HOWARD v. DEMO SALVAGE

Filing 61

ORDER ON PLAINTIFF'S MOTION IN LIMINE granting in part, denying in part, and dismissing without prejudice in part 44 Motion in Limine to Exclude or Limit Questioning at Trial By JUDGE JOHN A. WOODCOCK, JR. (CCS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MELANIE HOWARD
Plaintiff,
v.
DEMO SALVAGE
Defendant.

)
)
)
)
)
)
)
)
)

1:18-cv-00150-JAW

ORDER ON PLAINTIFF’S MOTION IN LIMINE
With trial looming, the Plaintiff in this personal injury case filed a motion in
limine to obtain pretrial rulings on three evidentiary issues: (1) evidence about the
Plaintiff’s background, such as her estrangement from her parents, her uncertain
relationship with her daughter, and encounters with the authorities over the years,
(2) evidence about her forensic psychiatrist’s divorce and malpractice history, and (3)
evidence or argument that Cianbro Corporation is responsible for this accident. Pl.’s
Mot. in Limine (ECF No. 44) (Pl.’s Mot.). The Defendant responded, arguing that all
the disputed evidence is admissible, but did not respond to the Plaintiff’s argument
concerning her forensic psychiatrist’s divorce. Def.’s Opp’n to Pl.’s Mot. in Limine
(ECF No. 47) (Def.’s Opp’n). Subject to evidentiary developments at trial and some
restrictions, the Court rules that evidence of the Plaintiff’s prior background and
Cianbro Corporation’s involvement are admissible.

The Court dismisses the

Plaintiff’s motion regarding the malpractice claim now pending against the Plaintiff’s
expert, subject to further factual development at trial, but orders counsel not to refer
to the malpractice claim until admissibility is resolved.

I.

BACKGROUND
Melanie Howard, a Cianbro employee, alleges that on February 1, 2016, she

sustained a grievous injury primarily to her right leg when a 3000-pound slab of
cement fell through a hole in the floor, struck a machine directly below, bounced off
the machine, and striking her.

Pl.’s Pre-Trial Mem. at 1-2 (ECF No. 36) (Pl.’s

Pretrial). Ms. Howard says that she has undergone several hospitalizations and
surgeries and has an intractable case of post-traumatic stress disorder (PTSD). Id.
II.

MELANIE HOWARD’S PERSONAL BACKGROUND
A.

The Parties’ Positions

Ms. Howard’s first motion seeks to exclude her prior background. Pl.’s Mot. at
1. She explains:
At deposition, defense counsel delved very deeply into Plaintiff’s
background, including her estrangement from her parents
approximately 25 years ago, her uncertain relationship with her
daughter and various involvements she has had with the authorities
over the years. They included a conviction for DWI, an accusation of
child endangerment many years ago which was made by a boyfriend
during an argument and which was never prosecuted and a simple
assault which was not prosecuted.
Id. She says that Dr. Lubic, her forensic psychiatrist expert, “testified unequivocally
that the only trigger for Plaintiff’s PTSD was the accident of February 1, 2016 which
is the subject of this case.” Id. Thus, in Ms. Howard’s view, “none of these areas of
questioning is probative of any of the facts at issue in this matter.” Id.

2

Demo Salvage disagrees. Def.’s Opp’n at 1. 1 It says that Ms. Howard “put her
[PTSD] front and center in the prosecution of her claim.” Id. It argues that her claim
of current and future inability to work “is grounded in her mental health obstacles,
not her physical injuries sustained in her personal injury.” Id. (emphasis in original).
It maintains that “evidence of past traumatic life events should be admitted into
evidence as probative of the Plaintiff’s mental health issues and claim of no current
or future work capacity.” Id.
B.

Discussion

Under Maine law, if a plaintiff has a preexisting condition that is exacerbated
by a personal injury, the Maine Supreme Judicial Court has placed the burden of
apportioning between the preexisting injury and the accident-related injury on the
defendant. Lovely v. Allstate Ins. Co., 658 A.2d 1091, 1092-93 (Me. 1995). In the
words of the Lovely Court, the “single injury rule places any hardship resulting from
the difficulty of apportionment on the proven wrongdoer and not on the innocent
plaintiff.” Id. at 1093. In 2014, the Maine Supreme Judicial Court held this rule
applied to claims of physical and mental injuries in Bratton v. McDonough, 2014 ME
64, 91 A.3d 1050. The Bratton case involved the presence of lead paint in a home the
plaintiffs had rented, and they claimed that their children had suffered mental and
developmental problems because of lead exposure. Id. ¶¶ 1-27. The defendant in
Bratton pointed to the children’s father’s alcoholism, their mother’s depression, and

The Court refers to the ECF numbering for pincites because Demo Salvage’s opposition
memorandum does not include pagination.

1

3

genetics as causes of their injuries. Id. ¶ 20. In Bratton, the Law Court reiterated
that Maine law places “the burden of apportioning damages on a defendant who seeks
to limit liability on the basis of a preexisting or a subsequent injury.” Id. ¶ 19
(emphasis in original). Furthermore, Maine law also “requires that when a defendant
asserts that an independent factor, rather than the defendant’s acts, caused the
plaintiff’s harm, it is the defendant’s burden to prove that independent causation by
a preponderance of the evidence.” Id. (emphasis in original).
The subtext of Lovely and Bratton is that evidence of a preexisting condition is
likely admissible, if the defendant provides an appropriate foundation for a finding
that the plaintiff had some preexisting conditions and that they are potentially
apportionable. Even though under Maine law the burden rests on the defendant to
prove apportionment and even though the burden may, in some cases, be difficult,
the defendant retains the right to attempt to apportion damages where the defendant
has established a proper predicate for the argument. Indeed, Bratton concluded that
the trial court erred in refusing to give a Lovely instruction if generated by the
evidence. Id. ¶ 21; see DONALD G. ALEXANDER, MAINE JURY INSTRUCTIONS § 7-102 (4th
ed. 2012).
Here, the Court knows little about the contested evidence, but based on the
proffers of the parties, the Court will not exclude evidence of Ms. Howard’s
background so that the jury may, if appropriate, apportion the symptoms occasioned
by her preexisting conditions and those caused by the February 1, 2016 injury.
III.

DR. ROY LUBIT’S MALPRACTICE CLAIM
4

Ms. Howard designated Dr. Roy Lubit as her forensic psychiatric expert
witness. Pl.’s Pretrial at 3. Ms. Howard first moved to exclude cross-examination of
the doctor about his divorce. Pl.’s Mot. at 1. Demo Salvage did not respond to this
part of Ms. Howard’s motion and the Court assumes that it has conceded that
questions to the doctor about his personal life are irrelevant and will not be pursued.
The malpractice claim is something else. Ms. Howard merely states that “the
claim made against him was an allegation that he did not sign a document which he
in fact says he did sign.” Id. Ms. Howard says that Dr. Lubit is contesting the case.
Id. Demo Salvage says that the malpractice claim is “probative as to Dr. Lubit’s
credibility and, therefore, should be admitted for the fact finders to consider in
weighing Dr. Lubit’s testimony.” Def.’s Opp’n at 2.
As described, the connection between the malpractice claim and Dr. Lubit’s
professional opinions seems attenuated. The Court cannot, however, rule based on
the scant information before it whether the malpractice claim could be admissible to
impeach the doctor’s credibility. The Court rules that the defense shall not mention
this malpractice claim during opening statement and shall approach the Court before
attempting to elicit information about the claim. The Court will likely hear testimony
about the malpractice claim outside the presence of the jury before making a final
ruling on its admissibility. To clear up the docket, the Court grants the motion in
part and dismisses it without prejudice in part, subject to Ms. Howard’s objection or
motion at trial.
IV.

CIANBRO LIABILITY
5

Ms. Howard was employed by Cianbro Corporation when the accident took
place and she has been covered by workers’ compensation insurance. Pl.’s Mot. at 1.
Ms. Howard observes that under Maine law, she may not sue Cianbro. Id. at 1-2
(citing 39-A M.R.S. §§ 104, 403(1)). She further states that Maine law provides that
when “liability is joint and several, the plaintiff may recover all of her damages from
any of the tortfeasors . . ..” Id. (quoting Peerless Ins. Co. v. Progressive Ins. Co., 2003
ME 66, ¶ 7, 822 A.2d 1125). Thus, in her view, the only liability issue is whether
Demo Salvage was negligent and whether its negligence was a 1% legal cause of her
injuries, which she views as a virtual foregone conclusion. Id. at 1-3.
Demo Salvage says that it was present in the paper mill to perform demolition
work and that “Cianbro controlled the means and methods used by its subcontractors
at the paper mill and had ultimate responsibility for oversight and safety of all
contractors at the mill.” Def.’s Opp’n at 2. It says that it “would be impossible to give
a narrative of the events without indicating that Cianbro played a role.” Id.
The Court agrees with Demo Salvage that it would be difficult to present any
cohesive narrative of the circumstances leading up to Ms. Howard’s injury without
presenting evidence of Cianbro’s involvement.

Also, Demo Salvage could, if the

argument is justified by the evidence, contend that the only entity that was negligent
was Cianbro. Assuming the Cianbro evidence will be admissible, the Court will be
amenable to a cautionary instruction to the jury both when the Cianbro evidence is
admitted and during final jury instructions concerning limitations on their use of
Cianbro evidence. The Court anticipates that counsel for both Ms. Howard and Demo

6

Salvage will present proposed instructions for the Court’s consideration.
V.

CONCLUSION
The Court GRANTS in part and DENIES in part Plaintiff’s Motion in Limine

(ECF No. 44). The Court DENIES the motion as regards Ms. Howard’s background,
GRANTS the motion as regards Dr. Lubit’s divorce, GRANTS in part and
DISMISSES without prejudice in part the motion as regards Dr. Lubit’s malpractice
claim subject to the Plaintiff’s objection or motion at trial, and DENIES the motion
as regards the involvement of Cianbro in the events leading to Ms. Howard’s injuries.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 1st day of February, 2019

7