Doe v. Old Forge Borough et al
Filing
388
MEMORANDUM OPINION - For the foregoing reasons, Defendant Old Forge Hose & Engine Company's motions in limine (Docs. 239, 242, 245, 247) will be decided as set forth in this Memorandum Opinion. A separate Order follows.Signed by Honorable Robert D. Mariani on 1/26/17. (jfg)
THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NASTASHA BURDYN
Plaintiff,
v.
3:12·CV·2236
(JUDGE MARIANI)
OLD FORGE BOROUGH, et al.
Defendants.
MEMORANDUM OPINION
Presently before the Court are the following Motions in Limine filed by Defendant Old
Forge Hose & Engine Company ("OFHE"):
1. Motion in Limine to Preclude Lay Witnesses from Testifying Regarding Posttraumatic
Stress Disorder Symptoms, Diagnosis, or Treatment (Doc. 239)
2. Motion in Limine to Exclude Duplicative or Cumulative Testimony from Plaintiffs
Disclosed Expert Witnesses (Doc. 242)
3. Motion in Limine to Exclude Hindsight Evidence and Arguments (Doc. 245)
4. Motion in Limine to Exclude Evidence of Claimed Emotional Distress and/or
Damages Caused by Litigation and/or the Legal Process and to Preclude Plaintiffs
Recovery of the Same (Doc. 247)
The Court will address each motion in turn.
1. Motion in Limine to Preclude Lay Witnesses from Testifying Regarding
Posttraumatic Stress Disorder Symptoms, Diagnosis, or Treatment (Doc. 239)
OFHE argues that "[w]hile Plaintiff may certainly testify as to her experiences,
feelings or observations, she has no specialized knowledge, training or education which
would allow her to testify as [to] what symptoms are seen in persons suffering from
Posttraumatic Stress Disorder or the state that her experiences, feelings or observations are
related to" PTSD and that Plaintiff must be precluded from testifying as to PTSD "either
generally or how she believes she presents with it." (Doc. 240, at 4).
Plaintiff asserts that she does "not intend to call on lay witnesses, particularly
Plaintiff, to testify as an expert regarding posttraumatic stress disorder symptoms,
diagnosis, or treatment." (Doc. 304, at 1). However, Plaintiff argues that she should be
allowed to testify "as to what she has observed and/or experienced, her perception of her
diagnosis and treatment and information she relayed to her treating mental health providers
and may offer lay testimony if it meets the criteria of' Rules 701 and 803. (Id. at 7).
The Court will reserve ruling on this motion until trial. The parties seemingly agree
that Plaintiff "may testify as to her experiences, feelings or observations with respect to her
claimed damages" (Doc. 334, at 1), and such testimony will be admissible. However, lay
witnesses will not be allowed to offer any lay or expert medical opinion with respect to the
diagnosis, treatment, or cause of Plaintiffs PTSD. Any other testimony will be subject to
timely objection and Plaintiffs demonstration of its admissibility pursuant to the applicable
Federal Rules of Evidence, including Rules 701-702, and 803.
2. Motion in Limine to Exclude Duplicative or Cumulative Testimony from
Plaintiff's Disclosed Expert Witnesses (Doc. 242)
OFHE's next motion in limine requests that the Court "preclude Plaintiff from calling
more than one expert to testify as to the nature and extent of her claimed damages,
excluding all other cumulative and duplicative expert testimony on the subject." (Doc. 242).
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Plaintiff responds that she does "not intend to introduce expert testimony that is either
duplicative or cumulative in nature" and that defense counsel may object "should they find
this not to be the case at triaL" (Doc. 303, at 1).
Federal Rule of Evidence 403 allows a Court to exclude relevant evidence if its
probative value is substantially outweighed by a danger of needlessly presenting cumulative
evidence. However, where experts approach a material issue from different clinical
perspectives, their testimony is not necessarily cumulative. Klein v. Aronchick, 85 A.3d 487,
501 n. 7 (Pa. Super. Ct. 2014).1
Without knowing the full qualifications and specializations of each expert witness and
the contents of each expert witness's testimony, nor having seen any of the experts' full
reports, the Court is unable to determine whether any expert witness's testimony will prove
to be impermissibly cumulative.
Due to the premature nature of OFHE's motion in limine, the Court will deny the
motion without prejudice.
1 In
Klein, the Superior Court found that:
[Plaintiff] Klein argues that the trial court erred in allowing the defendants to present three
different expert witnesses on causation. Klein contends that the testimony was cumulative
. . . . Here, while all three of defendants' experts ultimately reached the same
conclusion, i.e., that Visicol did not cause Klein's chronic kidney disease, they approached
the issue from different clinical perspectives. Jesse Goldman, M.D., was a nephrologist
and internist; James R. Roberts, M.D., was a medical toxicologist; and David Kastenberg,
M.D., testified as a gastroenterologist. Therefore, while their testimony may have been
corroborative, it was not needlessly cumulative.
Klein v. Aronchick, 85 A.3d at 501 n. 7.
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3. Motion in Limine to Exclude Hindsight Evidence and Arguments (Doc. 245)
OFHE's motion in limine requests that this Court "exclude all evidence and
arguments which require the explicit or implicit use [00 hindsight or ask the trier of fact to
use of [sic] hindsight in determining iF OFHE was negligent. (Doc. 245, at 1-2). OFHE's
concern arises from its "anticipat[ion] that Plaintiff may argue or ask the jury to judge
Defendant OFHE's alleged actions and/or inactions based upon what she argues, or other
witnesses think, would have been wise or prudent, in view of her current allegations" and
"that Plaintiff may attempt to present witnesses who, after hearing her allegations years
after the alleged relationships, now claim to have seen things at that time, or who may claim
that knowing know [sic] what allegations have been made, that Defendant OFHE could have
done things differently." (Doc. 246, at 2).
The legal basis of OFHE's present motion is unclear. Defendant purports to bring
this motion pursuant to Rule 403 (Doc. 246, at 1). However, Defendant's assertion that
"foresight, not hindsight, is the standard by which one's duty of care is to be judged" (Doc.
246, at 2) cannot form the basis for a blanket attempt to limit a witness's testimony prior to
the introduction of any evidence. As OFHE notes in its Reply brief, it "cannot forecast what
Plaintiff, Plaintiffs counsel, and Plaintiffs witnesses may attempt to offer at trial with respect
to the specific use of hindsight or application of hindsight to the facts of the case." (Doc.
333, at 1). Equally, the Court cannot "forecast" what testimony or evidence may be offered
or for what purpose a party may attempt to introduce it. As such, the Court has no
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information on which to conduct a Rule 403 balancing analysis and determine the probative
and/or prejudicial value of any relevant evidence to be offered on the issue of OFHE's
negligence.
The Court will therefore deny OFHE's motion without prejudice. Like many of the
other motions in limine filed in this action, this motion is another attempt to get the Court to
exclude testimony based on speculative hypotheses as to what any witness might say as
well as why they say it. Counsel for all parties are reminded that it is his/her obligation to
raise an objection at the time the putatively objectionable testimony is offered as well as the
well-founded basis for the objection. Requests that the Court preclude testimony prior to
any witness even taking the stand and beginning his/her testimony and prior to the Court
being in a position to evaluate the testimony that a party is attempting to offer will be
rejected.
4. Motion in Limine to Exclude Evidence of Claimed Emotional Distress and/or
Damages Caused by Litigation and/or the Legal Process and to Preclude
Plaintiff's Recovery of the Same (Doc. 247)
Finally, OFHE argues that this Court should exclude all evidence of any damages
resulting from Plaintiff being a party or participant in civil or criminal litigation and preclude
Plaintiff from recovery of any and all claimed compensatory damages that are the result of
"her well-documented litigation-induced stress." (Doc. 247). In response, Plaintiff
"concedes that courts typically refuse to admit evidence pertaining to 'litigation stress,' both
because the filing of acivil lawsuit is the plaintiffs choice, and because the accused have a
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right to defend themselves" and states that while she "is cognizant that she may not be
permitted to present evidence of emotional distress stemming from the instant civil
proceedings given that she initiated these proceedings of her own volition", she should "be
permitted to discuss any emotional stress she endured as a result of her forced participation
in the criminal proceedings associated with the instant matter." (See Doc. 314).
A plaintiff generally cannot recover damages for emotional distress caused by
litigation proceedings. See Blakley v. Continental Airlines, Inc., 992 F.Supp. 731, 736 n.3
(D.N.J. 1998). "Sound policy reasons support this rationale: as a general rule, a putative
tortfeasor should have the right to defend himself without risking a more munificent award of
damages merely because the strain inherent in an actual or impending courtroom
confrontation discomfits the plaintiff." Zimmerman v. Direct Fed. Credit Union, 262 F.3d 70,
79 (1st Cir. 2001). See also, Stoleson V. U.S., 708 F.2d 1217, 1223 (7th Cir. 1983)("lt would
be strange if stress induced by litigation could be attributed in law to the tortfeasor. An
alleged tortfeasor should have the right to defend himself in court without thereby
multiplying his damages .... "); Laporace V. N. Y. Life & Annuity Corp., 2014 WL 1806788,
at *3 (E.D. Pa. 2014) ("[T]here is no question that filing a lawsuit, which is a right every
individual has, as long as they have grounds under the law to file claims, is the plaintiffs
decision, and imposing additional damages on the defendant for defending against the
plaintiffs claims would impair the defendant's right to defend himself."). The rationale
underlying the rule barring recovery for litigation induced stress thus appears to apply
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largely, if not exclusively, to stress induced as a result of a plaintiffs initiation of acivil
action.
To obtain compensatory damages under § 1983, Plaintiff must show, among other
elements, that the defendant's "act or omission played a substantial part in bringing about
the injury, and that the injury was either a direct result or a reasonably probable
consequence of defendant's act or omission." (See Model Civil Jury Instructions for District
Courts of the Third Circuit, 4.8.1). Plaintiffs vindication of her right to bodily integrity, as
well as her right to be free from assault and battery, through her participation in a criminal
action brought by the State is a reasonable consequence of the violations of her bodily
integrity and the intentional torts allegedly committed against her by the individual
defendants. Further, unlike the civil proceedings that she, on her own initiative, chose to
institute, the criminal action was not a proceeding she initiated other than to bring a
complaint as to the allegedly criminal acts taken against her. Thus, the rationale underlying
the preclusion of damages for emotional distress as a result of civil litigation cannot be used
as a basis for precluding evidence of claimed emotional distress as a result of the criminal
proceedings in this particular action.
OFHE's motion will be granted in part and denied in part. Plaintiff may not offer
evidence of emotional distress or recover damages for the emotional distress brought about
by her institution and involvement in the current action. However, subject to laying the
proper foundation and compliance with the Federal Rules of Evidence and this Court's other
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rulings, Plaintiff may present evidence of emotional distress as a result of her involvement in
the criminal proceedings and attempt to recover damages therefor.
5. Conclusion
For the foregoing reasons, Defendant Old Forge Hose & Engine Company's motions
in limine (Docs. 239, 242, 245, 247) will be decided as set forth in this Memorandum
Opinion. Aseparate Order follows.
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