SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX SARAH CRAWFORD, PLAINTIFF, SX-09-CV-292 Vv. ACTION FOR DAMAGES H. DUANE BOBECK, JANIS BOBECK, 104U PASSPORT HOLDINGS, NEPTUNE HOLDINGS LLLP, AND XYZ COMPANY, DEFENDANT. MEMORANDUM OPINION ql THIS MATTER is before the Court on the Defendants H. Duane Bobeck, Janis Bobeck, Passport Holdings, Neptune Holdings LLP, and XYZ Company (hereinafter collectively “Defendants”), Motion in Limine to Exclude Testimony Related to Pattern and Practice (hereinafter “Motion”) filed on February 6, 2019. The Plaintiff Sarah Crawford (hereinafter “Plaintiff’) filed an Opposition on March 1, 2019. For the following reason, the Court will grant the Defendants’ Motion. BACKGROUND q2 The Plaintiff was hired by H. Duane Bobeck and Janis Bobeck (hereinafter “Bobecks”) in July 2005, to be the First Mate on the family’s yacht, Passport. (Compl. 2.) After a thirty (30) day probationary period, the Plaintiff was paid a salary of $36,000.00 per year. (/d.) The Plaintiff alleges that over time, her job assignment changed from First Mate to catering all parties for the Bobecks, caring for the Bobecks’ dog, doing Janice Bobecks’ makeup, babysitting the Bobecks’ grandchildren and managing their home. (/d.) Given, the Plaintiff’s new responsibilities she repeatedly requested an increase in pay but was consistently denied by the Bobecks. (/d.) Crawford v. Bobeck, 2019 VI SUPER 104U SX-09-CV-292 OPINION Page 2 of 7 q3 According to the Complaint, from the time the Plaintiff began working for the Bobecks, H. Duane Bobeck (hereinafter “Mr. Bobeck’’) sexually harassed her and made inappropriate comments, such as “you would look good if you showed up naked in the pool” or “I should change your uniform into a bikini.” (/d. 3.) In addition, the Bobecks’ son also sexually harassed the Plaintiff. (/d.) On one occasion in 2008, he grabbed her hand and placed it on his erect penis. (/d.) Then in 2009, he grabbed the Plaintiff and kissed her. (/d.) 94 On January 3, 2009, the Plaintiff was directed to take the yacht to Frederiksted with Mr. Bobeck in order to prepare for a party. (/d.) As the Plaintiff was preparing food in the gallery of the yacht, Mr. Bobeck allegedly approached her and started discussing how he has cheated on his wife and his history of infidelity. (/d.) As a result, the Plaintiff left the gallery. (Id.) However, Mr. Bobeck followed the Plaintiff outside and informed her that “he could figure out a way to get interested in women again.” (/d.) Then Mr. Bobeck grabbed the Plaintiff’s breasts and kissed her on the mouth. (/d.) In response, the Plaintiff pushed Mr. Bobeck away and went back to the gallery. (/d.) About thirty minutes later, the Plaintiff went back outside, where Mr. Bobeck again grabbed her breasts and started kissing her. (/d.) The Plaintiff subsequently pushed Mr. Bobeck away for the second time and returned to the gallery. (/d. 3-4.) The following day, while sailing back to Christiansted, Mr. Bobeck allegedly approached the Plaintiff again and stated, “that was a really good conversation we did not have last night wasn’t it?” (/d.) As a result of this incident, the Plaintiff felt physically ill, anxious and distraught and could not return to work. (/d.) On January 14, 2009, the Plaintiff contacted Janis Bobeck (hereinafter “Mrs. Bobeck”) to explain to her what happen during the weekend of January 3, 2009. (/d.) According to the Complaint, Mrs. Bobeck stated that she would investigate the matter and get back to the Plaintiff. (/d.) Allegedly, Mrs. Crawford v. Bobeck, 2019 VI SUPER 104U SX-09-CV-292 OPINION Page 3 of 7 Bobeck is aware of Mr. Bobeck’s improper actions and facilitates his conduct, given his history of sexually harassing women. (Id. 5.) 15 Nevertheless, the Plaintiff never returned to work following the weekend of January 3, 2009, and ultimately resigned considering herself constructively fired. (/d.) Subsequently, after the Plaintiff resigned, Mr. Bobeck allegedly contacted Josh Tate, the former brother-in- law of the Plaintiff and informed him that the Plaintiff took Mr. Bobeck’s cell phone and computer. (/d.) In addition, Mrs. Bobeck repeated this and other defamatory statements to others in the community. (/d.) DISCUSSION q6 Paragraph 26 of the Plaintiffs Amended First Amended Complaint (hereinafter “AFAC”), states that “Defendant H. Duane Bobeck has a history of sexually harassing and attacking females and his actions towards the Plaintiff is part of his pattern and practice of sexual harassment and demeaning women he is associated with.” (AFAC 26.) In addition, the AFAC also states that “Plaintiff has suffered extreme emotional distress resulting from the sexual harassment and gender discrimination and was forced to resign after that pattern of harassment culminating in the aggressive sexual physical assault by the owner of the companies. (AFAC 958.) Given these allegations the Defendants request that the Plaintiff be precluded from presenting any witness testimony or opening statements related to pattern and practices of sexual harassment. {7 According to the Defendant, any testimony regarding the Defendants’ patterns and practices of alleged sexual harassment is inadmissible under Rule 404 and 406 of the Virgin Islands Rules of Evidence. (Mot. 2.) In addition, the Defendant request that if the Court finds that the Plaintiff is entitled to present evidence regarding pattern and practices of sexual Crawford v. Bobeck, 2019 VI SUPER 104U SX-09-CV-292 OPINION Page 4 of 7 harassment that she be required to make a detailed offer of proof of the testimony she claims will establish such pattern and practices. (Id. 1.) q8 The Plaintiff argues that the Defendants inaccurately classifies the evidence of other sexual harassment allegations as character evidence under Rule 404. (Opp’n. 1.) In contrast, Plaintiff claims that evidence of other women’s allegations and suits against the individual defendants is habit evidence which it admissible under Rule 406. In addition, the Plaintiff claims that the corporate defendants failure to correct or investigate the allegations is evidence of the organization’s routine practice, which is also admissible under Rule 406. (Id. 2.) Lastly, the Plaintiff claims that the evidence is necessary in order to establish her claim for punitive damages. (/d. 4.) A. Rule 404 & 406 of the Virgin Islands Rules of Evidence q9 In order to determine whether evidence of other sexual harassment allegations against the Defendant is admissible, the Court must ascertain whether the allegations should be categorized as character evidence under Rule 404 or habit evidence under Rule 406. {lO V.ILR.E. 404 states that “[e]vidence of a person’s character or character traits is not admissible to prove that on a particular occasion the person acted in accordance with the character trait.”! However, Rule 406 states that “[e]vidence of a person’s habit or an organization’s routine practice may be permitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice.”? {!1 Although, this jurisdiction has yet to clarify the difference between character evidence and habit evidence the Third Circuit, whose decisions remain persuasive has distinguished the two types of evidence. According, to the Third Circuit “the purpose of habit evidence is to fill the gap in direct evidence about what an organization did on a specific occasion with 'V.LR.E. 404 ? V.LR.E 406 Crawford v. Bobeck, 2019 VI SUPER 104U SX-09-CV-292 OPINION Page 5 of 7 circumstantial evidence sufficient to reasonable allow one to conclude that the organization probably acted in conformity with its usual pattern on the occasion in question.3 “The Advisory Committee Note to Rule 406, defines habit as the regular practice of meeting a particular kind of situation with a specific type of conduct.”* Additionally, habit “describes one’s regular response to a repeated specific situation ... .”> Therefore, "[t]o qualify as habit evidence, the proffered evidence must be specific and particular."® 12 Moreover, the Notes of Advisory Committee on Rules for the Federal Rules of Evidence, which employs the same language as V.I.R.E 406, state that “[c]haracter and habit are close akin. Character is a generalized description of one’s disposition . . . . Habit is more specific. It describes one’s regular response to a repeated situation.” {13 Although, the Third Circuit applies the Federal Rules of Evidence the Supreme Court of the Virgin Islands has cited the Federal Rules as the source for V.I.R.E. 404 and 406. Therefore, by applying this distinguish between character and habit evidence the Court finds that evidence of other sexual harassment allegations fails to rise to the level of habit because each allegation involves different facts and is not an automatic or systematic response by the Defendants. Rather the evidence is more analogous to character evidence which does not require a specific and consistent response in a specific situation but instead varies and is irregular. Thus, having concluded that evidence of other sexual harassment is character evidence it is inadmissible under Rule 404. * Sheetz v. Wal-Mart Stores, East, L.P., 2017 U.S. Dist. LEXIS 193469 at *23 (M.D. Pa. Nov. 22, 2017)(citing York Int'l Corp. v. Mut. Ins. Co., 140 F. Supp. 3d 357, 362 (M.D. Pa. 2015). "Id. see also Fed. R. Evid. 406, Advisory Committee Note. ° Lyons v. Beard, 2011 U.S. Dist. LEXIS 79408 at *15(M.D. Pa. July 21, 201 t)(citing Fed. R. Evid. 406, Advisory Committee Note) * Id. "Fed. R. Evid. 406, Advisory Committee Note. Crawford v. Bobeck, 2019 VI SUPER 104U SX-09-CV-292 OPINION Page 6 of 7 B. Punitive Damages q!4 The Plaintiff has also asserted that it is necessary to present evidence of other sexual harassment allegations in order to establish her claim for punitive damages. {15 This jurisdiction has adopted the Restatement (Second) of Torts regarding punitive damages, which state that: 1. Punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future. 2. Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant's act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.’ {16 Inconsideration of what is necessary to successfully assert a claim for punitive damages, the Plaintiff need only to show that the Defendants’ conduct was outrageous due to having an evil motive or reckless indifference to the rights of others. Therefore, contrary to Plaintiffs assertion it is not necessary to present evidence of other sexual harassment allegations in order to establish their claim for punitive damages. Instead, the Plaintiff needs only to establish that the Defendants conduct was so outrageous that it indicates an evil intent or lack of concern for others. Thus, the Court finds that it is not necessary to allow the ® Restatement (Second) of Torts § 908 (1979). Crawford v. Bobeck, SX-09-CV-292 OPINION Page 7 of 7 Plaintiff to present evidence of other sexual harassment allegations against the Defendants in order to establish a claim for punitive damages. CONCLUSION G17 After careful consideration, the Court will grant the Defendants’ Motion. An Order consistent with this Memorandum Opinion follows. Accordingly, it is hereby ORDERED that the Defendants’ Motion is GRANTED. - DONE and so ORDERED this <2 day of July, 2019. ATTEST: ab) 7 LLJA Estrella H. rge HAROLD W.L. WILLOCKS Clerk of t Yj o~ dministrative Judge of the Superior Court By l wYY//, (AY Dated [7] SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX SARAH CRAWFORD, PLAINTIFF, SX-09-CV-292 Vv. ACTION FOR DAMAGES H. DUANE BOBECK, JANIS BOBECK, 106U PASSPORT HOLDINGS, NEPTUNE HOLDINGS LLLP, AND XYZ COMPANY, DEFENDANT, MEMORANDUM OPINION ql THIS MATTER is before the Court on the Defendants H. Duane Bobeck, Janis Bobeck, Passport Holdings, Neptune Holdings LLP, and XYZ Company (hereinafter collectively “Defendants”), Motion in Limine to Exclude (hereinafter ‘“Motion’”) filed on February 6, 2019. The Plaintiff Sarah Crawford (hereinafter “Plaintiff”) filed an Opposition on March 1, 2019. For the following reason, the Court will the Defendants’ Motion. BACKGROUND q2 The Plaintiff was hired by H. Duane Bobeck and Janis Bobeck (hereinafter “Bobecks”) in July 2005, to be the First Mate on the family’s yacht, Passport. (Compl. 2.) After a thirty (30) day probationary period, the Plaintiff was paid a salary of $36,000.00 per year. (/d.) The Plaintiff alleges that over time, her job assignment changed from First Mate to catering all parties for the Bobecks, caring for the Bobecks’ dog, doing Janice Bobecks’ makeup, babysitting the Bobecks’ grandchildren and managing their home. (/d.) Given, the Plaintiff's new responsibilities she repeatedly requested an increase in pay but was consistently denied by the Bobecks. (/d.) 13 According to the Complaint, from the time the Plaintiff began working for the Bobecks, H. Duane Bobeck (hereinafter “Mr. Bobeck”’) sexually harassed her and made Crawford v. Bobeck, 2019 VI Super 106U SX-09-CV-292 OPINION Page 2 of 9 inappropriate comments, such as “you would look good if you showed up naked in the pool” or “I should change your uniform into a bikini.” (/d. 3.) In addition, the Bobecks’ son also sexually harassed the Plaintiff. (/d.) On one occasion in 2008, he grabbed her hand and placed it on his erect penis. (/d.) Then in 2009, he grabbed the Plaintiff and kissed her. (/d.) q4 On January 3, 2009, the Plaintiff was directed to take the yacht to Frederiksted with Mr. Bobeck in order to prepare for a party. (/d.) As the Plaintiff was preparing food in the gallery of the yacht, Mr. Bobeck allegedly approached her and started discussing how he has cheated on his wife and his history of infidelity. (/d.) As a result, the Plaintiff left the gallery. (Id.) However, Mr. Bobeck followed the Plaintiff outside and informed her that “he could figure out a way to get interested in women again.” (/d.) Mr. Bobeck then grabbed the Plaintiff’s breasts and kissed her on the mouth. (/d.) In response, the Plaintiff pushed Mr. Bobeck away and went back to the gallery. (/d.) About thirty minutes later, the Plaintiff went back outside, where Mr. Bobeck again grabbed her breasts and started kissing her. (/d.) The Plaintiff subsequently pushed Mr. Bobeck away for the second time and returned to the gallery. (Id. 3-4.) The following day, while sailing back to Christiansted, Mr. Bobeck allegedly approached the Plaintiff again and stated, “that was a really good conversation we did not have last night wasn’t it?” (/d.) As a result of this incident, the Plaintiff felt physically ill, anxious and distraught and could not return to work. (/d.) On January 14, 2009, the Plaintiff contacted Janis Bobeck (hereinafter “Mrs. Bobeck”) to explain to her what happen during the weekend of January 3, 2009. (/d.) According to the Complaint, Mrs. Bobeck stated that she would investigate the matter and get back to the Plaintiff. (/d.) Allegedly, Mrs. Bobeck is aware of Mr. Bobeck’s improper actions and facilitates his conduct, given his history of sexually harassing women. (/d. 5.) Crawford v. Bobeck, 2019 VI Super 106U SX-09-CV-292 OPINION Page 3 of 9 gS Nevertheless, the Plaintiff never returned to work following the weekend of January 3, 2009, and ultimately resigned considering herself constructively fired. (/d.) Subsequently, after the Plaintiff resigned, Mr. Bobeck allegedly contacted Josh Tate, the former brother-in- law of the Plaintiff and informed him that the Plaintiff took Mr. Bobeck’s cell phone and computer. (/d.) In addition, Mrs. Bobeck repeated this and other defamatory statements to others in the community. (/d.) DISCUSSION q6 The Defendants assert that the Plaintiff shall be precluded from presenting any testimony or statements regarding (1) the Equal Employment Opportunity Commission complaint Kelly Werth v. Bobeck Real Estate Inc. (hereinafter “EEOC Complaint”), (2) expert testimony from Dr. Diane Brinker, (3) vicarious liability claims against corporate defendants Neptune Holdings LLLP, and Passport Holdings, and (4) from eliciting evidence from the Defendants regarding allegations of sexual harassment. 1. EEOC Complaint q? The Defendants asserts that the Plaintiff shall be precluded from introducing any evidence regarding the EEOC Complaint under Rule 401, 402, and 403 of the Virgin Islands Rules of Evidence because the defendant in that matter Bobeck Real Estate Inc. is no longer a party in the present claim. (Mot. 1.) In addition, evidence that a defendant is more likely than not to commit a particular act is inadmissible as character evidence under Rule 404. qs The Plaintiff claims that the evidence of the EEOC Complaint is admissible as habit evidence under Rule 406. q9 V.LR.E. Rule 401 states that “[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence, and (b) the fact is of Crawford v. Bobeck, 2019 VI Super 106U SX-09-CV-292 OPINION Page 4 of 9 consequence in determining the action.”' However, Rule 403 states that “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice; e confusing the issue; ® misleading the jury; e undue delay; e wasting time; or e needlessly presenting cumulative evidence.* {!0 In addition, Rule 404 states that “[e]vidence of a person’s character or character traits is not admissible to prove that on a particular occasion the person acted in accordance with the character trait.”? However, Rule 406 states that “Te]vidence of a person’s habit or an organization’s routine practice may be permitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice.”4 ql In determining the distinction between character evidence and evidence of habit the Third Circuit has held that “the purpose of habit evidence is to fill the gap in direct evidence about what an organization did on a specific occasion with circumstantial evidence sufficient to reasonable allow one to conclude that the organization probably acted in conformity with its usual pattern on the occasion in question.* Moreover, in the Federal Rules of Evidence Advisory Committee Note to Rule 406, which employs the same language as V.I.R.E 406, habit is defined as “the regular practice of meeting a particular kind of situation with a 'V.L R.E 40t ? V.LR.E 403 4 V.LR.E. 404 + V.LR.E 406 * Sheetz v. Wal-Mart Stores, East, L.P..2017 U.S. Dist. LEXIS 193469 at *23 (MD. Pa. Nov. 22, 2017)(citing York Int’l Corp. v. Mut. Ins. Co., 140 F. Supp. 3d 357, 362 (M.D.Pa. 2015). Crawford v. Bobeck, 2019 VI Super 106U SX-09-CV-292 OPINION Page 5 of 9 specific type of conduct.”® Additionally, habit "describes one’s regular response to a repeated specific situation. ...”’ Therefore, "[t]o qualify as habit evidence, the proffered evidence must be specific and particular."*Although, the Third Circuit applies the Federal Rules of Evidence the Supreme Court of the Virgin Islands has cited the Federal Rules as the source for V.ILR.E. 404 and 406. {12 Here the Plaintiff has failed to establish how the EEOC Complaint is relevant to the present matter under Rule 401. Given that neither party in the EEOC Complaint is a party to the present lawsuit, since the Plaintiff decided to exclude Bobeck Real Estate Inc. from its Amended First Amended Complaint (hereinafter “AFAC”). (See generally AFAC) Additionally, by applying the Third Circuit definition of habit the Court finds that the EEOC Complaint like the evidence of other sexual harassment allegations is more akin to character evidence rather than habit evidence and is therefore inadmissible under Rule 404. As a result, evidence of the EEOC Complaint is inadmissible. 2. Expert Testimony 413 The Defendant claims that the expert testimony of Dr. Diane Brinker, Ph. D. (hereinafter “Dr. Brinker”) is inadmissible according to Virgin Islands Rule of Civil Procedure 26(a)(2)(B) because the Plaintiff did not submit an expert report in accordance with the rule. Therefore, her testimony should be limited to that of a treating physician. {14 The Plaintiff calms that as a treating physician Dr. Brinker is permitted to testify regarding her opinion on causation, permanency of injuries and future prognosis. {IS According to Rule 26(a) of the Virgin Islands Rule of Civil Procedure in order for a witness to testify as an expert at trial, the witness must be properly disclosed as an expert 6 Id, see also Fed. R. Evid. 406, Advisory Committee Note. 7 Lyons v. Beard, 2011 U.S. Dist. LEXIS 79408 at *15(MD. Pa. July 21, 2011) * Id. Crawford v. Bobeck, 2019 VI Super 106U SX-09-CV-292 OPINION Page 6 of 9 pursuant to Federal Rule of Civil Procedure 26° and he/she must be qualified as an expert with opinions and conclusions that are admissible pursuant to the Virgin Islands Rules of Evidence.'® In addition to disclosing, any witness employed to provide expert testimony must prepare and sign a witness report. . . .'' “A witness who is qualified as an expert. . . may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.”'!? However, Rule 701 mandates that “[i]f a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”'3 Moreover, this Court has consistently stated that when a witness testifies as a treating physician rather than an expert witness, their testimony “will be limited to one that is rationally based on her perception, helpful to the jury in understanding the testimony or a fact in issue, and is not based on scientific, technical, or other specialized knowledge within the scope of [Virgin Islands] Rule [of Evidence] 702.”'4 * The Supreme Court of the Virgin Islands stated in Davis v. Varlack Ventures, Inc., 59 V.I. 229, 233 (V.L 2013), that “Federal Rules of Civil Procedure 26 through 37 govern discovery in the Superior Court. (citing Super. Ct. R. 39(a)) (“Depositions and discovery shall be had in the Superior Court of the Virgin Islands, pursuant to the provisions of Rutes 26 to 37, inclusive of the Federal Rules of Civil Procedure.”). "VLR. Civ. P. 26(a)(2)(A); The Supreme Court of the Virgin Islands noted in Smith v. People of the Virgin Islands, 55 V.1. 957, 961 n. 2 (V.1. 2011) that “on March 26, 2010 the Virgin Islands Legislature approved, and on April 7, 2010 the Governor signed into law, Act No. 7161, section 15, which repealed the prior (Uniform Rules of Evidence] provisions and replaced them with the (Federal Rules of Evidence).” See Act No. 7161 (Bill No. 28-0180) §15. 'WV.LR. Civ. P. 26(a)(2)(B) "2 V_LR.E 702. [V LR.E 701. 'S Edward v. Genoa Inc., 67 V.1. 160, 169 (V.I. Super. Ct. Jan. 10. 2017)(citing V.ILR.E.701) See also In re Catalyst Litigation, 2010 V.I. LEXIS 140 at *11-12 (V.I. Super. Ct. July 8, 2010). Crawford v. Bobeck, 2019 VI Super 106U SX-09-CV-292 OPINION Page 7 of 9 {16 Here, the record does not indicate that Dr. Brinker satisfied the V.ILR. Civ. P Rule 26(a)(2)(B). However, the parties do not disagree that Dr. Brinker testimony is limited to that of a treating physician. Rather the parties disagree as to the scope of Dr. Brinker’s testimony given that she is testifying as a treating physician. As a treating physician, Dr. Brinker testimony is governed by V.I.R.E 701. Therefore, her testimony will be limited to one that is “(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”!5 3. Vicarious Liability 417 The Defendants claim that because the Plaintiff's AFAC does not allege that the Defendants Neptune and Passport (hereinafter “Corporate Defendants”) are vicariously liable for the conduct of Mr. Bobeck and his son Peter Bobeck then the Plaintiff should be precluded from presenting any testimony in reference to vicarious liability. 418 The Plaintiff argues that the Defendants’ Motion regarding vicarious liability is an attempt to bring an untimely motion to dismiss or motion for partial summary judgment. {19 Here, the Defendant is correct in that the Plaintiff has failed to state a claim for vicarious liability in its AFAC. However, this Court has stated that “vicarious liability is not a cause of action but rather a basis to extend the liability of the underlying tort,” similar to punitive damages.'® Therefore the Court finds that the Plaintiff is not prevented from presenting evidence of vicarious liability in spite of it not being alleged as a separate claim in her Complaint. 720 Moreover, the Defendants’ Motion regarding vicarious liability would have been better Suited as a motion to dismiss or partial summary judgment at an earlier time. However, because 'SV_LR.E. 702. '6 Bonelli v. Gov't of the V.L, 2015 V.1. LEXIS 29 at *11 (VL Super. Ct. March 19, 2015). Crawford v. Bobeck, 2019 VI Super 106U SX-09-CV-292 OPINION Page 8 of 9 Rule 12(b)'’ and Rule 56(b)'* require that a motion to dismiss and a motion for partial summary judgment be filed at an earlier stage in the case the Defendant is precluded from asserting such motion at this time. Therefore, the Plaintiff is not presenting evidence of vicarious liability. 4. _ Eliciting Evidence Regarding Allegations of Sexual Harassment q21 The Defendant anticipates that the Plaintiff will likely attempt to overcome V.I.R.E. 404 and 406 by asking the Defendants questions involving other allegations of sexual harassment in order to present impeachment evidence, which is a violation of Rule 403, 404, and 406. 422 The Plaintiff claims that any questions or statements regarding other sexual harassment allegations against the Defendant are permissible under Rule 403 and 406. {23 Although, the Plaintiff argues that evidence of other sexual harassment allegations against the Defendant is habit evidence and therefore permissible under Rule 406. The Court has already determined that such evidence is more consistent with character evidence and is therefore inadmissible under Rule 404. Therefore, having determined that evidence is inadmissible as character evidence the Court also holds that the Plaintiff is precluded from attempting to elude the barriers of Rule 404 and 406 by asking the Defendants any questions pertaining to other allegations of sexual harassment. CONCLUSION {24 Therefore given the foregoing reasons, the Court will grant the Defendants’ Motion is granted in part and the Plaintiff's Opposition is granted in part. Accordingly, it is hereby '7V.LR. Civ. P. 12(b) allows a party to assert a motion to dismiss at any time before a responsive pleading is presented. '* VLR. Civ. P 56(b) allows a party to move for summary judgment or partial summary judgment until 30 days after the close of all discovery. Crawford v. Bobeck, SX-09-CV-292 OPINION Page 9 of 9 ORDERED that the Defendants’ Motion is GRANTED regarding the EEOC Complaint, Dr. Brinker testimony, and questions pertaining to other allegations of sexual harassment; it is further ORDERED that the Plaintiff's Opposition is GRANTED regarding vicarious liability DONE and so ORDERED this_2O day of July, 2019. ATTEST: L, MASE file Estrella H. ¢ fp HAROLD W.L. WILLOCKS Clerk of thy 4 Spann Rou Judge of the Superior Court ‘Ay } Wf UY By 14 My HG ou Dated