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Equal Employment Opportunity Commission v. Novartis Pharmaceuticals Corp.

January 29, 2008

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF,
v.
NOVARTIS PHARMACEUTICALS CORP., DEFENDANT.



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

MEMORANDUM ORDER OF COURT

Presently before the Court are the following Motions in Limine filed by Plaintiff in this matter:

(1) EEOC'S FIRST MOTION IN LIMINE - MOTION TO PRECLUDE DEFENDANT FROM PRESENTING TESTIMONY FROM EMPLOYEE RICHARD DECKER (Document No. 74), the Response filed by Defendant (Document No. 80), and the Reply of the EEOC (Document No. 86);

(2) EEOC'S SECOND MOTION IN LIMINE - MOTION TO PRECLUDE DEFENDANT FROM PRESENTING TESTIMONY REGARDING THE ADVICE OF ITS LEGAL COUNSEL (Document No. 75) and the Response filed by Defendant (Document No. 81);

(3) EEOC'S THIRD MOTION IN LIMINE - MOTION TO PRECLUDE DEFENDANT FROM PRESENTING EVIDENCE OF TRAINING MATERIALS CONTAINED IN D-1958 (Document No. 76), the Response filed by Defendant (Document No. 82), the Reply filed by the EEOC (Document No. 85) and the Surreply filed by Defendant (Document No. 88); and

(4) EEOC'S FOURTH MOTION IN LIMINE -MOTION TO PRECLUDE DEFENDANT FROM PRESENTING EVIDENCE OF TRAINING MATERIALS OTHER THAN THOSE PRODUCED TO THE EEOC (Document No. 77), and the Response filed by Defendant (Document No. 83).

The Motions will be addressed seriatim.

PLAINTIFF'S FIRST MOTION IN LIMINE

Motion to Preclude Defendant from Presenting Testimony from Employee Richard Decker (Document No. 74)

Plaintiff seeks to preclude Defendant from calling Richard Decker as a witness at trial due to Defendant's failure to identify him as a witness in accordance with Federal Rule of Civil Procedure 26(a), (e)(1). Defendant responds that it does not intend to call Mr. Decker as a witness at trial because he is an "unavailable witness." Rather, Defendant has designated portions of Mr. Decker's deposition transcript for use at trial.

In response, Plaintiff contends that Defendant should also be precluded from introducing portions of Mr. Decker's deposition transcript. Plaintiff calls into question whether Mr. Decker is actually "an unavailable witness" because Defendant has produced no evidence that Mr. Decker is no longer employed by Novartis and is, thus, out of its control.

As to Plaintiff's latter objection, the Defendant, through counsel, has represented to the Court that Mr. Decker is an "unavailable witness." "As an officer of the court, an attorney must comport himself/herself with integrity and honesty when making representations regarding a matter in litigation." LaSalle Nat'l Bank v. First Conn. Holding Group, LLC, 287 F.3d 279, 293 (3d Cir. 2002). There is no reason to believe that the representation made by counsel for Defendant that Mr. Decker is unavailable has been made with anything but integrity and honesty. Accordingly, Defendant's representation in this regard is acknowledged and accepted by the Court.

Plaintiff also objects to the use at trial of selected portions of Mr. Decker's deposition transcript. However, the Court finds that Plaintiff would not be prejudiced by the presentation of such deposition testimony as same was elicited in a deposition that was noticed ...


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