United States District Court, W.D. Arkansas, Fort Smith Division
CHRISTINE BURDUE, Executrix of the estate of Stephan Hercher, PLAINTIFF
INTERNATIONAL PAPER COMPANY, DEFENDANT
OPINION AND ORDER
P.K. HOLMES, III CHIEF U.S. DISTRICT JUDGE
Before the Court are Plaintiff Christine Burdue’s motion in limine (Doc. 38) and amended motion in limine (Doc. 41), Defendant International Paper Company’s (“IP”) motion in limine (Doc. 42), and the parties’ responses and supporting documents (Docs. 39, 40, 45, and 46). Because Burdue’s original motion in limine is substantively identical to her amended motion, except for the addition of a confirmation that she conferred with opposing counsel, the Court finds that the original motion in limine (Doc. 38) should be DENIED AS MOOT. The Court will take up the remaining motions in turn.
I. Burdue’s Amended Motion in Limine 
Burdue seeks to exclude evidence or testimony related to: (1) Hercher’s personnel records prior to beginning employment with IP, i.e., pre-2008; (2) any audio recordings of Hercher; (3) Hercher’s medical records from 2014 or later; (4) Hercher’s state senate race; (5) Hercher’s unemployment benefits; and (6) the circumstances surrounding Hercher’s death. Burdue’s primary basis for excluding these items is that they are either irrelevant pursuant to Federal Rule of Evidence 401 or that their probative value would be substantially outweighed by the unfair prejudice caused by their introduction pursuant to Federal Rule of Evidence 403.
The Court declines to exclude any of the evidence or testimony identified by Burdue in advance of trial. While it is conceivable, and perhaps probable, that some of the evidence or testimony should ultimately be excluded, the Court finds it more appropriate to make a final determination on these matters if and when they are brought up during the trial. At that time the Court will be better able to judge the relevance and possible prejudice in the context of the evidence and testimony already received during the trial. Accordingly, Burdue’s amended motion in limine (Doc. 41) is DENIED WITHOUT PREJUDICE to Burdue raising objections to the above-mentioned evidence and testimony if and when it is sought to be introduced at trial.
II. International Paper Company’s Motion in Limine
A. Miscellaneous Requests to Exclude Evidence
IP requests that the Court exclude any and all evidence of or related to: (1) claims other than Hercher’s Americans with Disabilities Act (“ADA”) claim, as well as evidence related to punitive or liquidated damages; (2) the availability of part-time or light duty work at IP; (3) hearsay statements; (4) conduct of non-decision-makers at IP. Each of these requests seek blanket rulings excluding unidentified testimony. IP’s arguments in support tend to list one or more reasons that such evidence may possibly be excluded if offered for a purported purpose. However, at this time the Court has no way of concluding exactly what the purpose of certain testimony or evidence may be, or what its relevance may be in light of evidence to be received at trial. Therefore, the Court declines to make any final ruling at this time, and will instead address the admissibility of the types of evidence identified above if and when they are sought to be introduced at trial.
B. Information from Arkansas Department of Workforce Services
Burdue’s pretrial disclosure sheet lists a “Workforce services claimant statement” (Doc. 48-2, ¶ 33) and a “Determination 1tr of Workforce services 11/27/12” (Doc. 48-2, ¶ 37) as exhibits she intends to offer into evidence. IP requests that the Court exclude any documents obtained from the Arkansas Department of Workforce Services because they are privileged pursuant to Ark. Code Ann. §§ 11-10-314(a)(1), (a)(2)(A). Section 11-10-314(a)(1) provides that “information obtained by the Director of the Department of Workforce Services from any employing unit or individual . . . and any determination as to the rights or status of any employer or individual made by the director shall be held confidential and shall be protected by government privilege.” Furthermore, “The information shall not be used in any action or proceeding before any court . . . unless the Department of Workforce Services is a party, a real party in interest, or a complainant therein or unless the litigation involves criminal actions brought under provisions of this chapter.” Ark. Code Ann. § 11-10-314(a)(2)(A). Burdue’s response to IP’s motion does not contest that her proposed exhibits are subject to the statute preventing their use at trial, but instead simply recites why she intends to offer those particular exhibits. The exhibits appear to be protected from use at trial pursuant to Ark. Code. Ann. § 11-10-314(a)(2)(A). Moreover, the Department of Workforce Services is neither a party, real party in interest, or complainant, and the litigation does not involve criminal actions. Accordingly, the exhibits obtained from the Department of Workforce Services listed above will be excluded from trial.
C. Similarly Situated Individuals
IP also seeks to exclude any evidence or testimony regarding the treatment of other unknown, undisclosed truck drivers, and any other individuals who were not similarly situated to Hercher. IP takes particular issue with the introduction of evidence or testimony regarding IP’s red card attendance policy as it relates to employees other than Hercher. This kind of evidence would purportedly be offered to show that instances of disparate treatment support Hercher’s claim that the reasons given by IP for his termination were a pretext for discrimination. In order to make that kind of a showing, Burdue would bear the burden to prove that Hercher and those treated more favorably were “similarly situated in all relevant respects-a rigorous standard at the pretext stage.” Onyiah v. St. Cloud State University, 684 F.3d 711, 717 (8th Cir. 2012) (citation and internal quotations omitted). But the fact that Burdue may seek to offer evidence or testimony that, in the opinion of IP, would not meet that standard does not provide a sufficient basis for the Court to wholesale exclude such evidence or testimony at this time. The Court will instead make appropriate determinations as to the admissibility of evidence or testimony if and when it is offered at trial. In any event, it will remain Burdue’s burden to demonstrate individuals used as comparators were similarly situated to Hercher.
D. Mitigation of Damages
IP next points out that Hercher admitted in deposition testimony that he did not apply for any other jobs because he believed that they were not as good as the job he was terminated from at IP. IP contends that this testimony establishes that Hercher did not mitigate his damages as required and that Burdue should therefore be precluded from presenting any further testimony or evidence suggesting that Hercher did mitigate his damages. In any case, “[t]he employer has the burden to prove that the individual did not mitigate his damages.” Chalfant v. Titan Dist., Inc., 475 F.3d 982, 992 (8th Cir. 2007) (citation omitted). “[T]he individual’s efforts do not have to be successful but must represent an honest effort to find substantially equivalent work.” Id. (citation omitted). The jury may reasonably find that Hercher did not mitigate his damages after his termination from IP. However, IP’s circular reasoning-to not allow evidence that Hercher mitigated his damages because they assert that he did not-is not a sufficient basis to completely deny Burdue the opportunity to present evidence ...