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Payne v. University of Southern Mississippi

United States District Court, S.D. Mississippi, Southern Division

April 10, 2014

THOMAS PAYNE, Plaintiff,
v.
THE UNIVERSITY OF SOUTHERN MISSISSIPPI, et al., Defendants.

MEMORANDUM OPINION AND ORDER

KEITH STARRETT, District Judge.

The Court discussed the background of this case in its Memorandum Opinion and Order [147] of February 21, 2014. Payne v. Univ. of S. Miss., No. 1:12-CV-41-KS-MTP, 2014 U.S. Dist. LEXIS 22052 (S.D.Miss. Feb. 21, 2014). Defendants filed a Motion in Limine [135] prior to the Court's ruling on the dispositive motions, and the Court later ordered [149] them to file a revised motion. Defendants complied, and the revised Motion in Limine [156] is ready for review. For the reasons stated below, the Court grants it in part and denies it in part.

A. Dismissed Claims

First, Defendants argue that neither Plaintiff nor his counsel should be permitted to present evidence or argument related to any of the claims disposed of in the Court's previous opinion. Defendants anticipate that Plaintiff and his counsel will attempt to frame the case as encompassing claims that have already been dismissed, and to present evidence of events that are irrelevant to the remaining claims.

Defendants effectively seek the wholesale exclusion of evidence concerning many of the events in the background of this case, events leading up to and providing the context surrounding Plaintiff's remaining claims. But the Court can not assess argument, evidence, or testimony that is not before it, and it declines to sift through the record and speculate as to what Plaintiff may attempt to present at trial.

Furthermore, much of the evidence Defendants seek to exclude is, in fact, relevant to Plaintiff's claim for intentional infliction of emotional distress. Plaintiff has consistently maintained that those other events and actions - the ones underlying his dismissed claims - comprise part of the conduct underlying his claim for intentional infliction of emotional distress. For these reasons, the Court presently denies this motion, but Defendants may raise objections on a case-by-case basis at trial.

B. Termination/Constructive Discharge

Defendants argue that the Court should preclude Plaintiff and his counsel from testifying, arguing, or asserting that he was terminated or constructively discharged. The Court grants the motion in part. Plaintiff and his counsel may not argue, testify, or assert that he was terminated or constructively discharged, but Plaintiff is free to present evidence of his retirement and to discuss the circumstances surrounding it. Defendants may present objections on a more specific, case-by-case basis at trial.

C. Loss of Home/Restaurant

Defendants also argue that Plaintiff should not be permitted to present evidence or argument concerning the loss of his home or restaurant. The Court can not assess argument, evidence, or testimony that is not before it, and it declines to guess what Plaintiff may say regarding the loss of his home and restaurant. This motion is denied, but Defendants may raise more specific objections on a case-by-case basis at trial.

D. Out-of-Court Statements by Defendants

Defendants seek the exclusion of certain out-of-court statements by USM officials. This motion is denied. It is overbroad, and, in any case, the Court can not assess the admissibility of argument, evidence, or testimony that is not before it. Defendants may present objections on a case-by-case basis at trial.

E. Testimony of Dr. Julie Teater

Defendants seek the exclusion of testimony from Dr. Julie Teater on the basis that Plaintiff failed to designate her as an expert witness. Indeed, Plaintiff did not designate Teater as an expert, but he identified her as a treating physician in his interrogatory responses. Plaintiff also failed to produce Teater's medical records from his treatment, but Defendants obtained them through other means.

Rule 26 requires parties to disclose the identity of any person who will provide expert testimony at trial. FED. R. CIV. P. 26(a)(2)(A). "[I]f the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony, " the proponent of the expert testimony must provide a written report prepared and signed by the witness. FED. R. CIV. P. 26(a)(2)(B). If the expert witness is not required to provide a written report, the designation must provide the subject matter of the expert's testimony, and a summary of the facts and opinions to which she is expected to testify. FED. R. CIV. P. 26(a)(2)(C). These disclosures must be made and supplemented in the time and sequence ordered by the Court. FED. R. CIV. P. 26(a)(2)(D)-(E). A party's failure to do so is "grounds for prohibiting introduction of that evidence at trial." L.U.Civ.R. 26(a)(2).

Rule 26(a)(2)(A)'s designation requirement applies to all testifying experts, including treating physicians. Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 882-83 (5th Cir. 2004); BC's Heating & Air & Sheet Metal Works, Inc. v. Vermeer Mfg. Co., No. 2:11-CV-136-KS-MTP, 2012 U.S. ...


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