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Edwards v. The Urban League of Nebraska, Inc.

United States District Court, D. Nebraska

July 10, 2019

KAREN EDWARDS, an individual; Plaintiff,
v.
THE URBAN LEAGUE OF NEBRASKA, INC., a Nebraska Non-Profit corporation; Defendant.

          MEMORANDUM AND ORDER

          Joseph F. Bataillon, Senior United States District Judge.

         This matter is before the Court on the parties' motions in limine, Filing No. 59 and 62.

         I. LAW

         Although the motion in limine is an important tool available to the trial judge to ensure the expeditious and evenhanded management of the trial proceedings, performing a gatekeeping function and sharpening the focus for later trial proceedings, some evidentiary submissions, cannot be evaluated accurately or sufficiently by the trial judge in such a procedural environment. Jonasson v. Lutheran Child and Family Servs., 115 F.3d 436, 440 (7th Cir. 1997). A motion in limine is appropriate for “evidentiary submissions that clearly ought not be presented to the jury because they clearly would be inadmissible for any purpose.” Id. In some instances, it is necessary to defer ruling until during trial, when the trial judge can better estimate the impact of the evidence on the jury. Id. The Eighth Circuit has noted that “[e]videntiary rulings made by a trial court during motions in limine are preliminary and may change depending on what actually happens at trial.” Walzer v. St. Joseph State Hosp., 231 F.3d 1108, 1113 (8th Cir. 2000). The Eighth Circuit has also “cautioned ... about the harmful effects of blanket evidentiary exclusions in discrimination cases.” Callanan v. Runyun, 75 F.3d 1293, 1297-98 (8th Cir. 1996).

         The primary purpose of the pretrial witness disclosure rule is to give parties notice of who will be called to testify, thereby avoiding unfair surprise or prejudice at trial. Morfeld v. Kehm, 803 F.2d 1452, 1455 (8th Cir. 1986). The rule should be applied flexibly and pragmatically and should seldom be used to bar a party's use of a witness not disclosed unless bad faith is involved. Id. at 1456.

         “Exclusion of evidence is a harsh penalty, and should be used sparingly.” ELCA Enters v. Sisco Equip. Rental & Sales, 53 F.3d 186, 190 (8th Cir. 1995); see also Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008) (describing factors to consider in deciding whether to exclude witness testimony for nondisclosure).

         Under Federal Rule of Evidence 701 “a lay witness may testify about facts within his or her range of generalized knowledge, experience, and perception.” United States v. Johnson, 688 F.3d 494, 503 (8th Cir. 2012) (quoting United States v. Espino, 317 F.3d 788, 797 (8th Cir. 2003)). If the witness testifying is not doing so as an expert, then any testimony expressing the witness's opinion or inferences is limited to those that “'are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' [sic] testimony or the determination of a fact in issue.'” United States v. Oslund, 453 F.3d 1048, 1058-59 (8th Cir. 2006) (quoting Fed.R.Evid. 701 (1998)). “Personal knowledge or perceptions based on experience is a sufficient foundation for such testimony.” Id. (quoting In re Air Crash At Little Rock Ark., 291 F.3d 503, 515 (8th Cir. 2002)). Lay testimony in the form of legal conclusions, however, is inadmissible, because it does not “help” the jury. United States v. Noel, 581 F.3d 490, 496 (7th Cir. 2009); see also Cowden v. BNSF Ry. Co., 980 F.Supp.2d 1106, 1117-18 (E.D. Mo. 2013). Credibility is an issue for the factfinder at trial. United States v. Vesey, 338 F.3d 913, 917 (8th Cir. 2003).

         The Eighth Circuit Court of Appeals recognizes that “[m]isconduct involving violations of narcotics laws is not an act involving dishonesty or untruthfulness and therefore may not be inquired into under Federal Rule of Evidence 608(b).” United States v. Turner, 104 F.3d 217, 223 (8th Cir. 1997). Nevertheless, some federal Circuit Courts of Appeals have recognized that evidence of a witness's drug use may be appropriate on cross-examination, as it bears directly on the witness's ability to perceive or recall events or to testify accurately about them. See, e.g., United States v. Robinson, 583 F.3d 1265, 1272, 1274-75 (10th Cir. 2009); Kunz v. DeFelice, 538 F.3d 667, 677 (7th Cir. 2008) (explaining that evidence of drug use may be used to impeach a witness's recollection of events but not for the impermissible “inference that drug users tend to lie”). “Evidence that a witness has used illegal drugs may be probative of the witness's ‘possible inability to recollect and relate, '” but such evidence may be admitted only “where the memory or mental capacity of a witness is legitimately at issue.” United States v. Cameron, 814 F.2d 403, 405 (7th Cir. 1987) (quoting United States v. Banks, 520 F.2d 627, 631 (7th Cir. 1975)); see, e.g., Sec. Nat'l Bank of Sioux City v. Abbott Labs., No. C 11-4017-MWB, 2013 WL 12140998, at *11 (N.D. Iowa Aug. 13, 2013). “[T]here is considerable danger that evidence that a witness has used illegal drugs may so prejudice the jury that it will excessively discount the witness' testimony.” Id. (noting that a court must “be chary in admitting such evidence when it is offered for the sole purpose of making a general character attack.”). Sec. Nat'l Bank of Sioux City, Iowa v. Abbott Labs., No. C 11-4017-MWB, 2013 WL 12140998, at *11 (N.D. Iowa Aug. 13, 2013).

         II. DISCUSSION

         A. Defendant's Motions in Limine (Filing No. 59)[1]

         1. The Urban League's motions in limine (Nos. 1-4) to exclude:

(a) any exhibits containing expert opinions that were not included in an expert witness disclosure, including Plaintiff's Proposed Exhibits 31, 32, 42, 43, 44, 45, 46, and 47;
(b) Any reference to expert opinions that were not included in an expert witness disclosure;
(c) any testimony from witnesses plaintiff did not previously identify, pursuant to Fed.R.Civ.P. 26(a)(1)(A)(i), as individuals having discoverable information plaintiff may use to ...

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