United States District Court, D. South Carolina, Florence Division
R. BRYAN HARWELL UNITED STATES DISTRICT JUDGE
This matter is before the Court on Plaintiff’s motion in limine for negative inferences from missing evidence [ECF #117], Defendant’s motion in limine concerning damages [ECF #118], and Defendant’s omnibus motion in limine [ECF #119]. For the reasons set forth more fully below, the Court GRANTS IN PART and DENIES IN PART Plaintiff’s motion in limine for negative inferences from missing evidence [ECF #117]; GRANTS IN PART and DENIES IN PART, Defendant’s motion in limine concerning damages [ECF #118]; and GRANTS IN PART and DENIES IN PART, Defendant’s omnibus motion in limine [ECF #119].
This wrongful termination action was initially filed by Plaintiff, Deborah Drda Evans, in state court and was subsequently removed to this Court by Quintiles Transnational Corp. (“Quintiles”) on April 12, 2013. Among other things, Plaintiff alleged that Quintiles’ Code of Conduct contained enforceable promises that altered her at-will status and created an employment contract. Plaintiff filed her amended complaint [ECF #16] on August 7, 2013, alleging six causes of action: 1) negligent hiring, retention, and supervision; 2) breach of express employment contract based on a code of conduct; 3) breach of contract implied in law; 4) breach of contract implied in fact; 5) breach of contract accompanied by a fraudulent act; and 6) promissory estoppel. Quintiles moved for summary judgment as to all causes of action.
The Court held a hearing on Quintiles’ motion for summary judgment on March 25, 2015, and ruled from the bench ordering that summary judgment was granted as to Plaintiff's causes of action for negligent hiring, retention, and supervision, breach of contract implied in law, breach of contract implied in fact, breach of contract accompanied by a fraudulent act, and promissory estoppel. The Court ruled that summary judgment was granted in part and denied in part as to Plaintiff's cause of action for breach of employment contract based on the Code of Conduct altering the at-will status.
Specifically, because the record evidence established that the decision to terminate Plaintiff was made well before September 19, 2012, the Court granted summary judgment as to Plaintiff's claim that the employment contract was breached when she was terminated allegedly in retaliation for communicating a desire to report her supervisor, Gill, to human resources after an allegedly contentious meeting on September 19, 2012. The Court denied summary judgment, however, as to Plaintiff's claim that the employment contract was breached when she was terminated allegedly in retaliation for raising a good faith concern about the way travel-related rebates/commissions were handled and that her concerns were allegedly never investigated.
With respect to the sole remaining claim for breach of contract based on the Code of Conduct, Plaintiff claims that her at-will status was altered by two provisions or promises in the Code of Conduct - the alleged promise not to retaliate against employee’s who raise good faith concerns and the alleged promise to investigate those good faith concerns. The Court held that after reviewing the statements in the Code of Conduct, along with the disclaimer, the Court could not say beyond any doubt that an enforceable promise either did or did not exist. Consequently, the Court concluded it was proper to submit the issue of whether the Code of Conduct altered Plaintiff’s at-will status and created an employment contract to the jury. See Hessenthaler v. Tri-County Sister Help, Inc., 616 S.E.2d 694, 697 (S.C. 2003) (stating “[t]he issue of whether an employee handbook constitutes a contract should be submitted to the jury when the issue of the contract’s existence is questioned and the evidence is either conflicting or is capable of more than one inference”).
In anticipation of trial, Plaintiff filed a motion in limine requesting an order permitting the jury to make negative inferences from alleged missing evidence and allowing counsel to argue and refer to the negative inference in opening, testimony, closing, and jury charges. Quintiles filed an omnibus motion in limine seeking multiple pre-trial rulings on evidence and a motion in limine on damages that incorporates a Daubert challenge to Plaintiff’s damages experts.
A.V Plaintiff’s motion in limine - Adverse Inference from Missing Evidence
Plaintiff seeks an order permitting the jury to make negative inferences from missing evidence and allowing counsel to refer to such missing evidence and draw appropriate inferences in opening, testimony, closing, and jury charges. Plaintiff argues that she is entitled to an adverse inference instruction based on Quintiles’ failure to produce 1) Plaintiff’s computer file documenting Gill’s wrongdoing, and 2) commission-related documents.
Plaintiff was informed of her termination on September 28, 2012, and notified that it would be effective on October 28, 2012. Plaintiff claims that her company issued laptop computer contained a hidden file that she created documenting Gill’s alleged wrongdoing and containing other commission related documents. Plaintiff claims that during her conversation with Quintiles’ human resources representative on September 28, 2012, that she mentioned the existence of “notes” on her computer that she claimed would support her position that she was being retaliated against. Plaintiff states that she was unable to access her “notes” because her access to the laptop had been cut off. Plaintiff states that after she was notified of her termination, she turned her computer back in. On November 2, 2012, Plaintiff’s counsel sent Quintiles a demand letter alleging retaliatory discharge and indicating damages in excess of one million dollars. Plaintiff’s counsel did not reference a hidden computer file in his letter or request a litigation hold be placed on Plaintiff’s company issued laptop.
An affidavit from the Associate Director of Quintiles’ legal department, Kim Rose, states that Plaintiff was informed of her termination on September 28, 2012 and placed on 30 days administrative leave, which allowed her to continue to receive employment benefits until October 28, 2012, but relieved her of her job responsibilities. Rose’s affidavit further states that consistent with standard practice, Quintiles terminated Plaintiff’s access to the company’s computer network upon notification of her termination. Rose states that when an employee is terminated, they return any company issued laptop computer in the employee’s possession and that within 30 days the Outlook file is deleted and the laptop is reimaged for use by a new employee or is retired and recycled if it is past its useful life.
After this lawsuit commenced, on September 27, 2013, Plaintiff served requests for production on Quintiles requesting: 1) a complete copy of Plaintiff’s electronic calendar from 2009 through October 28, 2012; 2) a complete copy of Plaintiff’s electronic file/folder titled “Hotel” which was allegedly stored on her work computer; 3) all documents referring or relating to, describing or explaining, the method, procedure, or process by which hotel commissions earned are budgeted and managed by the VP Security of Defendant; and 4) all documents which pertain to how the commissions are used and accounted for by the Defendant.
As the affidavit of Kim Rose indicates, Quintiles states that it did not have possession of any documents responsive to Plaintiff’s requests and that no documents relating to the method, procedure, or process by which hotel commissions are earned, budgeted, used, and accounted for ever existed.
Plaintiff argues that if the Court finds a mere failure to produce, without more, that the jury should be allowed to make the following inferences: 1) Quintiles feared producing the computer file and the commission information would have exposed unfavorable facts to the jury; 2) Quintiles feared producing the computer file that would have documented numerous commission-related confrontations between Plaintiff and Gill; 3) Quintiles feared producing the computer file that would have documented the concerns Plaintiff raised to human resources; 4) Quintiles feared producing the computer file that would have documented the motivation for Gill’s alleged retaliation; 5) Quintiles feared producing the commission-related documents that would have adversely impacted the finding of whether their commission practices were wrongful; 6) Quintiles feared producing commission-related documents that would have shown that Gill was wrongfully diverting funds and misrepresenting lowest “net” rates to clients; 7) Quintiles feared producing commission-related documents that would have shown that the timing of Plaintiff’s confrontations with Gill coincided with her discovery of the alleged commission wrongdoing by Gill, and that Gill’s emails and decision to terminate Plaintiff were in retaliation to her raising those concerns; and 8) Quintiles feared producing the computer file and the commission documents that would show they had failed to properly investigate.
A party seeking sanctions based on the spoliation of evidence must establish three elements: (1) the party having control over the evidence had an obligation to preserve it when it was destroyed or altered; (2) the destruction or loss was accompanied by a “culpable state of mind;” and (3) the evidence that was destroyed or altered was “relevant” to the claims or defenses of the party that sought the discovery of the spoliated evidence, to the extent that a reasonable factfinder could conclude that the lost evidence would have supported the claims or defenses of the party that sought it. Thompson v. United States Dep't of Hous. & Urban Dev., 219 F.R.D. 93, 101 (D.Md. 2003) (citing Zubulake v. UBS Warburg LLC (Zubulake IV), 220 F.R.D. 212, 220 (S.D.N.Y. 2003))
In Vodusek v. Bayliner Marine Corp., 71 F.3d 148 (4th Cir. 1995), the Fourth Circuit addressed when an adverse inference jury instruction would be warranted for spoliation of evidence.
The Vodusek Court stated:
[T]he trial court has broad discretion to permit a jury to draw adverse inferences from a party’s failure to present evidence, the loss of evidence, or the destruction of evidence. While a finding of bad faith suffices to permit such an inference, it is not always necessary.
To draw an adverse inference from the absence, loss or destruction of evidence, it would have to appear that the evidence would have been relevant to an issue at trial and otherwise would naturally have been introduced into evidence. Even the mere failure, without more, to produce evidence that naturally would have elucidated a fact at issue permits an inference that “the party fears [to produce the evidence]; and this fear is some evidence that the circumstances or document or witness, if brought, would have exposed facts unfavorable to the party.” A party’s failure to produce evidence may, of course, be explained satisfactorily. When a proponent cannot produce original evidence of a fact because of loss or destruction of evidence, the court may permit proof by secondary evidence. But when a proponent’s intentional conduct contributes to the loss or destruction of evidence, the trial court has discretion to pursue a wide range of responses both for the purpose of leveling the evidentiary playing field and for the purpose of sanctioning the improper conduct. Even if a court determines not to exclude secondary evidence, it may still permit the jury to draw unfavorable inferences against the party responsible for the loss or destruction of the original evidence. An adverse inference about a party’s consciousness of the weakness of his case, however, cannot be drawn merely from his negligent loss or destruction of evidence; the inference requires a showing that the party knew the evidence was relevant to some issue at trial and that his willful conduct resulted in its loss or destruction.
Vodusek, 71 F.3d at 156 (emphasis added, internal citations omitted). Despite Plaintiff’s contention that the mere failure to produce is sufficient to permit an adverse inference, if a spoliator’s conduct is merely negligent, the adverse inference instruction is not an appropriate sanction. See Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 450-51 (4th Cir. 2004); Sampson v. City of Cambridge, Md., 251 F.R.D. 172, 181 (D. Md. 2008); Goodman v. Praxair Servs., Inc., 632 F.Supp.2d 494, 520-22 (D. Md. 2009).
Plaintiff seeks spoliation sanctions for: 1) failure to produce commission related documents allegedly created by Quintiles; and 2) failure to produce and/or the alleged destruction of Plaintiff’s hidden computer file that allegedly documented Gill’s wrongdoing.
Based on the record before the Court, there is insufficient evidence to conclude that the requested commission related documents allegedly created by Quintiles ever existed, therefore, the Court cannot find that Quintiles’ failure to produce the requested commission related documents warrants spoliation sanctions or an instruction permitting an adverse inference to be drawn from Quintiles’ failure to produce them. Plaintiff offers no evidence that the requested commission related documents ever existed. Plaintiff cannot establish that any Quintiles generated commission related documents were willfully lost or destroyed by Quintiles. Therefore, it would not be appropriate to allow the jury to draw an adverse inference from the alleged loss or destruction of the requested alleged Quintiles generated commission related documents.
With regard to the “hidden” computer file, assuming the file did in fact exist as Plaintiff claims, the duty to preserve Plaintiff’s company issued laptop and its contents could have arguably attached as early as Plaintiff’s conversations with human resources representative Jennifer Smith on or around September 28, 2012, or possibly as late as the receipt of Plaintiff’s counsel’s November 2, 2012 letter. “The duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.” Silvestri v. General Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001) (emphasis added). As Rose stated in her affidavit, when an employee is terminated, the employee returns any company issued laptop computer in the employee’s possession and within 30 days the Outlook file is deleted and the laptop is reimaged for use by a new employee or is retired and recycled if it is past its useful life. However, “[o]nce a party reasonably anticipates litigation, it is obligated to suspend its routine document retention/destruction policy and implement a ‘litigation’ hold to ensure the preservation of relevant documents.” Goodman, 632 F.Supp.2d at 511 (citing Thompson v. United States Dep't of Hous. & Urban Dev., 219 F.R.D. 93, 100 (D.Md. 2003)).
The issues of whether the alleged computer file ever existed and, if it did, whether and when Quintiles should have reasonably known that the evidence may be relevant to the anticipated litigation, and whether Quintiles willfully lost or destroyed the computer file rests on credibility determinations that this Court is not in a position make at this stage. Because of the disputed facts at issue, the Court is inclined to provide the jury with appropriate guidelines and instructions so that they, after hearing all of the evidence, can resolve any credibility questions and make a determination, first, as to whether the alleged computer file even existed on Plaintiff’s computer, whether and when Quintiles should have reasonably known that the evidence may be relevant to anticipated litigations, and, if so, whether Quintiles willfully lost or destroyed the file. The parties are invited to submit proposed jury instructions setting forth the applicable law. Accordingly, Plaintiff’s motion in limine for negative inferences from missing evidence is GRANTED in part and DENIED in part as to the alleged missing computer file to the extent the Court will allow Plaintiff to introduce evidence of the alleged missing computer file and its alleged loss or destruction. The Court will submit the spoliation issue of the alleged missing computer file to the jury. As to the requested Quintiles generated commission documents that were not produced, Plaintiff’s motion in limine for negative inferences is DENIED.
B. Quintiles’ motion in limine concerning damages
Quintiles moves to exclude certain portions of Plaintiff’s damages evidence including testimony from Plaintiff’s experts, Dr. Wood (economist) and Dr. Vander Kolk (vocational expert). Specifically, Quintiles argues: 1) Damages Motion in limine #1 - Plaintiff’s speculative testimony regarding how long she believes she would have worked for Quintiles absent her termination, whether she would have been promoted, and what her salary would have been if that promotion had occurred should be excluded; 2) Damages Motion in limine #2 - Plaintiff’s experts’ testimony should be excluded to the extent they adopt and rely on Plaintiff’s speculative testimony regarding the length of her employment, salary, and any promotions; Dr. Vander Kolk is not qualified to give an opinion on the quality of someone’s job search; Dr. Vander Kolk should not be permitted to testify about the length of time Plaintiff will remain unemployed; Dr. Vander Kolk’s opinion regarding comparable employment is unreliable; Dr. Wood’s opinions, to the extent they rely on Dr. Vander Kolk’s opinions, should be excluded; 3) Damages Motion in limine #3 - Plaintiff should not be permitted to testify regarding her emotional distress; 4) Damages Motion in limine #4 - Plaintiff should be prohibited from making any argument or request for punitive damages; and 5) Damages Motion in limine #5 - Plaintiff should be prohibited from introducing any evidence of any damages other than non-speculative compensatory damages based solely on lost wages.
In her response to Quintiles’ motion, Plaintiff indicates that she is not pursuing punitive damages or damages for emotional distress. Quintiles’ damages motion in limine ## 3 and 4 is GRANTED as to punitive damages and damages concerning alleged emotional distress.
Concerning Quintile’s damages motion in limine #1 regarding Plaintiff’s testimony as to how long she would have worked for Quintiles if not terminated, any promotions, or salary, Quintiles’ arguments go to the weight of the testimony rather than admissibility. The cases relied on by Quintiles are Title VII cases involving awards of front-pay, which is an equitable determination by the judge. In each of the cases, the awards of front-pay were challenged as unduly speculative. The jury, as fact-finder in this case, will determine future lost wages and be instructed that the amount of damages cannot be left to conjecture, guesswork, or speculation and that while proof of amount of loss with absolute or mathematical certainty is not required, damages must be proved with a reasonable degree of certainty. Quintiles is free to cross examine Plaintiff on the issue of damages and question the basis for her belief that she would have continued to work for Quintiles until retirement age and would have received a promotion and salary increase. Moreover, Quintiles could certainly call its own witnesses to challenge Plaintiff’s assertion that she would have continued to work at Quintiles until retirement age and would have received promotions and salary increases. It is the province of the jury to determine the amount of damages based on all of the evidence following appropriate instructions from the Court. Quintiles’ damages motion in limine #1 is DENIED.
With respect to Quintiles’ damages motion in limine #2 regarding the admissibility of testimony from Plaintiff’s ...