Mueller v. First Nat. Bank of the Quad Cities, 87-4100.
| Decision Date | 12 February 1992 |
| Docket Number | No. 87-4100.,87-4100. |
| Citation | 797 F. Supp. 656 |
| Parties | Theodore A. MUELLER, Plaintiff, v. FIRST NATIONAL BANK OF the QUAD CITIES, a National Banking Association, a Delaware Corporation, Defendant. |
| Court | U.S. District Court — Central District of Illinois |
Edward Sutkowski, Peoria, Ill., for plaintiff.
Martin K. Denis, Chicago, Ill., B. Douglas Stephens, Jr., Rock Island, Ill., for defendant.
Pending before the court is Plaintiff's motion in limine (# 110), Defendant's motion in limine (# 111), Defendant's second supplemental motion for summary judgment (# 122), and Defendant's motion for certification pursuant to 28 U.S.C. § 1292(b). For the reasons set forth below, the court grants in part and denies in part Plaintiff's motion in limine and Defendant's motion in limine, denies Defendant's motion for summary judgment, and grants Defendant's motion for certification pursuant to 28 U.S.C. § 1292(b).
Plaintiff's Motion in Limine.
1. Total Number of Exhibits. The court denies Plaintiff's motion regarding the restriction of the total number of exhibits to be used by the Defendant, or to otherwise determine whether Defendant needs to use over 300 exhibits.
2. Summaries of Committee Meeting Minutes. The court denies Plaintiff's motion regarding the exclusion of Defendant's Exhibits 229-239, which are summaries of discussions held in the directors' loan committee meetings. The court finds that these summaries are admissible under Federal Rule of Evidence 1006 as summaries of voluminous writings and therefore will be allowed. However, these summaries will not be admissible to the extent that they are determined at trial to be inaccurate or misleading.
3. Bealer's Business Records. The court grants Plaintiff's motion to exclude from evidence a variety of internal financial records of Mr. Bealer and his companies, Exhibits 146-159 and 162-166, to the extent that Defendant fails to show the relevance of these exhibits at trial by establishing, for instance, that Plaintiff saw the records contained in these exhibits prior to extending credit to Bealer. The court will not allow in any manner any reference to the record contained in Defendant's Exhibits 146-150 and 162-166 in opening arguments.
4. Bank's Loan Policy Documents. The court denies Plaintiff's motion regarding Defendant's Exhibit 136, the Bank's loan policy containing modifications made after Mueller's termination in 1986, and Defendant's Exhibit 139, portions of the Bank's lending policy. However, the court will require that a proper foundation be laid for these exhibits, and Defendant must redact any portion of Defendant's Exhibit 136 which reflects post-termination revisions of the loan policy. As to Defendant's Exhibit 139, Plaintiff may request at trial, pursuant to Federal Rule of Evidence 106, that Defendant be required to submit the entire loan policy from which Defendant's Exhibit 139 was taken.
5. Behrens's Expert Report. The court will reserve until trial its ruling on the admissibility of Defendant's Exhibit 141, a written opinion offered by expert witness Robert Behrens.
6. Defendant's Reports, Exhibits 144, 167, 168, and 169. The court denies Plaintiff's motion regarding Exhibit 144, a 1988 "Uniform Bank Performance Report" as it is admissible under Federal Rule of Evidence 803(8), which is the "public records" exception to the hearsay rule. The court denies Plaintiff's motion regarding Defendant's Exhibits 167 and 168, two booklets published by the Comptroller of Currency, as they are admissible under Federal Rule of Evidence 902(5) as self-authenticating and Federal Rule of Evidence 803(8) under the "public records" exception to the hearsay rule. The court denies Plaintiff's motion regarding Exhibit 169, a "news release" of the remarks of Robert L. Clark as it is admissible under Federal Rule of Evidence 902(5) as self-authenticating and Federal Rule of Evidence 803(8) under the "public records" exception of the hearsay rule. The court reserves its ruling on the relevance of Defendant's Exhibits 144, 167, 168, and 169 until trial.
7. Bealer Title Opinions. The court grants Plaintiff's motion regarding Exhibits 225-228 to the extent that they go beyond the underlying abstracts of title. The expert's written opinions in such documents are inadmissible as hearsay.
8. Job Advertisements. The court denies Plaintiff's motion regarding Defendant's Exhibits 255-260, 267-269, and 297-301, which are various job advertisements for newspapers and magazines. However, the court will require a proper showing of foundation at trial that these positions were available to and represented actual job openings for Plaintiff. Further, the court will reserve its ruling on the admissibility of Defendant's Exhibit 255, statistics on banks in the United States.
9. Experts' Resumes. The court denies Plaintiff's motion regarding the exclusion of the resumes of Defendant's experts, Defendant's Exhibits 289-294.
10. Post-Discharge Discovery. The court denies Plaintiff's motion regarding evidence discovered by the Bank after Plaintiff's May 1, 1986 termination. However, before introducing such evidence, Defendant's counsel must inform the court and opposing counsel so that the court can reassess the admissibility of this evidence at that time.
11. Comptroller of the Currency Form WP502-1-A. The court denies Plaintiff's motion regarding the introduction of Comptroller of Currency Form WP502-1-A, Salary Appraisal-Officers, intended to rebut Plaintiff's Exhibit 19.
Defendant's Motion in Limine.
1. Testimony Regarding Other Bank Employees' Own Employment. The court grants Defendant's motion regarding the exclusion of all testimony of other former or current Bank employees regarding statements made to them or occurrences regarding their own employment. Plaintiff concedes this point as no such testimony is anticipated.
2. Testimony By Other Employees Regarding Discrimination. The court grants Defendant's motion regarding testimony by other former or current Bank employees as to their belief that they were discriminated against. Plaintiff concedes this point as no such testimony is anticipated.
3. Employee Handbook. The court reserves ruling on the testimony and evidence regarding Defendant's Employee Handbook, Plaintiff's Exhibits 29, 42, and 43. The court holds that if testimony and evidence regarding the handbook is allowed and introduced for a limited purpose, the parties may submit a limiting jury instruction.
4. Plaintiff's Exhibit 19. The court reserves ruling on Plaintiff's Exhibit 19 concerning a purported re-creation of a document Plaintiff and his counsel believe they saw in reviewing documents the Bank produced in response to Plaintiff's discovery requests. Neither party shall refer to such evidence until the court has had an opportunity to consider an offer of proof on its admissibility.
5. Testimony by Plaintiff's Wife. The court grants Defendant's motion regarding the exclusion of all testimony of Plaintiff's wife regarding injuries or emotional distress suffered by her or Plaintiff as a result of the Bank's discharge decision. Plaintiff concedes this point as no such testimony is anticipated.
6. Testimony Regarding Plaintiff's Emotional Stress or Anxiety. The court grants Defendant's motion regarding all testimony regarding emotional distress or anxiety Plaintiff may have experienced while employed at the Bank or after his discharge in seeking employment as compensatory damages are not recoverable under either the ADEA or ERISA.
7. Testimony Regarding the Net Worth and Financial Condition of Defendant and Its Parent Company. The court reserves its ruling on the exclusion of all testimony about Defendant's current net worth and financial condition and that of its parent company, First of America. If Defendant attempts to make a "failing bank defense," evidence of Defendant's current net worth and financial condition will be allowed.
8. Evidence Regarding Front Pay. The court reserves until trial its ruling on the exclusion of all evidence regarding the issue of front pay from the jury, or, alternatively, whether front pay, if appropriate, should be determined by the court and not the jury.
9. Testimony Regarding Other Lawsuit and Plaintiff's Exhibit 26. The court denies Defendant's motion regarding testimony concerning the complaint and lawsuit, First National Bank of the Quad Cities, as Trustee Under Land Trust Agreement No. 1746 v. Petersen, Harned, Von Maur, No. 833-000836, and Plaintiff's Exhibit 26, with the provision that each party may submit a limiting jury instruction.
10. Plaintiff's Testimony as an Expert. The court denies Defendant's motion regarding exclusion of testimony by Plaintiff as an expert witness on lending practices. The court will allow Plaintiff to testify as an expert with the provision that each party may submit a cautionary jury instruction.
11. Testimony Regarding Defendant's Calculation of Pension Benefits. The court denies Defendant's motion to exclude testimony and documents regarding the Defendant Board's executive committee meeting on April 15, 1986 involving instructions to President Clark to calculate Plaintiff's pension and fringe benefit entitlements. However, the court requests that Plaintiff advise the court before introducing this evidence.
12. Whitmore Statement. The court grants Defendant's motion regarding "Charles Whitmore's 1984 early retirement" statement. The court will allow the Whitmore Outline into evidence but the "early retirement" statement must be redacted.
13. Testimony Regarding Abstract Age Comments or Generalities. The court grants Defendant's motion regarding the exclusion of abstract age comments or generalities involving or referring to Defendant's former Chairman, Lewis B. Wilson, with the further provision that if Plaintiff intends to elicit testimony about age comments involving other persons, Plaintiff's counsel will first inform that court of that intended...
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