Young et al v. Pleasant Valley School District et al

Filing 149

MEMORANDUM and ORDER denying parties' 120 127 129 Motions in Limine; Signed by Honorable James M. Munley on 4/12/10 (sm, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA PATRICIA YOUNG, WILLIAM YOUNG, and PATRICIA YOUNG, on behalf of her minor daughter, Plaintiffs : No. 3:07cv854 : : (Judge Munley) : : : v. : : PLEASANT VALLEY SCHOOL : DISTRICT, : PLEASANT VALLEY SCHOOL : BOARD, : JOHN J. GRESS, Principal, in his : individual capacity, and : BRUCE H. SMITH, JR., : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
M E M O R AN D U M B e fo re the court are the parties' motions in limine. (Docs. 120, 127, 129). Having been briefed, the matters are ripe for disposition. I. Background T h is case arises from plaintiffs' conflicts with the defendant school district over e ve n ts in the United States history classroom of Defendant Bruce H. Smith at the P le a s a n t Valley, Pennsylvania high school in the spring of 2007. Smith showed s tu d e n ts material that plaintiffs complained was sexually explicit, violent and u n re la te d to the history course he was teaching. At issue in the case is whether D e fe n d a n t John J. Gress retaliated against the plaintiffs for complaining about

material presented by Defendant Smith, whether the school district should be liable fo r retaliation, and whether Defendant Smith violated the minor plaintiff's right to e q u a l protection by creating a sexually hostile environment in his classroom. The m o tio n s in limine address the extent to which such material can be presented at trial, a n d whether the defendants' experts is properly qualified to testify.. II. Jurisdiction A s this case is brought pursuant to 42 U.S.C. § 1983, the court has jurisdiction p u rs u a n t to 28 U.S.C. § 1331. ("The district courts shall have original jurisdiction of a ll civil actions arising under the Constitution, laws, or treaties of the United States."). T h e court has supplemental jurisdiction over the plaintiff's state law claims pursuant to 28 U.S.C. § 1367. III. Discussion E a c h side filed motions in limine. The court will address each in turn. A. Plaintiff's Motions P la in tiff filed two motions in limine. I. Testimony of Defendants' Expert, Edward F. Dragan P la in tiff seeks to exclude the testimony of the defendants' expert, Edward F. D ra g a n . Plaintiff argues that the report in question addresses matters that are not re le va n t to the case and to the extent that the report addresses relevant matters, the e xp e rt lacks material support for his conclusions. F e d e ra l Rule of Evidence 702 provides that "a witness qualified as an expert 2

by knowledge, skill, experience, training or education" may provide opinion testimony "if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the p ro d u c t of reliable principles and methods, and (3) the witness has applied the p rin c ip le s and methods reliably to the facts of the case." FED. R. EVID. 702. Courts h a ve described the function of the district court in determining whether to admit e xp e rt testimony as a "gatekeeping" one. The trial judge has "the task of ensuring th a t an expert's testimony both rests on a reliable foundation and is relevant to the ta s k at hand." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 598 (1 9 9 3 ). Thus, "[t]he objective of that requirement is to ensure the reliability and re le va n c y of expert testimony. It is to make certain that an expert, whether basing te s tim o n y upon professional studies or personal experience, employs in the c o u rtro o m the same level of intellectual rigor that characterizes the practice of an e xp e rt in a particular field." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1 9 9 9 ). D e fe n d a n t's expert, Edward F. Dragan, Ed.D., serves as a consultant to s c h o o ls , attorneys and individuals. (Exh. 1 to Plaintiff's Motion (Doc. 127)). According to his resume, Dragan is certified as a school superintendent, principal, s p e c ia l educator, teacher, management consultant, public manager and assistant s u p e rin te n d e n t for school business. (Id.). He holds a master's degree in education la w from the Franklin Pierce Law Center, an educational doctorate from Rutgers U n ive rs ity , an MA in Special Education from the College of New Jersey, and a BA in

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Industrial Arts Education and Psychology from the College of New Jersey. (Id.). Dragan also has certificates in other education-related areas from other universities a n d educational programs, including Harvard and Rutgers. (Id.). He served as a te a c h e r and school administrator in various locations, mostly in New Jersey, from 1 9 6 6 -1 9 9 3 . (Id.). In addition, Dragan serves as an adjunct professor in education a n d special education at Seton Hall University and the College of New Jersey. Since 1993, he has been the founder and principal consultant for Education M a n a g e m e n t Consulting in Lambertville, NJ. (Id.). In that role, Dragan has provided s e rvic e s and seminars for numerous schools and agencies related to "student s u p e rvis io n , employee hiring, supervision and dismissal, special education, school e va lu a tio n in custody matters, sexual harassment, civil rights and other issues." (Id.). As part of this job, Dragan has served as an expert witness on educational and a d m in is tra tiv e matters in state and federal court across the country. (Id.). Dragan h a s also published numerous articles in peer-reviewed journals, including a several a rtic le s on sexual harassment in schools. (Id.). Plaintiffs do not dispute that Dragan is qualified to testify as an expert on e d u c a tio n a l policy. Nor could they. Dragan's resume demonstrates that he has e xte n s iv e knowledge and experience on these issues, has education relevant to the m a tte rs at hand and has published on the issues of sexual harassment and staff s u p e rvis io n relevant to this case. Thus, he the has relevant knowledge, skill, training a n d experience to testify.

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Instead, plaintiffs argue that Dragan should be precluded from testifying about th e school district's response to plaintiff's complaints about Smith, the teacher in this c a s e . As the court has dismissed the claims against the school district for failing to re s p o n d properly to allegations that Smith had created a hostile environment, e vid e n c e about the adequacy of the district's response to those allegations is not re le va n t to the case. The court will deny the motion on these grounds. One of the q u e s tio n s in this case concerns the appropriateness of Gress's reactions in re s p o n d in g to the plaintiffs' complaints about Smith's teaching. Plaintiffs contend th a t he revealed their names to Smith in retaliation for their complaints, and took o th e r action related to his investigation and curriculum that was retaliatory. Defendant Gress contends that he did not reveal their identity in disclosing those c o m p la in ts , but only spoke appropriately with Smith about general complaints. Dragan could testify that his actions in speaking with Smith were appropriate in the c o n te xt of educational policy. Such testimony would make it less likely that Smith a c te d to retaliate against plaintiffs. In any case, the motion is premature, and p la in tiff's objections to the relevancy of particular portions of Dragan's testimony are b e s t left for trial. Plaintiffs also argue that Dragan's testimony on whether Smith created a h o s tile environment with his teaching should be excluded because such testimony d o e s not meet the requirements for reliability or use of scientific methods as required b y Daubert. Instead, plaintiffs contend that the report simply represents Dragan's

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subjective belief or unsupported speculation. The court will deny the plaintiffs' motion o n these grounds as well. Dragan bases his opinion on the evidence of record in th is case, including the report of an investigation on the incidents here in question, S m ith 's personnel file, and the deposition transcripts of the various parties in the c a s e . To this information, he applies his expertise as an educator and scholar to d e te rm in e whether the actions of the Smith, Gress and the school district were a p p ro p ria te under the circumstances. Plaintiff disputes his conclusions; this is a p p ro p ria te for cross examination and argument in the case, but not for preclusion of D ra g a n 's testimony. Since "[t]he grounds for an expert's opinion merely have to be g o o d , they do not have to be perfect," the court concludes that the evidence is a d m is s ib le , even though subject to vigorous challenge by the plaintiffs. In re Paoli R .R . Yard PCB Litigation, 35 F.3d 717, 744 (3d Cir. 1994). As the Third Circuit C o u rt of Appeals has noted, "A judge frequently should find an expert's methodology h e lp fu l even when the judge thinks that the expert's technique has flaws sufficient to re n d e r the conclusions inaccurate. He or she will often still believe that hearing the e xp e rt's testimony and assessing its flaws was an important part of assessing what c o n c lu s io n was correct and may certainly still believe that a jury attempting to reach a n accurate result should consider the evidence." Id. at 745. E v e n if Dragan is permitted to testify, plaintiffs contend that he should not be a llo w e d to offer an opinion on whether Smith or the district actually created a hostile le a rn in g environment because this embraces an ultimate issue in the case, and

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experts are not allowed to offer their opinion on such matters. Federal Rule of E vid e n c e 704(a) provides in relevant part that "testimony in the form of an opinion or in fe re n c e otherwise admissible is not objectionable because it embraces an ultimate is s u e to be decided by the trier of fact." Fed. R. Evid. 704(a). Thus, provided that D ra g a n bases his conclusions on his application of expertise to the facts of the case, te s tim o n y that harassment did not occur would be appropriate. Plaintiffs contend th a t Dragan's testimony will go too far, offering legal conclusions rather than expert e xa m in a tio n s of the facts at issue in this case. Such objections to Dragan's te s tim o n y are premature, and the court will deny the motion without prejudice to ra is in g it an appropriate time during trial. The court cautions, however, that offering a n opinion on the existence of harassment, provided that opinion is grounded in the fa c ts of the case, is not objectionable. ii. Evidence of Plaintiff William Young's Employment History P la in tiffs seek to exclude evidence at trial about Plaintiff W illia m Young's e m p lo ym e n t history (Doc. 129). They argue that the evidence is not relevant to the c a s e and was obtained in violation of Federal Rule of Civil Procedure 45 and should th u s be excluded. Defendants respond that the evidence could be relevant to im p e a c h W illia m Young, as he contends that his family was forced to move from the s c h o o l district because of the unwanted attention their complaints received. If W illia m Young moved from the district because of a job opportunity, rather than b e c a u s e of pressure from his neighbors, a jury might be inclined to award plaintiffs

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fewer damages. Moreover, theirs was not an intentional violation of Rule 45, d e fe n d a n ts cured the problem as soon as they became aware of it and plaintiffs s u ffe re d no prejudice. P la in tiffs first argue that defendants violated Federal Rule of Civil Procedure 4 5 in procuring this evidence, and should thus be precluded from introducing it. Rule 4 5 (b )(1 ) requires that "[i]f the subpoena commands the production of documents, e le c tro n ic a lly stored information, or tangible things or the inspection of premises b e fo re trial, then before it is served, a notice must be served on each party." FED. R. C IV. P. 45(b)(1). Plaintiffs contend that their counsel was not provided with a copy o f the subpoena for W illia m Young's employment records before that subpoena was s e rve d on the parties who supplied the documents, depriving them of the opportunity to object. They do not, however, state the grounds upon which they would have o b je c te d , or argue that the records should not have been the subject of a subpoena. Defendants respond that they "substantially complied" with the notice requirement of R u le 45(b)(1). Defendants actually issued two sets of subpoenas for the same e m p lo ym e n t-re la te d material. In the first set, they "inadvertently" failed to notice the p la in tiffs . They notified the plaintiffs before serving the second subpoena. Defendants also provided plaintiffs with copies of all of the documents obtained th ro u g h these subpoenas. P la in tiffs cite to Spencer v. Steinman, 179 F.R.D. 484 (E.D. Pa. 1998), to s u p p o rt their position. In Spencer, an attorney for the plaintiff issued subpoenas

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duces tecum to several non-parties without providing notice to the defense. Id. at 4 8 6 . The defendant filed a motion seeking affidavits from plaintiff's counsel attesting th a t all documents received in response to the subpoenas had been forwarded to the d e fe n s e , that the documents received be precluded from use during discovery and at tria l, and that plaintiff's counsel be assessed monetary sanctions. Id. at 487. At a h e a rin g on the issue, plaintiff's counsel explained that the failure to provide notice w a s an oversight; counsel had directed another attorney and a paralegal to draft and s e rve the subpoenas, and they had not realized the need to provide notice to the o th e r party. Id. at 488. The court found the plaintiff's counsel liable for the rules vio la tio n , since he was responsible for his subordinates' actions. Id. at 489. The c o u rt also rejected counsel's argument that no sanctions were necessary, since he d ra fte d a letter to defendant explaining the error and forwarded defense counsel all o f the discovery obtained through the subpoenas. Id. Since the purpose of the rule is to allow a party to object before the disclosure of sensitive information and the fa ilu re to provide notice undermines the court's processes, the court reasoned, fa ilu re to provide notice was not curable simply by later providing the other side with th e material. Id. The court sanctioned plaintiff's counsel with an admonishment a g a in s t issuing further subpoenas without notice, an order that he file an affidavit a tte s tin g that all material obtained through the subpoenas had been provided to the d e fe n d a n ts , and a fine of counsel fees incurred by defendant in bringing the

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sanctions motion.1 Id. T h e facts are similar here, in that defense counsel, through an oversight, failed to provide plaintiffs notice of a subpoena issued to a non-party. Like the counsel in S p e n c e r, defense counsel promptly notified opposing counsel when he became a w a re of the oversight. He also re-issued subpoenas and provided plaintiffs with n o tic e of them. Defense counsel also avers that he provided plaintiffs with copies of a ll the discovery obtained pursuant to these subpoenas. Plaintiffs do not contend th a t they did not receive this discovery. Thus, the court's order in Spencer that the o ffe n d in g party attest to providing all discovery obtained through subpoenas is u n n e c e s s a ry here.2 Like the opposing party in Spencer, plaintiffs seek preclusion of th e evidence obtained through these subpoenas from use at trial. That sanction was o n e that the court in Spencer did not impose, or even discuss. Like the court in S p e n c e r, the court declines to impose that sanction. Plaintiffs argue that they were d e n ie d an opportunity to object to the subpoenas, but the only argument they raise a b o u t the evidence obtained is that such evidence is not relevant to the issues at

The court later reversed itself on its order that plaintiff pay attorney's fees. No bad faith had been shown, and the court concluded that such a showing was necessary to obtain attorney's fees. Spencer v. Steinman, No. 96-1792, 1999 U.S. Dist. LEXIS 23387, *2 n. 1 (March 1, 1999). Like the court in Spencer, however, the court will here remind defense counsel that Rule 45(b)(1) must be complied with, and that no subpoenas duces tecum should be issued to non-parties without notice to the defendants. Oversight is not an excuse. 10
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trial, an issue which the court will address.3 They do not contend that they were p re ju d ic e d by the lack of notice, or explain why they waited until a motion in limine to o b je c t to the discovery. The court finds that preclusion would not be an appropriate re m e d y for the defendants' actions here, when plaintiffs demonstrate no prejudice a n d the material obtained in the subpoena is relevant to the case, and the court will d e n y the motion on those grounds. The court also rejects the plaintiffs' argument that evidence of a job offer to W illia m Young is irrelevant to the case. Defendants insist that they intend to use this m a te ria l to impeach W illia m Young. W h ile the claims in the case are not related to Y o u n g 's job prospects, plaintiffs do claim that defendants' conduct forced them to m o ve to another area. Testimony that W illia m Young had a reason to move away fro m the district unrelated to any retaliation could cause a jury to question whether Y o u n g 's stated reasons for his actions are the real reasons for them. Thus, the

Plaintiffs also did not raise this argument in a timely fashion, but waited until the eve of trial to address the issue. If they objected to the subject of the subpoena, rather than the content of the evidence obtained therefrom, they should have objected or sought sanctions at the time they received (belated) notice of the subpoenas. The Spencer court noted that "The risks attached to the misuse of the subpoena power are great. Under this delegation of public power, an attorney is licensed to access, through a non-party with no interest to object, the most personal and sensitive information about a party. By failing to receive prior notice of the information sought from the non-party, a party is deprived of its greatest safeguard under the Rule, i.e., the ability to object to the release of the information prior to its disclosure." Spencer, 174 F.R.D. at 489. Plaintiffs do not contend that the subject of the subpoena was improper, or even describe what the subpoena sought, but instead claim that some of the information obtained is irrelevant to the trial. Plaintiffs' objections thus do not address what the Spencer court considered a primary purpose of the rule, and the court can rule on the relevancy of the information for trial at this stage without prejudicing the plaintiffs' rights. 11

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evidence could be relevant to an issue in the case. See FED. R. EVID. 401 ("`relevant e vid e n c e ' means evidence having any tendency to make the existence of any fact th a t is of consequence to the determination of the action more probable or less p ro b a b le than it would be without the evidence."). Moreover, the motion is p re m a tu re , as defendant contends that such evidence will be used for purposes of im p e a c h m e n t and the court cannot yet know the facts to which Young will testify. As such, the court will deny the motion on these grounds without prejudice to the p la in tiffs raising it at an appropriate time during trial. B . Defendants' Motion D e fe n d a n ts filed two motions in limine. The court will address the first of those h e re , and the second in a separate opinion.4 i. Pictures, Memoir and "Dark Horse" Script D e fe n d a n ts seek to exclude from trial certain material that Defendant Smith p re s e n te d to his class. This material includes pictures of naked, dismembered w o m e n , a memoir by Smith that includes references to sexual activity and alcohol u s e during high school, and the script for a film entitled "Dark Horse." Defendants c o n te n d that this material is irrelevant to the case against the district and against S m ith and, even if relevant, unduly prejudicial. D e fe n d a n ts contend that the court has dismissed all claims in the case related

The subject of the second motion is under seal, and thus the court's resolution of the matter will be filed as a separate opinion. 12

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to the district except for retaliation claims, and that the nature of the material shown in the classroom is irrelevant to those claims. As such, they contend, the p h o to g ra p h ic evidence is not relevant to claims against the district. The Federal R u le s of Evidence define "relevant evidence" as "evidence having any tendency to m a k e the existence of any fact that is of consequence to the determination of the a c tio n more probable or less probable than it would be without the evidence." FED. R . EVID. 401. The evidence may have only marginal relevance to the claims against th e district, but is surely relevant to the claims against Smith. The evidence can help e xp la in the parents' concerns about the material shown their daughter, and thus be re le va n t to the reasons why they complained about classroom material. As far as S m ith , though, the photographs are definitely relevant to whether he created a h o s tile learning environment in his classroom. The photographs make it more or le s s likely that Smith's teaching created a classroom environment that was so severe th a t a reasonable person would find it harassing. The court will therefore deny the m o tio n on these grounds. A s to the written materials, defendants argue that they are not relevant to any c la im s against either the district or Defendant Smith. Beyond the fact that no claims a g a in s t the district Principal Gress involve the contents of Smith's teaching, d e fe n d a n ts also point out that the minor plaintiff admitted that she did not read much o f Smith's memoir or his screenplay, and thus this material cannot be relevant to any o f her claims about his teaching. The court will also deny the motion on these

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grounds. W ith reference to Defendant Smith, there is no dispute that the written m a te ria ls were part of his teaching, or that the minor plaintiff was part of a class that u s e d and discussed such material. The claim against him is that he created a h o s tile educational environment by his methods. The types of material he used m a k e it more or less likely that he did create such an environment, and therefore are re le va n t to the case. D e fe n d a n ts contend that the evidence should be excluded even if it is relevant b e c a u s e it is unduly prejudicial and likely to cause confusion as to the case against G re s s and the District. The Federal Rules of Evidence provide that, "[a]lthough re le va n t, evidence may be excluded if its probative value is substantially outweighed b y the danger of unfair prejudice, confusion of the issues, or misleading the jury, or b y considerations of undue delay, waste of time, or needless presentation of c u m u la tive evidence." FED. R. EVID. 403. Here, because the evidence, both in terms o f the photographs and the written materials, is graphic and sensationalistic, d e fe n d a n t contends that jurors will be tempted to find against defendants not b e c a u s e of the applicable legal standards, but because of disgust at the material c h ild re n were shown. The court will deny the motion on these grounds as well. The c o u rt agrees that the material is unpleasant and that its contents are more relevant to the case against Smith than the case against the other defendants. The court is c o n fid e n t, however, that a proper jury instruction will guide the jury to placing that m a te ria l in its proper context for the decisions before it. The jury instructions will

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direct the jury to answer different questions about the behavior of the different d e fe n d a n ts , and that instruction will direct the jury towards the evidence relevant a g a in s t each. As such, the court will deny the defendants' motion. C o n c lu s io n F o r the reasons stated above, the court will deny the parties' motions. An a p p ro p ria te order follows.

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA PATRICIA YOUNG, WILLIAM YOUNG, and PATRICIA YOUNG, on behalf of her minor daughter, Plaintiffs : No. 3:07cv854 : : (Judge Munley) : : : v. : : PLEASANT VALLEY SCHOOL : DISTRICT, : PLEASANT VALLEY SCHOOL : BOARD, : JOHN J. GRESS, Principal, in his : individual capacity, : BRUCE H. SMITH, JR., : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER AN D NOW, to wit, this 12th day of April 2010, the parties' motions in limine (Docs. 121, 127, 129) are hereby DENIED B Y THE COURT: s / James M. Munley JUDGE JAMES M. MUNLEY U N IT E D STATES DISTRICT COURT

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