Patterson v. City of Charlotte

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:18-cv-00612-RJC-DSC
LANCE PATTERSON,
Plaintiff,
v.
CITY OF CHARLOTTE,
Defendant.
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Order
THIS MATTER comes before the Court on the Defendant City of Charlotte’s Request for
Clarification and Supplemental Motions in Limine (the “Motion”). (Doc. No. 315).
This matter consists of four separate actions filed by five plaintiffs asserting, among other
things, race discrimination in the Charlotte Fire Department. The Court consolidated the actions
for purposes of discovery. Joint-Plaintiffs Smith-Phifer and Patterson’s jury trial was scheduled
to begin on November 7, 2022. Before trial, the Court ruled on the Parties’ motions in limine.
(Doc. No. 285). On the Friday before trial, both Plaintiffs filed a motion to continue the trial due
to Plaintiff Patterson’s medical issue. The Court granted the motion to continue as to Patterson
and denied the motion to continue as to Plaintiff Smith-Phifer.
As scheduled, Plaintiff Smith-Phifer’s jury trial began on November 7, 2022, which was
ultimately resolved after numerous days without further need from the Court or jury. After
observing the testimony and evidence at Plaintiff Smith-Phifer’s trial, in the interest of providing
the parties with the Court’s rulings ahead of trial, the Court amended some of its rulings in the
original Order (Doc. No. 285) on the Parties’ motions in limine. (Doc. No. 311). Thereafter,
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Defendant filed the Motion requesting clarification as to the Court’s ruling and asking the Court
to exclude additional witnesses.
First, Defendant originally filed a motion in limine asking the Court to exclude evidence
of events prior to 2015, and specifically the 2006 to 2014 promotional processes. The Court ruled,
in its amended Order, that Plaintiff may present evidence related only to the Battalion Chief
promotional processes, including the handling of complaints and grievances related to the
Battalion Chief promotional processes, beginning in 2007. (Doc. No. 311). Defendant now
requests the Court exclude this evidence or testimony regarding processes prior to 2011, because
Plaintiff Patterson did not participate in the Battalion Chief promotional processes prior to 2011.
The Court will permit a limited inquiry into the Battalion Chief promotional processes prior to
2011, to establish the changes in the promotional processes and processes for handling grievances
and complaints related to the Battalion Chief promotional processes, offered to prove a
discriminatory basis for such changes to the extent the changes are relevant to the 2015 to 2019
promotional processes and/or handling of grievances related to the same. The Court will give a
limiting instruction that the evidence is being offered for that purpose, and that Defendant is not
on trial for any alleged discrimination in the Battalion Chief promotional processes prior to 2015.
As noted, the Court will only allow a limited inquiry to avoid evidence that is cumulative,
confusing, and a waste of time. Fed. R. Evid. 401; Fed. R. Evid. 403; Fed. R. Evid. 611.
Next, after the Court excluded Plaintiff’s expert witness Dr. Geisinger, Defendant requests
the Court prevent Plaintiff from calling Defendant’s expert witness, Dr. Locklear, or introducing
her reports. The Defendant does not intend to call Dr. Locklear. Courts take different approaches
when considering whether to allow a party to call the opposing party’s witness during their case-
in-chief. See House v. Combined Ins. Co. of Am., 168 F.R.D. 236 (N.D. Ia. 1996) (noting three
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different standards that courts have applied when considering whether a party to call an opposing
party’s witness). Ultimately, the decision is within the discretion of the district court, “to control
the mode and order of examining witnesses and presenting evidence, and [the court] is instructed
to exercise this discretion in order to (1) make those procedures effective for determining the truth;
(2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.”
Labat v. Rayner, No. 20-447, 2022 WL 1442982, at *2 (E.D. La. May 4, 2022).
Here, the Court, in its discretion, will not allow Plaintiff to call Defendant’s expert Dr.
Locklear. Plaintiff will “receive a windfall of expert testimony if permitted to call Defendant[’s]
expert[] in [his] case-in-chief.” Id. As one court recently explained:
One of the hardest things in litigation is finding a good expert. It is a skill that must
be learned and often takes a lot of time. Many plaintiffs’ lawyers expend their own
time without immediate compensation for their efforts. Lawyers often develop
close relationships with experts that can last well beyond that case and often surpass
multiple cases and years. It violates the principle of protecting an attorney’s work
if the opponent can call that witness as its own witness. The other side is getting
something for free . . . the opponent should have to show exceptional circumstances
to benefit from the other side’s work. Such free loading is inconsistent with the
Anglo-American adversarial system and with the American rule, which leaves
attorney fees with the parties.
Rawers v. United States, 488 F. Supp. 1059, 1084 n.29 (D.N.M. 2020). Defendant would be
prejudiced by allowing Plaintiff to call Dr. Locklear because Plaintiff would “piggyback on
another party’s trial preparation,” it would confuse the jury, and due to the potential for the jury to
learn Dr. Locklear is Defendant’s expert. Labat, 2022 WL 1442982, at *2. Dr. Locklear was
retained by Defendant as an expert in this case. Dr. Locklear may be privy to Defendant’s
privileged or work product information and materials, or Defendant’s trial preparation and
strategy. Additionally, Dr. Locklear’s work is at least in part intertwined with the Dr. Geisinger’s
opinions, which this Court already excluded. Finally, Defendant would be significantly prejudiced
if the jury were to learn that Dr. Locklear was an expert retained by Defendant, but that Plaintiff
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was calling Dr. Locklear on his case-in-chief. For these reasons, the Court will not allow Plaintiff
to call Dr. Locklear as an expert witness in his case-in-chief. Ferguson v. Michael Foods, Inc.,
189 F.R.D. 408 (D. Minn. 1999) (concluding plaintiff was not permitted to call defendant’s expert
during her case-in-chief due to the danger of prejudice).
Finally, Defendant asks the Court to exclude a number of witnesses from testifying at trial.
As an initial matter, the Court expects and assumes the authenticity of documents that the Parties
stipulated to in Plaintiff Smith-Phifer’s trial will be stipulated to again alleviating the need to call
witnesses solely for the purpose of authentication. The Court provides its ruling to each witness
below.
Witness Defendant
Requests to Exclude Ruling
Michael Clumpner
GRANTED IN PART. The Court reviewed Plaintiff’s proffer of Michael
Clumpner, and based on that proffer, Plaintiff may call Michael Clumpner
to testify only about his personal knowledge and observations of the 2015
to 2019 Battalion Chief promotional processes. Fed. R. Evid. 401; Fed. R.
Evid. 403; Fed. R. Evid. 611. However, the Court may reconsider this
ruling if it determines on its own motion or on Defendant’s motion that the
testimony would be cumulative, confusing, or waste the jury’s time. Fed.
R. Evid. 401; Fed. R. Evid. 403; Fed. R. Evid. 611.
The Court’s prior ruling continues to apply in Plaintiff Patterson’s trial
regarding the exclusion of Clumpner’s testimony about his own claims of
discrimination and retaliation against the Charlotte Fire Department. Doc.
No. 285.
Austin Faulk Nantz
GRANTED IN PART. The Court reviewed Plaintiff’s proffer of Austin
Nantz, and based on that proffer, Plaintiff may call Austin Nantz to testify
only to establish changes in the Battalion Chief promotional process and
personal knowledge as to the state of mind of relevant decisionmakers.
However, the Court will only allow a limited inquiry and may reconsider
this ruling if it determines on its own motion or on Defendant’s motion
that the testimony would be cumulative, confusing, waste the jury’s time
or prejudicial. Fed. R. Evid. 401; Fed. R. Evid. 403; Fed. R. Evid. 611.
The Court will also give appropriate limiting instructions.
Shane Nantz
GRANTED IN PART. The Court reviewed Plaintiff’s proffer of Shane
Nantz, and based on that proffer, Plaintiff may call Shane Nantz to testify
only about his personal knowledge and observations of relevant
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Witness Defendant
Requests to Exclude Ruling
comparators. However, the Court will only allow a limited inquiry and
may reconsider this ruling if it determines on its own motion or on
Defendant’s motion that the testimony would be cumulative, confusing, or
waste the jury’s time. Fed. R. Evid. 401; Fed. R. Evid. 403; Fed. R. Evid.
611.
The Court’s prior ruling continues to apply in Plaintiff Patterson’s trial
regarding the exclusion of Shane Nantz’s testimony about his own claims
of discrimination and retaliation against the Charlotte Fire Department.
Doc. No. 285.
Marty Puckett
GRANTED IN PART. The Court reviewed Plaintiff’s proffer of Marty
Puckett, and based on that proffer, Plaintiff may call Marty Puckett to
testify only about his personal knowledge of the changes in the testing
security processes for the Battalion Chief promotional processes
specifically; his observations of Plaintiff’s state of mind and emotional
distress, if any; and his personal knowledge and observations of the 2015
to 2019 Battalion Chief promotional processes. However, the Court may
reconsider this ruling if it determines on its own motion or on Defendant’s
motion that the testimony would be cumulative, confusing, or waste the
jury’s time. Fed. R. Evid. 401; Fed. R. Evid. 403; Fed. R. Evid. 611.
The Court’s prior ruling continues to apply in Plaintiff Patterson’s trial
regarding the exclusion of Marty Puckett’s testimony regarding his own
claims of discrimination and retaliation against the Charlotte Fire
Department. Doc. No. 285.
Kim Sanders
GRANTED. The Court reviewed Plaintiff’s proffer of Kim Sander’s
testimony, and based on Plaintiff’s proffer, the Court will exclude Kim
Sander’s testimony. Fed. R. Evid. 401; Fed. R. Evid. 403; Fed. R. Evid.
611. The Court expects and assumes the authenticity of documents that
the parties stipulated to in Plaintiff Smith-Phifer’s trial will, before trial
begins, be stipulated to again in Plaintiff Patterson’s trial alleviating the
need to call witnesses solely for authenticating documents. If that does
not occur, the Court will reconsider this ruling.
Larkin Anderson
GRANTED IN PART. The Court reviewed Plaintiff’s proffer of Larkin
Anderson’s testimony, and based on that proffer, Plaintiff may call Larkin
Anderson to testify about his personal knowledge and observations of
Patterson’s efforts to share the group’s concerns and demands with the
City Manager’s office. Anderson may not testify as to the specifics of the
group’s concerns or grievances, but only generally as to their existence
and Patterson’s involvement in sharing the concerns or grievances. Fed.
R. Evid. 401; Fed. R. Evid. 403; Fed. R. Evid. 611.
The Court’s prior ruling continues to apply in Plaintiff Patterson’s trial
regarding the exclusion of Larkin Anderson’s testimony regarding his own
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Witness Defendant
Requests to Exclude Ruling
claims of discrimination and retaliation against the Charlotte Fire
Department. Doc. No. 285.
Tom Brewer
GRANTED. The Court reviewed Plaintiff’s proffer of Tom Brewer’s
testimony, and based on Plaintiff’s proffer, the Court will exclude Tom
Brewer’s testimony. Fed. R. Evid. 401; Fed. R. Evid. 403; Fed. R. Evid.
408; Fed. R. Evid. 611.
Catherine Cooper
GRANTED. The Court reviewed Plaintiff’s proffer of Catherine Cooper’s
testimony, and based on that proffer, the Court will exclude Catherine
Cooper’s testimony. Fed. R. Evid. 401; Fed. R. Evid. 403.
Kevin Coppage
GRANTED IN PART. The Court reviewed Plaintiff’s proffer of Kevin
Coppage, and based on that proffer, Plaintiff may call Kevin Coppage to
testify about his observations and experiences serving as an assessor for
the Charlotte Fire Department for the 2018 Battalion Chief Promotional
Process. Fed. R. Evid. 401; Fed. R. Evid. 403; Fed. R. Evid. 611.
Vicki Foster
GRANTED. The Court reviewed Plaintiff’s proffer of Vicki Foster’s
testimony, and based on Plaintiff’s proffer, the Court will exclude Vicki
Foster’s testimony. Fed. R. Evid. 401; Fed. R. Evid. 403.
Rusty Garrison
GRANTED IN PART. The Court reviewed Plaintiff’s proffer of Rusty
Garrison, and based on that proffer, Plaintiff may call Rusty Garrison for
his personal knowledge and observations of Patterson’s performance at
fires as a Captain and serving as an assessor for Battalion Chief
promotional processes Patterson participated in, if any. Fed. R. Evid. 401;
Fed. R. Evid. 403; Fed. R. Evid. 611.
Scott Hunter, Jr. GRANTED. See Doc. No. 322.
Dr. Toni Locklear GRANTED. See above.
Corine Mack
GRANTED. The Court reviewed Plaintiff’s proffer of Corine Mack’s
testimony, and based on Plaintiff’s proffer, the Court will exclude Corine
Mack’s testimony. Fed. R. Evid. 401; Fed. R. Evid. 403.
Larry Mackey
GRANTED IN PART. The Court reviewed Plaintiff’s proffer of Larry
Mackey, and based on that proffer, Plaintiff may call Larry Mackey only
for testimony of his own personal knowledge and observations of
discrimination against Plaintiff by the decisionmakers in the 2015 to 2018
Battalion Chief promotional processes, if any. Additionally, Plaintiff may
call Larry Mackey to testify about his personal observations and
experiences of manipulation and exclusion by decisionmakers and HR for
the Battalion Chief promotional processes in which Patterson participated
in, if any. Fed. R. Evid. 401; Fed. R. Evid. 403; Fed. R. Evid. 611.
The Court’s prior ruling continues to apply in Plaintiff Patterson’s trial
regarding the exclusion of Larry Mackey’s testimony regarding his own
claims of discrimination and retaliation against the Charlotte Fire
Department. Doc. No. 285.
Garry McCormick GRANTED. The Court reviewed Plaintiff’s proffer of Gary
McCormick’s testimony, and based on Plaintiff’s proffer, the Court will
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Witness Defendant
Requests to Exclude Ruling
exclude Gary McCormick’s testimony. Fed. R. Evid. 401; Fed. R. Evid.
403.
The Court’s prior ruling excluding Garry McCormick’s testimony also
continues to apply in Plaintiff Patterson’s trial. Doc. No. 285.
Randy Moulton
GRANTED. The Court reviewed Plaintiff’s proffer of Randy Moulton’s
testimony, and based on Plaintiff’s proffer, the Court will exclude Randy
Moulton’s testimony. Fed. R. Evid. 401; Fed. R. Evid. 403.
Jeff Phifer
GRANTED IN PART. The Court reviewed Plaintiff’s proffer of Jeff
Phifer’s testimony, and based on Plaintiff’s proffer, the Court will allow
Jeff Phifer to testify only about his personal knowledge and observations,
if any, of Daracus Newman as an assessor for the 2018 Battalion Chief
promotional process. Fed. R. Evid. 401; Fed. R. Evid. 403; Fed. R. Evid.
611.
Tim Robinette
GRANTED IN PART. The Court reviewed Plaintiff’s proffer of Tim
Robinette’s testimony, and based on Plaintiff’s proffer, the Court will
allow Tim Robinette to testify only as to his personal knowledge and
observations of the 2015 Battalion Chief promotional process and as a
comparator. However, the Court may reconsider this ruling if it
determines on its own motion or on Defendant’s motion that the testimony
would be cumulative, confusing, or waste the jury’s time. Fed. R. Evid.
401; Fed. R. Evid. 403; Fed. R. Evid. 611.
Greg Sharpe
GRANTED. The Court reviewed Plaintiff’s proffer of Greg Sharpe’s
testimony, and based on Plaintiff’s proffer, the Court will exclude Greg
Sharpe’s testimony. Fed. R. Evid. 401; Fed. R. Evid. 403; Fed. R. Evid.
611.
The Court’s prior ruling also continues to apply in Plaintiff Patterson’s
trial regarding the exclusion of Greg Sharpe’s testimony regarding his own
claims of discrimination and retaliation against the Charlotte Fire
Department. Doc. No. 285.
Will Summers Jr.
GRANTED IN PART. The Court’s prior ruling continues to apply in
Plaintiff Patterson’s trial regarding the exclusion of Will Summers Jr.’s
testimony regarding his own claims of discrimination and retaliation
against the Charlotte Fire Department. Doc. No. 285.
Anne Wall GRANTED. See Doc. No. 322.
Jason Warren
GRANTED. The Court reviewed Plaintiff’s proffer of Jason Warren’s
testimony, and based on Plaintiff’s proffer, the Court will exclude Jason
Warren’s testimony. Fed. R. Evid. 401; Fed. R. Evid. 403; Fed. R. Evid.
611.
Jerry Winkles
GRANTED. The Court reviewed Plaintiff’s proffer of Jerry Winkles’
testimony, and based on Plaintiff’s proffer, the Court will exclude Jerry
Winkles’ testimony. Fed. R. Evid. 401; Fed. R. Evid. 403.
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SO ORDERED.
Signed: November 23, 2022
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