The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge
ORDER ON MOTIONS IN LIMINE
Plaintiff and Defendant each move in limine for an order precluding the admission of certain evidence at trial. Each motion is addressed below.
A. Plaintiff's Motions in Limine
Motion in Limine No. 1 Plaintiff seeks to "exclud[e] any and all testimony, references to testimony[,] or argument based upon the testimony of [Defendant's human resources expert] Brian H. Kleiner, Ph.D." (Pl.'s Mot. in Limine ("MIL") No. 1, 1:21-24.*fn1 ) Plaintiff argues: "the sole opinion which Dr. Kleiner has been retained to offer at trial[:] . . . 'Defendant treated Plaintiff in a manner consistent with appropriate human resource management practice[,]' . . . has absolutely no bearing on any of the specific factual elements within Plaintiff's claims; nor does it have any bearing on the amount of damages Plaintiff suffered as a result of the termination, or whether Plaintiff failed to reasonably mitigate her losses." (Id. at 2:23-3:9.) Plaintiff further argues that Dr. Kleiner's expert opinion should be excluded under Federal Rule of Civil Procedure ("Rule") 403; "does not assist the trier of fact to understand the evidence or to determine a fact in issue[;] . . . is not the product of reliable principles and methods; and . . . is based on improper legal conclusions." (Id. at 2:6-9.)
Defendant rejoins that "Dr. Kleiner's [opinion] that Defendant treated Plaintiff in a manner consistent with appropriate human resource management practice is relevant because it will assist the jury, and because it concerns a matter that is not within the everyday knowledge and experience of a lay juror." (Def.'s Opp'n to Pl.'s MIL No. 1, 2:15-18.) Specifically, Defendant contends: Dr. Kleiner's proposed testimony that the Defendant acted in a manner consistent with appropriate human resource management practice will provide evidence from which inferences could be drawn that have probative value regarding Plaintiff's allegations that Defendant failed to provide reasonable accommodation, allegedly failed to engage in the interactive process, and allegedly made decisions adverse to Plaintiff as a pretext for discriminating against her.
(Id. at 3:19-23.) Defendant also counters that "the probative value of Dr. Kleiner's testimony is not substantially outweighed by the danger of unfair prejudice[,]" and "any areas of Dr. Kleiner's proposed expert testimony that Plaintiff contends are deficient concern the weight of his testimony not its admissibility, and can be properly explored on cross examination." (Id. at 1:24-27.)
"[N]umerous courts have permitted extensive testimony by human resources experts." Sitter v. Ascent Healthcare Solutions, Inc., No. C-09-5682 EMC, 2011 WL 2682976, at *1 (N.D. Cal. July 8, 2011). "In particular, courts commonly permit human resources experts to testify on human resources management policies and practices and whether an employer deviated from those policies and practices." Wood v. Mont. Dept. of Revenue, CV 10-13-H-DWM, 2011 WL 4348301, at *2 (D. Mont. Sept. 16, 2011); see, e.g., Equal Emp't Opportunity Comm'n v. Sierra Pac. Indus., No. 2:08-cv-01470-MCE-DAD, 2010 WL 3941416 at *1 (E.D. Cal. Oct. 5, 2010) (denying motion to exclude testimony of human resources expert stating the expert's testimony concerning "whether Defendant's management acted within the appropriate standard of care . . . may well assist the jury in reaching the ultimate conclusion in this matter: whether or not Defendant is liable for any discrimination . . . ."). Therefore, Plaintiff's motion is denied.
Plaintiff seeks to exclude "any and all testimony, references to testimony[,] or argument based upon the expert opinion of Carolyn Milloy." (Pl.'s MIL No. 2, 1:21-23.) Plaintiff indicates that Ms. Milloy is "Defendant's Senior [V]ice President and Human Resource Manager[,]" and that Defendant has designated her as a "percipient expert" concerning the "opinions . . . set forth in [her] September 30, 2010 correspondence to the Department of Fair Employment & Housing in which [she] responds to the [administrative] charge filed by Plaintiff." (Id. at 2:9-13 (internal quotation marks omitted).) Plaintiff argues: "[a]lthough Defendant discloses Ms. Milloy as . . . a 'percipient' expert, no evidence exists that Ms. Milloy was directly, or even indirectly, involved as a percipient witness to any of the personnel decisions or underlying issues involving Plaintiff which will be adjudicated at trial." (Id. at 2:16-19.) Plaintiff also argues that "Ms. Milloy's responses to Plaintiff's [administrative charge] do not assist the trier of fact to understand the evidence or to determine a fact in issue[;] . . . are not the product of reliable principles and methods; and . . . are based upon improper legal conclusions." (Id. at 2:2-6.)
Defendant counters that "Ms. Milloy's proposed percipient expert testimony meets the standards of admissibility under the Federal Rules of Evidence[,] and . . . [a]ny areas of Ms. Milloy's proposed expert testimony that Plaintiff claims are deficient go to the weight of her testimony not its admissibility, and can be properly explored on cross examination." (Def.'s Opp'n to Pl.'s MIL No. 2, 1:24-28.) Defendant contends:
[The September 30, 2010 response to Plaintiff's administrative charge] contains Ms. Milloy's opinions regarding Plaintiff's allegations that Defendant took adverse employment actions against Plaintiff in violation of the law, and regarding Defendant's compliance with its human resources policies. Because of her many years of experience in human resources, Ms. Milloy rendered opinions in the normal course of her work duties and/or observations pertinent to the issues in this case and is therefore a percipient expert witness. (Id. at 2:20-25 (internal citation omitted).)
Plaintiff has not shown that her motion should be granted; therefore, this motion is denied.
Plaintiff "moves . . . for an order barring Defendant from offering the expert testimony of [her three percipient expert witnesses], except to the extent that Defendant may elicit the testimony of these witnesses through cross-examination which is within the scope of testimony previously offered by Plaintiff on direct examination."
(Pl.'s MIL No. 3, 2:2-6.) Plaintiff states: "[t]he basis for [this] motion is that Defendant failed to disclose the aforementioned percipient expert witnesses under Rule 26(a)(2) and this Court's . . . Pretrial Scheduling Orders, as experts who Defendant may use at trial to present evidence under Federal Rule[s] of Evidence 702, 703 or 705." (Id. at 2:7-10.)
Plaintiff has not shown that this motion is ripe for decision since it is unclear at this juncture what examination of Plaintiff's percipient expert witnesses by Defendant will be permissible. Therefore, this motion is denied.
Plaintiff seeks to "exclud[e] any and all testimony, references to testimony[,] or argument related to Plaintiff's application for and receipt of unemployment insurance benefits." (Pl.'s MIL No. 4, 1:22-25.) Plaintiff argues: "Defendant is barred by the 'collateral source rule' from attempting to apply Plaintiff's receipt of unemployment insurance benefits as a setoff against Plaintiff's economic damage claim. Thus, evidence relating to Plaintiff's application for and receipt of unemployment insurance benefits has no relevance to any matter at issue." (Id. at 3:15-19.)
Defendant counters that "Plaintiff's unemployment benefits are . . . admissible to reduce the amount of Plaintiff's back pay and future pay claims." (Def.'s Opp'n to Pl.'s MIL No. 4, 1:25-26.) Defendant further argues that evidence of Plaintiff's receipt of unemployment benefits is also admissible "for the purpose of showing that Plaintiff did not mitigate her damages by obtaining new employment . . . ." (Id. at 2:6-7.) Defendant contends Plaintiff "had incentive not to take another job because she was receiving ...