The opinion of the court was delivered by: Sweet, District Judge.
Plaintiff Myron P. Nobler ("Nobler") moves to preclude defendant Beth
Israel Medical Center ("BIMC") from calling two doctors, James Cox and
Larry Davis, as witnesses. BIMC cross-moves for an order precluding the
proposed testimony of another doctor, Arnold Melman. For the reasons
stated below, both motions are denied.
A. Admissibility of Melman's Testimony
Nobler intends to testify at trial that the President of BIMC, Dr.
Robert Newman ("Newman"), told him that the search committee for the
Radiation Therapy Department directorship was looking for a "rising
star." Counsel for plaintiff wish to call Melman to the stand to testify
that Newman also told him that BIMC was looking for a "rising star" to
fill a department directorship in urology that Melman sought. BIMC seeks
to preclude that testimony on grounds that it is irrelevant and
Rules 401 and 402 of the Federal Rules of Evidence provide that
"evidence having any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less
probable than it would be without the evidence" is generally admissible.
In actions brought under the ADEA, age-related remarks by an employer
which concern employment opportunities, such as promotion, have been held
relevant and admissible, notwithstanding that such remarks were not
directed specifically at the ADEA plaintiff. See Shamley v. ITT Corp., 44
FEP Cases 1238, 1240, 1987 WL 9424 (S.D.N.Y. 1987); Moorhouse v. Boeing
Co., 501 F. Supp. 390, 393 (E.D.Pa), aff'd mem., 639 F.2d 774 (3rd Cir.
1980). As the court indicated in Shamley, such statements are admissible
as evidence of the decision-maker's state of mind insofar as they might
be construed either "innocently or as evidence of discriminatory intent."
Shamley, 44 FEP Cases at 1240.
Of course, statements concerning age that are overly remote in time
from the challenged employment action, or that do not bear on age in the
context of employment decision-making, may lack relevance and be
inadmissible on that ground. See Haskell v. Kaman Corp., 743 F.2d 113,
120 (2d Cir. 1984) (rejecting relevance of employer's age-related
comments made years prior to disputed action which did not contain
suggestion that age was a factor considered in the company's employment
decisions). That is not the case with the Newman's "rising star" comment
to Melman, which was made fairly contemporaneously with the statement to
Nobler and which related directly to employment decision-making. Under
the Rules of Evidence, therefore, that statement is relevant to the state
of mind or animus of Newman, who concededly was involved in the search
committee's decision-making with respect to Nobler.
For these reasons, the Newman statement is admissible evidence that may
be introduced by means of Melman's testimony. Plaintiff may not,
however, elicit testimony from Melman concerning the particular
circumstances of his application for the urology directorship, including
matters such as his age at that time, his credentials, or the perceived
reasons for his non-selection for the Urology Department directorship.
The Melman application was before a separate search committee, and
testimony concerning the ingredients of that committee's decision-making
would require the jury to become involved in determination of largely
"collateral issues," Shamley, 44 FEP Cases at 1240. Such an endeavor is
not necessary or warranted in view of plaintiff's disclaimer of any
intention of proving an age-discriminatory "practice or pattern" on the
part of BIMC or of relying on Melman's testimony for any purpose other
than the admission of Newman's comment.
The above limitations on Melman's testimony also ought to cure BIMC's
concerns of prejudice arising from admission of unrelated employees'
subjective accounts of perceived acts of employment discrimination. In
this case there is no threatened "parade of witnesses, each recounting
his contention that defendant had [discriminated against him in
employment] because of his age." Haskell v. Kaman Corp., 743 F.2d at 122
(quoting Moorhouse v. Boeing Co., 501 F. Supp. 390, 393 n. 4 (E.D.Pa),
aff'd mem., 639 F.2d 774 (3d Cir. 1980). Melman will not be permitted on
direct to testify concerning the reasons for, or the fact of, his
non-selection. Should BIMC wish to examine Melman on such question,
counsel for plaintiff then will, of course, be permitted the same
B. Admissibility of Testimony of Cox and Davis
BIMC seeks to offer the testimony of two doctors, Cox and Davis, each
of whom is a well-established radiation oncologist, with respect to the
academic and professional standing and credentials of Nobler and of
another doctor, Bhadrasain Vikram ("Vikram"), who was chosen by BIMC for
the position Nobler sought. It is conceded that neither Cox or Davis was
on the search committee or was consulted by the members of the committee
in connection with the committee's decision. On that basis, Nobler argues
the testimony should be excluded, since "only the facts on which
defendant was ...