Jelinek v. Abbott Laboratories , 2019 Ohio 3860 ( 2019 )

[Cite as Jelinek v. Abbott Laboratories, 2019-Ohio-3860.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
David A. Jelinek, :
Plaintiff-Appellant, :
v.
: No. 17AP-576
(C.P.C. No. 99CVH-7505)
Abbott Laboratories, :
Ross Products Division, (REGULAR CALENDAR)
c/o CT Corporation :
Registered Agent et al.,
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on September 24, 2019
On brief: Law Offices of Russell A. Kelm, Russell A. Kelm,
and Ian M. King, for appellant. Argued: Russell A. Kelm.
On brief: Kirkland & Ellis LLP, James F. Hurst, Christa C.
Cottrell, and Rebecca Fitzpatrick pro hac vice; Vorys, Sater,
Seymour and Pease LLP, and Lisa Pierce Reisz, for appellee
Abbott Laboratories. Argued: Christa C. Cottrell.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} This is an appeal by plaintiff-appellant, David A. Jelinek, from a final
judgment entered by the Franklin County Court of Common Pleas following a jury verdict
in favor or defendant-appellee, Abbott Laboratories, Ross Products Division ("Abbott"),
on appellant's claim for age discrimination.
No. 17AP-576 2
{¶ 2} This matter has a lengthy procedural history. On September 10, 1999,
appellant refiled a complaint in the common pleas court against Abbott, Joy A.
Amundson, Thomas M. McNally, William H. Stadtlander, Karl V. Insani, Gregory A.
Lindberg, and James L. Sipes. Appellant is a former employee of Abbott, and the
individual defendants were either current or former employees of Abbott. The complaint
alleged causes of action for promissory estoppel, age discrimination, retaliation, violation
of public policy, and spoliation of evidence.
{¶ 3} By entry filed May 9, 2000, the trial court dismissed the promissory
estoppel claims against the individual defendants and struck the spoliation of evidence
claim. Abbott and the individual defendants subsequently filed a motion for summary
judgment. By decision rendered January 23, 2001, the trial court granted summary
judgment in favor of Abbott and the individual defendants as to the remaining claims.
{¶ 4} Appellant appealed the trial court's grant of summary judgment. In Jelinek
v. Abbott Laboratories, 10th Dist. No. 01AP-217 (Sept. 13, 2001) ("Jelinek I"), this court
affirmed the trial court's grant of summary judgment as to appellant's claim for
retaliation/wrongful discharge, but reversed and remanded the matter as to claims for age
discrimination, promissory estoppel, and constructive discharge.
{¶ 5} The matter came for trial before a jury beginning April 8, 2002. During the
course of the trial, the trial court granted directed verdict motions in favor of defendants
Joy A. Amundson (individually "Amundson") and James L. Sipes (individually "Sipes").
Following a three-week trial, the jury returned a verdict in favor of appellant and against
Abbott and two individual defendants, Karl V. Insani (individually "Insani") and
Gregory A. Lindberg (individually "Lindberg"), as to appellant's claim for age
discrimination, awarding appellant $700,000 in compensatory damages and
$25,000,000 in punitive damages, as well as attorney fees. See Jelinek v. Abbott
Laboratories, 164 Ohio App. 3d 607, 2005-Ohio-5696, ¶ 23 (10th Dist.) ("Jelinek II"). The
jury found in favor of defendants on appellant's claims of promissory estoppel and
constructive discharge. The jury also found defendants William H. Stadtlander
(individually "Stadtlander") and Thomas M. McNally (individually "McNally") did not
discriminate against appellant by transferring him to Lake County, Indiana because of his
age.
No. 17AP-576 3
{¶ 6} On June 7, 2002, Abbott filed a motion for judgment notwithstanding the
verdict ("JNOV"), for a new trial or, in the alternative, for remittitur. On May 20, 2003,
the trial court ruled on the motion for JNOV, finding the award for compensatory
damages was excessive, and that it should be reduced to an award of $100,000. The court
also found the award of punitive damages to be excessive, and provided for a remittitur
which would reduce the award to $4,000,000. See Jelinek II at ¶ 26. On June 23, 2003,
the trial court entered judgment in favor of Abbott on appellant's claim for promissory
estoppel, and entered judgment in favor of Abbott, Insani, and Lindberg on appellant's
claim for constructive discharge. The trial court also entered JNOV in favor of defendants
on appellant's age discrimination claim and, in the event the JNOV was reversed on
appeal, granted a new trial on the issue of age discrimination.
{¶ 7} Appellant filed an appeal from the judgment of the trial court. In Jelinek II,
this court held the trial court erred in granting defendants' motion for JNOV as to
appellant's age discrimination claim, but further held the court did not abuse its
discretion in conditionally granting a new trial on the age discrimination claim against
Abbott, Insani, and Lindberg. This court also made a determination that the jury found
appellant failed to prove constructive discharge. The matter was therefore remanded to
the trial court for further proceedings.
{¶ 8} On February 4, 2008, the case came for retrial before a jury. Following
opening statements, counsel for defendants filed a motion for mistrial based on
comments made by counsel for appellant during opening statements. By entry filed
February 5, 2008, the trial court granted the motion for mistrial.
{¶ 9} The matter came for retrial beginning September 12, 2011. At the close of
appellant's case-in-chief, the trial court granted defendants' motion for directed verdict on
appellant's age discrimination claim against Lindberg, and also granted defendants'
motion for directed verdict on appellant's claim for punitive damages. Following
deliberations, the jury returned a unanimous verdict in favor of Abbott and Insani on
appellant's claim for age discrimination.
{¶ 10} Appellant appealed the jury verdict. In Jelinek v. Abbott Laboratories, 10th
Dist. No. 11AP-996, 2013-Ohio-1675 ("Jelinek III"), this court found the trial court erred
in excluding evidence of the quality of a sales territory offered to appellant, and that such
No. 17AP-576 4
exclusion affected appellant's substantial rights. This court also held the trial court erred
in excluding, under Evid.R. 801(D)(2)(a), the statement of a party opponent. We
therefore reversed and remanded the matter for a new trial.
{¶ 11} The matter was again tried before a jury beginning May 22, 2017. On
June 7, 2017, the jury returned a verdict in favor of Abbott and against appellant on the
issue of age discrimination, including a finding that appellant did not prove Abbott
intentionally discriminated against him by offering him a transfer to territory in Lake
County, Indiana. On July 11, 2017, the trial court filed a final judgment entry in favor of
Abbott.
{¶ 12} On appeal, appellant sets forth the following three assignments of error for
this court's review:
Assignment of Error No. 1: THE TRIAL COURT ERRED AS A
MATTER OF LAW BY FAILING TO COMPEL DEFENDANT-
APPELLEE TO PRODUCE ACCURATE STATISTICAL
EVIDENCE OF THE COMPANY-WIDE REDUCTION IN
FORCE, AND BY EXCLUDING ANY AND ALL
[STATISTICAL] EVIDENCE AT TRIAL.
Assignment of Error No. 2: THE TRIAL COURT ERRED AS A
MATTER OF LAW BY GRANTING DEFENDANT-
APPELLEE'S MOTION in limine AND EXCLUDING
CIRCUMSTANTIAL EVIDENCE OF AGE DISCRIMINATION
AND PRETEXT.
Assignment of Error No. 3: THE TRIAL COURT ERRED BY
AWARDING COSTS TO DEFENDANT-APPELLEE, BUT
REFUSING TO SIMILARLY AWARD COSTS TO PLAINTIFF-
APPELLANT.
{¶ 13} Appellant's first and second assignments of error are interrelated and will
be addressed together. Under these assignments of error, appellant asserts the trial court
erred by: (1) failing to compel Abbott to provide accurate statistical evidence of the
company-wide reduction in force ("RIF") in 1997, (2) excluding all statistical evidence at
trial, and (3) granting Abbott's motion in limine and excluding circumstantial evidence at
trial to show age discrimination.
{¶ 14} We first address appellant's assertion the trial court erred by failing to
compel appellee to provide "accurate" statistical evidence of the 1997 RIF. (Appellant's
No. 17AP-576 5
Brief at 22.) By way of background, appellant, who was born May 15, 1942, worked in
various sales positions with Abbott over an approximately 30-year period. In early 1997,
Abbott created a new sales position, primary care district manager ("PCDM"), and
appellant became one of seven PCDMs nationwide. Later that same year, Abbott
underwent a RIF, affecting over 200 employees.
{¶ 15} In October 1997, Abbott made the decision to eliminate all seven of the
recently created PCDM positions. At the time, Abbott offered appellant (who had been
based in Columbus, Ohio) a position in a territory known as Lake County, Indiana, which
included Gary, Indiana. Appellant accepted the position, but only worked at the Indiana
territory for approximately one week. Appellant retired from Abbott, effective April 1,
1998, at age 55.
{¶ 16} At trial, appellant's theory of the case, as outlined by his counsel in opening
statements, was that Abbott's offer of a position in Gary, Indiana, following elimination of
the PCDM positions, was pretext for age discrimination, i.e., counsel argued the offer was
made by Abbott with the knowledge appellant would not accept the position because it
was an unfavorable sales territory. More specifically, counsel argued (and appellant
subsequently testified) that the territory in Indiana had been "collapsed," meaning "no
one is effectively serving it, and they disperse the sales accounts to the surrounding
salesman." (Tr. Vol. II at 416.) By contrast, witnesses for Abbott testified that the Indiana
territory was not collapsed and that appellant was offered the position in Indiana because
there were no sales positions available in Columbus, Ohio, following the 1997 RIF and the
elimination of all seven PCDM positions.
{¶ 17} Appellant argues on appeal that Abbott, over the years of litigation in this
matter, has changed its position as to whether the PCDM position he held was part of the
1997 RIF. Appellant maintains that Abbott, from the start of litigation, repeatedly refused
to provide discovery evidence regarding the RIF. Appellant contends that counsel for
Abbott, during the 2002 trial, stated Abbott would never contend appellant was included
in the RIF. Further, on the eve of the 2011 trial, appellant requested statistics and other
discovery relating to the RIF based on the suspicion Abbott planned to claim appellant
was included in the RIF.
No. 17AP-576 6
{¶ 18} On appeal, appellant challenges a discovery ruling issued by the trial court
prior to the most recent trial. Appellant concedes, as he did at trial, that Abbott's decision
to eliminate the PCDM positions (including his position) was not discriminatory. He
maintains, however, that the RIF as a whole was implemented in a discriminatory
manner.
{¶ 19} In response, Abbott argues that the bulk of appellant's argument on appeal
discusses discovery rulings that preceded the previous trials rather than the trial court's
discovery ruling in the most recent trial. Abbott notes that, unlike discovery rulings in the
earlier trials, which denied appellant's motions to compel, the trial court in the latest
proceeding granted appellant's motion to compel discovery relating to the 1997 RIF.
Abbott further contends it produced the requested information, and that appellant never
claimed the production was incomplete or insufficient. Finally, Abbott argues appellant
did not proffer the evidence he claims was properly excluded, nor does he now cite a
single document, witness, or line of testimony that he would have presented had the trial
court ruled differently.
{¶ 20} A trial court "has broad discretion in regulating the discovery process."
Zimpfer v. Roach, 3d Dist. No. 17-17-03, 2017-Ohio-8437, ¶ 27. This court reviews a trial
court's resolution of discovery matters "under an abuse of discretion standard." Bennett
v. Martin, 10th Dist. No. 13AP-99, 2013-Ohio-5445, ¶ 36.
{¶ 21} We begin with a review of appellant's motion to compel, filed September 5,
2014. In that motion, appellant requested the trial court "compel defendant to produce
discovery requested by plaintiff relating to the 1997 reduction in force." Appellant argued
he was entitled to information that would allow him to run statistical analyses regarding
the ages of workers who lost their jobs in the 1997 RIF. Appellant's memorandum in
support, citing "the early days of the pendency" of appellant's claims, set forth nine bullet
points which, he argued, involved objections by Abbott to discovery requests involving the
1997 RIF. On September 22, 2014, Abbott filed a memorandum in opposition to
appellant's motion to compel.
{¶ 22} On November 26, 2014, the trial court issued its decision and entry granting
in part appellant's motion to compel discovery relating to the 1997 RIF. In its decision,
the trial court initially addressed appellant's motion to compel, stating in part:
No. 17AP-576 7
"[Appellant] bulleted nine issues addressing at least 15 specific requests, which were
contained in at least two overarching requests for production. These requests are
impossible to follow out of context and largely fail to demonstrate their individual
relevance." (Nov. 26, 2014 Decision at 4.) The trial court noted direction provided by this
court, as set forth in Jelinek III, regarding issues on remand. Specifically, the trial court
observed: "The Tenth District strongly suggested that a statistical analysis of the RIF
would be useful if 'the methodology and the explanatory power of the statistical analysis
[is] sufficient to permit an inference of discrimination.' " (Emphasis sic.) (Nov. 26, 2014
Decision at 2-3).
{¶ 23} In granting in part appellant's motion to compel, the trial court ordered
Abbott to "produce information including the names, ages, qualifications, full-time or
part-time status, and salaries of those subject to the 1997 RIF," and further ordered
Abbott to "provide identical information for those workers retained by the Ross division
after the RIF." (Nov. 26, 2014 Decision at 5.) The trial court also held appellant "must
then identify any expert and provide the expert's report no fewer than 90 days prior to
trial," and that Abbott "must then identify any expert and provide the expert's report no
fewer than 60 days prior to trial." (Nov. 26, 2014 Decision at 5.)
{¶ 24} On January 8, 2015, the trial court set a discovery cutoff date of April 1,
2015. On April 1, 2015, appellant filed a motion for extension of discovery cutoff. In the
motion, appellant requested the court to move the discovery cutoff date to September 1,
2015 on the basis that the trial date had been moved from June 8 to November 8, 2015.
Abbott filed a memorandum in opposition to appellant's motion for extension of
discovery cutoff. In its memorandum, Abbott argued it had "provided the discovery it was
ordered to produce per the Court's November 26, 2014 decision on Plaintiff's Motion to
Compel Discovery Relating to the 1997 Reduction in Force on January 12, 2015." (Defs'
Memo in Opposition at 1.) By entry and decision filed April 27, 2015, the trial court
denied "a general extension of discovery at this time." (Apr. 27, 2015 Entry & Decision.)
The court's entry further provided: "Plaintiff and Defendant are welcome to petition the
Court for the extension of a limited discovery period, so long as parties expand on what
additional discovery is necessary for trial." (Apr. 27, 2015 Entry & Decision.)
No. 17AP-576 8
{¶ 25} On appeal, appellant acknowledges the trial court ordered discovery as to
the 1997 RIF, but argues the court erred in denying additional discovery necessary for
statistical analysis. However, as noted by Abbott, while appellant asserts the trial court
erred by not ordering Abbott to produce even more information about the RIF, appellant
does not identify any additional discovery that was denied or explain why the information
the trial court ordered Abbott to produce was insufficient. Nor does appellant dispute
Abbott produced the information the trial court deemed to be discoverable in its decision
and entry of November 26, 2014.
{¶ 26} Appellant also claims that "[f]urther discovery on this matter was denied by
the trial court" in its April 27, 2015 entry ruling on appellant's motion for an extension of
discovery cutoff. (Appellant's Brief at 31.) However, while the trial court's entry denied
appellant's request for a general extension of discovery, the court further held, as cited
above, the parties were "welcome to petition the Court for the extension of a limited
discovery period, so long as parties expand on what additional discovery is necessary for
trial." The record fails to indicate that appellant petitioned the court for additional
supplemental discovery with respect to statistical evidence. In light of the record
presented, and where the trial court ordered significant discovery as to the 1997 RIF
(which Abbott produced), we find no abuse of discretion.
{¶ 27} Appellant next contends the trial court erred by excluding all statistical
evidence at trial. Appellant asserts the trial court's decision to exclude the statistical
evidence was based on an erroneous interpretation of this court's decision in Jelinek III.
{¶ 28} In Jelinek III, one of the issues addressed by this court, under appellant's
third assignment of error, involved the trial court's decision in the 2011 trial to exclude
appellant's statistical evidence related to the RIF, while also including a jury instruction
"that placed a heightened burden" on appellant because he was part of a RIF. Jelinek III
at ¶ 28. Specifically, this court noted the apparent discord where the trial court
"instructed the jury that [appellant] needed to come forward with additional evidence, but
disallowed discovery and introduction of the evidence." Id. at ¶ 31. Having determined
that the matter must be remanded for a new trial based on an unrelated assignment of
error, this court overruled the third assignment of error as moot, but further observed: "If,
when the case is retried, Abbott intends to argue that the elimination of Jelinek's position
No. 17AP-576 9
was part of an overall reduction in force in order to receive the heightened jury
instruction, Jelinek should be allowed to rebut Abbott's claim by means of statistical
evidence." Id. at ¶ 32.
{¶ 29} Following this court's remand for a new trial, the trial court filed a pretrial
agreed scheduling order (on December 28, 2015) instructing the parties to brief certain
agreed upon issues as motions in limine. In that order, the court raised the following
question regarding statistical evidence: "Is statistical evidence regarding the 1997 and
2014 RIF's relevant and probative as to any issues in this case?" (Dec. 28, 2015 Decision
at 2.) On February 19, 2016, Abbott filed pretrial briefs addressing both RIF evidence and
statistical evidence; in that briefing, Abbott represented it "does not seek the heightened
RIF-related jury instruction" at trial. (Defendants' Brief on RIF Evidence at 2.) Also on
that date, appellant filed his pretrial brief on statistical evidence.
{¶ 30} On March 17, 2016, the trial court filed a decision and entry regarding the
briefings filed February 19, 2016. With respect to the issue of statistical evidence, the trial
court noted appellees had withdrawn their request for a heightened RIF jury instruction
and, therefore, found the presentation of statistical evidence was unnecessary based on
this court's decision in Jelinek III.
{¶ 31} As noted above, appellant asserts there is nothing in the language of Jelinek
III that suggests statistics are admissible only if a defendant seeks the heightened jury
instruction. We do not, however, construe the trial court's decision as simply foreclosing
the use of statistics based on appellees' decision not to seek a heightened RIF jury
instruction. Rather, the trial court further determined, "without consideration or
limitation by the inclusion of a heightened standard," there was "no probative value in the
presentation of raw statistics." (Mar. 17, 2016 Decision & Entry at 4.) In this respect, and
independent of the issue of a heightened instruction, the trial court found the statistics
sought to be introduced by appellant did not comply with prior decisions of this court,
including our decision in Boggs v. Scotts Co., 10th Dist. No. 04AP-425, 2005-Ohio-1264.
{¶ 32} In Boggs, this court surveyed prior decisions of this district dealing with the
use of statistics as proof of discrimination, including Dahl v. Battelle Memorial Inst., 10th
Dist. No. 03AP-1028, 2004-Ohio-3884, and Swiggum v. Ameritech Corp., 10th Dist. No.
98AP-1031 (Sept. 30, 1999). In Dahl, this court determined that a plaintiff's " 'raw
No. 17AP-576 10
statistics * * * do not account for variations among employees in skill level, job function,
and education in variables that necessarily must be accounted for in establishing a
probative value of the raw numbers given.' " Boggs at ¶ 16, quoting Dahl at ¶ 18.
Accordingly, this court "recognized that unelaborated statistics that fail to consider
independent variables such as job skills, education, experience, performance or self-
selection, were insufficient to establish a material issue of fact." Id., citing Dahl, citing
Swiggum. In Swiggum, this court similarly found flawed the statistical evidence offered
by a plaintiff where such evidence "failed to take into consideration any independent
variables that might explain the association between age and termination rates, including
job skills, education, experience, performance or self-selection." Id.
{¶ 33} In the instant case, appellant sought to introduce at trial the report of his
expert, William Notz, who concluded that the overall statistics from Abbott regarding the
1997 RIF "show statistical significance (at the o.05 level) between terminations of workers
over 40 vs. those under 40." (Aug. 6, 2015 Notz Report at 1.) With respect to such
statistics, Notz opined "it is very unlikely that this pattern of terminations and ages would
have occurred simply by chance." (Aug. 6, 2015 Notz Report at 1.)
{¶ 34} In Abbott's pre-trial brief regarding statistical evidence, Abbott's expert,
Brendan P. Burke, submitted an expert report in which he disagreed with the above
conclusion. Specifically, Burke found Notz's single variable analysis to be deficient,
stating that "Dr. Notz uses a simple approach that includes only age and termination
status as variables." (Sept. 10, 2015 Burke Report at 12.) Burke opined that a more
valuable analysis would be multivariate in nature, which "takes into account other factors
that may have been important in a RIF such as employee location, tenure, time in the
current position, performance ranking, supervisor, disciplinary history, etc." (Sept. 10,
2015 Burke Report at 8.)
{¶ 35} In challenging the statistical evidence submitted by appellant, Abbott's pre-
trial brief also cited the deposition testimony of Notz. In his deposition, when questioned
whether he could conclude the statistical significance he identified indicated Abbott
discriminated against workers based on age, Notz responded: "If I was asked, can you
assert that age was the cause of this, was a causal factor, I wouldn't be able to assert that."
No. 17AP-576 11
(Notz Depo. at 54.) Notz further acknowledged in the deposition that his analysis of the
1997 Abbott statistics only looked at the ages of the individuals terminated.
{¶ 36} Appellant acknowledges the analysis of his expert is the type of inquiry this
court has deemed problematic regarding the use of statistical evidence. Appellant
contends, however, that the analysis utilized by this court in cases such as Boggs,
Swiggum, and Dahl is "flawed," and that multiple regression analysis often gives the
wrong answers. (Appellant's Brief at 10.)
{¶ 37} We note that in Boggs, the plaintiff brought an age discrimination action in
which the same plaintiff's expert as in the instant case, Notz, submitted an affidavit in
which he compared the termination rate (as part of a RIF) for those employees under age
40 and those over age 40. In finding the statistical evidence submitted in that case not
probative of discrimination, this court held in part:
[I]n the case at bar, Notz's affidavit indicates that he only
looked at the number of persons above and below the age of
40 who were selected for termination. There is no indication
that other data were available to him or were used in
rendering his report. It may be that some of the departing
employees over the age of 40 were terminated for legitimate
reasons, such as poor performance or lack of appropriate
skills. They may have been terminated in favor of retaining
older employees, or they may have accepted early retirement.
Other factors may have been involved, but looking only at the
ages of those affected by the reduction in force does not
indicate what those other factors were. Thus, appellant's
statistical evidence was not probative of whether Scotts
decided to terminate her employment based solely upon her
age, and we agree with the trial court that summary judgment
for Scotts on this question was proper.
Boggs at ¶ 18.
{¶ 38} In the case sub judice, the trial court relied on Boggs and its progeny to find
there was "no probative value in the presentation of raw statistics," and the court
reiterated its earlier ruling that "again, '[a]ny testimony to this effect that fails to take into
account the variations among employees in skill, etc., should be prohibited.' " (Mar. 17,
2016 Decision & Entry at 4.) Despite appellant's contention that this court's line of cases
is flawed, we adhere to this court's precedent that "unelaborated statistics that fail to
consider independent variables" are not probative of discrimination. Boggs at ¶ 16.
No. 17AP-576 12
Accordingly, we find no error with the trial court's determination that the statistical
evidence offered by appellant did not meet the criteria required by this court's prior
decisions, including Boggs.
{¶ 39} Appellant also contends the trial court erred in failing to properly allow
circumstantial evidence to establish age discrimination. Appellant first challenges the
trial court's ruling on motions in limine filed by Abbott regarding the departure of three
former Abbott employees (Insani, Lindberg and Stadtlander) who, according to appellant,
were terminated after reaching the age of 50 under circumstances comparable to those
that took place in 1997.
{¶ 40} However, similar to the above discussion regarding statistical evidence, raw
data indicating that three employees over the age of 50 were terminated does not, in
isolation, give rise to an inference of discrimination. See Swiggum ("evidence that
workers over the age of fifty left [defendant's employment] is, standing alone, not
probative of the reasons underlying this particular plaintiff's termination"). Further, Ohio
and federal courts have declined to give significance to small sample sizes such as those
offered by appellant. See, e.g., Baer v. Scotts Co., 10th Dist. No. 01AP-323 (Dec. 6, 2001)
("Appellant's small statistical sample and the failure to take into account any independent
variables renders his statistical evidence insufficient to support an inference of
discrimination."); Jones v. First Horizon Natl. Corp., W.D.Tenn. No. 09-2029-STA
(June 9, 2010) (evidence that three other employees lost their jobs during RIF "does not
constitute a pattern," and, therefore, such fact "fails as additional circumstantial evidence
of discriminatory motive," and further fails as statistical evidence based on small sample
size); Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261, 267 (6th Cir.2010)
(trial court did not err in holding mere showing that two oldest employees were selected
for termination constitutes additional evidence of discrimination as "such a small
statistical sample is not probative of discrimination"); Alberico v. Leap Wireless
Internatl., Inc., W.D.Ohio No. 3:13-cv-141 (July 18, 2014) (sample size of at most seven
employees "not sufficient to evidence discrimination"). Here, the trial court could
reasonably find that evidence regarding the termination of three employees, occurring
apparently several years after the events at issue, and involving different decision makers,
No. 17AP-576 13
was not probative as to whether appellant himself was discriminated against based on
age.
{¶ 41} Appellant also contends the trial court precluded him from presenting
evidence that Abbott routinely collapsed territories and reorganized positions in order to
eliminate older employees. Appellant asserts that Abbott employs few individuals over
the age of 50, and that this evidence could lead a jury to conclude it engaged in a pattern
or practice of eliminating older employees.
{¶ 42} By way of background, the issue of collapsed territories was the subject of an
assignment of error raised by appellant in the last appeal, and this court's decision
provided remand instructions regarding this matter. Specifically, in Jelinek III, this court
determined that the trial court, during the 2011 trial, abused its discretion in "taking the
extreme position that any mention of the quality of the territory related only to
constructive discharge," as such evidence "was relevant to show that the offer of the
territory was pretextual." Jelinek III at ¶ 22. Accordingly, this court held that evidence
"the territory was 'collapsed' from twelve counties to two shortly before it was offered to
Jelinek addresses both the issue of pretext, and the reason why Jelinek was reluctant to
accept the territory." Id.
{¶ 43} On review, we find no abuse of discretion by the trial court in following this
court's remand mandate as to the issue of collapsed territories. During the instant trial,
the trial court permitted appellant to present evidence as to whether the Indiana territory
was collapsed. On this point, counsel for appellant argued in opening statements that the
evidence would indicate appellant "got a voicemail message that Gary was a collapsed
territory. And a collapsed territory means that no one is effectively serving it, and they
disperse the sales accounts to the surrounding salesman." (Tr. Vol. II at 416.)
{¶ 44} On direct examination, appellant testified as to information he obtained
regarding the sales territory (including Gary, Indiana) offered to him by Abbott following
the elimination of all PCDM positions in 1997. Appellant testified he received a voicemail
"that announced the collapse of Gary, Indiana * * * in our region, and this was part of a
reduction in force." (Tr. Vol. III at 631.) Appellant described a "collapsed territory" as
one where "you say, okay, we're no longer going to put a person to cover that physically,
so we're going to take it apart. We don't want to give up the business, we don't want to
No. 17AP-576 14
give up the customer, so we collapse them into the adjacent territories." (Tr. Vol. III at
631.) According to the testimony of appellant, the territory at issue had been reduced
from 12 counties to only 2 counties.
{¶ 45} We note that, in contrast to appellant's testimony, witnesses for Abbott
testified the Indiana territory had not been collapsed. Those witnesses included Insani
who, when asked whether salesmen in Gary, Indiana were removed and the accounts
disbursed to other individuals, responded "[n]o." (Tr. Vol. XI at 2204.) Further, Monte
Hinchman, Abbott's Chicago district manager (and the district manager for Lake County,
Indiana, in 1997), denied that he assigned accounts to appellant in only two Indiana
counties. Hinchman also testified Abbott had "no plans to collapse or change that
territory." (Tr. Vol. XII at 2398-99.) Kara Kaiser, the Lake County sales representative
who took over appellant's position after he resigned, denied that anyone ever indicated
the territory should be collapsed.
{¶ 46} Apparently acknowledging that evidence as to whether the territory was
collapsed was presented during the most recent trial, appellant argues the trial court
should have also permitted evidence as to the crime rate, schools, closed hospitals, and
recreation in Lake County. As noted by Abbott, however, this court's mandate in Jelinek
III did not suggest evidence as to the crime rate of Gary, Indiana was relevant or
admissible.
{¶ 47} We note appellant previously sought to introduce such evidence in the 2002
trial, an issue addressed by this court in Jelinek II. Specifically, appellant argued in his
appeal of the 2002 verdict that the trial court "erroneously excluded from evidence a 1998
article from a newspaper which declared Gary, Indiana, as the most dangerous city in the
United States for crime." Jelinek II at ¶ 52. Appellant further argued the trial court erred
"in not permitting plaintiff's counsel to question witnesses regarding the desirability of
working in Gary, Indiana, and by excluding from evidence photographs that plaintiff took
of Gary, Indiana." Id. This court rejected appellant's argument, holding in part: "To the
extent the article was offered to prove the truth of the matter asserted, it was inadmissible
hearsay." Id. at ¶ 55. This court further found no error by the trial court in not permitting
appellant's counsel to question witnesses regarding the desirability of working in Gary,
Indiana as "not relevant to the inquiry in this case." Id. at ¶ 56.
No. 17AP-576 15
{¶ 48} The record also supports Abbott's contention that appellant in fact
presented such evidence at the most recent trial. During opening statements, counsel for
appellant characterized the "Gary, Indiana territory" as "such an undesirable place." (Tr.
Vol. II at 424.) Counsel further stated that "the main hospital in Gary had been closed. It
was not a desirable place to go." (Tr. Vol. II at 421.) Appellant testified at trial that "[i]t
would be very difficult, very difficult, to live in Gary, Indiana." (Tr. Vol. III at 782.) He
also related that "Gary, Indiana was a disaster." (Tr. Vol. VII at 1373.) When asked by his
counsel if "[t]he term 'Lake County territory' is * * * sweet selling Gary, Indiana,"
appellant responded: "I think it has more appeal than the word 'Gary, Indiana.' " (Tr. Vol.
VIII at 1690.) During closing argument, counsel for appellant represented to the jury:
"Gary doesn't have the best reputation of places to be." (Tr. Vol. XIII at 2622.)
{¶ 49} Thus, despite this court's prior pronouncements regarding the relevancy of
such evidence, the record indicates the trier of fact was made aware of appellant's
subjective views of the Indiana territory. In any event, appellant has not demonstrated
error by the trial court in addressing the admissibility of this evidence.
{¶ 50} Appellant further argues the trial court erred in excluding the testimony of
former defendants Stadtlander, Lindberg, Amundson, McNally, and Sipes. Appellant
contends he should have been permitted to present evidence and argument as to the acts
of agents who, he maintains, discriminated against him on Abbott's behalf. Appellant
acknowledges that the claims against these former defendants have been fully adjudicated
in the prior proceedings, but asserts a jury could reasonably conclude that, while each
former defendant may not be individually liable, their actions taken together could make
the corporation for which they work liable for discrimination. Appellant also argues it
would be "near impossible for counsel to paint the general factual backdrop of
[appellant's] case without presenting evidence or argument regarding the former
individual co-defendants." (Appellant's Brief at 46.)
{¶ 51} The issue raised by appellant was the subject of a pre-trial motion in limine
filed by Abbott, in which it sought to preclude at trial "any reference to or evidence
relating to the alleged discriminatory actions and involvement of former co-Defendants in
this matter" (i.e., Amundson, McNally, Stadtlander, Lindberg, and Sipes). (May 2, 2016
Defs.' Motion in Limine at 1.) Abbott noted in its motion that, over the 18-year procedural
No. 17AP-576 16
history of the case, the discrimination claims against all individual defendants, except for
Insani, had been resolved. Specifically, Abbott observed, on April 23, 2002, the trial court
granted Abbott's motion for directed verdict as to Amundson and Sipes, and appellant did
not appeal that decision; further, on April 29, 2002, a jury found McNally and Stadtlander
not liable, and appellant did not appeal the verdict in favor of those two defendants.
Finally, Abbott noted the trial court granted its motion for a directed verdict as to
appellant's claim against Lindberg at the close of the 2011 trial and, on appeal, "the Tenth
Appellate District upheld the directed verdict in favor of * * * Lindberg." (May 2, 2016
Defs.' Motion in Limine at 3.)
{¶ 52} In addressing Abbott's motion in limine on this issue, the trial court held in
part that "relitigating any testimony of former Defendants for the purposes of showing
former Defendants acted discriminatorily relitigates those very same issues of personal
liability which have been previously decided by this Court and its prior jurors." (May 10,
2017 Order for Procedure at Trial at 3.) The court thus concluded that, "in order to
preserve the prior final decisions of the courts and uphold the doctrine of res judicata,
this Court must find the testimony of former Defendants Joy A. Amundson, Thomas M.
McNally, William H. Stadtlander, Gregory A. Lindberg, and James L. Sipes is
inadmissible." (May 10, 2017 Order for Procedure at Trial at 4.) Noting that the
remaining issue for trial involved whether Insani had discriminated against appellant, the
trial court further ruled: "If Plaintiff can identify portions of the former Defendants'
testimony only pertaining to the actions of Karl Insani's alleged discriminatory conduct,
the Court may reconsider the admissibility of the former Defendants' testimony on a
limited basis." (May 10, 2017 Order for Procedure at Trial at 4.)
{¶ 53} On review, we find no abuse of discretion by the trial court in its decision
limiting the testimony of former defendants to the remaining issue at trial, i.e., whether
Insani discriminated against appellant on the basis of age. As indicated above, appellant
concedes the former defendants were, in the prior proceedings, found to have not acted in
a discriminatory manner with respect to appellant. At the most recent trial, appellant
acknowledged that Abbott's elimination of his PCDM position was not discriminatory;
rather, appellant's claim of age discrimination was predicated on Insani's decision,
No. 17AP-576 17
following the RIF and elimination of the PCDM positions, to offer him the position in
Lake County, Indiana.
{¶ 54} Further, we agree with Abbott's contention that appellant cannot, in any
event, demonstrate prejudice because the trial court permitted him to present evidence at
trial regarding the conduct of these former defendants. Specifically, the record indicates
the 2011 trial testimony of Stadtlander, as well as his deposition testimony, was read into
the record for the jury's consideration. During closing argument, counsel for appellant
cited, as one indicia of age discrimination, testimony by Stadtlander that appellant was
not part of the RIF. On this point, counsel stated: "Stadtlander, he ran the whole division.
He said [appellant] wasn't [included in the RIF]. So that's pretext." (Tr. Vol. XIII at
2618.)
{¶ 55} With respect to former defendant Amundson, appellant testified at trial as
to the fact "[t]here had been a change of presidents. A gal named Joy Amundson was
sitting in the president's chair, and I tried reaching her and ending up leaving a voice mail
message to her." (Tr. Vol. VIII at 1693.) Appellant further testified: "I pleaded with her to
look into the way I had been mistreated. I felt that I had been discriminated against
because of my age. I was being forced into a position where they forced me to resign
because the territory they had offered me was not really a competitive territory." (Tr. Vol.
VIII at 1694.) Appellant stated that, after leaving Amundson a message, she
corresponded by "letter, and basically just dismissed it." (Tr. Vol. VIII at 1694.)
According to appellant, Amundson "said, 'I looked into it. You were being treated fairly
by our corporation.' " (Tr. Vol. VIII at 1694.)
{¶ 56} Appellant also testified as to his interaction with former defendant Sipes, a
human resource manager for Abbott during appellant's employment. During direct
examination, appellant testified that he asked Sipes to help him obtain a job at Abbott
Pharmaceuticals, but that Sipes refused to help him. According to appellant, Sipes "said I
had a job in Gary, Indiana." (Tr. Vol. III at 785.) Appellant further testified "there was no
flexibility in that period of time when I wasn't able to work to apply within Abbott to other
jobs because I was blocked by Sipes." (Tr. Vol. IV at 1012.) During closing argument,
counsel for appellant stated that "Sipes, the HR guy, was telling [appellant] regularly,
when Dave said, I don't want this territory, I want something else, 'You took the territory.
No. 17AP-576 18
You're stuck with it. We're not going to look for another job for you.' " (Tr. Vol. XIII at
2634-35.)
{¶ 57} With regard to former defendant McNally, counsel for appellant declined to
introduce portions of his testimony deemed relevant by the trial court. Further, as noted
by Abbott, the deposition testimony of Insani was read at trial and, during cross-
examination of this witness, counsel for appellant inquired whether Insani "had to get
approval" from individuals, including McNally, prior to making the offer to appellant of a
position in Gary, Indiana. In response, Insani stated: "To place people, yes." (Tr. Vol. XI
at 2247.)
{¶ 58} Former defendant Lindberg, a sales manager for Abbott who reported
directly to Insani, testified at trial. During direct examination, Lindberg was questioned
about the 1997 RIF, and he stated McNally gave a directive that "we were going to have to
reduce the number of positions in our sales organization." (Tr. Vol. XII at 2458.)
Lindberg related that Insani was the individual "in charge of making those decisions,
along with the regional managers." (Tr. Vol. XII at 2459.) He further testified that Insani
made the decision to offer appellant the Lake County position. According to Lindberg, "if
we had a job available in Columbus, Ohio, we would have given that job to Dave Jelinek."
(Tr. Vol. XII at 2483.) He stated, however, "[t]here were no jobs" in Columbus following
the RIF. (Tr. Vol. XII at 2483.) Lindberg further stated that Insani did not discriminate
against appellant on the basis of age.
{¶ 59} On cross-examination, counsel for appellant questioned Lindberg as to the
"ages * * * of a number of employees of the company in the medical nutritionals" division
at the time of the RIF. (Tr. Vol. XII at 2531.) Counsel inquired of Lindberg whether he
had "a reason to know that they discriminated on the basis of age." (Tr. Vol. XII at 2541-
42.) Lindberg responded: "I knew that we did not discriminate against anyone on the
basis of age." (Tr. Vol. XII at 2542.) During closing argument, counsel for appellant
challenged Lindberg's statement that he did not commit age discrimination.
{¶ 60} Thus, the record supports Abbott's contention the trial court permitted
testimony as to these former defendants, subject to the above limitation that such
testimony pertain to the alleged discriminatory conduct of Insani. On review, we find no
No. 17AP-576 19
abuse of discretion by the trial court in its ruling with respect to the testimony of the
former defendants, nor has appellant shown he was prejudiced by it.
{¶ 61} Based on the foregoing, appellant's first and second assignments of error
are not well-taken and are overruled.
{¶ 62} Under the third assignment of error, appellant asserts the trial court erred
in awarding costs to Abbott, while denying an earlier motion for costs filed by appellant.
Appellant notes he had previously prevailed in the court of appeals, and was able to have
the case remanded for retrial.
{¶ 63} Civ.R. 54(D) addresses the issue of costs, and states: "Except when express
provision therefore is made either in a statute or in these rules, costs shall be allowed to
the prevailing party unless the court otherwise directs." In general, "Civ.R. 54(D) grants
trial courts discretion to order that the prevailing party bear all or part of his or her own
costs." State ex rel. Reyna v. Natalucci-Persichetti, 83 Ohio St. 3d 194, 198 (1998). In this
respect, "[t]he Ohio Supreme Court has recognized that 'the rule [Civ.R. 54(D)] is not a
grant of absolute right for court costs to be allowed to the prevailing party.' " Smallwood
v. State, 12th Dist. No. CA2011-02-021, 2011-Ohio-3910, ¶ 10, quoting State ex rel. Gravill
v. Fuerst, 24 Ohio St. 3d 12, 13 (1986). Further, "an appellate court cannot reverse a lower
court's decision regarding the allocation of costs absent an abuse of discretion." Id.
{¶ 64} We note, following the most recent trial, both parties submitted proposed
judgment entries regarding the final adjudicated verdict in the case. On June 23, 2017,
appellant filed a memorandum opposing Abbott's proposed judgment entry, asserting
Abbott's request for costs "dating back to September 10, 1999" was "clearly at odds" with
an earlier entry of the trial court in which the court denied costs to appellant. More
specifically, appellant's argument was based on a March 17, 2015 order of the trial court
denying appellant's request for costs from October 28, 2005 and May 3, 2013.
{¶ 65} In that 2015 entry, the trial court held in part that "[e]xcessive time has
elapsed between these judgments and the present. Plaintiff has had the opportunity to
seek costs at a more timely date, like during his time before this Court after the 2005
judgment or during the eight months before an order to stay the case was filed in January
2014. Plaintiff chose not to file his requests during these times." (Mar. 17, 2015 Decision
& Entry Denying Motion for Costs.)
No. 17AP-576 20
{¶ 66} In the trial court's final judgment entry, filed on July 11, 2017, the trial court
ordered appellant "to pay all costs incurred in this case from September 10, 1999, to the
present, except that Defendant is ordered to pay the costs of the 2003 appeal, Case No.
03APE06-614 (as contemplated under Rule 24(B) of the Ohio Rules of Appellate
Procedure), pursuant to the Tenth District Court of Appeals' October 28, 2005 judgment
entry." (July 11, 2017 Final Jgmt. Entry at 2.)
{¶ 67} Civ.R. 54(D) provides "no specific time period" by which a motion for costs
is to be filed and, therefore, courts have interpreted the rule as requiring a motion for
costs to be filed within a " 'reasonable' period of time." Bookatz v. Kupps, 39 Ohio App. 3d
36, 38 (8th Dist.1987). See also Martin v. Lake Mohawk Properties Owner's Assn., 7th
Dist. No. 10 CA 869, 2011-Ohio-5132, ¶ 8, citing Bookatz ("The few courts confronted by
the question have held that a motion to tax costs must be filed within a reasonable period
of time.").
{¶ 68} As noted, with respect to the trial court's 2015 entry, the court found
"[e]xcessive time has elapsed between these judgments and the present," and that
appellant "had the opportunity to seek costs at a more timely date." However, the trial
court deemed the request by Abbott for costs to be timely, having been filed shortly after
the final verdict. On review, we find no abuse of discretion by the trial court in its decision
with respect to the taxation of costs.
{¶ 69} Appellant's third assignment of error is not well-taken and is overruled.
{¶ 70} Based on the foregoing, appellant's three assignments of error are
overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
DORRIAN and NELSON, JJ., concur.
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