Ridolfi v. State Farm Mutual Automobile Insurance Company

Filing 93

MEMORANDUM ORDER - IT IS ORDERED that the defendants motions in limine (Docs. 61, 62, and 63) are GRANTED, in part, and prior to the introduction of any of this evidence of lost earnings, future medical expenses, or nerve conductionstudies, the parties shall provide an offer of proof to the court. 63 62 61 Signed by Magistrate Judge Martin C. Carlson on 7/27/2017. SEE ORDER FOR DETAILS. (sc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TRACEY RIDOLFI,

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Plaintiff
v.
STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY,
Defendant

Civil No. 1:15-CV-859
(Magistrate Judge Carlson)

MEMORANDUM ORDER
I.

Factual Background
This is an insurance dispute between Tracey Ridolfi and her insurer, State

Farm Mutual Automobile Insurance Company, relating to claims concerning State
Farm’s alleged refusal to provide underinsured motorist (UIM) coverage to Ridolfi.
Currently the sole remaining claim in this lawsuit is Ridolfi’s allegation that State
Farm’s conduct constitutes a breach of this insurance contract, this court having
previously dismissed Ridolfi’s claim that State Farm violated Pennsylvania’s bad
faith statute, 42 Pa. Cons. Stat. Ann. § 8371, by: (1) misstating the scope of its
coverage; (2) insisting upon a sworn statement from its insured; (3) unreasonably
delaying its investigation of this claim and requiring the production of multiple sets
of medical records; and (4) failing to keep Ridolfi fully informed in writing on the
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progress of her claim.
This case is set for trial on August 7, 2017. In anticipation of trial State Farm
has filed a series of motions in limine. Three of these motions in limine appear to
reflect a common legal and factual theme in that they seek to preclude Ridolfi from
presenting evidence relating to claims as to which it is alleged that she either failed
to make discovery disclosures, or actually disclaimed in the course of discovery. For
example, State Farm seeks to preclude Ridolfi from presenting wage loss evidence,
(Doc. 61), arguing in part that: “Plaintiff indicated numerous times that she is not
presenting a claim for lost wages or potential future lost earnings, as she was
unemployed at the time of the accident, and did not decide to work until February 2012,
nearly four years after the subject accident. Additionally, Plaintiff has presented no
documentary evidence of a claim for lost wages to date.” (Doc. 66, p. 3.) Likewise State
Farm seeks to preclude Ridolfi from presenting evidence pertaining to future medical
expenses because of an alleged failure to provide discovery on these matter, (Doc. 63),
asserting that: “Plaintiff has not undergone treatment since February 2014 for the
alleged injuries at issue. Further, Plaintiffs own expert did not opine that Plaintiff
needed future medical treatment and did not provide any approximation of future
medical costs. Plaintiff has provided no documentary evidence that she will need future
medical treatment for her alleged injuries at issue.” (Doc. 64, p.3.) Finally, State Farm

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moves to preclude testimony regarding a nerve conduction study allegedly undertaken
by Ridolfi at some point in time (Doc. 62), contending that:
Throughout her third party deposition, Plaintiff never mentioned
undergoing an EMG/nerve conduction test. In addition, Plaintiff never
mentioned undergoing an EMG/nerve conduction test in her Statement
Under Oath either. See a true and correct copy of Plaintiff's Statement
Under Oath attached hereto as Exhibit A.The first time an EMG was
brought to Defendant's attention was in Plaintiffs Expert Report by Dr.
Andrew Collier. The report states "She states she did have a positive EMG
on the right." See a true and correct copy of Plaintiff's Expert Report
attached hereto as Exhibit B, at page 2. Despite this allegation, Plaintiff
has never provided any records substantiating this alleged positive EMG
result. Moreover, in Plaintiffs expert report, Dr. Collier states that Plaintiff
had a normal EMG performed in 1998 after her first motor vehicle
accident. See Exhibit B at page 3. Once again, Plaintiff has not provided
any records substantiating that Plaintiff underwent an EMG/nerve
conduction study in 1998.

(Doc. 65, p.2.)

Thus, in each instance we construe the defendant’s motion in limine to rest
upon an alleged failure to make timely and complete discovery. For her part Ridolfi
has responded to the these motions, albeit in a fashion which is not fully responsive
to the defendant’s objection that it has not been provided with discovery on these
elements of the plaintiff’s claims.(Docs. 86-88.) Instead, Ridolfi has focused her
argument primarily on questions of the evidentiary relevance of this proof.
Further complicating our assessment of these motions is a certain lack of legal
clarity and factual precision regarding the nature of the discovery propounded, and
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the information provided by Ridolfi in the course of discovery. Thus, the parties
have made assertions regarding discovery that, on occasion, cannot be fully
reconciled, but have not directed us to any evidence which would enable us to make
a fully-informed evaluation of these factual assertions.
Given these facts, for the reasons set forth below, we will GRANT these
motions in limine, (Docs. 61, 62, and 63), in part and prescribe a procedure for
fulsome offers of proof which must be made by counsel out of the presence of the
jury before any of this evidence is offered or admitted at trial.
II.

Discussion
The Court is vested with broad inherent authority to manage its cases, which

carries with it the discretion and authority to rule on motions in limine prior to trial.
See Luce v. United States, 469 U.S. 38, 41 n.4 (1984); In re Japanese Elec. Prods.
Antitrust Litig., 723 F.2d 238, 260 (3d Cir. 1983), rev’d on other grounds sub nom.,
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (the court
exercises its discretion to rule in limine on evidentiary issues “in appropriate cases”).
Courts may exercise this discretion in order to ensure that juries are not exposed to
unfairly prejudicial, confusing or irrelevant evidence. United States v. Romano,
849 F.2d 812, 815 (3d Cir. 1988). Courts may also do so in order to “narrow the
evidentiary issues for trial and to eliminate unnecessary trial interruptions.”

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Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990) (citation
omitted). However, courts should be careful before doing so.
Typically there are two primary bases for motions in limine. First, such
motions are filed when it is alleged that evidence is going to be offered which is
improper under the Federal Rules of Evidence. In considering motions in limine
which call upon the Court to engage in preliminary evidentiary rulings under Rule
403 of the Federal Rules of Evidence, we begin by recognizing that these
“evidentiary rulings [on motions in limine ] are subject to the trial judge's discretion
and are therefore reviewed only for abuse of discretion ... Additionally, application
of the balancing test under Federal Rule of Evidence 403 will not be disturbed unless
it is ‘arbitrary and irrational.’ ” Abrams v. Lightolier Inc. 50 F.3d 1204, 1213 (3d
Cir.1995) (citations omitted); see Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149,
161 (3d Cir.1994) (reviewing in limine rulings for abuse of discretion). Yet, while
these decisions regarding the exclusion of evidence rest in the sound discretion of
the district court, and will not be disturbed absent an abuse of that discretion, the
exercise of that discretion is guided by certain basic principles.
One of the key guiding principles is reflected in the philosophy which shapes
the rules of evidence. The Federal Rules of Evidence can aptly be characterized as
evidentiary rules of inclusion, which are designed to broadly permit fact-finders to

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consider pertinent factual information while searching for the truth. The
inclusionary quality of the rules, is embodied in three cardinal concepts. The first of
these concepts is Rule 401's definition of relevant evidence. Rule 401 defines what is
relevant in an expansive fashion, stating:
“Relevant evidence” means evidence having any tendency
to make the existence of any fact that is of consequence to
the determination of the action more probable *197 or less
probable than it would be without the evidence.
Fed. R. Evid. 401.
Adopting this view of relevance it has been held that: “Under [Rule] 401,
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.’ [Therefore] ‘It follows that evidence is irrelevant
only when it has no tendency to prove the fact. Thus the rule, while giving judges
great freedom to admit evidence, diminishes substantially their authority to exclude
evidence as irrelevant.’ ” Frank v. County of Hudson, 924 F. Supp. 620, 626
(D.N.J.1996) citing Spain v. Gallegos, 26 F.3d 439, 452 (3d Cir.1994) (quotations
omitted).
This quality of inclusion embraced by the Federal Rules of Evidence is further
buttressed by Rule 402, which generally defines the admissibility of relevant

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evidence in sweeping terms, providing that:
All relevant evidence is admissible, except as otherwise
provided by the Constitution of the United States, by Act
of Congress, by these rules, or by other rules prescribed by
the Supreme Court pursuant to statutory authority.
Evidence which is not relevant is not admissible.
Fed. R. Evid. 402.
Thus, Rule 402 expressly provides that all “[r]elevant evidence will be
admissible unless the rules of evidence provide to the contrary.” United States v.
Sriyuth, 98 F.3d 739, 745 (3d Cir.1996) (citations omitted). These principles
favoring inclusion of evidence are, however, subject to some reasonable limitations.
Thus, Rule 403, provides grounds for exclusion of some potentially irrelevant but
highly prejudicial evidence, stating that:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.
Fed. R. Evid. 403 .
By permitting the exclusion of relevant evidence only when its probative
value is “substantially outweighed” by other prejudicial factors, Rule 403
underscores the principle that, while evidentiary rulings rest in the sound discretion
of the court, that discretion should consistently be exercised in a fashion which
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favors the admission of relevant proof unless the relevance of that proof is
substantially outweighed by some other factors which caution against admission.
The second principal basis for a motion in limine seeking to preclude evidence
arises from discovery failures. As we construe it, it is this legal grounds for
exclusion which is implicated in these three motions in limine. These alleged
discovery failures provide potential grounds for exclusion of evidence pursuant to
Rule 37(c) (1) which provides that “[i]f a party fails to provide information or
identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at a trial,
unless the failure was substantially justified or harmless.” Fed. R. Civ. P. 37(c)(1).
The rule is, by its terms mandatory. Newman v. GHS Osteopathic, Inc., Parkview
Hosp. Div., 60 F.3d 153, 156 (3d Cir. 1995) (“Rule 37 is written in mandatory terms,
and is designed to provide a strong inducement for disclosure of Rule 26(a)
material.”); see also Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996)
(“The sanction of exclusion is thus automatic and mandatory unless the party to be
sanctioned can show that is violation of Rule 26(a) was either justified or
harmless.”). Under Rule 37 “[t]he non-producing party shoulders the burden of
proving substantial justification for its conduct or that the failure to produce was
harmless.” Tolerico v. Home Depot, 205 F.R.D. 169, 175 (M.D.Pa.2002).

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The Third Circuit has not directly addressed the “substantial justification”
standard. See Grider v. Keystone Health Plan Central, Inc., 580 F.3d 119, 140 n. 23
(3d Cir.2009). However, district courts in this circuit have defined “substantial
justification” as “justification to a degree that could satisfy a reasonable person that
parties could differ as to whether the party was required to comply with this
disclosure request.” Tolerico, 205 F.R.D. at 175. As this suggests, the burden of
proving that failure to disclose was substantially justified rests with the party who
failed to disclose. See Klatch-Maynard v. Sugarloaf Twp., No. 3:06-CV-0845,
2011 WL 2006424, at *5 (M.D. Pa. May 23, 2011) (finding that burden unsatisfied,
and finding “Plaintiffs’ flagrant disregard to the Court’s discovery order, the
prejudice to the Defendants, and the need for an orderly trial process in this
protracted litigation weigh in favor of excluding” the evidence that had not been
produced).
When a plaintiff does not satisfy this burden of proving substantial
justification or harmlessness, the Court is vested with discretion to exclude the
evidence that was never previously disclosed during pre-trial litigation pursuant to
Rule 37(c)(1). Klatch-Maynard, 2011 WL 2006424, at *3. In determining whether
evidence should be excluded due to a party’s failure to comply with its discovery
obligations, courts are enjoined to consider the following factors: (1) the prejudice

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or surprise of the party against whom the evidence would be used; (2) the ability of
that party to cure the prejudice; (3) the extent to which waiver of the rule against
allowing the use of undisclosed evidence would disrupt the orderly and efficient trial
of the case; and (4) bad faith or willfulness in failing to comply with the court’s
orders.

Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894,

904-05 (3d Cir. 1977), overruled on other grounds, Goodman v. Lukens Steel Co.,
777 F.2d 113 (3d Cir.1985). The Court should also consider the importance of the
excluded testimony. Konstantopoulous v. Westvaco Corp., 112 F.3d 710, 719 (3d
Cir. 1997).
Given the current state of the record before us, we cannot reach any definitive
conclusions regarding whether there have been discovery shortcomings in this case
which would warrant exclusion of undisclosed evidence. In particular we note that
the parties have made assertions regarding discovery that, on occasion, cannot be
fully reconciled, but have not directed us to any evidence which would enable us to
evaluate these factual assertions. Nonetheless, we do not believe that this litigation
can proceed forward in a haphazard fashion without further clarity on these issues.
Therefore, we will GRANT these motions in limine, in part, and prescribe a
procedure for the reasoned resolution of these questions concerning the
admissibility of these categories of evidence.

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On this score, prior to the introduction of any of this evidence, the parties shall
provide an offer of proof to the court. This offer of proof will be bifurcated in the
following fashion:
First, it will be the responsibility of the defendant to identify discovery
demands propounded in the case which called for the disclosure of this disputed
evidence, or point to discovery responses from the plaintiff which denied or
disclaimed the existence of this evidence.
Second, upon the presentation of this information by the defendant, the
plaintiff may either: (1) demonstrate that the evidence was disclosed; or (2) prove
substantial justification for its conduct or that the failure to produce was harmless.
Third, as part of this offer of proof both parties should also be prepared to
address the following factors which govern the admissibility of this evidence: (1)
the prejudice or surprise of the party against whom the evidence would be used; (2)
the ability of that party to cure the prejudice; (3) the extent to which waiver of the
rule against allowing the use of undisclosed evidence would disrupt the orderly and
efficient trial of the case; and (4) considerations of bad faith or willfulness.
An appropriate order follows.

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III.

Order
For the forgoing reasons, IT IS ORDERED that the defendant’s motions in

limine (Docs. 61, 62, and 63) are GRANTED, in part, and prior to the introduction of
any of this evidence of lost earnings, future medical expenses, or nerve conduction
studies, the parties shall provide an offer of proof to the court in the following
fashion:
First, it will be the responsibility of the defendant to identify discovery
demands propounded in the case which called for the disclosure of this disputed
evidence, or point to discovery responses from the plaintiff which denied or
disclaimed the existence of this evidence.
Second, upon the presentation of this information by the defendant, the
plaintiff may either: (1) demonstrate that the evidence was disclosed; or (2) prove
substantial justification for its conduct or that the failure to produce was harmless.
Third, as part of this offer of proof both parties should also be prepared to
address the following factors which govern the admissibility of this evidence: (1)
the prejudice or surprise of the party against whom the evidence would be used; (2)
the ability of that party to cure the prejudice; (3) the extent to which waiver of the
rule against allowing the use of undisclosed evidence would disrupt the orderly and
efficient trial of the case; and (4) considerations of bad faith or willfulness.

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/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
Dated: July 27, 2017

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