United States District Court, D. New Mexico
UNITED STATES OF AMERICA, and STATE OF NEW MEXICO, ex rel. JOSE HERNANDEZ-GIL, DMD, Relator Plaintiff,
DENTAL DREAMS, LLC A/K/A DENTAL EXPERTS, LLC, an Illinois limited liability company, SAMEERA TASNIM HUSSAIN, DMD, individually and as an organization agent, DENTAL DREAMS, LLC, a New Mexico limited liability company, FAMILY SMILES, LLC, a New Mexico limited liability company, FRANK VON WESTERNHAGEN, DDS, individually and as an organization agent, KOS SERVICES, LLC, an Illinois limited liability company, and KHURRAM HUSSAIN, ESQ., individually And as an organization agent, Defendants.
MEMORANDUM OPINION AND ORDER
matter is before the court on Defendants' Motion in
Limine to Exclude Evidence or Argument Related to
Massachusetts Settlement (ECF No. 139) and Relator's
Motion in Limine to Exclude Evidence and Argument (ECF No.
140). The Court, having considered the motions, briefs,
evidence, relevant law, and otherwise being fully advised,
will grant Defendants' motion in limine and will grant in
part and deny in part Relator's motion in limine.
401 states that evidence is relevant if “it has any
tendency to make a fact more or less probable than it would
be without the evidence” and “the fact is of
consequence in determining the action.” Fed.R.Evid.
401. A court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of unfair
prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative
evidence. Fed.R.Evid. 403. Rule 404(b) prohibits the
admission of evidence of crimes, wrongs, or other acts to
prove a person's character to show action that conforms
to that character, but it allows evidence of other bad acts
if admissible for other purposes, such as intent, knowledge,
absence of mistake, or lack of accident. See Fed. R.
Defendants' Motion in Limine to Exclude Evidence or
Argument Related to Massachusetts Settlement
seeks to exclude any evidence or argument relating to
settlements between Dental Dreams, LLC, a Massachusetts
entity, and the United States Attorney's Office for the
District of Massachusetts and the Massachusetts Attorney
General's Office (collectively, the “Massachusetts
settlement”). Relator does not oppose the motion or
requested order, subject to the one exception that Relator
requests the Court allow evidence or argument “in the
event that any of Defendants' witnesses give testimony or
otherwise provide evidence in a matter that is inconsistent
with the facts of the matter as explained in the Declaration
of Laura McLane that accompanied the Motion.”
Relator's Resp. 2, ECF No. 153. The Court finds that the
Massachusetts settlement is not relevant to this case. Even
if the evidence had any minimal probative value, the value is
substantially outweighed by the danger of undue prejudice,
confusing the issues, misleading the jury, and wasting time.
The Court will not permit inquiry by either party into the
Massachusetts settlement under Federal Rule of Evidence 403,
and therefore, there should be no basis for any possible
impeachment value regarding the contents of Ms. McClane's
Declaration. Accordingly, the Court will grant
Defendant's motion in limine in its entirety and preclude
evidence and argument regarding the Massachusetts settlement.
Relator's Motion in Limine to Exclude Evidence and
seeks to exclude evidence of the following: (1) his prior
employment history, (2) his subsequent employment history,
and (3) the New Mexico Department of Workforce Services'
“Determination of No. Probable Cause” Letter
(hereinafter “No Probable Cause Letter”).
Defendants argue that the No. Probable Cause Letter is
admissible under the public records exception to hearsay set
forth in Rule 803(8). Additionally, they assert that
Relator's prior and subsequent employment history are
relevant to Relator's damages.
determine whether Rule 404(b) evidence is admissible, courts
should consider four factors:
(1) the evidence must be offered for a proper purpose; (2)
the evidence must be relevant; (3) the trial court must make
a Rule 403 determination of whether the probative value of
the similar acts is substantially outweighed by its potential
for unfair prejudice; and (4) pursuant to Fed.R.Evid. 105,
the trial court shall, upon request, instruct the jury that
evidence of similar acts is to be considered only for the
proper purpose for which it was admitted.
United States v. Zamora, 222 F.3d 756, 762 (10th
portion of Relator's employment history was provided to
the Court in the summary judgment record. See
Def.'s Ex. 11, ECF No. 112-11. Relator seeks damages for,
among other things, “emotional distress and lost past
and future compensation and benefits.” Verified Am.
Compl. ¶ 330, ECF No. 52. The Court finds that
Relator's subsequent employment history is relevant to
the issue of mitigation of his damages. The evidence is thus
offered for a proper purpose and relevant to issues at trial,
so the first two factors set forth in Zamora have
been satisfied. The Court finds that the danger of unfair
prejudice is outweighed by the probative value of the
mitigation evidence, and can be cured by appropriate jury
instructions, if requested. The Court will therefore deny
Relator's motion in limine to exclude evidence of his
subsequent employment history. This ruling does not prevent
the parties from raising objections to specific evidence at
trial. Cf. Randolph v. ADT Sec. Services, Inc., Civ.
No. DKC 09-1790, 2012 WL 4480259, at *1 (D. Md. July 23,
2012) (unpublished) (holding that plaintiffs' subsequent
employment history is relevant to damages plaintiffs incurred
because of allegedly unlawful termination, and thus, denying
plaintiffs' motions to exclude “any and all”
evidence relating to their financial condition and employment
history after termination).
Relator's prior employment history, the Court finds it is
relevant to the issue of his damages, both his earning
capacity and the extent of his emotional distress damages.
Cf. Montoya v. Sheldon, 898 F.Supp.2d 1259, 1273
(D.N.M. 2012) (“Montoya's prior arrests are
relevant to the issue of his emotional distress damages,
because the amount of times and the manner in which M.
Montoya had been arrested up to the arrest, if he is claiming
emotional distress only to that time, or the amount of
arrests up until the present if he claims his emotional
damages are ongoing, makes more or less probable the
Defendants' arrest emotionally distressed him.”);
Martin v. Cottrell Contracting Corp., No.
7:00-CV-114-F(1), 2000 WL 331277232, at *1 (E.D. N.C. Sept.
13, 2000) (finding merit to defendant's argument that
“the Plaintiff's ‘employment history,
employability (or difficulty retaining employment), job
performance (including poor performance), advancement (or
lack thereof), and earnings history are all relevant to his
pre-injury earning capacity'”). The evidence is
thus offered for a proper purpose and relevant to issues at
trial, so the first two factors have been satisfied. The
probative value of the evidence is not substantially
outweighed by its potential for unfair prejudice, and a jury
instruction may be provided, upon request, to instruct the
jury that the evidence is to be considered only for the
proper purpose for which it is admitted. The Court will
therefore deny Relator's motion to exclude generally his
prior and subsequent employment history.
ruling, however, is without prejudice. Should evidence be
admitted that will result in mini-trials of the reasons for
why Relator left employment at each of the places, such
evidence has the potential for confusing the issues, creating
undue delay, and wasting time. At this stage, however, it is
unclear what specific evidence Defendants intend to present
at trial. Consequently, while generally permitting evidence
of prior and ...