Boisvert v. Sears CV-96-495-M 05/01/98 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Jeanie T. Boisvert Plaintiff
v. Civil No. 96-495-M
Sears, Roebuck & Co. Defendant
O R D E R
The parties have filed several motions in limine in
anticipation of trial scheduled to begin next week. The parties'
motions are resolved as follows.
1. Plaintiff's Motion Regarding Defendant's Expert Witness, Catharine S. Newick (Document No. 48)
Ms. Newick is expected to testify about Boisvert's claimed
lost earnings. Sears submitted an expert disclosure and a report
that is neither signed nor dated. Boisvert's motion attacks the
substance of Newick's report, pointing out that some of the
factual bases of her opinion are contradicted by other evidence.
On that ground, plaintiff argues that Newick's report has "no
reasonable basis in fact" and asks that Newick be barred from
testifying to the contents of her report.
Federal Rules of Evidence 703 and 705 put the burden of
challenging the factual bases for an expert's opinion on the
opposing party's cross examination. Newell Puerto Rico, Ltd. v.
Rubbermaid, 20 F.3d 15, 20 (1st Cir. 1994). Boisvert's motion
seems to be a summary of cross examination material. The motion includes no legal support for Boisvert's argument that an expert
witness may be barred from testifying when plaintiff disputes the
factual bases of her opinion.
Accordingly, the motion (document no. 48) is denied.
2. Defendant's Motion to Preclude Testimony of Plaintiff's Economic Expert (Document no. 53)
Sears argues that Boisvert's expert's opinion of her lost
earnings is "irrelevant" because it is based on her salary before
she left Sears. Although this too is a factual issue, defendant
has a point - Boisvert cannot recover for income lost as a result
of her layoff during Sears's reorganization. Instead, Boisvert's
claim extends only to damages caused by Sears's allegedly
discriminatory failure to rehire her in August 1993. Thus, her
lost earnings claim must be based on what she would have earned
in the post-reorganization job for which she applied. If
Boisvert can show that her salary at Sears before she was laid
off is somehow relevant to what she would have earned if she had
been rehired (in a job available after reorganization), her
expert's opinion on that amount may be admissible. If not, it is
likely not to be admissible. Sears can object at trial if the
expert's opinion is offered and is irrelevant or otherwise
inadmissible.
Defendant's motion (document no. 53) is denied without
prejudice to make an appropriate objection at trial.
2 3. Defendant's Motion in Limine to Exclude Evidence of Defendant's Financial Worth (Documents no. 53 and 64)
Sears also asks that Boisvert's expert witness not be
permitted to testify about Sears's net worth because Boisvert did
not provide a sufficient factual basis for that opinion. In its
second motion. Sears asks that evidence of net worth be barred
until Boisvert establishes that she is entitled to punitive
damages.
Opinion testimony concerning Sears's net worth does not seem
to be relevant to any issue in this case. Since Sears is a well
known company, testimony about its worth is unnecessary to inform
the jury for purposes of calculating an appropriate (and
proportional) punitive damages award. Moreover, any award of
future damages and nonpecuniary damages including punitive
damages would be capped at $300,000 for a company the size of
Sears. 42 U.S.C.A. § 1981a(b)(3)(D). The Title VII cap on
damages is based on number of employees, not an employer's net
worth. Id.
Defendant's motion (document no. 53) is granted with respect
to precluding opinion testimony as to Sears's net worth on
grounds that such an opinion is irrelevant, or, to the extent
marginally relevant, such evidence will tend to confuse the
issues, confuse the jury, and waste time. Defendant's motion
(document no. 64) is denied as moot.
4. Defendant's Motion to Strike Claim for Punitive Damages (Document no. 49)
3 Sears argues that Boisvert's claim for punitive damages
should be stricken because there is no evidence to support the
"heightened standard" reguired for an award of punitive damages.
Plaintiff responds that the same intent necessary to show
intentional discrimination in a disparate treatment Title VII
case is enough to support an award of punitive damages.
Title VII punitive damages may be awarded "if the
complaining party demonstrates that the respondent engaged in a
discriminatory practice or discriminatory practices with malice
or with reckless indifference to the federally protected rights
of an aggrieved individual." 42 U.S.C.A. § 1981a(b)(1). The
First Circuit suggested in McKinnon v. Kwong Wah Restaurant, 83
F.3d 498, 507-09 (1st Cir. 1996) (Rosenn, J. of the Third Circuit
sitting by designation) that "malice" and "reckless indifference"
are something more than intentional discrimination, although the
holding in McKinnon is only that "the law does not reguire the
fact-finder to award punitive damages in every case underSection
1981a that involves an intentional tort." Id. at 509. See also,
e.g., Harris v. L & L Wings, Inc., 132 F.3d 978, 982 (4th Cir.
1997)(interpreting McKinnon to reguire more than intentional
discrimination as grounds for punitive damages). Since McKinnon,
the First Circuit has again considered the proof reguirement for
punitive damages under Section 1981a, using the federal standard
for determining punitive damages in a Massachusetts
discrimination case, and without citing McKinnon. The court
held, "A jury need not find some special sort of malign purpose
4 in order to exact punitive damages in a disparate treatment case
because the 'intent' that is necessary to undergird an award of
punitive damages in such a case is the same 'intent' that is
reguired for a finding of discrimination." Dichner v. Liberty
Travel, No. 97-2046, 1998 WL 161137 (1st Cir., April 13, 1998).
So, if Boisvert proves intentional discrimination, she would
be entitled to argue for punitive damages, although the jury
would, of course, not be obligated to award any punitive damages.
In addition, even if section 1981a were interpreted to reguire
something more than "mere" intent for an award, whether Boisvert
will introduce evidence sufficient to establish her entitlement
to punitive damages under a more demanding test presents a
factual guestion that cannot be resolved before trial.
Defendant's motion in limine to strike plaintiff's punitive
damages claim (document no. 49) is denied. Plaintiff's motion to
supplement (document no. 65) and motion for an emergency hearing
(document no. 66) are denied as moot.
5.
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Boisvert v. Sears CV-96-495-M 05/01/98 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Jeanie T. Boisvert Plaintiff
v. Civil No. 96-495-M
Sears, Roebuck & Co. Defendant
O R D E R
The parties have filed several motions in limine in
anticipation of trial scheduled to begin next week. The parties'
motions are resolved as follows.
1. Plaintiff's Motion Regarding Defendant's Expert Witness, Catharine S. Newick (Document No. 48)
Ms. Newick is expected to testify about Boisvert's claimed
lost earnings. Sears submitted an expert disclosure and a report
that is neither signed nor dated. Boisvert's motion attacks the
substance of Newick's report, pointing out that some of the
factual bases of her opinion are contradicted by other evidence.
On that ground, plaintiff argues that Newick's report has "no
reasonable basis in fact" and asks that Newick be barred from
testifying to the contents of her report.
Federal Rules of Evidence 703 and 705 put the burden of
challenging the factual bases for an expert's opinion on the
opposing party's cross examination. Newell Puerto Rico, Ltd. v.
Rubbermaid, 20 F.3d 15, 20 (1st Cir. 1994). Boisvert's motion
seems to be a summary of cross examination material. The motion includes no legal support for Boisvert's argument that an expert
witness may be barred from testifying when plaintiff disputes the
factual bases of her opinion.
Accordingly, the motion (document no. 48) is denied.
2. Defendant's Motion to Preclude Testimony of Plaintiff's Economic Expert (Document no. 53)
Sears argues that Boisvert's expert's opinion of her lost
earnings is "irrelevant" because it is based on her salary before
she left Sears. Although this too is a factual issue, defendant
has a point - Boisvert cannot recover for income lost as a result
of her layoff during Sears's reorganization. Instead, Boisvert's
claim extends only to damages caused by Sears's allegedly
discriminatory failure to rehire her in August 1993. Thus, her
lost earnings claim must be based on what she would have earned
in the post-reorganization job for which she applied. If
Boisvert can show that her salary at Sears before she was laid
off is somehow relevant to what she would have earned if she had
been rehired (in a job available after reorganization), her
expert's opinion on that amount may be admissible. If not, it is
likely not to be admissible. Sears can object at trial if the
expert's opinion is offered and is irrelevant or otherwise
inadmissible.
Defendant's motion (document no. 53) is denied without
prejudice to make an appropriate objection at trial.
2 3. Defendant's Motion in Limine to Exclude Evidence of Defendant's Financial Worth (Documents no. 53 and 64)
Sears also asks that Boisvert's expert witness not be
permitted to testify about Sears's net worth because Boisvert did
not provide a sufficient factual basis for that opinion. In its
second motion. Sears asks that evidence of net worth be barred
until Boisvert establishes that she is entitled to punitive
damages.
Opinion testimony concerning Sears's net worth does not seem
to be relevant to any issue in this case. Since Sears is a well
known company, testimony about its worth is unnecessary to inform
the jury for purposes of calculating an appropriate (and
proportional) punitive damages award. Moreover, any award of
future damages and nonpecuniary damages including punitive
damages would be capped at $300,000 for a company the size of
Sears. 42 U.S.C.A. § 1981a(b)(3)(D). The Title VII cap on
damages is based on number of employees, not an employer's net
worth. Id.
Defendant's motion (document no. 53) is granted with respect
to precluding opinion testimony as to Sears's net worth on
grounds that such an opinion is irrelevant, or, to the extent
marginally relevant, such evidence will tend to confuse the
issues, confuse the jury, and waste time. Defendant's motion
(document no. 64) is denied as moot.
4. Defendant's Motion to Strike Claim for Punitive Damages (Document no. 49)
3 Sears argues that Boisvert's claim for punitive damages
should be stricken because there is no evidence to support the
"heightened standard" reguired for an award of punitive damages.
Plaintiff responds that the same intent necessary to show
intentional discrimination in a disparate treatment Title VII
case is enough to support an award of punitive damages.
Title VII punitive damages may be awarded "if the
complaining party demonstrates that the respondent engaged in a
discriminatory practice or discriminatory practices with malice
or with reckless indifference to the federally protected rights
of an aggrieved individual." 42 U.S.C.A. § 1981a(b)(1). The
First Circuit suggested in McKinnon v. Kwong Wah Restaurant, 83
F.3d 498, 507-09 (1st Cir. 1996) (Rosenn, J. of the Third Circuit
sitting by designation) that "malice" and "reckless indifference"
are something more than intentional discrimination, although the
holding in McKinnon is only that "the law does not reguire the
fact-finder to award punitive damages in every case underSection
1981a that involves an intentional tort." Id. at 509. See also,
e.g., Harris v. L & L Wings, Inc., 132 F.3d 978, 982 (4th Cir.
1997)(interpreting McKinnon to reguire more than intentional
discrimination as grounds for punitive damages). Since McKinnon,
the First Circuit has again considered the proof reguirement for
punitive damages under Section 1981a, using the federal standard
for determining punitive damages in a Massachusetts
discrimination case, and without citing McKinnon. The court
held, "A jury need not find some special sort of malign purpose
4 in order to exact punitive damages in a disparate treatment case
because the 'intent' that is necessary to undergird an award of
punitive damages in such a case is the same 'intent' that is
reguired for a finding of discrimination." Dichner v. Liberty
Travel, No. 97-2046, 1998 WL 161137 (1st Cir., April 13, 1998).
So, if Boisvert proves intentional discrimination, she would
be entitled to argue for punitive damages, although the jury
would, of course, not be obligated to award any punitive damages.
In addition, even if section 1981a were interpreted to reguire
something more than "mere" intent for an award, whether Boisvert
will introduce evidence sufficient to establish her entitlement
to punitive damages under a more demanding test presents a
factual guestion that cannot be resolved before trial.
Defendant's motion in limine to strike plaintiff's punitive
damages claim (document no. 49) is denied. Plaintiff's motion to
supplement (document no. 65) and motion for an emergency hearing
(document no. 66) are denied as moot.
5. Plaintiff's Trial Memorandum - Admissibility of Evidence Concerning Plaintiff's Layoff (Document no. 47)
Plaintiff argues that evidence of the circumstances of her
layoff from Sears, which she contends was discriminatory, is
relevant background evidence tending to explain or put in context
Sears's decision not to rehire her. In general, that is correct.
See United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977) ("A
discriminatory act which is not made the basis for a timely
5 charge is the legal eguivalent of a discriminatory act which
occurred before the statute was passed. It may constitute
relevant background evidence in a proceeding in which the status
of a current practice is at issue, but separately considered, it
is merely an unfortunate event in history which has no present
legal conseguences. ; accord DeNovellis v. Shalala, 124 F.3d
298, 309 n.5 (1st Cir. 1997); Sabree v. United Brotherhood, 921
F.2d 396, 402 (1st Cir. 1990). Whether particular evidence or
testimony relating to Boisvert's layoff is relevant to her
discrimination claim must be determined in the trial context.
However, plaintiff's counsel is cautioned that extensive dwelling
on "background" evidence will not be allowed if the real issues
in the case become subsumed in the "background."
6. Plaintiff's Motion Regarding Defendant's Proffered Exhibits (Document no. 63)
Boisvert moves to preclude Sears from introducing certain
evidence that it listed as exhibits in its final pretrial
statement. Boisvert raises various grounds including that the
evidence is irrelevant, likely to confuse the jury, or incomplete
or inaccurate. Boisvert may raise her evidentiary objections at
trial, if and when Sears seeks to introduce the evidence, where
the probative value and other issues may be properly assessed in
the trial context. Plaintiff's motion (document no. 63) is
denied without prejudice to her raising the same objections at
trial.
6 SO ORDERED.
Steven J. McAuliffe United States District Judqe
May 1,1998
cc: Heather M. Burns, Esq Byry D. Kennedy, Esq. Joan Ackerstein, Esq.