FORD v. COUNTY OF HUDSON et al
OPINION. Signed by Judge Kevin McNulty on 5/16/14. (gmd, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 07-5002 (KM)(MCA)
MEMORANDUM OPINION ON
COUNTY OF HUDSON, HUDSON
COUNTY DEPARTMENT OF
CORRECTIONS, OSCAR AVILES,
and DAVID KRUSZNIS,
There are fourteen motions in limine, many of which contain multiple
parts, pending in this matter. Two were filed by Plaintiff Helen Ford, six were
filed by Defendant Oscar Aviles, and six were filed by Defendants County of
Hudson (“County”), Hudson County Department of Corrections (“Doe”), and
David Krusznis. In lieu of oral rulings, I file this informal, unpublished opinion
for the guidance of the parties, who are familiar with the facts and allegations
in the case. Suffice it to say that this is a 42 U.S.C. § 1983 claim (with pendent
state law claims) brought by Ford, a corrections officer, against her superiors,
the DOC, and the County. She alleges, inter alia, that defendants tok
unfounded disciplinary action against her on retaliatory and discriminatory
grounds, in breach of the First and Fourteenth Amendments.
In general, the most useful of these motions in limine concern the
permissible scope of expert testimony.
Motions in ilmine filed by Defendant Oscar Aviles (“Aviles”) [ECF No. 121]
1) Motion to Dismiss Plaintiff’s Claims for Punitive Damages
This motion pertains to the various grounds on which Plaintiff is seeking
punitive damages. Ms. Ford seeks them against the individual defendants
based on both § 1983 and the New Jersey Law Against Discrimination (LAD),
and against the County of Hudson in conjunction with her theory of municipal
liability under § 1983. Aviles argues that all of these punitive damages
demands must be thrown out.
As to the claims against individuals, Aviles essentially argues that there
is no evidence of “evil motive or intent,” “or of reckless or callous indifference to
federally protected rights,” or of “especially egregious” behavior. Aviles cites no
threshold legal bar to such claims; rather, his argument is based on uncited
assertions about the sufficiency of the evidence. In essence, then, this is a
belated motion for summary judgment or a premature motion for a directed
verdict. At trial, based on a fully developed record, I will decide whether there is
sufficient evidence of evil motive, callous indifference, or egregiousness to
submit the punitive damages issue to the jury.
As to the § 1983 claim against the County, Aviles has a better legal
argument. “[A] municipality is immune from punitive damages under 42 U.s.c.
§ 1983.” Newport v. Fact Concerts, 453 U.S. 247, 271 (1981). Plaintiff says little
or nothing in response.
Accordingly, I will DENY this motion without prejudice to renewal at trial
as it pertains to the claims against the individual defendants, but GRANT this
motion as to the County.
2) Motion for a Bifurcated Trial Concerning Punitive Damages
Aviles contends and Plaintiff concedes that punitive damages issues
should be tried separately, after the jury has returned its verdict on liability
and compensatory damages. I agree, and will GRANT this motion. Any
evidence going solely to the issue of punitive damages should not be offered in
the initial phase of the trial.
3) Motion to Preclude Evidence Containing “Baseless, Irrelevant,
and Prejudicial Hearsay Testimony Premised on Rumor or
Conjecture or Which is Merely Designed to Improperly Undermine
the Character of Any Witness.”
Aviles brings what amounts to a blanket motion to enforce the Rules of
Evidence. As formulated, it cannot be denied, but for the most part it is too
general to be useful.
Aviles gives two examples of the kind of evidence he would like to bar.
First, he states that Ms. Ford might testify that a jail personnel officer told her
that that he “heard” that Aviles “opposed Plaintiff’s return to the Training Unit,”
even though “Plaintiff has no proof that these statements were ever made.”
Second, he worries that Ms. Ford might testify, as she did at her deposition,
that one officer told another officer that “Aviles hit the window and said ‘we are
going to appeal. She is not coming back here”’ when he heard of the OAL
decision overturning Ms. Ford’s dismissal and reinstating her. Aviles complains
that this is triple hearsay.
Ms. Ford argues that this motion seeks an unnecessary blanket ruling,
and she also hints at potential grounds to admit, or at least to argue for
admission of, the evidence in the two cited examples.
These are routine evidentiary objections of the kind ordinarily addressed
in the context of the evidence at trial. As to the two particular statements,
Plaintiff’s counsel will signal the court before eliciting them in the hearing of
I will therefore DENY this motion subject to appropriate renewal(s) at
4) Motion to Preclude Plaintiff and Her Witnesses from Testifying as
to the Ultimate Issues in the Case
Aviles seeks a ruling barring any testimony concerning whether someone
was, for example, “discriminated against,” “harassed,” or “retaliated against,”
because of the legal significance of these terms. He contends that, under Fed.
R. Evid. 403, any such testimony would have little substantive value, which
would be outweighed by undue prejudice, confusion of issues, and/or
misleading of the jury.
Ms. Ford points to FRE 704, which permits opinion testimony which
reaches the ultimate issue in a case, subject to the requirements of FRE 701,
702, and the balancing test of FRE 403. Plaintiff contends, properly I believe,
that a blanket pretrial ruling applying FRE 403 to all potential ultimate issue
testimony would be improper. Ms. Ford asserts that her contemplated
testimony is based on her personal knowledge and will go to the heart of this
case. If that is so—and that remains to be seen—such testimony might well
satisfy FRE 701 (requiring that opinion testimony be “rationally based on the
witness’s perception... [and] helpful to clearly understand the witness’s
testimony or to determining a fact in issue...”).
I think this motion is unduly broad and general. I certainly reject the
notion that witnesses cannot, if otherwise appropriate, opine on the ultimate
issue, see FRE 704(a), but I acknowledge that objections to particular proffers
of evidence, based on FRE 701 or 702, and 403, could be appropriate and will
be assessed as raised at trial. I will therefore DENY this motion subject to
appropriate renewal(s) at trial.
5) Motion to Preclude Specific Opinion Testimony of Ms. Ford
Aviles’ fifth motion is closely related to his fourth. Here, he cites specific
lines of deposition testimony of Ms. Ford and seeks a ruling barring similar
testimony at trial on FRE 701 grounds. He contends, for example, that Ms.
Ford should not be able to testify that:
“There is systemic discrimination against women in the Hudson
County Department of Corrections.”
In particular, Aviles argues that Ms. Ford cannot make such an assertion
because she is not being offered as an expert on discrimination or retaliation.
In effect, then, Aviles’ objection is based on R. 701(c). The issue is whether a
general statement about the “systemic” existence of discrimination requires
scientific, technical, or other specialized knowledge and thus may only be made
via expert opinion.
This issue highlights the difference between lay opinion testimony and
expert testimony, embodied in FRE 701(c). Lay opinion testimony is based on
things perceived by the witness, while expert opinion requires specialized
knowledge and cannot be derived from mere “common knowledge.” See FRE
701(a), (c). I find that discrimination can be perceived, or inferred from one’s
perception, without specialized training or knowledge. Likewise, I find that one
may comment on the whether discrimination is isolated or “systemic” based on
observations and personal knowledge alone. Thus, I see no FRE 70 1(c) issue
I will require, however, that Ms. Ford state a sufficient foundation before
offering such an opinion. I will police such testimony for a showing that it is
“rationally based on” her knowledge and perceptions. FRE 701(a). It must also
be “helpful” to the jury’s understanding of her other testimony or its resolution
of a fact in issue. FRE 701(b). I will not permit mere statements of negative
opinion, untethered to specific factual examples.
I believe that the same analysis— that no expert is required, but that the
foundation and helpfulness requirements of FRE 701(a)-(b) must be
demonstrated— applies to the other potential testimony of Ms. Ford that Aviles
is trying to preclude, concerning her:
Belief that she was discriminated against because she was a
Belief that her affiliation with white males was part of the reason
she was retaliated against
Belief that since she had filed complaints in the past about men,
she was retaliated against in 2006 by being terminated
Belief that the Hudson County Law Department was motivated by
retaliation to terminate her from her employment
Belief that ‘complaints filed by men against Aviles that were not
treated the same way as the Plaintiffl’sj’
Belief that men are not disciplined in a similar fashion as women
at the Correctional Facility...
Belief that Kirk Eady retaliated against her because she previously
filed complaints against him
Belief that the history of Hudson County leads her to believe that
prior complaints filed against supervisors resulted in her ultimate
Belief that Defendant Aviles was involved in the retaliation alleged
in the Amended Pleading because he was Defendant Krusznis’ boss
If any such testimony is actually proffered, I will hear any objection to
foundation or helpfulness as appropriate at trial. I cannot prudently weigh
these factors based on the limited pretrial record.
I discuss separately the proffer that an investigator, Jesse Brown, “is a
racist.” Such a statement is unduly prejudicial in that it really is intended to
prove that the person acted in conformity with an inflammatory accusation
about his general character. Factual testimony is, of course, another matter.
The same holds for two other lines of potential testimony about which
Aviles specifically complains that FRE 701(a) and (b) (but not 701(c)) are
Ms. Ford’s potential reference to an incident between Defendant
Aviles and Lieuntenant Stout, and her belief regarding the findings
of an investigation into same, about which she allegedly has no
personal knowledge, and
Ms. Ford’s opinions and beliefs concerning the circumstances of a
certain March 2006 letter.
In sum, what Plaintiff knows and does not know, and which of
opinions are rooted in her own perceptions, observations, or knowledge,
not be clear until the parties adduce testimony at trial. Only then can
issues under FRE 701 (and FRE 403, if raised) be profitably addressed.
briefing before me does not permit me to assess a) the foundation and b)
probativeness/prejudice of Ms. Ford’s opinions. Accordingly, I DENY
motion at this time, but invite its renewal as warranted at trial.
6) Motion to Exclude Testimony by Plaintiff’s Expert William Toms
According to Aviles, Mr. William Toms a) is not qualified to testify as to
charges and investigation against Ms. Ford and b) offers an unreliable opinion
comprised of “merely his subjective belief’ and “unsupported speculation.” In
particular, Aviles contends that Toms’ opinion is not “based on sufficient facts
or data.” See FRE 702(b). Aviles also appears to argue under FRE 702(a), as he
contends that “it is unclear what value Mr. Toms’ testimony adds since he is
offering no link between the investigation and any bias and/or retaliation
engaged in by the Defendants.” (Br. Supp. Aviles Motions at 30). I also discern
an argument contending a lack of reliable principles or methods in Toms’
analysis, see FRE 702(c), inasmuch as Aviles complains that “Toms
acknowledged... there are no firm, strict guidelines or rules as to how to
conduct an internal investigation.. .Toms[’j own findings make it very difficult to
determine what the ‘standard’ conduct would be in conducting an
investigation.” (Id. at 26).
Plaintiff defends her expert’s qualifications by noting his PhD in Human
Resource Development, 25 years in law enforcement, and leadership in the field
as Superintendent of Investigations for the New Jersey State Police. He has also
been published in the field of risk management and internal investigations. As
to the factual basis for his opinion, Plaintiff says that Toms thoroughly
examined documents associated with this case, including transcripts of the
testimony before the AU and deposition testimony.
The stated purpose of Toms’ report is to address “the objectivity and
thoroughness of the internal affairs practices associated with these
circumstances, as well as the subsequent charges of April 28, 2006.” (Report at
2). He states that his opinions are based upon his experience, research, best
practices in law enforcement, and his review and analysis of the materials and
documents in the case, providing by Plaintiff’s attorney. (Id.).
Toms summarizes the New Jersey Attorney General’s Internal Affairs
Policy and Procedures—guidelines and directives for law enforcement
agencies—and notes that the goal of the procedures is the provision of
“meaningful and objective” internal affairs processes.” (Id. at 3-4). He observes
that the DOC adopted these guidelines, and that its internal affairs protocols
promise a “thorough and impartial” examination of factual information related
to allegations of officer misconduct.
Toms then outlines the basic facts concerning the issuance of charges
against Ms. Ford, describing the evidence he reviewed. The purpose of this
review, he said, was to “examine the thorough and objective manner in which
investigative efforts were pursued in support of the charges.” (Id. at 6-7).
Applying his expertise, Toms then identifies what he believes to be specific
procedural missteps in defendants’ investigation of Ms. Ford, that is, ways in
which they did not comply with the DOC’s internal affairs procedure and its
promise of a thorough, objective inquiry preceding formal charges. (Id. at 9-16).
Mr. Toms appears qualified to testify on this subject, given his familiarity
with law enforcement internal affairs and investigatory best practices, derived
from experience in the field, study and publications. It also appears that his
expertise in internal affairs and investigatory best practices would be helpful to
the factfinder here. Whether the DOC carried on a legitimate investigation of
Ms. Ford and followed protocol in bringing charges is certainly probative of the
main factual issue in this case: whether the investigation and charges against
Ford were retaliatory. Certainly, departure from proper procedure, or a failure
to interview and investigate allegations (a theme of Toms’ report), could be
construed as evidence of improper motive. Thus, I believe that Toms’ report and
proposed testimony satisfy FRE 702(a).
I also think that Toms’ review of the record—exemplified by the facts and
assertions which he writes out in considerable detail in his report (so that we
know what he is basing his opinion on)—meets the requirements of FRE
702(b). Aviles does not specify in detail what Toms should have reviewed but
did not. Rather, he argues in conclusory fashion that Toms relies solely on his
subjective opinion and experience. Toms’ report belies this assertion, as it lays
out his understanding of voluminous facts. Without question, much of the
material Toms reviewed contains disputed facts, but that is material for crossexamination, not exclusion of his testimony.
Toms analyzes whether the defendants’ investigation and bringing of
charges against Ms. Ford complied with key internal guidelines which it
adopted from the Attorney General. This strikes me as a reliable methodology
for assessing the propriety of the investigation, satisfying FRE 702(c) and (d).
In sum, I think that Toms’ proposed testimony satisfies FRE 702 and
that he should be allowed to proceed as Plaintiff’s expert, subject to voir dire at
trial. I will therefore DENY this motion.
Motion in limine filed by the other Defendants [ECF No. 122]
7) Motion to a) exclude the OAL decision as irrelevant to Plaintiff’s
discrimination, and to b) preclude plaintiff’s claims for economic
losses and back pay, in light of the OAL decision.
Defendants County, DOC, and Krusznis make this two-part motion
concerning the role of the AU determination that reinstated Ms. Ford and
overturned the disciplinary charges that are at the center of this dispute.
(a) Motion to Exclude the OAL Decision
Defendants fear that Ms. Ford “will argue that the CSC [Civil Service
Commission] determined that Plaintiff was subjected to retaliation, sexual
harassment, gender discrimination and/or race discrimination” even though
the ALJ/CSC never made any finding or decision, or heard any evidence,
regarding these claims, Indeed, the written decisions of the AU and CSC
simply overturned the DOC’s disciplinary charges’ against Ms. Ford as
unfounded, and ordered Ms. Ford’s reinstatement.
Plaintiff responds that the ALJ/CSC rulings “are binding in this matter
as they related to facts pertaining to the validity of the basis for the alleged
disciplinary actions,” (Br. Opp. at 2), and that the AU “ruled that the
disciplinary charges brought against the Plaintiff were unfounded and
pretextual” (icL at 3). That is true to some degree, although I do not see any
finding of pretext. Plaintiff then states: “despite the Defendants’ argument, the
CSC’s ruling goes directly to the heart of the Plaintiff’s current complaint,”
inasmuch as the CSC found the charges/termination unfounded and “the
Defendants’ motivation and its relevance to the within matter are questions of
fact that a jury must determine.” (Id. at 4).
Here, I draw the familiar line between what can be asserted as fact and
what can be properly argued. The ALJ/CSC did not address whether any of the
Defendants retaliated or discriminated against Ms. Ford, and did not address
their motive. Any assertion that the AU or CSC ruled on these issues would be
without foundation. Nevertheless, Ms. Ford is at liberty to argue that the
disciplinary actions against her were pretextual and retaliatory, and to cite the
AU’s findings overturning Defendants’ charges against her as evidence of that.
The AU’s findings as to the charges’ lack of merit are relevant and at least
somewhat probative of the fact in issue—retaliation/discrimination in the
bringing of those very charges. Ms. Ford’s counsel may make arguments and
draw warranted inferences from this evidence, but counsel and witnesses will
not be permitted to mischaracterize the actual content of the ALJ/CSC ruling.
Thus, while I will DENY this part of the motion as presented, at trial I will
patrol the border between fact and argument.
(b) Motion to Preclude Further Award of Back Pay
This part of Defendants’ motion presents an interesting dilemma.
Defendants argue that the CSC’s award of back pay and ruling concerning
various deductions from the award and Plaintiff’s failure to mitigate precludes
Based on alleged violations of policies governing fraternization, disclosure of
confidential information received, incompetence, insubordination, and unbecoming
further litigation of any claim for back pay here. Defendants contend in
particular that the CSC resolved that issue by applying N.J.A.C. 4A:2-2. 10
(governing the award of back pay in civil service positions). This court,
Defendants urge, would apply the same state law to determine the effect of
plaintiff’s failure to mitigate.
Plaintiff responds that the criteria used by the CSC (constrained by NJAC
4A:2-2. 10(d)) differ from the standards used in § 1983 and Title VII actions.
Applicable federal law, she says, “allows for a broader interpretation of the
Plaintiff’s attempts.” (Opp. Br. at 7-8). Because the standards here in federal
court are different, she argues, the CSC determination is not preclusive as to
As a general matter, the courts reject arguments of issue preclusion
where administrative proceedings are followed by § 1983 claims. See Swineford
v. Snyder County, 15 F.3d 1258, 1267-1269 (3d Cir. 1994). Focusing on the
first element of issue preclusion—identity of issues—the Third Circuit has
stated that “courts must look beyond the superficial similarities between the
two issues,” considering instead the policies vindicated by the separate actions.
Id. at 1267. In Swineford, the Court of Appeals rejected the argument that an
unemployment compensation review board’s decision regarding an employee’s
willful misconduct precluded a § 1983 claim in federal court claiming that the
underlying firing violated plaintiff’s free speech rights. The court reasoned that
the issues were different, and that § 1983 claims need not be raised before the
administrative court because “we do not think that an administrative agency
consisting of lay persons has the expertise to issue binding pronouncements in
the area of federal constitutional law,” id. at 1268 (citing Edmundson v.
Borough of Kennett Square, 4 F.3d 186, 193 (3d Cir. 1993)). The Court was
concerned that such a “broad rule of collateral estoppel might generate undue
pressure to litigate to the utmost” before the administrative court, unduly
frustrating the narrower purposes of such administrative proceedings and
generating undue costs by forcing litigants to raise any and all issues in that
initial proceeding. Id. at 1269.
The present circumstances are more nuanced. Plaintiff specifically seeks
back pay via her § 1983 claim. She did not make that § 1983 claim before the
AU, and was not required to, but she did seek and receive some back pay in
her successful appeal. The question comes down to whether the law pertinent
to the award of back pay (and mitigation thereof) in the administrative appeal
is different from that which governs here.
The CSC reduced Ms. Ford’s back pay award in the following ways: (a)
denying back pay for four time periods during which it was found that Ms.
Ford failed to mitigate, pursuant to NJAC 4A:2-2. 10(d)(4)(i)-(iv); (b) subtracting
unemployment insurance benefits she received, pursuant to NJAC 4A:29
2: 10(d)(3), and (c) withholding back pay for a three week period in April-May
2006 during which Ms. Ford was hospitalized and unable to work, pursuant to
NJAC 4A:2-2. l0(d)(9). (See Final Admin. Action of the Civil Service Commission
at 3-7, D’Elia Cert. at EDx. 12 (ECF No. 122-2)).
Defendants argue that, in the Third Circuit, a district court must “apply
state law to determine the effect of [a] Plaintiff’s failure to mitigate.” Though the
case they cite involves reductions of back pay for failure to mitigate, it was in
the context of a NJLAD verdict. It was only after the court noted that the jury’s
verdict was based on state law, not the federal ADEA statute, that it then
stated that it must apply state law concerning mitigation. Abrams v. Lightolier,
Inc., 841 F. Supp. 584, 595 (D.N.J. 1994). The authority cited does not
establish that this Court is bound to apply state law regarding mitigation to an
award of back pay in a federal Section 1983 action.
I now briefly compare the New Jersey administrative code sections
applied by the CSC to the federal law which would be used to determine a back
pay award in a case like this. My object is to determine whether the
substantive standards are so similar that it can be said that the issues here
have already been decided by the CSC.
New Jersey’s mitigation principles pertinent to the CSC’s decision are
contained in NJAC 4A:2-2. 10(d)(4). Plaintiff contends that the federal criteria
“allow for a broader interpretation of the Plaintiff’s attempts [to mitigate].”
Frankly, none of the propositions concerning federal standards on mitigation
cited by Plaintiff (see bottom of page 7 and top of page 8 of Pif’s br. opp. Dfd’s
motions), reveal a discrepancy with N.J.A.C. 4A:2-2. 10(d)(4). At the same time,
I am not convinced that the parties’ briefing has gotten to the bottom of the
When it comes to deducting unemployment insurance benefits from a
back pay award, the discrepancy between federal and New Jersey law is more
clear. Compare NJAC 4A:2-2: 10(d)(3) with Craig v. Y & Y Snacks, Inc., 721 F.2d
77, 82 (3d Cir. 1983) (holding that awards of back pay in civil rights cases are
not reduced by the amount of unemployment insurance benefits received).
Finally, the parties’ briefs do not give me any indication as to whether
there is any federal law mirroring NJAC 4A:2-2. 10(d)(9), on which the CSC
based its reduction of the back pay award accounting for the time during which
Ms. Ford was hospitalized and unable to work.
In sum, I find that at least one aspect of the CSC’s back pay deductions
was rooted in state law inconsistent with federal law, but that the lion’s share
of the deductions (based on state law mitigation principles), may be generally
consistent with federal principles that would apply here. Throwing out Ms.
Ford’s claim for back pay before trial would therefore be imprudent and I will
DENY this aspect of Defendants’ motion, too.
That said, Plaintiff will not be permitted to receive a double recovery.
Moreover, an actual award of damages by the jury may focus the preclusion
issues. It may be necessary to mold any such verdict to the law, as to which I
will accept further argument if warranted.
8) Motion to Exclude Evidence of Sexual Harassment Complaints
Filed by Other Employees Regarding Former Supervisors and
Employees, based on FRE 403.
Defendants seek a ruling excluding, pursuant to FRE 403, evidence of
prior internal complaints lodged by other employees against former supervisors
and employees of the County and DOC. They argue that these complaints are
factually different from and not relevant or probative of the issues here, in that
they pertain to former employees and complainants other than Plaintiff at a
time preceding the period relevant to this action. Further, say Defendants, the
complaints all sound in sexual harassment, while Plaintiff here claims
retaliation and discrimination. Meanwhile, Defendants say that the evidence
would cast them in an unduly negative light and confuse the jury.
Plaintiff says that evidence of these prior incidents is relevant and in fact
probative because they “demonstrate motive,” in that Plaintiff spoke out about
these complaints and allegedly suffered retaliation in response, “and the
existence of a work environment hostile to women.”
I find that evidence of this nature is generally probative of the issues in
this case. In Hurley v. Atlantic City Police Department, a 1999 Third Circuit
decision penned by then-Chief Judge Becker, plaintiff, a female police officer,
faced harassment, which she reported in a memo. She was then transferred to
an undesirable position, allegedly in retaliation for her reporting. A jury found
that the Police Department and one of its captains discriminated on the basis
of sex in violation of NJLAD, and that the police department discriminated on
the basis of sex in violation of Title VII. On appeal, the Police Department
argued that the trial court erred by allowing inflammatory and irrelevant
evidence regard alleged misconduct directed to other non-parties under FRE
403. The District Court had allowed testimony by other women regarding
separate incidents of harassment; by male officers regarding the nature of
‘locker room’ conversations; and by plaintiff regarding prior incidents of
harassment. The Court instructed the jury that such evidence should be
considered in finding liability during the relevant time period, but could not, of
itself, create liability. See Hurley v. Atlantic City Police Dep’t, 174 F.3d 95, 102112 (3dCir. 1999)
The Third Circuit reviewed the evidence under FRE 401 and 403. It first
found such evidence admissible to show a hostile work environment suffered
by plaintiff. Id. at 110. It further found that “[e]vidence of other acts of
harassment is extremely probative as to whether the harassment was sexually
discriminatory and whether the ACPD knew or should have known that sexual
harassment was occurring despite the formal existence of an anti-harassment
policy. Neither of these questions depends on the plaintiff’s knowledge of
incidents; instead, they go to the motive behind the harassment, which may
help the jury interpret otherwise ambiguous acts, and to the employer’s
liability.” Id. at 111 (internal citations omitted).
Further, “[alside from its relevance to the issue of whether the ACPD is
liable for the hostile environment Hurley encountered, the evidence is also
relevant to her intentional sex discrimination, quid pro quo, and retaliation
claims. The general atmosphere of sexism reflected by the challenged evidence
is quite probative of whether decisionmakers at the ACPD felt free to take sex
into account when making employment decisions, when deciding whether to
abuse their positions by asking for sexual favors, and when responding to
sexual harassment complaints. As Glass held, evidence of pervasive sexual
harassment makes retaliation claims more credible, because harassers may be
expected to resent attempts to curb their male prerogatives.” Id. (citing Glass v.
Philadelphia Elec. Co., 34 F.3d 188, 195 (3d Cir. 1994)).
Though Hurley instructs that the proposed testimony is probative, I am
not satisfied that the probativeness of all the evidence proffered here
necessarily outweighs the prejudice to the Defendants, or that the jury (even
after a limiting instruction) would not make inappropriate inferences as to
whether aspects of a hostile work environment, present in the past, occurred in
the relevant period.
To balance all of these considerations, I will permit testimony of the type
contemplated, but only insofar as is necessary to establish 1) the who, what,
when, and how of the prior complaint; 2) the Defendants’ response to the
complaint, if any; 3) whether the complaint was among those that Plaintiff
informed her superiors about; and 4) the Defendants’ view as to whether or not
the complaint was founded. I will not permit description of these past
complaints with unnecessary levels of detail, and I may preclude testimony
regarding past complaints when such evidence clearly becomes cumulative in
its effect. Moreover, while permitting testimony regarding the Defendants’
reaction to the complaints as a general matter, I will not permit testimony that
tends to probe the underlying basis of the past complaints. This trial cannot
devolve into a series of mini trials on past events. Finally, as in Hurley, I will
caution the jury that all of these complaints are from a time period preceding
the relevant period here, and though germane to Ms. Ford’s version of the facts,
cannot in themselves constitute the basis of any liability against any of the
A final concern. Certain complaints may be so old that their
probativeness is diminished, and they may be unduly cumulative of other,
more probative evidence. See FRE 403. I will consider imposing a cutoff date
with respect to this evidence. Thus I will accept letters, not to exceed two
pages, on that issue. I request that Defendants submit their letter proposing
and justifying a cutoff date for past incidents, submitted not later than May 20,
2014. Plaintiff may respond by letter no later than May 22, 2014.
9) Motion to Exclude the Investigative Report of St. John and
Wayne, per FRE 403, as the retaliatory conduct described therein
preceded the acts on which this matter is based.
Defendants argue that the investigative report by the firm of St. John
and Wayne pertaining to alleged harassment and retaliation by the former
director of the DOC and certain of his deputies, which culminated in various
settlements (including one with Ms. Ford), should be barred from evidence
since it pertains to a prior incident(s) (in 2003) which was settled and with
persons no longer employed by the County/DOC. Defendants contend that the
report’s contents are irrelevant, or at least lacking in probative value relative to
their prejudicial effect. They say that the report would cause the jury to “judge
the Defendants in this matter based upon the prior actions of Director Green,
Fricchione and Roberts.” (Dfd’s Br. at 24).
Plaintiff responds that the report and its findings are probative of
Defendants’ “long standing” utilization of retaliation, in that it shows a prior
example and makes findings regarding someone (Kelvin Roberts) who
continued to be employed at the time of the incident here, having never been
disciplined by defendant Aviles. In other words, the report contains evidence
that goes to the existence of a policy or custom of retaliation, which would
seemingly be evidence of a § 1983 violation by the County. Plaintiff also seems
to suggest that the report illustrates a hostile work environment and the fact
that Aviles did not prevent the retaliation she would later suffer.
I perceive two main hazards with this evidence. First, given that it
addresses the facts underlying the past employee complaints of harassment
(the subject of the previous motion), the report contains information that is
both probative and prejudicial to the extent it talks about the past sins (or at
least alleged past sins) of DOC officials. Second, given that it finds retaliation
by DOC officials, it indirectly invites the forbidden inference under FRE 404(b)
by suggesting that retaliation also occurred here. At the same time, however,
Plaintiff is trying to prove, for purposes of establishing municipal liability
against County, that retaliation of the type she allegedly faced during the
relevant period was the “custom and policy” of the County and its subdivisions.
This presents a dilemma. I am unwilling to place the entire report, with
all of the underlying detail about past complaints, before the jury. Many of the
concerns discussed in Section 9, above, are relevant here as well. I will bar the
document itself from evidence but permit testimony a) regarding the fact that
such a report exists (b) regarding its general nature, and c) regarding its
findings that certain officials retaliated and/or discriminated against certain
employees. I will deliver a limiting instruction that the evidence is not relevant
to whether the individual defendants retaliated against Ms. Ford for purposes
of this case, and may only be considered in assessing whether the County has
any liability. I will also consider admitting limited excerpts from the report if
particularly relevant. More particularized objections will be addressed at trial.
10) Motion to Exclude, per FRE 403, the April 2005 Release and
Settlement Agreement in Which the County of Hudson paid
Ford $52,500 in connection with her claims of retaliation
against former Director Green, and Roberts and Fricchione.
Defendants move that the exact amount of the 2005 settlement between
Ms. Ford and the County (and DOC) be excluded from evidence, though they
say that they have no objection to the jury being advised that Ms. Ford brought
a complaint against the County, the DOC, and its former director Green (and
Kelvin Roberts and Thomas Fricchione) that was settled.
Plaintiff “has no objection,” but argues that the jury learn of the nature
of her complaint that was settled (i.e. its relation to the facts set forth in the St.
John & Wayne report) and that she be permitted to inform the jury as to when
the settlement was agreed to and signed.
I rule that contents of the settlement, including its amount, are barred
from evidence, but that Ms. Ford be permitted to introduce evidence
concerning the general nature of the claim she asserted and the fact that it was
settled. Like the evidence of retaliation contained in the St. John and Wayne
report, this evidence appears to also go to the question of municipal policy or
custom liability, but also requires a similar limiting instruction. Ms. Ford may
also be permitted to describe when the settlement was reached and when it
was finalized, as there appears no appropriate reason for excluding such
11) Motion to Dismiss Plaintiff’s Claims for Aggravation of Her Pre
Existing Emotional/Mental Illness Because She Cannot Prove
the Extent of That Exacerbation
Defendants argue that I should now dismiss Plaintiff’s claim for damages
based on mental illness because she “cannot satisfy her burden of proof as to
her claim for aggravated mental illness in this matter.” (Dfd’s Br. at 31). They
characterize Ms. Ford as having a preexisting condition and say that her
burden entails showing the amount this was aggravated, and doing so by
means of an expert.
Plaintiff opposes this motion on several fronts. First, she contends that
her prior condition had wholly resolved itself before this incident, so that this is
not actually an aggravation case. Second, she contends that she will in fact be
able to show how her condition worsened. And third, she contends that expert
testimony is not actually required.
While Defendants are correct that Plaintiff will need to prove the extent of
the aggravation to any preexisting condition that she suffered as a result of
their alleged wrongs, see Moreau v. Waigreeri Co., 387 Fed. Appx. 202, 204 (3d
Cir. 2010); Tisdale v. Fields, 183 N.J. Super. 8, 12 (App. Div. 1982), they cite
no law to support their assertion that expert testimony is required. To the
contrary, the Third Circuit has held that emotional distress damages in a
Section 1983 claim need not necessarily be shown by way of expert testimony.
Bolden v. Southeastern Pa. Transp. Auth., 21 F.3d 29, 34 (3d Cir. 1994). That is
not to say that plaintiff’s burden will be an easy one; I will not, for example,
permit non-expert opinion about medical matters.
This motion, however, is really about the sufficiency of the evidence. I see
no basis to take this question away from the jury, which will be asked to decide
whether Plaintiff has met the appropriate burden of proof in connection with
proving her damages. I will therefore DENY this motion.
12) Motion to Exclude the Testimony of Dr. Michele Paludi for
failure to satisfy FRE 702
Defendants move to exclude the testimony of Plaintiff’s expert Dr.
Michele Paludi, a professor of psychology at Union College who proposes to
testify regarding two opinions. Her first opinion is that “[t]he County of Hudson
and HCDOC failed to (a) take ‘reasonable care’ in preventing sexual harassment
and race/color discrimination and retaliation through enforcement of an
effective policy and procedures and training programs for employees and
managers and (b) enforce effective investigative procedures for complaints of
discrimination and harassment.” The second states that “[ajs a result of the
lack of reasonable care exercised, the HCDOC engaged in acts of work
retaliation victimization and social retaliation victimization toward Sgt. Ford.
This retaliation was in response to Sgt. Ford exercising her right to provide
information in a proceeding about discriminatory practices of sexual
harassment and gender discrimination against employees in the Department of
Corrections.” (Paludi Report at 6-7 (D’Elia Cert. at Ex. 19)).
Initially, I reject Defendants’ argument that Paludi is not qualified to
testify about the quality of their human resources policies and procedures. At
this stage, I find her extensive academic and experiential knowledge to be more
than sufficient for qualification.
I turn now to Defendants’ FRE 702(b) arguments: that both of Paludi’s
proposed opinions are not based on sufficient facts or data.
As to Dr. Paludi’s first opinion (that the County and DOC failed to take
reasonable care to prevent sexual harassment, discrimination, and retaliation
through enforcement of effective policies, procedures, and training programs,
and through enforcement of effective investigative processes), I disagree with
Paludi applies the EEOC’s “reasonable care” standard for the minimum
responsibilities of an employer to prevent harassment. When she summarizes
the “components of effective policy statements” that come from “the literature,”
she offers citations in her footnotes, many of which are to her own publications
in the field. She explicitly lists what those components are, and then offers an
analysis based on the evidence she reviewed in the record. In short, I am
satisfied, based on the contents of Paludi’s report, that her proposed testimony
regarding her first opinion meets FRE 702(b)’s standard and should not be
barred. Defendants may feel they have good grounds on which to crossexamine Paludi or make piecemeal objections at trial, but her report, at this
point, appears sound in this regard.
As to Dr. Paludi’s second opinion (that Ms. Ford suffered actual
retaliation as a result of the above-described lack of reasonable care), however,
I think the defendants have a point. In support of this opinion, she sets forth a
six-part explication. First, Paludi quotes general EEOC definitions and
prohibitions of retaliation. Second, she quotes pertinent literature defining
“work retaliation victimization” (i.e., various adverse actions targeted at an
employee as retribution) and “social retaliation victimization,” (i.e., actions
which have the purpose or effect of altering the target’s interpersonal relations
with other organizational members). Third, she asserts that “workplaces use
retaliation of its employees in order to maintain social control over those
dissidents.. .in my expert opinion, this is illustrated in the present case.” She
goes on to cite evidence, mostly from Ms. Ford’s own words and the complaint,
and from the St. John and Wayne report concerning the 2003-2004 incident,
as well as some limited deposition testimony, to support her conclusion.
Fourth, she says “there has been a history or retaliatory behavior in the County
of Hudson,” citing evidence of prior bad acts and Ms. Ford’s words to her. Fifth,
she speaks about empirical research regarding the negative effects of
retaliation and harassment. Sixth, she addresses the actual impact of the
retaliation on Ford, based on evidence from Ford, and addresses the findings of
The second opinion, as well as the first four points in support thereof,
lack sufficient facts and data and are not the product of the application of
reliable methods or principles. Dr. Paludi’s opinion is really just a
characterization of the evidence, and all that it really adds is a jargon-y
definition of retaliation. Basically, she says that retaliation occurred here,
basing her conclusion on the same allegations that are in the complaint. This
is problematic, as it proposes that I stamp the ‘expert’ label upon what is
essentially summation argument. Paludi merely collects all of the damning
record evidence, and deems it “actual retaliation.” The fairly garden-variety
definition of retaliation does not seem to add anything beyond the ken of a lay
juror (or at least a lay juror properly instructed as to the law). The proposed
testimony is not helpful to the jury. In addition, I do not detect any accepted,
“reliable principle or method” or “reliabl[e] appli[cation]” of such a method. The
use of jargon here does not add value or supply any “reliable methodology.”
And the conclusion that actual retaliation resulted from Defendants’ defective
policies and procedures is not supported by sufficient facts or a reliable
In short, Ms. Ford is free to make this argument through her attorney,
but her expert may not deliver her jury summation for her. As to this proffered
testimony, I see no rigorous analysis rooted in specialized knowledge which
would confer some sort of benefit on the jury. This component of the proposed
testimony fails the test of FRE 702(b, (c), and (d).
The two concluding subparts of Paludi’s second opinion—in which she
discusses the usual effects of retaliation and the actual effects reported by Ms.
Ford—I view a bit differently. This analysis goes to potential damages and, to
some extent, proof of actual retaliation, and I will allow it to an appropriate
extent. Dr. Paludi, as a psychologist, is qualified to analyze the ill effects
complained of by Ms. Ford and place them in the context of what a
psychologist would expect to see. This expertise might be helpful to the jury,
since it illuminates the issues of Ford’s alleged suffering and whether the
effects complained of by Ford are consistent with clinically-documented effects
Thus, I will GRANT IN PART this motion in limine and exclude most of
Dr. Paludi’s second opinion. I will, however, DENY the motion and permit
testimony as to Dr. Paludi’s first opinion and the components of the second
opinion that pertain to the psychological ill effects of the alleged retaliation
Motions in limine filed by Plaintiff [ECF No. 123]
13) Motion to Exclude Three Defense Experts
Plaintiff objects to the opinion testimony of three experts who submitted
reports on behalf of Defendant: A. Elizabeth Gramigna, Esq., an employment
law attorney; B. Lisa Robbins, M.D., a psychiatrist; and C. Scott Faunce, a
Corrections Management Consultant.
The County hired Ms. Gramigna “to render an opinion as to whether the
County of Hudson undertook reasonable care to prevent retaliation from
occurring in connection with Ms. Ford’s employment in 2005 to 2006.” (Report
at p. 1). She asserts in her report that, although the jury’s question is “whether
any of the defendants actually retaliated against Ms. Ford,” “information about
acceptable standards of care in preventing harassment and retaliation by an
employer is information that a jury may find useful in determining the
propriety of an employer’s conduct. Thus, the proper standard of care in
implementing effective harassment and retaliation policies is a proper topic for
testimony from an expert.” (Id. at 1-2).
Gramigna concludes first, that “it is my opinion that in 2005 and 2006
the County of Hudson took reasonable steps to prevent retaliation from
occurring through enforcement of effective policies, procedures and training
programs”; second, that “Defendant Dave Krusznis’ efforts were reasonable in
connection with his duty of care pursuant to those policies as it related to
Helen Ford,” (Id. at 2); and third, that “Ms. Ford had knowledge of the County
policies regarding harassment and retaliation, and of her obligations to report
conduct which may violate those policies.”
Plaintiff argues that Gramigna is unqualified because she never has
testified as an expert in court, produced empirical research, or published a
peer-reviewed paper. (Br. at 8-9) She adds that Gramigna lacks a sufficient
factual basis for her opinions, that she fails to set forth or explain her
methodology, and that she never analyzes whether the Defendants followed
their policies in this case (id. at 10).
Defendants respond that Gramigna is highly qualified by both training
practical experience (24 years in practice, 75 neutral internal
investigations on behalf of businesses and governments). Gramigna, they say,
employs a sound methodology in that she has reviewed the Defendants’ actions
for conformity with the standards of the EEOC and Division on Civil Rights.
Further, she supports her conclusion regarding Krusznis by noting his
attendance at relevant training regarding retaliation and harassment and his
correct treatment of Ford when disciplinary charges were brought against her.
I find that Gramigna is qualified based on a combination of training,
experience, and academic preparation. The thrust of her analysis and
methodology is simply to compare the County’s preventive measures with legal
guidelines for preventing harassment and retaliation for complaints of
harassment, and to comment on compliance. As an attorney experienced in the
field, she is capable of this.
Gramigna’s First Conclusion
As to this conclusion, I find that Gramigna’s methodology—measuring
the County’s policy and training against the EEOC guidance on such
preventive measures—is an acceptable one. It is relevant to the issue of
whether the County and DOC were trying, in a legally significant way, to
prevent harassment and retaliation. I also find this conclusion to be adequately
supported. I except only the comment that the Department’s procedures and
training are “effective”; that conclusion is not supported by anything in the
report. The report notes that a policy and training exist, but there is no
effectiveness analysis, or even any factual backup, for the statement, for
example, that ‘such policies/training have been shown to prevent harassment.’
This portion of Gramigna’s conclusion fails the tests of FRE 702(b) and (c), but
otherwise the first conclusion is well supported.
The other issue to be analyzed is whether the first conclusion is useful to
the jury, and whether it ‘fits’ an issue in the case. See FRE 702(a). The issues
most relevant here are two: (1) Did any of the defendants retaliate against
Ford?; and (2) Did the County have a policy and custom which would permit
such retaliation by its employees? I find that Gramigna’s proposed testimony
fits only the second issue, which bears exclusively on the Section 1983 liability
of the County. Gramigna’s opinion about the County’s “reasonable” prevention
measures could help the jury determine whether the County had a policy and
custom of tolerating retaliation. On the other hand, it would not help the jury
decide whether or not there was retaliation in fact. The proffered connection to
that factual issue—that because the County had a strict policy, its agents
would not have engaged in retaliation against Ford—is tenuous, and in my view
fails the fit test. As to the issue of factual retaliation, then, this proposed expert
testimony is not helpful and does not fit. See FRE 702(a); Habecker v. Clark
Equip. Co., 36 F.3d 278, 289-290 (3d Cir. 1994)(applying Daubert and finding
that expert’s simulation “does not ‘fit’ the facts of this case and would not
assist the trier of fact in determining how the accident occurred.”); Dymnioski
v. Crown Equip. Corp., 2013 U.S. Dist. LEXIS 73667 (D.N.J. May 24,
2013)(”When considering fitness, the court must conclude that the expert’s
testimony assists the trier of fact and ‘is relevant to the task at hand[.j’
Admissibility depends in part on ‘the proffered connection between the
scientific research or test result to be presented and particular disputed factual
issues in the case.”’ (internal citations to Daubert, inter alia, omitted)).
Accordingly I will permit Gramigna’s proposed testimony on the first
conclusion. I will however, instruct the jury that it is relevant only to the
County’s potential liability for the alleged acts of its officials, and not relevant
to the factual issue of whether those officials may have actually retaliated
against Ms. Ford. I will also bar any testimony of Gramigna to the effect that
the County! DOC policies were effective.
Gramigna’s Second Conclusion
Gramigna’s second conclusion is problematic. She states that defendant
Krusznis’ efforts with respect to Ms. Ford were ‘reasonable,’ i.e., that Krusznis
followed the established procedures or ensured that they were followed. I do
not see how her methodology—assessing whether the County’s policy and
training programs are legally reasonable in light of EEOC guidance—could
plausibly support that conclusion. Here again, the jury is asked to infer that
Krusznis did not in fact retaliate because he was aware of the anti-retaliation
policy. This conclusion, if not a total non sequitur, certainly requires a huge
leap of faith. Gramigna’s report contains not a single fact regarding Krusznis’s
conduct or apparent motive before or at the time he brought the disciplinary
charges, and does not discuss how he allegedly conformed his conduct to the
anti-retaliation policy at the time of the alleged retaliation. Gramigna states
only that Krusznis attended certain training sessions in 1996 (on sexual
harassment), 1997 (on liabilities), 1999 (on sexual harassment and cultural
diversity) and 2003 (on mitigating liabilities. The report also alleges that, after
the allegedly retaliatory disciplinary investigations were already underway
against Ms. Ford, Kruzsnis “listened to her concerns and empathetically told
her that he would not permit bias in the process.” (Report at 14).
Setting aside the weak connection between these facts and Gramigna’s
conclusions, I observe that this has little to do with the application of her
expertise; it reads more like a factual inference argued in summation.
Gramigna’s reasonableness analysis, while appropriate for her first conclusion,
is inapt as to her second conclusion. I will bar testimony regarding this second
conclusion because the report displays a lack of sufficient facts or data
regarding Krusznis’ actions in relation to Ms. Ford (see 702(b)); a methodology
which cannot reliably yield conclusions regarding Krusznis’ actions or the
reasonableness thereof (see 702(c-d)); and an analysis which does not help the
jury determine whether Krusznis retaliated against Ms. Ford, the proposition
for which it is offered. (see FRE 702(a)).
Gramigna’s Third Conclusion
Gramigna’s third conclusion is that “Ms. Ford had knowledge of the
County policies regarding harassment and retaliation, and of her obligations to
report conduct which may violate those policies.” Simply stated, this is fact
testimony, not expert testimony. This statement is not the product of expertise,
nor is it derived from any type of methodology described in the report (let alone
a methodology that would satisfy FRE 702). Gramigna is apparently just
repeating facts of which she was advised. Ms. Ford can be examined about her
knowledge, and other fact witnesses can testify as to what, if anything, Ms.
Ford said to indicate such knowledge. I will bar Gramigna’s testimony as to
this component of her opinion.
Dr. Lisa Robbins is an experienced physician practicing psychiatry.
Retained by the Defendants, she examined Plaintiff Ford in July 2010 for two
hours. Her report addresses whether Ms. Ford was suffering from any
psychiatric or emotional distress attributable to her employment experience.
After reporting what Ford said, Robbins reported her own extensive
observations from a psychiatric standpoint (see p. 6-7 of report). She also
reported her conclusions from various records that she reviewed. (Id. at 7-10).
Robbins’ report states that she would diagnose Ford as having chronic
adjustment disorder, with symptoms related to anxiety and depression. (This is
to be contrasted with major depression, as diagnosed by one of Plaintiff’s
evaluating psychiatrists.) Robbins went through all of the DSM IV criteria for
major depression, explaining why they were not present. Her report concludes
that Ford has psychiatric symptoms—the most prominent being headaches
and insomnia—but that “it seems highly likely that she could have had a
lifelong pattern of depression and anxiety.. [and] in my opinion it is unlikely
that she suffers from these mental health issues secondary to her employment.
It also appears unlikely that these symptoms are as disabling as Ms. Ford
would like us to believe.”
Plaintiff argues that Robbins has an insufficient factual basis for her
opinion, because she failed to review key records. Plaintiff also argues that
Robbins fails to explain her methodology, in that there is no explanation of
what the DSM IV is (Diagnostic and Statistical Manual of Mental Disorders, 4
edition), what its diagnostic criteria are, and how she reached her diagnosis for
Ford. (Pltf’s Br. in Supp. of MiLs at 12-14). According to Plaintiff, the proposed
testimony violates R. 702 and Daubert because it is unreliable and speculative
for being based on incomplete facts, as well as an unknown methodology.
I find that Robbins is clearly qualified and her skill—psychiatric
diagnosis—is useful to a jury that must address the cause and quantum of
plaintiff’s alleged emotional and physical damages. See FRE 702(a). Next,
Robbins appears to base her testimony on her personal examination and
interview of Ford in addition to her review of documents and psychiatric
history. Between the interview and her review of Ford’s deposition, I am
satisfied that Robbins has a sufficient grasp on Ms. Ford’s background. See
FRE 702(b). Robbins’ approach to diagnosing Ms. Ford and assessing
causation appears to be the product of a reliable and acceptable diagnostic
method. She conducted an exam and reviewed other facts, both medical and
non-medical. She then turned to a diagnosis manual, and applied the listed
criteria for adjustment disorder and major depression, which she looked for in
Ms. Ford, finding the former but not the latter. She stated the basis for these
To the extent Plaintiff desires additional explanation, or believes Robbins
failed to consider important facts, she may cross-examine. These alleged
deficiencies, however, do not take Robbins’ beneath the threshold of
admissibility. Robbins is qualified to testify and her expert opinions are based
on sufficient facts and reliable methods. The rest is for trial.
Mr. Scott Faunce spent 34 years in the corrections field, rising to
Director of Corrections in Essex County. He is now a self-employed consultant.
He states that he reviewed DOC’s policies and procedures, as well as the facts
and events surrounding the investigation and disciplinary charges against Ms.
Ford. (Report at p.3). The issue he addressed is “whether or not the HCDOC
acted reasonably and with sufficient cause in putting forth charges against
Ford. The findings of the OAL do not mean that the charges levied by the
HCDOC against Ford were without merit or were unwarranted... .1 will therefore
focus my examination on the objectivity of the investigative process that led to
the filing of charges, the reasonableness of the proffering of those accusations,
and the actions taken by the HCDOC subsequent thereto.” (Id. at 4-5).
I stop here to note that the statement of purpose for this report promises,
by and large, a fairly good ‘fit’ between the promised opinion and the jury’s
issue—which is, inter alia, whether defendants’ disciplinary action against Ms.
Ford was retaliatory. Evidence that defendants had good cause to investigate
and charge Ms. Ford would make it less likely that retaliation was their
motivation (although, of course, both factors could be present).
Plaintiff complains that Faunce’s conclusions are based on a simple
review of the record without any methodology or application of expertise.
Defendants respond that Faunce applied a clear methodology: he reviewed and
analyzed case materials, and researched and applied law enforcement and
correctional policies and best practices (including the AG’s internal affairs
I accept that Faunce’s expertise is in corrections. His report is wandering
and difficult to read. His methodology is not always clearly expressed. He offers
several opinions, some of which seem acceptable and based on a reliable
methodology, while others are mere commentary on disputed facts. Within a
single section of his report, he offers everything from legitimate expert opinion
(“It would also follow prudent managerial practice...” (p. 8); “The initiation of
disciplinary action was for just cause. The investigators gave reasonable weight
to the facts uncovered and had cause to believe that Sergeant Ford did in fact
violate internal management procedures of the HCDOC...(p. 10-11)); to pure
fact testimony (“Upon reviewing further documents in this matter, I attempted
to determine if any person hindered, prevented or dissuaded, or tried to
influence Sgt. Ford from filing the discrimination complaint.” (p.9)). Finally, he
confusingly includes both a “summation” section and an “opinions” section.
The “summation” contains mostly acceptable opinion testimony, with the
exception of a problematic portion that tends to undermine the AU decision
(see p. 14 (“There is nothing in this record that indicates the rudimentary fact
pattern established was untrue.”)). The “opinions” section, however, is almost
entirely unacceptable, being best characterized as fact testimony (failing all
prongs of FRE 702) or disguised summation (lacking any application of helpful
expertise (FRE 702(a), (d))).
Rather than parse Faunce’s report, which mixes acceptable and
unacceptable testimony, I will affirmatively identify the proper subject of Mr.
Faunce’s testimony, ruling as follows: Faunce’s testimony must conform to my
ruling barring testimony that tends to undermine the AU’s ruling (see Part 14,
infra). He may assess the procedural quality of the Defendants’ investigation
into Ms. Ford, but may not opine about whether the Defendants’ knowledge or
beliefs about Ford were in fact true. Aside from potentially conflicting with AU
findings, any such testimony would be factual and not expert in nature.
Thus Faunce may testili as to his opinion(s) concerning, in his own
words, “the objectivity of the investigative process that led to the filing of
charges [andj the reasonableness of the proffering of those accusations,” based
on, and only on, an application of his expertise in correctional policy and
procedures to the facts of this case. He may not opine on the quality of the
evidence, the truth or falsity of the matters investigated, or the correctness of
the AU’s decision. Just as importantly, he may not testify on any opinion that
is not based on his expert knowledge of corrections policy and procedures. He
may not opine on what Aviles or Krusznis believed, on whether they
discriminated or acted maliciously, or on whether/why the AU could have
In sum, I will GRANT IN PART and DENY IN PART Plaintiff’s Motion to
Bar Defendants’ experts, in accord with the rulings set out above. I caution
Defendants that I will not countenance the blurting of inadmissible material.
The admixture of proper and improper opinion in the report suggests that this
particular witness should be carefully prepared before testifying.
14) Motion to preclude any testimony suggesting that disciplinary
charges brought against Plaintiff in 2006 were in any way
justified or proper, in light of AU’s ruling.
Plaintiff argues that because the issues decided by the AU cannot be
relitigated, evidence tending to undermine the AU’s findings would violate Rule
403, confusing and misleading the jury while unfairly prejudicing plaintiff. (Br.
Supp. Pltf’s Mots. at 17-19). As a general proposition, I agree.
In response, however, Defendants argue that the issue is narrower. They
do not seek to relitigate any issue, but only to introduce evidence regarding
Defendants’ benign, non-retaliatory motivation for the disciplinary actions they
took against Ford. Their beliefs as to the rightness of their actions, they say, go
to the core issue of whether they wrongfully retaliated against Plaintiff. And the
issue of whether the defendants subsequently retaliated against Ms. Ford in
the filing of their disciplinary action was not litigated before the AU. (See Ltr.
of Anthony D’Elia Opp. Pltf’s Mots. (ECF No. 126)).
Defendants’ motives, beliefs, and state of mind at the time they initiated
allegedly retaliatory disciplinary action against Plaintiff are at issue here.
Plaintiff cannot expect to bring a lawsuit like this and then exclude evidence
going to these matters. Witnesses may appropriately be asked, as to certain
matters, to state what they believed about Ms. Ford, even regarding matters on
which the AU made a finding. So long as it is very clear that they are stating
their personal belief at the relevant time, such testimony would be probative
and not unduly prejudicial. The question-and-answer on these topics should be
meticulously framed in terms of belief and knowledge at the time. For example:
Q. ‘At that time, what did you believe...,’ A. ‘1 believed that...’
Such testimony might naturally set the stage for opinion and editorial
concerning the correctness of the AU’s decision. That is the line that should
not be crossed, and I will therefore restrict the questioning on this topic. Once
the knowledge and beliefs of a certain witness regarding Ford have been
established, including any testimony regarding their motivation for approving
or pursuing disciplinary charges against Ford, there is no need to go further.
More detailed testimony would decrease the probativeness, and increase the
prejudice. When necessary, I will give a limiting instruction stating that the
purpose of this testimony is to illustrate what the witness believed, and not to
call the AU’s findings into question.
Such witnesses can expect to be cross-examined as to the fact that their
subjective opinions clash with binding findings of an AU. That, however,
presents a question of trial strategy, not admissibility.
Plaintiff’s Second Motion in limine, seeking exclusion of all evidence
suggesting that disciplinary charges brought against Plaintiff in 2006 were in
any way justified or proper, is GRANTED IN PART. The AU’s findings are
binding and will not be relitigated. Defendants will be permitted to introduce
evidence establishing only the knowledge and motivation of those involved in
investigating and pursuing disciplinary charges against Plaintiff, and the jury
will be given limiting instructions as to the proper purpose of such evidence.
Dated: Newark, New Jersey
May 16, 2014
United States District Judge
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