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Donald S. Dobkin v. the University of Iowa

February 13, 2013

DONALD S. DOBKIN, PLAINTIFF-APPELLANT,
v.
THE UNIVERSITY OF IOWA, BY AND THROUGH ITS COLLEGE OF LAW, DEFENDANT-APPELLEE.



Appeal from the Iowa District Court for Johnson County, Sean W. McPartland, Judge.

The opinion of the court was delivered by: Eisenhauer, C.J.

Plaintiff appeals from the denial of his motion for new trial following a jury verdict in favor of defendant. AFFIRMED.

Heard by Eisenhauer, C.J., and Danilson and Bower, JJ.

Donald Dobkin, an unsuccessful applicant for a teaching position at the University of Iowa College of Law, appeals from the denial of his motion for new trial following a jury verdict in favor of the university in his age discrimination suit. He contends the court erred in denying the motion for new trial because it improperly excluded an exhibit, an article written by one of his witnesses.

I. Background Facts and Proceedings

In 2008 the law school advertised openings in the placement bulletin of the Association of American Law Schools (AALS). Dobkin, then age fifty-five, submitted an application through the AALS process. Dobkin was not offered a position. The law school offered a position to a thirty-two-year-old candidate, who turned down the offer. Dobkin filed an age discrimination claim with the Iowa Civil Rights Commission in 2009 and received a right-to-sue letter.

In November 2009 Dobkin sued the law school, alleging age discrimination. The matter came to trial in February 2012. The court overruled the law school's motion in limine seeking to exclude the video deposition testimony of Nicholas Spaeth. The court then went through the objections made during the deposition and ruled on each of them. The court sustained the law school's objection to Exhibit 20, a two-page article from the National Law Journal newspaper entitled "At Law Schools, Age Bias Co-Exists With Outdated Practices," written by Spaeth. The court stated:

The objection on page 27 to Exhibit 20, to the offer of Exhibit 20, is granted. I've read Exhibit 20. I think it contains hearsay within hearsay and contains a fair amount of speculation. It also contains basically opinions of this witness beyond the scope of what I understand to be the disclosure of opinions. So Exhibit 20 is not in evidence at this time. The motion in limine with respect to Exhibit 20 is sustained.

The court then allowed Dobson's trial attorney to make a record concerning the ruling.

Judge, I believe this was an article written and recognized by the National Law Journal as an article that was researched, and while it does contain Mr. Spaeth's opinions, it is based on his empirical evidence that he had gathered. It is also based upon what the trends were in the national law educational process at the present time. I think it's relevant and material, and whether it has his opinions or conclusions only goes to the weight of its admissibility and not necessarily to its admissibility.

The only objection contained therein was a hearsay objection. Mr. Spaeth was the author of this article, and obviously laid the foundation for that. If I had objections to particular parts of the article, I may have been able to address that, but to claim that the objection here is based solely on hearsay, when it's Mr. Spaeth's own ideas that he set forth in a published law journal article, is not a proper objection. And for that reason, I would still like to be able to tender Exhibit 20.

The court then stated:

All right. I'm going to sustain the objection. And what we'll do, we'll make Plaintiff's Exhibit 20 a part of the record so you've certainly got that as a part of the record that can go forward. . . .

You will have a copy-I should say what will be the original with the sticker on it of Exhibit 20 that will be tendered, it will ...


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