Desilets v. Wal-Mart Stores CV-95-534-SD 10/08/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

James Desilets, et al

v. Civil No. 95-534-SD

Wal-Mart Stores, Inc.

O R D E R

This complaint seeks recovery of damages for alleged

violations of federal,

, et seq., and state.

Revised Statutes Annotated (RSA) 570-A, "wiretap" laws.

Plaintiffs allege that in August of 1995, while employed at

defendant's store in Claremont, New Hampshire, certain of their

private oral conversations were intercepted on secreted audiotape

recorders placed upon the premises by other employees of

defendant.

Trial of this action is scheduled to commence with jury

selection on October 21, 1997. This order addresses the issues

raised by certain pretrial motions.1

1The order does not address requests for voir dire questions, objections to exhibits or instructions, nor the most recently filed (on October 6, 1997) motion in limine of the defendant. The court will allow some of the voir dire at trial and will take up objections to exhibits as exhibits are proffered, and objections to instructions at the close of the trial. The most recent motion in limine must await a response from plaintiffs' counsel. 1. Defendant's Motion in Limine to Exclude Evidence with Respect

to Plaintiffs' Claims for Emotional Distress Damages Barred Under

New Hampshire RSA 281-A, document 19

One of the four plaintiffs, James Desilets, makes claim here

for recovery of psychological damages. Defendant seeks to bar

evidence concerning this claim, and plaintiffs object, contending

that the complaint refers to intentional torts and also

contending that the federal statute preempts any ruling to the

contrary. Document 41.

This court has previously held that the exclusivity

provision of the New Hampshire workers' compensation law bars

both intentional and nonintentional claims for emotional

distress, which gualifies as a "personal injury." Miller v. CBC

Cos., Inc.,

(D.N.H. 1995); see Censullo

v. Brenka Video,

(1st Cir. 1993). And with

respect to the claim of preemption, which is based on the

Supremacy Clause of the Constitution,2 it is, of course, a

presumption, applicable in both express and implied preemption

analyses, that state regulation of matters related to health and

safety is not invalidated under that Supremacy Clause. Phillip

2Article VI of the Constitution provides that federal law "shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

2 Morris, Inc., et al v. L. Scott Harshbarqer, Attorney General, et

al, Nos. 97-8022, 8023, slip op. at 23-24 (1st Cir. Aug. 18,

1997). Clearly, the workers' compensation law of New Hampshire

and interpretations thereof concern matters related to health and

safety of the working population.

Accordingly, the court finds itself unpersuaded by the

authorities upon which plaintiffs rely and herewith grants the

motion. Counsel for all parties are instructed that no attempt

is to be made and no evidence is to be introduced concerning any

claim of psychological damages sustained by plaintiff James

Desilets, as the court finds that any such claim is barred by the

provisions of the workers' compensation law of New Hampshire, RSA

2 81-A.

2. Defendants' Motion in Limine to Dismiss Claims of Plaintiff

Ricky Ordwav, document 23

Contending that plaintiff Ricky Ordway admitted in

deposition that he could not hear his recorded voice on the three

audiotapes produced by defendant, the defendant moves to bar

Ordway's claims. Plaintiff Ordway objects. Document 44.

Plaintiff has produced for the court evidence which

indicates that more than the three tapes currently available were

3 made,3 and the law is clear that a plaintiff need only show

interception of communication, not that particular conversations

were intercepted. Walker v. Darby,

(11th

Cir. 1990) (Edmondson, J., concurring). Because the intentional

tort of wiretapping is obviously one which by its very nature is

unknown to the plaintiff, Awbrev v. Great Atlantic & Pacific Tea

C o ., Inc.,

(N.D. G a . 1980), direct

evidence may well not have been available based on the

stealthiness of the invasion, and, accordingly, a wiretapping

claim may be established by means of circumstantial evidence.

Scutieri v. Paige,

(11th Cir. 1987) .

It follows that, as plaintiff Ordway has sufficient

circumstantial evidence to give rise to a guestion of fact for

the jury, the defendant's motion to dismiss his claim must be and

it is herewith denied.

3A statement of Mike Kirkpatrick, the store manager, indicates his knowledge of at least two additional tapings. Depositions of other witnesses who were employed at relevant times at the Claremont store confirm the location of a tape recorder at or near the customer service desk. Plaintiff himself will testify as to his presence at or near the various locations at which the tape recorders were installed.

4 3. Defendant's Motion in Limine re: Calculation of Statutory

Damages Under the Federal Wiretap Statute, document 24

By virtue of this motion, defendant seeks to have the court

rule that each plaintiff who is able to establish a right to

civil damages under

may recover at most $10,000,

regardless of whether more than one of the different types of

violations of the statute occurred. Plaintiffs object. Document

40 .

It has been held in this circuit that under the federal

wiretap statute "the disclosure and/or use of information

obtained through a wrongful invasion amounts to a separate injury

prohibited by statute, and makes a person subjected to such a

disclosure and/or use 'a victim, once again, of a federal

crime.'" Williams v. Poulos,

(1st Cir. 1993)

(citing and guoting Gelbard v. United States,

(1972)). Accordingly, although defendant strives gallantly to

distinguish them, the rulings in Romano v. Terdik,

(D. Conn. 1996) and Menda Biton v. Menda,

(D.P.R. 1993), are correct and, with respect to the

recovery of damages under the federal statute, $10,000 may be

awarded each plaintiff for interception and $10,000 for

disclosure because they are considered two separate violations of

. Of course, the number of conversations that

5 are intercepted or the number of disclosures is irrelevant and

the statutory amount applies, regardless of the number of

interceptions or uses.

The motion must be and accordingly is herewith denied.

4. Defendant's Motion in Limine Reguestinq the Court to Rule

that Plaintiffs Can Recover Damages Under the State or Federal

Statute, But Not Both, document 25

This motion seeks a ruling from the court that the remedy of

each plaintiff will be either actual damages as proven or the

federal statutory measure. The motion further seeks to reguire

election by plaintiffs prior to trial as to which of these

remedies they will seek. Plaintiffs object. Document 42.

The record before the court will not allow it to rule

favorably on this motion. There is no law known to the court,

and the parties cite none, that reguires an order of election

such as is here sought by the defendant. Accordingly, the motion

is denied. The court, of course, will take all efforts necessary

to avoid duplication of damages if such are awarded to any of the

plaintiffs.

6 5. Defendant's Motion in Limine to Exclude Evidence of Its

Actions After Discovery of the Audiotapes Except as Related to

Plaintiffs' Claims of "Interception or Use of the Contents",

document 2 6

The audiotapes which are the focus of this litigation were

discovered on August 23, 1995. Defendant suggests that evidence

of certain actions taken by it after that date should be barred

for irrelevance or unfair prejudice or because they concern

subseguent remedial measures. Plaintiffs object. Document 45.

Attached to plaintiffs' objection are a number of excerpts

of depositions and interrogatory answers. Review of same

satisfies the court that, with one exception hereinafter

discussed, plaintiffs have the better of the argument.

Without parsing all of the details set forth in plaintiffs'

well-crafted objection, it is clear that the post-tape discovery

actions of defendant have some "special relevance" to the

material issue of intent reguired to support plaintiffs' burden

of proof in this action. United States v. Carty,

(1st Cir. 1993). The evidence is accordingly admissible

pursuant to Rule 404(b), Fed. R. Evid., and the court further

finds that its probative value is not substantially outweighed by

the danger of unfair prejudice, confusion, or undue delay. Rule

403, Fed. R. Evid.

7 Moreover, it is well established that where a corporation

acquires or is charged with knowledge of an unauthorized act

undertaken by someone on its behalf, and fails to repudiate that

act within a reasonable time, but instead acquiesces, the

corporation is bound by the act. IBJ Schroder Bank & Trust Co.

v. Resolution Trust Corp.,

(2d Cir. 1994)

(citations omitted).

Accordingly, with the exception of the alleged three-

quarter-inch hole drilled in the wall of the manager's office,4

which the court understands cannot be verified by any witness to

its date and time of completion, and which therefore the court

finds to be too speculative or remote to allow a rational

inference to be drawn that it was accompanied by an intercepting

device, the motion must be and accordingly is herewith denied.

6. Defendant's Motion in Limine to Exclude Evidence Regarding or

Reference to the Criminal Liabilitv Provisions of the Statute at

Issue and to Exclude Evidence Related to Anv Police Investiaation

Into this Matter, document 27

This is an action brought under the civil liability

provisions of the state and federal wiretap statutes. It

4If a supervisory employee used merely his eyes or ears to watch other employees, such action would, of course, not be violative of the statutes here at issue. appears, however, that at least one of the plaintiffs requested

that the tapes in question be turned over to the county attorney,

and further that some sort of police investiqation, the scope of

which is unknown to this court, was conducted into the matter.

Defendant moves to exclude evidence of the criminal

provisions of the statutes at issue and also to exclude evidence

of the police investiqation. Plaintiffs object. Document 43.

The court is satisfied that any reference to the criminal

portions of the statute and/or to any police investiqation into

the matter would not serve to support the plaintiff's case for

recovery of damaqes and is not a "consequential factor" in the

case pursuant to Rule 401, Fed. R. Evid., and that to allow any

reference to or to admit evidence concerninq the criminal

provisions of the statutes or any police investiqation here

undertaken should be excluded because its probative value is

substantially outweiqhed by the danqer of unfair prejudice,

confusion of the issues, or misleadinq the jury. Rule 403, Fed.

R. Evid.

Accordinqly, the defendant's motion is herewith qranted, and

counsel are instructed to direct their witnesses to refrain from

any reference to or mention of the criminal provisions of the

statute or any police investiqation in this matter, and are not

otherwise to attempt to introduce evidence concerninq such subj ects.

7. Defendant's Motion in Limine on Claims for Punitive Damages,

document 2 8

Stating, without support by way of affidavit, deposition, or

interrogatory excerpt, that the employees of defendant who placed

the audio recorders at issue did not act wantonly, recklessly, or

maliciously, defendant moves to exclude claims for punitive

damages in this action. Plaintiffs object. Document 38.

The court finds and rules that the record before it is

insufficiently developed for it to rule on this motion, and

accordingly denies the motion. If, at the close of the

plaintiffs' case in chief the record is insufficiently developed

to support a claim for punitive damages on the part of any or all

of these plaintiffs, then defendant is, of course, at liberty to

move for judgment as a matter of law pursuant to Rule 5 0 (a), Fed.

R. Civ. P.

8. Defendant's Motion in Limine Regarding Plaintiffs'

Anticipated Claims for Lost Wages as an Element of Damages,

document 2 9

Contending that none of the defendants actually lost wages

as a result of the incidents which give rise to this action.

10 defendant moves to exclude such evidence from consideration by

the jury. Plaintiff James Desilets objects. Document 39.

The court construes the fact that only plaintiff Desilets

objects to equate with agreement that none of the remaining

plaintiffs will claim lost wages in this litigation. As regards

the claim of Mr. Desilets, he is, of course, entitled under the

respective statutes to claim either actual or statutory damages,

and if he desires to press his claim for lost wages, the court

finds that he is entitled to do so and that evidence respecting

any claim for lost wages will not be excluded on the ground of

either relevance or unfair prejudice.

Accordingly, the motion is granted as to plaintiffs Ordway,

Pederson, and Young, but is denied as to plaintiff Desilets.

9. Conclusion

For the reasons hereinabove stated, the court has

- granted defendant's motion in limine to exclude evidence

with regard to plaintiffs' claims for emotional distress

(document 19);

- denied defendant's motion to dismiss the claim of

plaintiff Ordway (document 23);

- denied defendant's motion in limine re: claim of statutory

damages under the federal wiretap statute (document 24);

11 - denied defendant's motion in limine requesting the court

to require that plaintiffs can recover damages under the state or

the federal statute, but not both (document 25);

- granted in part and denied in part defendants' motion in

limine to exclude evidence of defendant's activities after

discovery of the audiotapes (document 26);

- granted defendant's motion in limine to exclude evidence

regarding or reference to the criminal law provisions of the

statutes and to exclude evidence of any police investigation

(document 27);

- denied defendant's motion in limine on claims for punitive

damages (document 28); and

- granted in part and denied in part defendant's motion in

limine seeking exclusion of claims for lost wages (document 29).

As of this writing, the jury herein will be the second jury

to be selected on the morning of October 21, 1997, with trial to

follow upon completion of the number one case. If the number one

case is settled, then this case will go forward later on the day

on which the jury is drawn.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

October 8, 1997

12 cc: Claude T. Buttrey, Esq. Charles L. Powell, Esq. E. Tupper Kinder, Esq.

13