United States District Court, D. New Hampshire
ORDER ON MOTIONS IN LIMINE
Joseph N. Laplante United States District Judge
Before the court are the parties’ respective motions in limine seeking to exclude various evidentiary items and issues from the upcoming trial in the above-captioned matter. Plaintiff Jennifer Posteraro sued her former employer, Citizens Financial Group (“Citizens”), and her former manager, Christos Hatzidakis, for, inter alia, violations of state and federal gender and disability discrimination laws. The court recently granted the bulk of defendants' motion for summary judgment (doc. no. 63). Accordingly, the only claims remaining for trial are Counts 5 and 6 against Citizens, which allege retaliation for complaining about sexual harassment and pursuing accommodation for her disabilities, in violation of Title VII and N.H. Rev. Stat. Ann. § 354-A:19.
Each side has filed motions in limine seeking to exclude evidence from trial. The court preliminarily addressed these motions at the final pre-trial conference held on December 30, 2015. As promised, the court makes the following, more detailed findings on the pending motions. The court reminds the parties that all of the rulings herein are made without prejudice to revisiting particular issues in response to circumstances that might arise during trial. Furthermore, these ruling are limited to grounds argued in the parties' filings. The court reserves the right to assess other factors at trial, such as authenticity, hearsay and best evidence. See Fed.R.Evid. 800 et seq., 900 et. seq., and 1000 et seq.
I. Citizens' Motions
A. Motion to exclude expert testimony (doc. no. 43)
Posteraro based her disability-related claims on diagnoses of post-traumatic stress disorder (“PTSD”), anxiety and depression. Citizens seeks to exclude expert testimony regarding PTSD and her treatment for anxiety and depression. The ostensible bases for the motion is Posteraro’s failure to properly disclose experts on those matters.
The court first observes that by granting summary judgment on Posteraro’s substantive ADA claim, the court has rendered much of the testimony on the issue of her disabilities irrelevant. Fed.R.Evid. 401. While such testimony might be relevant to the limited issue of whether Citizens’ alleged retaliation caused or exacerbated any of Posteraro’s medical conditions, Posteraro has made no disclosure of any non-retained experts on this subject, as is required by Fed.R.Civ.P. 26(a)(2)(A), (c) and (D). As the court noted in Aumand v. Dartmouth Hitchcock Med. Ctr., 611 F.Supp.2d 78, 88 (D.N.H. 2009), the failure to disclose still allows Posteraro’s treatment providers to testify about “‘what they saw and what they did’ in the course of caring for a patient; that would be fact testimony, rather than opinion testimony under Rule 702. But going beyond those facts triggers the disclosure requirement . . . .” To be sure, a treating physician can testify, absent a report, as to causation, diagnosis, prognosis and extent of disability “provided that [he or she] reached that conclusion in a reliable manner while examining and treating the plaintiff.” Westerdahl v. Williams, 276 F.R.D. 405, 408 (D.N.H. 2011) (citation and internal quotation omitted). But here, Posteraro’s objection to the instant motion does not cite any diagnoses or opinions that her treating physicians reached during the course of treatment.Accordingly, Citizens’ motion to exclude expert testimony (doc. no. 43) is granted to the extent it seeks to preclude Posteraro’s treating physicians from offering opinion testimony not based on their treatment.
B. Motion to exclude evidence of lost wages or benefits (Doc No. 44)
Posteraro originally sought lost wages based on her claims of wrongful termination and constructive discharge. However, the court granted summary judgment as to those claims, rendering evidence regarding lost wages or benefits irrelevant. Fed. R. Evid. 401, 402. Moreover, Posteraro has provided no authority for the proposition (and has not seriously or articulately argued) that she is entitled to recover lost wages for the periods of her leave that she requested as an accommodation under the ADA. Accordingly, Citizens’motion to exclude evidence of lost wages or benefits (doc. no. 44) is granted.
C. Motion to exclude evidence of damages after January 20, 2014, based on after-acquired evidence of misconduct (Doc. No. 45)
Citizens notes that in January 2014, during the course of discovery, it learned that Posteraro had been involuntarily terminated by two previous employers, facts which she did not disclose in her Citizens employment application. Citizens claims that had it still employed Posteraro, it would have terminated her upon learning this information. Therefore, any accumulation of damages should end at that date. The court need not specifically reach the issue, however, as the grant of summary judgment in Citizens’ favor on Posteraro’s wrongful termination and constructive discharge claims renders any lost wage evidence irrelevant. Fed.R.Evid. 401, 402. Accordingly, Citizens' motion to exclude evidence of damages after January 20, 2014 (doc. no. 45), is granted.
D. Motion to exclude evidence derived from Christos Hatzidakis's personnel file (Doc. No. 46)
Citizens argues that evidence of branch manager Hatzidakis’s poor performance or of disciplinary action it took against him for performance-related issues is irrelevant. The court disagrees. The only claim remaining in this case is for retaliation. As the court observed in its summary judgment order, there was evidence from which a jury could find that Hatzidakis retaliated against Posteraro because her protected activity - harassment complaints - “[got] him in trouble” with his superiors. 2015 DNH 237, 29. Accordingly, to the extent that evidence in Hatzidakis’s personnel file is relevant to Posteraro’s retaliation claim - perhaps as corroboration of her claims of ...