Botey v. Green et al
MEMORANDUM OPINION For the foregoing reasons, Plaintiffs Motions (Docs. 189, 183, 179, 187) will be decided as set forth in this Memorandum Opinion. A separate Order follows.Signed by Honorable Robert D. Mariani on 6/8/17. (jfg)
THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT GREEN, et aI.,
Presently before the Court are Plaintiff's following motions in limine:
1. Motion to Preclude Irrelevant Personal Matters of Plaintiff, Jonathan Botey (Doc. 189);
2. Motion to Preclude Irrelevant Personal Matters of Maria Isabelle Lopez-Lake (Doc. 183);
3. Motion to Preclude Testimony of Trooper Joseph H. Nalepa Regarding Accident
Reconstruction and the Cause of the Subject Accident (Doc. 179);
4. Motion to Preclude Defendants from Introducing Evidence or Making Comments or
Argument Regarding any Adverse Effect of the Accident on Defendants and/or a Verdict
Against the Defendants (Doc. 187).
The Court will address each request in turn. Before doing so, however, the Court
notes at the outset that it exercises its discretion to rule in limine on evidentiary issues "in
appropriate cases." In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 260 (3d
Cir.1983), rev'd on other grounds sub nom. Matsushita f/ec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574,106 S. Ct. 1348,89 L. Ed. 2d 538 (1986). While motions in limine may
serve as a useful pretrial tool that enables a more in-depth briefing than would be available
at trial, a court may defer ruling on such motions "if the context of trial would provide clarity."
Frintner v. TruePosition, 892 F. Supp. 2d 699, 707 (E.D. Pa. 2012) (citing Japanese Elec.
Prods., 723 F.2d at 260).
"[M]otions in limine often present issues for which final decision is best reserved for a
specific trial situation." Walden v. Georgia-Pacific Corp., 126 F.3d 506, 518 n.10 (3d Cir
1997). Thus, certain motions, "especially ones that encompass broad classes of evidence,
should generally be deferred until trial to allow for the resolution of questions of foundation,
relevancy, and potential prejudice in proper context." Leonard v. Stemetech Health Scis.,
Inc., 981 F.Supp.2d 273,276 (D. Del. 2013). Specifically, "pretrial Rule 403 exclusions
should rarely be granted.... [A] court cannot fairly ascertain the potential relevance of
evidence for Rule 403 purposes until it has a full record relevant to the putatively
objectionable evidence." In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 859 (3d Cir. 1990)
(emphasis original). Finally, it is important to note that "in limine rulings are not binding on
the trial judge, and the judge may always change his mind during the course of a trial."
Ohlerv. Unfted States, 529 U.S. 753, 758 n.3, 120 S. Ct.1851, 146 L. Ed. 2d 826 (2000).
With these principles in mind, the Court now turns to Plaintiffs motions.
1. Motion to Preclude Irrelevant Personal Matters of Plaintiff, Jonathan Botey
Plaintiff requests that the Court preclude the following information, which he deems
to be "irrelevant personal matters of Plaintiff':
• Childhood injuries such as fractured ribs, fractured arm, fractured ankles, broken
wrist, fractured foot;
• Diagnosis of sleep apnea;
• Childhood epilepsy and seizures,
• Diagnosis of asthma;
• Diagnosis of attention deficit disorder.
(Doc. 190, at 5-6).
Under the Federal Rules of Evidence, evidence is relevant if "it has any tendency to
make afact more or less probable than it would be without the evidence; and ... the fact is
of consequence in determining the action." Fed. R. Evid. 401. Relevant evidence is
admissible unless otherwise provided by the Constitution, federal statute, Federal Rules of
Evidence, or other rules prescribed by the Supreme Court. Fed. R. Evid. 402. Relevant
evidence may be excluded "if its probative value is substantially outweighed by a danger of .
. . unfair prejudice, confusing the issues, [or] misleading the jury." Fed. R. Evid. 403.
It is not at all clear how the information Plaintiff seeks to preclude is irrelevant.
Plaintiff claims that the "only use of such evidence is to distract the jury into questions
concerning Plaintiff's general state of health at the time of the subject collision." (Doc. 190,
at 5) (emphasis added). Plaintiff's assertion is wrong. As discussed in this Court's Opinion
addressing Plaintiff's Motion to Preclude portions of Dr. Schretlen's report and testimony,
Plaintiff has placed the cause of his current physical and cognitive difficulties at issue. The
evidence Plaintiff seeks to preclude is probative to a determination of Plaintiff's physical and
cognitive abilities both before and after the accident, and to a jury's determination of what
harm, if any, resulted from the accident. In addition to causation, the medical history is also
relevant to Plaintiff's claims of damages, and in particular, Plaintiffs claims of lost wages,
diminished earning capacity, and medical costs.
Plaintiff's motion will therefore be denied.
2. Motion to Preclude Irrelevant Personal Matters of Maria Isabelle Lopez-Lake
Plaintiff also moves to preclude testimony by Maria Isabelle Lopez-Lake, his mother,
"that she had a subjective belief that she was experiencing memory issues in 2014" and that
she was diagnosed with colitis and mild depression. (Doc. 184, at 4, 6).
With respect to Lopez-Lake's memory issues, such evidence will be permissible in
cross-examination solely for the purpose of aiding the jury in determining the witness'
credibility. See Fed. R. Evid. 601 advisory committee's note ("Interest in the outcome of
litigation and mental capacity are, of course, highly relevant to credibility and require no
special treatment to render them admissible along with other matters bearing upon the
perception, memory, and narration of witnesses."). However, assuming that Plaintiff is
correct that none of Defendants' experts opine that Botey's cognitive issues are the cause
of a genetic disorder (Doc. 184, at 5), and because Defendants did not file a brief in
opposition to this motion, the Court will preclude any reference to Lopez-Lake's memory
issues as genetic and therefore the cause, or part of the cause, of Botey's asserted memory
With respect to Lopez-Lake's colitis and mild depression, once again no evidence
has been currently placed before this Court to demonstrate how these conditions are
relevant, or related, to Botey's claims. This information will thus be precluded.
Plaintiffs motion will therefore be granted in part and denied in part as explained
above. However, should Defendants, at trial, produce evidence or appropriate testimony
demonstrating a nexus between any of Lopez-Lake's medical conditions and Botey's
medical conditions, the Court will review such evidence and consider revising this ruling.
See Ohler v. United States, 529 U.S. 753, 758 n.3 (2000) (Uin limine rulings are not binding
on the trial judge, and the judge may always change his mind during the course of a trial.").
3. Motion to Preclude Testimony of Trooper Joseph H. Nalepa Regarding
Accident Reconstruction and the Cause of the Subject Accident (Doc. 179)
Plaintiff requests that Trooper Nalepa be precluded from testifying as to how the
accident at issue occurred or who he believes was at fault and/or caused the accident.
Plaintiff argues this is appropriate because Nalepa did not witness the accident and lacks
the requisite training, experience, and specialized knowledge to provide testimony as to how
the accident happened or to act as an accident reconstructionist. (Doc. 180, at 3-5).
Although Defendants did not file a brief in opposition to Plaintiffs Motion, the Court
first notes that Defendants' Pre-Trial Memorandum indicates that Nalepa will be called as a
lay witness, not necessarily as an expert. (See Doc. 258, at 3-6).
Pursuant to Federal Rule of Evidence 701, the opinion testimony of awitness who is
not testifying as an expert is limited to one that is (1) "rationally based on the witness's
perception", (2) helpful to clearly understanding the witness's testimony or to determining a
fact in issue", and (3) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702", which governs testimony by an expert witness. Fed. R. Evid.
The Third Circuit recently explained the contours of Rule 701 as follows:
Rule 701 means that a witness is only permitted to give her opinion or
interpretation of an event when she has some personal knowledge of that
incident. The objective of such testimony is to put "'the trier of fact in
possession of an accurate reproduction of the event.'" In other words, '''lay
opinion testimony is permitted under Rule 701 because it has the effect of
describing something that the jurors could not otherwise experience for
themselves by drawing upon the witness's sensory and experiential
observations that were made as a 'first-hand witness to a particular event.'"
This rule recognizes the reality that "eyewitnesses sometimes find it difficult to
describe the appearance or relationship of persons, the atmosphere of a
place, or the value of an object by reference only to objective facts."
Accordingly, it permits witnesses "to testify to their personal perceptions in the
form of inferences or conclusory opinions."
Importantly, the rule is carefully designed to exclude lay opinion testimony
that "amounts to little more than choosing up sides, or that merely tells the
jury what result to reach." Courts have recognized that this Rule does
represent "'a movement away from ." courts' historically skeptical view of lay
opinion evidence,' and is 'rooted in the modern trend away from fine
distinctions between fact and opinion and toward greater admissibility.'"
Nonetheless, it seeks to protect against testimony that usurps the jury's role
as fact finder. While opinion testimony that "embraces an ultimate issue" to be
decided by the trier of fact is not per se inadmissible, such testimony is barred
when its primary value is to dictate a certain conclusion. U[T]he purpose of the
foundation requirements of the federal rules governing opinion evidence is to
ensure that such testimony does not so usurp the fact-finding function of the
U.S. v. Fulton, 837 F.3d 28t 291-292 (3d Cir. 2016).
Having not heard any evidence in this action, including the testimony of Trooper
Nalepa or his qualifications, the Court is not currently in a posture to fully rule on Plaintiffs
motion. To the extent that Trooper Nalepa is offered only as a lay witness, he may testify
about what he saw on the day of the accident, the full scope of his investigation, and
provide appropriate lay witness opinions which are rationally based on his perception and
personal knowledge of the accident. However, should Nalepa not be offered as an expert
witness, he may be precluded from offering testimony as to his conclusions regarding fault
of the parties due to the lack of proper expert qualifications to offer such an opinion as well
the risk that such testimony would "amountD to little more than choosing up sides" or
"merely tell the jury what result to reach." Fulton, 837 F.3d at 291. See also, Duhon v.
Marceaux, 33 F.App'x 703 (5th Cir. 2002) ("It is undisputed that [the police officer] was not
qualified to testify as an expert in accident reconstruction and that he did not witness the
accident. As a general rule, police officers' lay opinions as to the cause of an automobile
accident formed by viewing subsequent evidence at the scene are excluded under Rule
701. See 38 A.L.R.2d 13 § 22; Ernst v. Ace Motor Sales, Inc., 550 F.Supp. 1220, 1223
(E.D.Pa. 1982), aff'd without op., 720 F.2d 661 (3d Cir. 1982)(officer's lay opinion testimony
was admissible only to the extent that it pertained to the pOint of impact).").
Accordingly, all specific objections to Nalepa's testimony are deferred until the time
4. Motion to Preclude Defendants from Introducing Evidence or Making
Comments or Argument Regarding any Adverse Effect of the Accident on
Defendants and/or a Verdict Against the Defendants (Doc. 187)
Plaintiffs motion in limine rests on his anticipation that "the Defendants may seek to
introduce evidence, argument, or comments" on the following:
• "that the accident had an adverse effect on Defendants ... or their business;"
• "any adverse effect a verdict against the Defendants may have on them;"
• "effect of a verdict for the Plaintiff on insurance rates."
(Doc. 188, at 3) (emphasis added).
Plaintiffs contentions as to what Defendants may try to argue are speculative, at
best, and Plaintiff cites no specific case law that addresses the law as it relates to any of the
aforementioned concerns. 1 In turn, Defendants did not file a brief in opposition, so the
Court is further left to speculate as to whether they even intend to attempt to introduce
evidence or reference any of Plaintiff's areas of concern.
Thus, Plaintiff's motion is premature and will be denied without prejudice. If Plaintiff
believes at the appropriate time of trial that Defendants are attempting to introduce evidence
or make comments or arguments in violation of the Rules of Evidence, Plaintiff shall timely
object and set forth the specific basis for such objection.
brief cites to only one case, Bhaya v. Westinghouse Elee. Corp, 922 F.2d 184, 188 (3d
Cir. 1990) for the general proposition set forth in that case that "[e]vidence that a party committed wrongs
other than those at issue in a case often creates a danger of 'unfair prejudice' because such evidence may
influence a jury to return a verdict based on a desire to punish for the other wrongs." (Doc. 188, at 5).
For the foregoing reasons, Plaintiffs Motions (Docs. 189, 183, 179, 187) will be
decided as set forth in this Memorandum Opinion. A separate Order follows.
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