be needlessly cumulative to the
extent he were allowed to testify as to interactions between
plaintiffs and other employees who will be testifying about
their own interactions with plaintiff.
Dr. Black, defendant responds that Rung's testimony is
relevant to establish ongoing and escalating performance
problems that led to plaintiff's termination, even if the
culminating events occurred well after Rung's
interactions with her. (Def.'s Opp'n (dkt. #81) 2-3.)
Defendant also observes that Rung had a direct and regular
working relationship with plaintiff before his retirement.
(Id. at 3.) Finally, defendant argues that Rung, as
the former holder of plaintiff's job ...