Bieber et al v. Nace et al

Filing 98

MEMORANDUM AND ORDER re: MILs 75 , 77 , 79 & 88 - It is hereby ORDERED that: 1. Deft Eastern's MIL 75 to preclude any ref to Eastern employes placing flags on temp road const signs s/p 6/2/08 accident GRANTED in part.. (see Paras 1a & 1b for specifics).; 2. Deft Eastern's MIL 77 to preclude portions of trial testimony of pltfs' expt Dr. Perez is DENIED.; 3. Deft Eastern's MIL 79 to preclude portions of trial testimony of pltfs' expt Dr. Camillo is DENIED.; 4. Pltfs' MIL 88 to preclude any ref by defts to PA Fair Share Act, risks inherent in motorcycling, &/or to proxmiate causation GRANTED in part & DENIED in part... (see Paras 4a-c for specifics). (See memo & order for complete details.) Signed by Honorable Christopher C. Conner on 03/06/12 (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

STEPHEN K. BIEBER and KAREN
BIEBER,
Plaintiffs
v.
DAVID J. NACE and EASTERN
INDUSTRIES, INC.,
Defendants

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CIVIL ACTION NO. 1:10-CV-0718
(Judge Conner)

MEMORANDUM
Presently before the court are four motions in limine (Docs. 75, 77, 79, 88) to
preclude evidence and testimony at the trial in the above-captioned matter set to
commence tomorrow, Wednesday, March 7, 2012. Defendant Eastern Industries,
Inc. (“EII”) filed three of the four motions, (see Docs. 75, 77, 79),1 and plaintiffs
Stephen and Karen Bieber (“the Biebers”) filed the fourth motion. (Doc. 88). The
final brief on these issues was filed at 2:55 p.m. yesterday. For the reasons that
follow, the court will grant in part and deny in part the motions.
I.

Background
The Biebers bring this diversity action against David Nace (“Nace”) and EII,

stemming from a June 2, 2008, motor vehicle accident. Mr. Bieber alleges that, on
June 2, 2008, on Route 274 outside of Elliotsburg in Perry County, road construction
workers for EII negligently and prematurely removed warning signs of a
1

EII also filed a motion for reimbursement of expenses and counsel fees (see
Doc. 73), which the court will address separately at a later date.

construction zone for approaching traffic and failed to yield the right of way to
traffic when driving a construction truck out onto the highway. Mr. Bieber claims
that the workers’ negligent conduct combined with Nace’s negligent operation of
his motor vehicle caused Nace to swerve into oncoming traffic and strike Mr.
Bieber, who was riding a motorcycle. Mr. Bieber alleges that, as a result of the
accident, he sustained serious permanent injuries including the amputation of his
left leg. EII claims that Nace was the sole cause of the accident.
On February 21, 2012, EII filed motions in limine to preclude portions of the
trial testimony of plaintiffs’ experts Edward A. Perez, M.D. and Francis Camillo,
M.D. (Docs. 77, 79), as well as a motion in limine to preclude any reference that EII
employees put flags on temporary road construction signs after the June 2, 2008,
accident at issue in this case. (Doc. 75). On February 29, 2012, per court order, the
Biebers filed briefs in opposition to EII’s motions, and in addition, filed their own
motion in limine to preclude any reference by defendants to (1) the Pennsylvania
Fair Share Act, (2) the risks inherent to motorcycling and (3) proximate causation
as noted by EII’s expert Joseph P. Tarris. (Doc. 88). The motions have been briefed
and are ripe for disposition.
II.

Discussion
A.

EII’s Motions in Limine

The court will first address EII’s motions to preclude portions of the trial
testimony of Edward A. Perez, M.D. (“Dr. Perez”) and Francis Camillo, M.D (“Dr.
Camillo”). (Docs. 77, 79). EII contends that, in contravention of Federal Rule of
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Civil Procedure 26(a)(2)(B) and 26(e), the Biebers failed to disclose prior to the trial
depositions of Dr. Perez and Dr. Camillo, that Mr. Bieber was being considered for
implantation of a spinal cord stimulator and that Mr. Bieber suffered from chronic
pain. This information stems from a December 15, 2011, office note of Dr. Camillo.
EII asserts that it is prejudiced by counsel’s failure to provide the office note prior
to the deposition because it prevented EII from preparing cross-examination on the
issues. EII thus moves to preclude all testimony from Dr. Camillo and Dr. Perez on
the issues of a spinal cord stimulator and chronic pain.
Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure sets forth the
requirements of an expert witness’ written report. An expert report must contain a
complete statement of, and the basis and reasons for, all opinions the expert is to
express, all data and information considered by the expert in forming the opinions,
and any exhibits to be used to summarize or support the opinions expressed. FED .
R. CIV . P. 26(a)(2)(B)(i)-(iii). Counsel has a duty to supplement the information in
the report and the information given during the expert’s deposition whenever there
are any additions or changes to the information, no later than the time the parties’
pretrial disclosures are due. FED . R. CIV . P. 26(e). When a party fails to supplement
the information, as required in Rule 26(a) and (e), “the party is not allowed to use
that information . . . to supply evidence . . . at a trial, unless the failure was
substantially justified or is harmless.” FED . R. CIV . P. 37(c)(1). In determining
whether the exclusion of evidence is appropriate, the court must consider: (1)
prejudice or surprise to the party against whom the evidence would be admitted; (2)
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ability of that party to cure the prejudice; (3) the extent to which the orderly and
efficient trial of the case or other cases before the court would be disrupted by
allowing the evidence; and (4) the bad faith or willfulness of the party failing to
comply. Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 148 (3d Cir. 2000)
(citing Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 719 (3d Cir. 1997)).
The Biebers contend that they complied with their duty to supplement the
information in their experts’ reports and depositions under Rule 26(e). Counsel for
the Biebers avers that he received Mr. Bieber’s updated medical records from Dr.
Camillo’s office on January 3, 2012—the day of the depositions of Dr. Camillo and
Dr. Perez—and that he provided the records to counsel for EII before the
depositions began. (Doc. 91, at 2; Doc. 92, at 2-3). Among the records was the
December 15 office note concerning Mr. Bieber’s visit approximately two weeks
prior, in which Dr. Camillo noted Mr. Bieber’s chronic back pain and discussed Mr.
Bieber’s candidacy for a pain stimulator. (See Doc. 79-2, at 35). The Biebers
contend that Mr. Bieber’s medical treatment and prognosis have evolved
throughout this litigation, and it was well-known and expected that Mr. Bieber’s
medical care would continue to evolve until the time of trial. (Doc. 91, at 2-4; Doc.
92, at 3-5). Thus, the new recommendation that Mr. Bieber consider a spinal cord
stimulator, they contend, is simply the next step in Mr. Bieber’s continuing

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treatment.2 Finally, the Biebers assert that EII cannot demonstrate any cognizable
prejudice from Dr. Camillo’s and Dr. Perez’s testimony on a spinal cord stimulator
and chronic pain, stemming from the December 15, 2011 office note. (Doc. 91, at 5;
Doc. 92, at 5).3
The court finds that the Biebers satisfied their duty to supplement and that
EII will not be prejudiced by the testimony of Dr. Camillo and Dr. Perez concerning
the spinal cord stimulator. Upon receiving the updated medical records, including
the December 15 office note, counsel for the Biebers promptly provided the records
to counsel for EII. Both parties received the record on the same day, the day of the
trial depositions, and the record concerned a very recent event: a doctor’s
appointment from a mere two and one half weeks prior. The court finds no basis
for exclusion here. To the extent that EII was surprised by the testimony regarding
the spinal cord stimulator, the prejudice is minimal. It is no surprise to either party
that Mr. Bieber will require continued treatment and therapy. (See Doc. 79-2, at 39

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The Biebers further argue that EII never inquired about getting any
updated records before the deposition and made no attempt to remedy the situation
by preventing the trial deposition from continuing or requesting time to consult
with its own expert. (Doc. 91, at 4; Doc. 92, at 5). The court rejects this argument.
Rule 26(e) places the burden squarely on the Biebers to supplement the reports and
deposition testimony of their experts. See FED . R. CIV . P. 26(e). EII was not
required to inquire about updated records.
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The Biebers argue, “what possible prejudice could come from the physician
voicing the possibility of employing a new modification for a vexing ongoing pain
condition? Perhaps, the therapy will be successful and reduce the value of the pain
and suffering element of the claim arising from Eastern’s negligence.” (Doc. 92, at
5).
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(stating that Mr. Bieber “will need to participate in physical therapy throughout his
life time as well as receive various injections. He may even require surgery if he
gets other fractures or develops more severe kyphosis”)); Kiss v. Kmart Corp., No.
Civ. A. 97-7090, 2001 WL 568974, at *6 (E.D. Pa. May 22, 2001) (rejecting plaintiff’s
argument that she suffered prejudice by the admission of testimony not contained
in experts’ original reports, and stating that “the testimony was clearly within the
scope of the subject matter on which the experts opined and within their expertise.
It is fundamental that any treatment of an alleged injury is within the scope of
expert testimony regarding the injury”). Further, EII may consult with its expert
regarding the spinal cord stimulator and address the issue at trial. The orderly and
efficient trial of the case will not be disrupted by admitting the testimony of Dr.
Camillo and Dr. Perez regarding the spinal cord stimulator as they were already
slated to testify about Mr. Bieber’s treatment and condition. Finally, the court can
discern no delay, willfulness or bad faith on the part of the Biebers with regard to
disclosing the December 15 office note; counsel for each of the parties received the
records on the same day. EII’s motion in limine to preclude the testimony of Dr.
Camillo and Dr. Perez concerning the spinal cord stimulator will be denied.
EII’s motion in limine will also be denied with respect to Dr. Camillo’s
testimony on Mr. Bieber’s chronic back pain. Although the first time the word
“chronic” is used to describe Mr. Bieber’s back pain is in the December 15, 2011
office note, Dr. Camillo’s May 2011 report clearly stated that “Mr. Bieber continues
to have pain in his back. . . . I think that Mr. Bieber although he has done well, will
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probably always have some pain from his back from these fractures. He will
probably need therapy, continue with the injections.” (Doc. 79-2, at 39). The
medical definitions of “chronic” are: “a health-related state, lasting a long time,”
“exposure, prolonged or long-term, sometimes meaning also low intensity,” and a
condition persisting 3 months or longer.” STEDMAN ’S MEDICAL DICTIONARY 376
(28th ed. 2006). Dr. Camillo’s December 15 office note in which he refers to Mr.
Bieber’s back pain as chronic—by any definition of chronic—is consistent with Dr.
Camillo’s May 2011 report that Mr. Bieber will always have some back pain. The
court will therefore permit the jury to hear the testimony.
EII further moves to preclude the redirect examination of Dr. Camillo,
alleging that it exceeds the scope of cross-examination and is repetitive of direct
examination. (Doc. 79 ¶ 17). EII claims that its cross-exam of Dr. Camillo was
retrospective, focusing on the basis for Dr. Camillo’s opinion on Mr. Bieber’s back
pain and his opinion in his May 18, 2011, report. EII contends that plaintiffs’
redirect was prospective, focusing on the possibility that Mr. Bieber will need
surgery in the future. (Id. ¶ 19). The Biebers counter that redirect of Dr. Camillo
focused on the very report that counsel for EII referred to on cross-examination,
and that all the questions focused on the post-accident condition of Mr. Bieber,
which was the essence of counsel’s cross-examination. (Doc. 92, at 12-14).
Generally, federal courts limit the scope of redirect examination to the
subject matter of the cross-examination. Marks v. Marina Dist. Dev. Co., LLC, 213
Fed. App’x 147, 152 (3d Cir. 2007) (citing United States v. Riggi, 951 F.2d 1368, 1375
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(3d Cir. 1971)). However, the scope of a redirect examination is within the district
court’s discretion. Id. (citing Government of Virgin Islands v. Martinez, 847 F.2d
125, 130 (3d Cir. 1988)).
A review of the transcript reveals that counsel for EII focused his crossexamination of Dr. Camillo on three points: (1) Dr. Camillo’s attribution of Mr.
Bieber’s back pain to the June 2008 accident, (2) that all Mr. Bieber’s spinal
fractures sustained from the accident have healed or “united,” and (3) Dr. Camillo’s
opinion in his May 2011 report that Mr. Bieber has done well but will probably
always have some back pain. (See Doc. 79-2, at 18-19). Counsel for the Biebers
began redirect examination by focusing Dr. Camillo on his May 2011 report,
specifically the paragraph in the report preceding his opinion about Mr. Bieber’s
progress, in which Dr. Camillo stated that Mr. Bieber may need surgery in the
future. (Id. at 19). Redirect continued to focus on the potential need for back
surgery depending on if or how Mr. Bieber’s back condition and pain progressed in
the future. (Id. at 19-21). Although admittedly a close call, the court finds the
redirect to be within the scope of cross-examination. Cross-examination refers to
Mr. Bieber’s post-accident condition and redirect refers to the potential need for
future surgical treatment if the post-accident condition alters or worsens. The
court will exercise its discretion and permit the jury to hear the redirect
examination of Dr. Camillo. EII’s motion in limine to preclude the redirect is
therefore denied.

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Finally, in EII’s third motion in limine, EII moves to preclude any reference
to EII employees placing flags on temporary road construction signs after the
June 2, 2008 accident. EII asserts that reference to such conduct is irrelevant to the
instant action and inadmissible as a subsequent remedial measure under Federal
Rule of Evidence 407. (Doc. 75).
In response, the Beibers state that they will not offer evidence that EII
employees actually placed flags on construction road signs in a remedial effort.
(Doc. 90, at 2). However, the Biebers intend to offer, as an admission, a statement
in a post-accident document. (Id.) On a “Construction Zone Vehicular Accident
Report,” in response to a question regarding any changes to the project’s traffic
control methods as a result of the accident, an EII employee wrote “Contractor has
decided to put flags on all signs when working.” (Doc. 90, Ex. A). The Biebers
assert that EII has argued throughout the litigation that the signs marking the work
zone had nothing to do with the accident, and the Accident Report is an admission
that EII really believed otherwise. (Doc. 90, at 3). According to the Biebers, the
statement is “highly probative [] evidence of Eastern’s knowledge or sincere belief
that, right after the accident, road construction signs were, in fact, causally reacted
[sic] to this accident.” (Id. at 4). The Biebers further contend that the evidence
does not qualify as a “measure” under Rule 407, but is simply a recommendation
made by EII employees after the accident. (Id.)

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Under the rules of evidence, evidence is relevant if it has “any tendency to
make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.”
FED . R. EVID . 401. All relevant evidence is admissible unless otherwise stated by the
Constitution, statue or other Federal Rules. FED . R. EVID . 402. Federal Rule of
Evidence 407 prohibits the admission of evidence that is otherwise relevant as
follows:
When, after an injury or harm allegedly caused by an event, measures
are taken that, if taken previously, would have made the injury or
harm less likely to occur, evidence of the subsequent measures is not
admissible to prove negligence, culpable conduct, . . . , or a need for a
warning or instruction.
FED . R. EVID . 407.
The court finds that the evidence of flags placed on signing after the accident
is relevant to the extent that EII claims that signing issues did not contribute to the
crash. However, the court finds that Rule 407 bars its admission to show negligence
or a need for a warning or instruction. The court rejects the Biebers’ argument that
the Accident Report statement was a recommendation or suggestion that was not
implemented, and therefore fails to qualify as a “measure” under Rule 407. The
Accident Report states “Document any changes or revisions made to the project’s
traffic control method as a result of the accident and the date they were
implemented.” (Doc. 90, Ex. A). EII responded that it has decided to put flags on
all signs when working. (Id.) Moreover, Darwin Steininger, the EII job
superintendent testified in a deposition to the decision to place flags on all signs.
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(Doc. 90, Ex. B). Placing flags on road construction signs was thus not a mere
suggestion or recommendation.
Under the circumstances, the court concludes that the Biebers may use the
statement in the Accident Report for impeachment purposes only. Rule 407 does
not preclude the admission of evidence of subsequent remedial measures when the
evidence is offered for impeachment purposes. FED . R. EVID . 407 (stating that the
rule “does not require the exclusion of evidence of subsequent remedial measures
when offered for another purpose, such as . . . impeachment”). Therefore, the
motion in limine is granted in part. The court emphasizes that the Biebers shall be
prohibited from referencing the Accident Report in their opening statement to the
jury.
B.

The Biebers’ Motion in Limine

The Biebers move to preclude the defendants from referencing three
different topics. First, they move to preclude at trial any reference to the
Pennsylvania Fair Share Act, signed into law on June 28, 2011. (See Doc. 89, at 3).
The Act alters Pennsylvania law on joint and several liability, limiting a defendant’s
liability for damages if the defendant is found to be less than 60 percent at fault.
The Act only applies to actions accruing after June 28, 2011. Given that the
accident at issue occurred on June 2, 2008, the Biebers assert that the Act is
irrelevant and any reference to the law would be improper and prejudicial. In
response, EII states that it has no intention of referencing, citing or otherwise
relying on the Act. (Doc. 97, at 5). The motion is therefore granted as unopposed.
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The Biebers next move to preclude at trial any reference or suggestion that
the risks inherent in motorcycling diminish defendants’ responsibility for Mr.
Bieber’s injuries. Plaintiffs assert that there is no evidence of any contributory
negligence on the part of Mr. Bieber, so any attempt to highlight the risks inherent
in motorcycling would be improper and unfairly bias the jury. The Biebers also
state that EII should be precluded from mentioning that Mr. Bieber was not
wearing a helmet, noting that Pennsylvania law does not require a motorcycle
operator to wear a helmet and there is no medical evidence relating any particular
injuries to the presence of absence of a motorcycle helmet. (Doc. 89, at 5 n.1).
EII responds that any prejudices a juror may have regarding the risks
inherent in motorcycling will be handled during voir dire, and, moreover, EII has
not suggested that Mr. Bieber was comparatively negligent because he was riding a
motorcycle rather than driving an automobile. (Doc. 97, at 5). With respect to the
helmet issue, however, EII contends that Mr. Bieber’s injuries were affected by the
lack of helmet. (Id.) Thus, EII claims that evidence that Mr. Bieber was riding a
motorcycle without wearing a helmet is relevant to the issue of damages. (Id. at 6).
As discussed above, Rules 401 and 402 concern the admissibility of relevant
evidence. The dangers inherent to motorcycling are not relevant to whether EII or
Mr. Nace were negligent in causing the motor vehicle accident at issue, and EII has
indicated that it will not make such an argument at trial. However, the helmet
issue, is a bit more complex. Simply because there is a Pennsylvania law that does
not require a helmet, see 75 PA . CONS. STAT . § 3525(d), does not mean that the fact
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that Mr. Bieber was not wearing a helmet is irrelevant or inadmissible.4 The jury
cannot find Mr. Bieber negligent per se for not wearing a helmet, but the lack of a
helmet is relevant to the injuries sustained, to the extent EII can show that the
injuries would have been less severe had Mr. Bieber been wearing a helmet. EII
has the burden of proof of establishing a causal connection between the injuries
and the lack of helmet. The Biebers assert, however, that there is no medical
evidence relating any of Mr. Bieber’s injuries to the presence or absence of a
helmet. (Doc. 89, at 5 n.1). Without evidence connecting Mr. Bieber’s injuries to the
lack of helmet, Mr. Bieber’s failure to wear a helmet is not admissible. Any
reduction in damages on the basis of the lack of a helmet would be pure speculation
by the jury. Therefore, the motion to preclude evidence that Mr. Bieber was not
wearing a helmet at the time of the accident is conditionally granted. Defendants
may not introduce evidence of the lack of helmet unless they have evidence causally
connecting Mr. Bieber’s injuries to the failure to wear a helmet.
Finally, the Biebers move to preclude EII’s liability expert, Joseph P. Tarris
from opining that the entrance of the EII construction truck onto the eastbound
lane of Route 274 “was not a proximate cause” of the accident. (Doc. 89, at 5). The
Biebers contend that the opinion referencing proximate causation fails to properly

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By statute, minors under the age of 12 who ride bicycles are required to
wear a helmet. See 75 PA . CONS. STAT . § 3510. Interestingly, the statute makes
evidence of a violation of the statute inadmissible in civil actions, and the failure to
wear a helmet is not to be considered contributory negligence. Id. § 3510(c). There
is no similar provision in the motorcycle helmet law that deems evidence of lack of a
helmet inadmissible in civil actions. See 75 PA. CONS. STAT . § 3525.
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reflect Pennsylvania law, which requires the plaintiff to show that defendants’
negligence is a factual cause of plaintiffs’ injuries. (Id.) Moreover, the Biebers
assert, a determination of causation is within the sole province of the jury, and
therefore any reference to causation by Mr. Tarris should be stricken.
EII argues that the Biebers have not challenged Mr. Tarris’ qualifications to
opine about traffic safety and advance warning duties and whether EII breached
these duties, and counters that although “proximate cause” has become an
antiquated term, the theory behind its application remains the same in that the
plaintiff must prove that the defendant was the factual and legal cause of his
damages. (Doc. 97, at 6-7). EII further contends that causation is a matter generally
requiring expert testimony, and the Biebers’ own expert, Steven Schorr, P.E., has
opined about causation. (Id. at 7-8).
Federal Rule of Evidence 702 governs the admissibility of expert witness
testimony and provides that an expert witness may testify to scientific, technical or
specialized knowledge, “in the form of an opinion or otherwise” if it will assist the
trier of fact to understand the evidence or determine a fact in issue, and “if (1) the
testimony is based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.” FED . R. EVID . 702. Under Pennsylvania

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law, to establish negligence, a plaintiff must prove duty, breach, causation and
damages. See Sodders v. Fry, 32 A.2d 882, 887 (Pa. Commw. Ct. 2011).5
With respect to the issue of causation, medical experts are frequently called
upon to offer opinions on the cause of a plaintiff’s injuries. The rationale, according
to the Pensylvania Supreme Court, is that “[a]lthough in certain situations
involving physical injury, it is possible for a jury reasonably to infer causation from
the circumstances of an accident or occurrence, it is generally acknowledged that
the complexities of the human body place questions as to the cause of pain or injury
beyond the knowledge of the average layperson.” Hamil v. Bashline, 392 A.2d 1280,
1285 (Pa. 1978). The expert testimony at issue here concerns the cause of the
accident itself, not the cause of injuries sustained by Mr. Bieber (an issue for which

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Pennsylvania Suggested Standard Civil Jury Instructions refer to the
causation requirement as “factual cause” and suggest the following instruction:
In order for the plaintiff to recover in this case, the defendant’s
[[negligent] [reckless] [intentional]] conduct must have been a factual
cause in bringing about harm. Conduct is a factual cause of harm
when the harm would not have occurred absent the conduct. To be a
factual cause, the conduct must have been an actual, real factor in
causing the harm, even if the result is unusual or unexpected. A
factual cause cannot be an imaginary or fanciful factor having no
connection or only an insignificant connection with the harm.
To be a factual cause, the defendant’s conduct need not be the
only factual cause. The fact that some other causes concur with the
negligence of the defendant in producing the injury does not relieve
the defendant from liability as long as [his] [her] own negligence is a
factual cause of the injury.
PA . SUGGESTED STANDARD CIV . JURY INSTRUCTIONS § 13.160 (4th ed. 2011).
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Mr. Bieber will present medical expert opinions).6 However, from the medical
expert perspective, it is clear that evidence on causation is appropriate when it will
assist a lay juror in understanding an issue beyond the average lay juror’s
knowledge. In other words, expert testimony is admissible if it will “assist the trier
of fact to understand the evidence or to determine a fact in issue.” FED . R. EVID .
702.
The court notes that both EII’s expert and the Biebers’ expert, (Mr. Schorr),
have provided opinions on causation, although Mr. Schorr does not specifically
employ the word “cause.” (See Doc. 97-2, at 30). Instead, Mr. Schorr employs the
term “led to,” stating that “the hazard that led to the braking of Ms. Battiste and
the subsequent avoidance actions of Mr. Nace was created by the unexpected
presence of the construction vehicle entering the roadway,” and in failing to follow
proper industry procedures, “the construction vehicle created a hazardous
condition that ultimately led to the collision in question.” (Id. (emphasis added)).

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The case of Salamone v. Wal-Mart Stores East, LP, Civ. A. No. 10-CV-892,
2011 WL 2787788, at *5 (E.D. Pa. July 15, 2011), cited by the Biebers for the
proposition that the causation determination is within the sole realm of the jury, is
inapposite. First, the case concerned the testimony of a medical expert on the
cause of the plaintiff’s injuries. Second, the court in Salamone found the plaintiff’s
medical expert to be unreliable, and excluded the expert’s testimony not because it
is inappropriate for an expert to testify on causation but because the expert “ha[d]
no basis for attributing causation to the incident.” Id. at *5 (also stating that “Dr.
Biester’s report fails to establish causation, in part, because she did not review any
of Ms. Salamone’s medical records that pre-date her fall, and therefore, ignored
may of the symptoms Ms. Salamone was complaining of before her slip and fall.
Moreover, the only evidence of causation was Ms. Salamone’s self-serving
statements and those statements were inconsistent with the accident reports and
the medical records . . . .”).
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It appears from the expert reports that both Mr. Schorr and Mr. Tarris are
forensic engineering/reconstruction experts who have surveyed the accident site
and topography, obtained measurements from the scene and conducted
“avoidance” and/or “site distance” analyses. (See Doc. 97-2, at 5-31). Consequently,
both have rather pointed opinions about whether EII violated industry procedure
and the ultimate result of any such violations. Mr. Schorr opined that there were
violations which ultimately led to (caused) the collision, (see id. at 30), and Mr.
Tarris opined that there were no violations, thus conduct by EII employees did not
cause (lead to) the collision. (Id. at 13-15). It is appropriate for the experts to testify
to whether EII violated industry procedure or Commonwealth laws applicable to
maintaining a construction zone. The court will permit this testimony, as well as
the testimony regarding the cause of the crash. The court finds that the expert
testimony will assist the trier of fact. Admitting the testimony will not impede the
jury’s function. The ultimate determination of causation, as well as the credibility
of Mr. Schorr and Mr. Tarris, are issues for the jury. The motion in limine is
therefore denied with respect to Mr. Tarris’ testimony.
III.

Conclusion
For the reasons set forth above EII’s motions in limine (Docs. 77, 79) to

exclude the testimony of Dr. Perez and Dr. Camillo are denied. EII’s motion in
limine (Doc. 76) to preclude reference to EII employees placing flags on road
construction signs subsequent to the June 2, 2008 accident is granted in part and
denied in part. The Biebers’ motion in limine to preclude reference to the
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Pennsylvania Fair Share Act and the dangers inherent in motorcycling are granted.
The motion to preclude evidence that Mr. Bieber was not wearing a helmet is
conditionally granted and the motion in limine with respect to EII’s expert
testimony on causation is denied. An appropriate order is attached.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge

Dated:

March 6, 2012

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

STEPHEN K. BIEBER and KAREN
BIEBER,
Plaintiffs
v.
DAVID J. NACE and EASTERN
INDUSTRIES, INC.,
Defendants

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CIVIL ACTION NO. 1:10-CV-0718
(Judge Conner)

ORDER
AND NOW, this 6th day of March, 2012, upon consideration of the motions in
limine (Docs. 75, 77, 79) filed by defendant Eastern Industries, Inc., and upon
further consideration of the motion in limine (Doc. 88) filed by Stephen and Karen
Bieber, and for the reasons set forth in the accompanying memorandum, it is
hereby ORDERED that:
1.

The motion in limine (Doc. 75) of defendant Eastern Industries, Inc. to
preclude any reference to Eastern Industries, Inc. employees placing
flags on temporary road construction signs after the June 2, 2008,
accident is GRANTED in part as follows:
a.

b.

2.

The Biebers may use the statement in the Construction Zone
Vehicular Accident Report (Doc. 90, Ex. A) for impeachment
purposes only.
The Biebers are prohibited from referencing the Accident
Report in their opening statement to the jury.

The motion in limine (Doc. 77) of defendant Eastern Industries, Inc. to
preclude portions of the trial testimony of plaintiffs’ expert Edward A.
Perez, M.D. is DENIED.

3.

The motion in limine (Doc. 79) of defendant Eastern Industries, Inc. to
preclude portions of the trial testimony of plaintiffs’ expert Francis
Camillo, M.D. is DENIED.

4.

The motion in limine (Doc. 88) of plaintiffs Stephen and Karen Bieber
to preclude any reference by defendants to the Pennsylvania Fair
Share Act, the risks inherent to motorcycling, and/or to proximate
causation is granted in part and denied in part as follows:
a.

The motion is GRANTED with respect to the Pennsylvania Fair
Share Act and the dangers inherent in motorcycling.

b.

The motion is CONDITIONALLY GRANTED with respect to
evidence that Mr. Bieber was not wearing a helmet at the time
of the accident. Eastern Industries, Inc. may introduce the
evidence only if it has evidence causally connecting the injuries
sustained to the lack of a helmet.

c.

The motion is DENIED with respect to Eastern Industries, Inc.’s
expert testimony on causation.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge