Deghand v. Wal-Mart Stores, Inc.

• Decision Date: 08 September 1997
• Docket Number: No. 94-4172-SAC.,94-4172-SAC.
• Citation: 980 F.Supp. 1176
• Parties: Peggy DEGHAND, Plaintiff, v. WAL-MART STORES, INC., Defendant.
• Court: U.S. District Court — District of Kansas

980 F.Supp. 1176

Peggy DEGHAND, Plaintiff, v. WAL-MART STORES, INC., Defendant.

No. 94-4172-SAC.

United States District Court, D. Kansas.

September 8, 1997.

As Corrected September 9, 1997.

COPYRIGHT MATERIAL OMITTED

Amy C. Bixler, Alan G. Warner, Warner, Bixler & Associates, L.L.C., Topeka, KS, for Plaintiff.

Shelly L. Freeman, John R. Phillips, Paul F. Pautler, Jr., Julianne Popper, Blackwell, Sanders, Matheny, Weary & Lombardi, L.L.P., Kansas City, MO, for Defendant.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

This employment discrimination case is set for trial on the plaintiff's following three claims: (1) that in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112(b)(4), the defendant constructively discharged and mistreated the plaintiff because of her association with her disabled husband; (2) that in violation of Kansas common law, the defendant retaliated against the plaintiff because the plaintiff's husband, who also worked for the defendant, filed a worker's compensation claim; and (3) that in violation of Kansas common law, the defendant defamed the plaintiff in an employee's letter published to the defendant's management. The plaintiff alleges the defendant's retaliatory conduct began in July of 1993, "after her husband suffered a mental breakdown." (Dk. 82, p. 4). The parties have stipulated that from and after July 18, 1993, the plaintiff's husband was a disabled person as defined by the ADA.

DEFENDANT'S REQUEST FOR JUROR QUESTIONNAIRE (Dk. 97).

The defendant believes a likely subject during the voir dire process will be the depression that disabled the plaintiff's husband. The defendant argues a confidential juror questionnaire could protect a juror's privacy interest in such sensitive matters as depression, employment-related injuries, discipline in the work place, and employment termination. The defendant opines the questionnaire would avoid potential prejudice to the defendant and would shorten the jury selection process. The plaintiff has filed no response to this motion.

Voir dire examination is intended to enable the court to select an impartial jury and to assist counsel in using their peremptory challenges. Mu'Min v. Virginia, 500 U.S. 415, 431, 111 S.Ct. 1899, 1908, 114 L.Ed.2d 493 (1991). The conduct and content of voir dire are matters entrusted to the trial court's broad discretion. United States v. Maldonado-Rivera, 922 F.2d 934, 970 (2nd Cir.1990) cert. denied, 501 U.S. 1233, 111 S.Ct. 2858, 115 L.Ed.2d 1025, 1026 (1991). The Supreme Court more recently reminded us that:

It is true that "[v]oir dire `is conducted under the supervision of the court and a great deal must, of necessity, be left to its sound discretion.'" (citations omitted). The Constitution, after all, does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury. Even so, part of the guaranty of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors. (citations omitted). "Voir dire plays a critical function in assuring the criminal defendant that his [constitutional] right to an impartial jury will be honored. Without an adequate voir dire the trial judge's responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence cannot be fulfilled." (citation omitted). Hence, "[t]he exercise of [the trial court's] discretion, and the restriction upon inquiries at the request of counsel, [are] subject to the essential demands of fairness." (citation omitted).

Morgan v. Illinois, 504 U.S. 719, 729-30, 112 S.Ct. 2222, 2230, 119 L.Ed.2d 492 (1992).

"The judge decides what questions may be addressed to the jury panel, and `although the questioning must be fair, it need not include specific points requested by a particular defendant.'" Maldonado-Rivera, 922 F.2d at 970 (quoting United States v. Tutino, 883 F.2d 1125, 1133 (2nd Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1139, 107 L.Ed.2d 1044 (1990)). The voir dire examination is adequate if it tests the qualifications and competency of the prospective jurors and if the tests employed reasonably assure that prejudice, if present, would have been discovered. United States v. Flores, 63 F.3d 1342, 1353 (5th Cir.1995), cert. denied, ___ U.S. ___, 117 S.Ct. 87, 136 L.Ed.2d 43 (1996); United States v. Bedonie, 913 F.2d 782, 795 (10th Cir.1990), cert. denied, 501 U.S. 1253, 111 S.Ct. 2895, 115 L.Ed.2d 1059 (1991).

In the typical case, a written questionnaire may work a savings in time when the prospective juror's written responses are made under penalty of perjury and can substitute for the oral voir dire. This savings in time is not without a cost. The court, the parties and their attorneys lose the opportunity to observe demeanor. The Supreme Court said in Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22 (1981):

Despite its importance, the adequacy of voir dire is not easily subject to appellate review. The trial judge's function at this point in the trial is not unlike that of the jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions.

The Supreme Court echoed this same concern about observing juror demeanor in Mu'Min, when the defendant argued that pretrial written questionnaires would allow the juror to disclose the content of pretrial publicity. 500 U.S. at 424-25, 111 S.Ct. at 1905. ("[S]uch written answers would not give counsel or the court any exposure to the demeanor of the juror in the course of answering the content questions.") How a person says something can be as telling as what a person says.

It goes without question that a case directly implicating sensitive, personal, moral or religious issues may warrant written jury questionnaires. The court, however, believes the sensitive issues here are not likely to involve a significant number of jurors. The court further believes that these matters can be adequately handled through standard oral voir dire procedures. General questions will determine those panel members who may have something more to say that could embarrass the panel member, compromise a privacy interest, or prejudice the jury panel. If necessary, such a panel member will be questioned at the bench outside the hearing of other panel members. This procedure is as effective as written questionnaires. See Tomson v. Stephan, 699 F.Supp. 860 (D.Kan. 1988). The defendant's motion for leave to submit jury questionnaire is denied.

DEFENDANT'S MOTION IN LIMINE (Dk. 91).

Citing Rules 401 and 403 of the Federal Rules of Evidence, the defendant moves to exclude the following areas of evidence as speculative, irrelevant, unfairly prejudicial and likely to confuse the issues and to mislead the jury.

A creature of neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence, the motion in limine gives the court the opportunity to take up before trial those certain and limited evidentiary issues in order to minimize interruptions at trial. Banque Hypothecaire Du Canton v. Union Mines, Inc., 652 F.Supp. 1400, 1401 (D.Md.1987). The propriety of entering an order in limine depends on the particular situation. Cipollone v. Liggett Group, Inc., 644 F.Supp. 283, 286 (D.N.J.1986). If the admissibility of certain evidence turns upon what facts are developed at trial, it is the better practice to wait until trial to decide the objections. See Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 395, 46 L.Ed.2d 303 (1975); Hunter v. Blair, 120 F.R.D. 667 (S.D.Ohio 1987). In its discretion, the court may decline deciding a motion in limine which would have little impact on the parties' evidentiary burdens or preparation for trial. Cipollone, 644 F.Supp. at 286. A ruling in limine may be subject to change based upon developments at trial, and the ruling does not remove the obligation of the party to object, to move to strike, or to make offers of proof. Thweatt v. Ontko, 814 F.2d 1466, 1470 (10th Cir.1987).

Testimony and Evidence of Plaintiff's Economic Expert

The defendant argues that the opinion of the plaintiff's economic expert, Dr. Gary Baker, should be excluded because it is "not based upon an accurate factual foundation." (Dk. 91). The defendant complains that Dr. Baker was not given and did not rely on a complete history of the plaintiff's earnings at Sam's Club. As reflected in his report attached to the plaintiff's response, Dr. Baker bases his calculations on the following employment history:

The loss on income to Peggy Degland (sic) began on October 7, 1993, the date her employment was terminated by the management of Sam's Club. At the time of her dismissal she was working 37.5 hours per week earning $9.20 per hour. She was expected to work one Sunday per month for which she was paid time and one half.

During the year Ms. Degland (sic) worked 1,950 hours at $9.20 for an annual income of $17,940. Each month Ms. Degland (sic) worked 7.5 hours at time and one-half. This would be a premium of $4.60 per hour on Sundays. This would had an additional income of $414 per year. Peggy Degland's (sic) annual compensation was $18,354.

(Dk. 94, Ex. 2). The plaintiff argues that her expert was provided with sufficient, reliable information and that the assumptions underlying his opinion are both reasonable and necessary.

Trial courts enjoy broad discretion in determining the admissibility of expert testimony. Kieffer v. Weston Land, Inc., 90 F.3d 1496, 1499 (10th Cir.1996). "An expert opinion must be based on facts that enable the expert `to express a reasonably accurate conclusion as opposed to conjecture or speculation [but] absolute certainty is not required.'" Id. (quoting Jones v. Otis Elevator Co., 861 F.2d 655, 662 (11th Cir.1988))....