Snyder v. Phelps et al

Filing 154

MOTION in Limine to Preclude Dr. Blumberg from Presenting Hearsay Evidence by Albert Snyder. Responses due by 10/22/2007 (Attachments: # 1 Exhibit B# 2 Text of Proposed Order)(Summers, Sean)

Snyder v. Phelps et al

Doc. 154

IN THE UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND ALBERT SNYDER, Plaintiff Civil Action No. 06-CV-1389 RDB v. FRED W. PHELPS, SR., SHIRLEY L. PHELPS-ROPER; REBEKAH A. PHELPS-DAVIS; and WESTBORO BAPTIST CHURCH, INC. Defendants PLAINTIFF'S MOTION IN LIMINE TO PRECLUDE DR. BLUMBERG FROM PRESENTING HEARSAY EVIDENCE Plaintiff, Albert Snyder, by and through counsel, files the within Motion in Limine to Preclude Dr. Blumberg from Presenting Hearsay Evidence. 1. On July 11, 2007, Dr. Neil Blumberg (hereinafter "Blumberg") prepared a report

concerning a psychiatric evaluation of plaintiff Albert Snyder. See attached Exhibit A. 2. Blumberg's report relies upon testimony from the following: Leslie Morey, Ph.D.;

Theodore Millon, Ph.D.; and James N. Butcher, Ph.D. See Exhibit A, p. 2. 3. Doctors Morey, Millon and Butcher have not been listed as experts, see Exhibit B,

and have not prepared a report. Furthermore, the aforementioned doctors are not expected to testify at trial, and consequently, will not be subject to cross-examination. 4. Blumberg's report is tantamount to a summary of various people. For example,

Blumberg concedes that others interpreted the various tests administered to plaintiff. See Exhibit A, p. 2. ("The testing included administration of the Personality Assessment Inventory (PAI) that was interpreted by Leslie Morey, Ph.D.; the Millon Clinical Multi-Axial Inventory-III (MCMIIII) that was interpreted by Theodore Millon, Ph.D., D.Sc.; and the Minnesota Multiphasic 1
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Personality Inventory-2, Personal Injury Interpretive Report (MMPI-2) that was interpreted by James N. Butcher, Ph.D.") Tests are summarized and/or quoted extensively in Blumberg's report. See Exhibit A, pp. 12-15.1 5. In evaluating whether to admit summary evidence, courts must evaluate whether,

among other things, "the individual who prepared the chart - as well as the evidence upon which the preparer relied - was available for cross-examination by the defendant to test the competence of the evidence as presented in the summary chart." U.S. v. Johnson, 54 F.3d 1150, 1159 (4th Cir. 1995) (internal citations omitted). 6. Although U.S. v. Johnson is a criminal case, the same hearsay standards are

applied in civil cases. See U.S. v. Williams, 447 F.2d 1285, 1291 (5th Cir. 1971). 7. In short, plaintiff will be prejudiced by allowing Blumberg to summarize other

professionals' work. Importantly, Doctors Morey, Millon and Butcher will essentially testify and not be subject to cross-examination. 8. Alternatively, Doctors Morey, Millon and Butcher should be required to testify to

lay the foundation for Blumberg's report. 9. Further in the alternative, any portion of Blumberg's report attributed to another

individual's work should be stricken.

1

As an aside, plaintiff has not received any expert reports or curriculum vitae from the non-testifying witnesses.

2

WHEREFORE, plaintiff Albert Snyder respectfully requests that this Honorable Court preclude any hearsay testimony by Neil Blumberg, M.D. BARLEY SNYDER LLC By: /s/ Sean E. Summers ___________________________________ Paul W. Minnich Sean E. Summers 100 East Market Street P.O. Box 15012 York, PA 17405-7012 [phone] Craig T. Trebilcock Shumaker Williams PC 135 North George Street York, PA 17401 [phone] Attorneys for Plaintiff
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CERTIFICATE OF SERVICE I hereby certify that on this date true and correct copies of Plaintiff's Motion in Limine to Preclude Dr. Blumberg from Presenting Hearsay Evidence are being served in the following manner: Via ECF: Jonathan L. Katz, Esquire Marks & Katz, LLC 1400 Spring Street Suite 410 Silver Spring, MD 20910 Via first class mail: Shirley L. Phelps-Roper 3640 Churchill Road Topeka, KS 66604 Rebekah A. Phelps-Davis 1216 Cambridge Topeka, KS 66604 BARLEY SNYDER LLC By: /s/ Sean E. Summers ___________________________________ Paul W. Minnich Sean E. Summers 100 East Market Street P.O. Box 15012 York, PA 17405-7012 [phone]

Date: October ___, 2007