Posteraro v Citizens Financial

2016 DNH 003P
CourtDistrict Court, D. New Hampshire
DecidedJanuary 5, 2016
DocketCivil No. 13-cv-416-JL
StatusPublished

This text of 2016 DNH 003P (Posteraro v Citizens Financial) is published on Counsel Stack Legal Research, covering District Court, D. New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Posteraro v Citizens Financial, 2016 DNH 003P (D.N.H. 2016).

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Jennifer Posteraro

v. Civil No. 13-cv-416-JL Opinion No. 2016 DNH 003P Citizens Financial Group

ORDER ON MOTIONS IN LIMINE

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, 2015.1 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

1 Counsel declined the opportunity for oral argument at the pre-trial conference.

2 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.2

Accordingly, Citizens’ motion to exclude expert testimony (doc.

no. 43) is granted to the extent it seeks to preclude Posteraro’s

2 For example, Citizens points out that references to PTSD in the medical records were based on Posteraro’s own reports to her providers, rather than through clinical assessments by them.

3 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

4 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.3

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

3 Citizens also claims in its objection to plaintiff’s exhibits (doc. no. 55 at 3 n.1) that Posteraro conceded in an interrogatory answer that medical symptoms attributable to her employment at Citizens ended about a year after her departure, i.e., August 2012. As plaintiff’s interrogatory answers are not (yet) part of the record, the court does not pass on this assertion. If accurate, however, it would be a substantial impediment to a damage claim beyond that date.

5 Posteraro’s retaliation claim – perhaps as corroboration of her

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Aumand v. Dartmouth Hitchcock Medical Center
611 F. Supp. 2d 78 (D. New Hampshire, 2009)
Westerdahl v. Williams
276 F.R.D. 405 (D. New Hampshire, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
2016 DNH 003P, Counsel Stack Legal Research, https://law.counselstack.com/opinion/posteraro-v-citizens-financial-nhd-2016.