The opinion of the court was delivered by: Slomsky, J.
Before the Court are Plaintiff Meyer Chatfield's Motion in Limine to Exclude Evidence Regarding Kosanda's Settled Claims Against it (Doc. No. 201); the Memorandum in Opposition filed by Defendants Century Business Services, Inc., (CBIZ), Benmark, Inc., and Lon Haines (Doc. No. 213); the Motion in Limine to Exclude Certain Testimony of Bennett Meyer (Doc. No. 195) and the Motion in Limine to Exclude Certain Testimony of William Flynt Gallagher (Doc. No. 196), both filed by Defendants CBIZ, Benmark, Inc., and Lon Haines; and Plaintiff's Responses (Docs. No. 219 and 220). For the following reasons, the Court will grant the Motion to Exclude Evidence Regarding Kosanda's settled claims, grant the Motion to Exclude Certain Testimony of Bennett Meyer, and deny the Motion to Exclude Certain Testimony of William Flynt Gallagher.
Plaintiff seeks to exclude testimony regarding the settlement agreement between Kosanda and Plaintiff. Defendants have withdrawn the settlement agreement itself as an exhibit, and seek only to admit testimony regarding disputes that arose between Kosanda and Plaintiff before Kosanda's termination as an employee of Plaintiff. The Court will grant Plaintiff's Motion to Exclude Evidence Regarding Kosanda's Settled Claims Against It, and will exclude only evidence regarding post-termination claims between Kosanda and Plaintiff.*fn1 Testimony of Bennett Meyer
Defendants seek to exclude testimony of Bennett Meyer regarding Meyer's perception of why Thomas Kosanda was terminated. Meyer is the President and CEO of Plaintiff and occupied these positions before and during Kosanda's termination. Defendants argue that the following testimony, indicated in italics, must be excluded under Federal Rule of Evidence 602:
Q: What was the cause [of Thomas Kosanda's termination]?
A: There were a lot of things. I guess his, just, behavior was detrimental to the company. The company couldn't keep functioning in a normal fashion if Mr. Kosanda stayed. He abused people. He just -- it was not a pleasant experience. In addition to that, once he started talking to the Benmark people, we figured he was going to leave. In hindsight, it appears to me to be the conspiracy that he started with Roger [Hague] back in Atlanta. Ultimately, I think a lot of his behavior was trying to get terminated.
Defendants' assert that the above testimony is merely Meyer's speculation on what motivated Kosanda to behave in a particular way, and that because Meyer lacks personal knowledge of Kosanda's inner thoughts, Meyer cannot be permitted to testify at trial about his speculation. Plaintiff asserts that Meyer's statements are admissible as his perception of Kosanda's behavior and termination.
Rule 602 provides that a witness "may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony." Although knowledge need not be absolute, and may be based on what a witness thinks he knows from personal perception, see Rule 602 advisory committee's note, "knowledge" does not include an impression or belief based on an "unwarrantable deduction of the mind from premises not well established," II Wigmore, Evidence, § 658, at 896 (Chadbourn rev. 1979). A witness may not "testify upon mere conjecture or belief." Id.
Here, despite Plaintiff's efforts to characterize Meyer's testimony as a "surmise" "based on observations," it is clear that Meyer's challenged testimony is merely his speculation about Kosanda's thought process, and as such is inadmissible under Rule 602. For these reasons, the Court will grant Defendants' motion and exclude Meyer's challenged testimony. The Court will also exclude those portions of Kosanda's trial deposition that reference or discuss Meyer's challenged testimony.*fn2
Testimony of William Flynt Gallagher
Defendants seek to exclude testimony of William Flynt Gallagher in relation to alleged prior acts of Defendants Lon Haines and Benmark. During his deposition, Gallagher, who worked as an independent contractor for Plaintiff, testified that he was "indirectly" solicited by Defendant Haines and Roger Hague, the President of Benmark, during a meeting in August 2004. (Def. Mem. Supp. Mot., Doc. No. 196, at 2 (hereinafter "Def. Mem.")). Defendants assert this evidence must be excluded under Federal Rule of Evidence 404(b) because it is evidence only of propensity. They argue that Plaintiff will seek to use the evidence to raise the inference that, because Haines and Benmark solicited Gallagher, they also solicited other employees, which is impermissible propensity evidence. (Id. at 4). Plaintiff asserts that the evidence is admissible as evidence of a breach of contract and under Rule 404(b) as evidence of a plan by Haines and Benmark to solicit Kosanda and his team. (Pl. Br. In Opp., Doc. No. 220, at 2 (hereinafter "Pl. Br.")).
All relevant evidence is admissible, except as otherwise provided by the Rules of Evidence, the Constitution of the United States, or an Act of Congress. Fed. R. Evid. 402. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Fed. R. Evid. 401. Evidence, though relevant, "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R. Evid. 403.
Rule 404(b) provides that "[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." The ...