Doe v. Old Forge Borough et al
Filing
396
MEMORANDUM OPINION - For the foregoing reasons, the Omnibus Motion in Limine of Defendant Old Forge Borough (Doc. 275) 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 is the Omnibus Motion in Limine of Defendant Old Forge
Borough (Doc. 275). The motion in limine requests the following relief:
1. Preclude Trial Testimony of Tammy Eastwood;
2. Testimony or Evidence on any Diaries, Joumals, Calendars or any Documents
Maintained by the Plaintiff;
3. Preclude any and all Reference to the Building that Houses Both the Old Forge
Borough Administrative Offices and the Hose and Engine Company as the "Old
Forge Borough Building" as Same is Unduly Prejudicial and Misleading;
4. Preclude any and all References to Plaintiffs Claim Against Walter Chiavacci or
any Events Between the Plaintiff and Chiavacci;
5. Preclude any and all Testimony Concerning the Plaintiff Sitting on the Lap of
Lawrence Semenza in a Halloween Costume;
6. Preclude Evidence of any and all Prior or Subsequent Lawsuits Involving the
Borough of Old Forge;
7. Preclude any Boorish Behavior of Defendants, Semenza and Krenitsky While
Employed as Officers for the Old Forge Borough Police Department;
8. Preclude Testimony or Reference that Defendant Semenza Allegedly Asked
Krenitsky to Alter a Police Accident Report;
9. Preclude Evidence of any Domestic Issues at the Semenza Home or Anything
Related to Same;
10. Preclude Kyra Zacker from Offer[ing] any Testimony Related to the Borough of Old
Forge and the Employment of Lawrence Semenza and James Krenitsky;
11. Preclude any Reference to any Event Regarding the Plaintiff at the Borough of Old
Forge Governmental Offices;
12. Preclude the Plaintiff from Offering any Testimony Concerning Inappropriate
Touching or Kissing by Defendant Semenza as the Plaintiffs Allegations are not
Time Specific and Therefore Unduly and Highly Prejudicial.
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 Elec. 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 brie'fing than would be available
at trial, acourt 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,
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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 afull 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"
Ohler v. United 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 Defendant's motions.
1. Preclude Trial Testimony of Tammy Eastwood
The Borough first requests that the Court preclude the trial testimony of Tammy
Eastwood, aformer member of the Old Forge Ambulance Company.
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. Even
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if the Court deems the relevant evidence to be admissible, "[a] witness may testify to a
matter only if evidence is introduced sufficient to support a finding that the witness has
personal knowledge of the matter." Fed. R. Evid. 602.
Here, the Borough contends that Eastwood's testimony "would center upon her
subjective belief that Defendant Semenza and the Plaintiff were flirtatious in the public
based upon her view from the Ambulance Building which was located toward the rear of the
building that housed Old Forge governmental offices in addition to the Hose and Engine
Company" and that Eastwood may "testify as to something she believed she viewed in the
summer of 2007. As Semenza parked his vehicle to the rear of the afore-referenced
building the Plaintiff left the amblilance building and Eastwood believes that the Plaintiff sat
on the lap of Semenza and that they appeared to hUg each other and from her perception,
Semenza's hands were all over her." (Doc. 276, at 13). The Borough argues that this
testimony is unduly prejudicial and not probative of whether Semenza was acting under
color of law at the time of this alleged occurrence. (ld. at 14-15).
The Court will deny Defendant's motion without prejudice. At this stage in the
proceedings, the Court cannot determine what specific testimony Plaintiff may attempt to
elicit from Eastwood, as well as whether the witness possesses the requisite personal
knowledge to be permitted to offer the testimony and the relevance of any such testimony.
As such, without knowing the particular contents of this testimony and the basis of the
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testimony, the Court is unable to determine whether the witness' testimony will be
sufficiently prejudicial to cause its exclusion under Rule 403.
Further, a request that the Court find that any probative value of Eastwood's
testimony is substantially outweighed by a danger of unfair prejudice is premature. If
Plaintiff offers testimony at trial that Defendant considers inadmissible, it is free to raise its
objections at that point, at which time the Court can better evaluate the testimony's
admissibility and prejudicial value in light of its content and purpose.
2. Testimony or Evidence on any Diaries, Journals, Calendars or any
Documents Maintained by the Plaintiff
The Borough next requests that the Court issue a pre-trial order "prohibiting the
Plaintiff from even referencing" her diary, journal, or calendar which she destroyed. (Doc.
276, at 15). Defendant has not provided any context for this request, and the Court does
not have sufficient information to determine the relevance of testimony related to the
contents of these documents. The Court will therefore deny Defendant's motion without
prejudice, subject to reconsideration upon the presentation of specific evidence at trial.
However, we note that to the extent that Plaintiff is permitted to raise these documents,
Defendants are entitled to cross-examine Plaintiff on the "destruction" of the diaries,
journals, calendars, and other documents.
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3. Preclude any and all Reference to the Building that Houses Both the Old
Forge Borough Administrative Offices and the Hose and Engine Company as
the "Old Forge Borough Building" as Same is Unduly Prejudicial and
Misleading
The Borough of Old Forge argues that "Plaintiff has confabulated the Borough of Old
Forge and the Defendant Old Forge and Engine Company as being related entities" when
they are in reality "mere contractual partners in a Lease." (Doc. 276, at 16). The Borough
therefore requests that the term "Old Forge Borough Building" or "Borough Building" be
prohibited from use during trial "as these terms unduly mislead, confuse and serve as
prejudicial testimony." (Id. at 17). Notably, OFHE objects to the Borough's motion, arguing
that the triers of fact "must be afforded the opportunity to hear a full explanation of where all
of the alleged relevant interactions occurred, including anything relevant that occurred in the
portion of the building which houses the Old Forge governmental offices and police
department offices." (Doc. 281, at 5).
The Borough's motion will be denied with prejudice. The Borough of Old Forge is
free to elicit testimony demonstrating the various areas of the building that are shared by the
Old Forge governmental offices, police department, and volunteer fire department and
delineating what events occurred in each specific department, office, or area in the building.
Such testimony would cure any prejudice the Borough believes may be caused by the
"confabulation" of the Borough and OFHE as related entities. Furthermore, the issue is not
so complex that ajury will be confused or unable to understand the different offices
occupying the same building.
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4. Preclude any and all References to Plaintiff's Claim Against Walter Chiavacci
or any Events Between the Plaintiff and Chiavacci
The Borough argues that "Plaintiff should be compelled to either take a default
judgment against Mr. Chiavacci or to discontinue her claim against this judgment proof
individual." (Doc. 276, at 19).
The motion will be denied without prejudice. The issue of Chiavacci's participation in
this action was addressed at the pre-trial conference held on January 23,2017. As a result
of the conference, Plaintiff has stated that she will attempt to depose Chiavacci and have
him appear at trial. The issue of Chiavacci's participation, as well as the relevance and
prejudicial value of any sworn testimony that Plaintiff may attempt to introduce, must be
evaluated at the time of trial, and upon Plaintiffs presentation of specific evidence and
testimony that she deems relevant to her claims.
5. Preclude any and all Testimony Concerning the Plaintiff Sitting on the Lap of
Lawrence Semenza in a Halloween Costume
The Borough next argues that testimony regarding a specific incident when Plaintiff
sat on Semenza's lap while dressed in a Halloween costume should be precluded because
it will be unduly prejudicial to the defendants and non-probative to the issues before the jury.
(Doc. 276, at 20).
The Court disagrees. The incident at issue is highly relevant to the claim against the
Borough and Semenza and presents substantive evidence of her federal and state law
claims which go to the heart of her case. On cross-examination, Defendant is free to elicit
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testimony regarding the circumstances surrounding this incident in an attempt to
demonstrate that "there is nothing ... inappropriate about an individual sitting on the lap of
another individual from a purely objective standpoint" (id. at 20). However, such a
determination is a question for the jury. Further, to the extent that Defendant argues that
admission of this event is unduly prejudicial because "the time frame of this event has not
been established" (id. at 19-20), such weaknesses in the testimony affects only the weight
of the evidence, not its admissibility, and is subject to questioning on cross-examination.
The motion will therefore be denied.
6. Preclude Evidence of any and all Prior or Subsequent Lawsuits Involving the
Borough of Old Forge
Old Forge asserts that evidence of any and all prior or subsequent lawsuits against
the Borough, Semenza, and Krenitsky should be precluded. Specifically, Defendant argues
that "no prior litigation involving the Borough of Old Forge or Semenza or Krenitsky, is in
any way probative to the legal issues upon which ajury in this matter will be asked to
address" and that the probative value of evidence of other lawsuits is outweighed by a
danger of unfair prejudice. (Doc. 276, at 21).
Defendant's motion will be denied without prejudice. The motion fails to identify the
lawsuits it is seeking to preclude in anything other than the most general terms, i.e. "any and
all prior or subsequent lawsuits involving the Borough of Old Forge". As a consequence,
the Court cannot ascertain what relevance any suit might have to this case, if any, and,
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further, absent a verdict or judgment in such a case, what portions or aspects of that case
might be admissible.
7. Preclude any Boorish Behavior of Defendants, Semenza and Krenitsky While
Employed as Officers for the Old Forge Borough Police Department
Defendant next argues that evidence of "crude comments [by] Semenza and/or
Krenitsky is not at issue in this case and is irrelevant, would be offered solely to inflame the
jury or cause confusion, and is inadmissible as alleged other wrongs or acts under Rule
404{b)." (Doc. 276, at 22). Once again, the Court does not - and, at this stage of the
proceedings, cannot - know the content of the specific statements at issue and in what form
these statements will be offered.
Although it is possible that such testimony would violate the restrictions set forth in
Federal Rules of Evidence 403 or 404, or the hearsay restrictions in Rule 801 and 802, it is
also possible that such testimony would not violate any rules. In fact, some or all of the
statements may constitute admissions of a party opponent under Federal Rule of Evidence
801(d)(2). To the extent that the statements and/or behavior testified to by a witness relate
in any way to the Plaintiff, are based on personal knowledge, and are otherwise admissible
under the Federal Rules of Evidence, the motion will be denied. 1
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the Court will deny the Borough of Old Forge's motion, we need not address OFHE's
request that to the extent the Court excludes evidence of Semenza's alleged "boorish behavior" in his
employment as a Police Officer, evidence of his "boorish behavior" in his position with the OFHE also be
excluded. (Doc. 281, at 7). The same evidentiary requirements are necessary regardless of whether
Semenza's alleged "boorish behavior" occurred in his position with the Police Department or in his position
with the volunteer fire department.
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The Court will therefore deny the motion without prejudice to be reasserted by timely
objection at trial if the statements are offered in a way that violates the Federal Rules of
Evidence or the case law interpreting them.
8. Preclude Testimony or Reference that Defendant Semenza Allegedly Asked
Krenitsky to Alter a Police Accident Report
Defendant requests that the Court preclude testimony or reference to an allegation
that Semenza asked Krenitsky to alter a police accident report because it is not probative
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and "highly prejudicial." (Doc. 276, at 22). Plaintiff argues that she "seeks to reference this
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information specifically to illustrate how Michele Avvisato was absent from her post as
Mayor of the Borough, which allowed Semenza and Krenitsky to run amuck free from the
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oversight and supervision" of the Mayor. (Doc. 300, at 21).
With this sparse description of the testimony that Defendant seeks to preclude, the
Court cannot determine the relevance of any such testimony or for what purpose it may be
offered. However, for evidence that Semenza asked Krenitsky to alter a police report to be
relevant and therefore potentially admissible, Plaintiff would also have to offer testimony or
evidence that other individuals, and specifically one or more decision-makers, were aware
that this, or similar requests by Semenza, were being made.
Accordingly, a ruling on admissibility here is premature. The Court will therefore
defer ruling on this motion. If the Plaintiff offers testimony at trial that Defendant
considers inadmissible, it is free to raise its objections at that point, at which time the
Court can better evaluate the testimony's admissibility in light of its content and purpose.
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9. Preclude Evidence of any Domestic Issues at the Semenza Home or Anything
Related to Same
Defendant requests that the Court preclude evidence of domestic issues at the
Semenza home or anything related to these issues because "evidence of domestic calls at
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the Semenza home is not at issue in this case and would be offered solely to inflame the
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jury or cause confusion." (Doc. 276, at 23). Defendant further states that any testimony on
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this issue is also inadmissible pursuant to Fed. R. Evid. 404{b).
Relevant evidence may be excluded "if its probative value is substantially
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outweighed by a danger of ... unfair prejudice, confusing the issues, [or] misleading the
jury." Fed. R. Evid. 403. However, it is well-established that "[e]vidence of a crime, wrong,
or other act is not admissible to prove a person's character in order to show that on a
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particular occasion the person acted in accordance with the character." Fed. R. Evid.
404(b)(1). As explained by the Supreme Court:
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Federal Rule of Evidence 404(b) - which applies in both civil and criminal
cases - generally prohibits the introduction of evidence of extrinsic acts that
might adversely reflect on the actor's character, unless that evidence bears
upon a relevant issue in the case such as motive, opportunity, or knowledge.
Extrinsic acts evidence may be critical to the establishment of the truth as to a
disputed issue, especially when that issue involves the actor's state of mind
and the only means of ascertaining that mental state is by drawing inferences
from conduct.
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Huddleston v. U.S., 485 U.S. 681,685, 108 S.Ct 1496, 99 L.Ed.2d 771 (1988). Thus, "[tJhe
threshold inquiry a court must make before admitting similar acts evidence under Rule
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404(b) is whether that evidence is probative of a material issue other than character." Id. at
686.
The Court will grant Defendant's motion to the extent that Plaintiff attempts to
introduce evidence of "domestic issues" at Semenza's home. The Court is not inclined to
allow evidence that relates purely to events or circumstances only inside the home. Plaintiff
must therefore establish that the evidence is not being used for the purpose of
demonstrating what happened in Semenza's personal and home life. Such evidence is not
relevant and is unfairly prejudicial. If Plaintiff can establish that the evidence she seeks to
offer is sufficiently probative to the issue of whether individuals in the Police Department
were asked to do or refrain from doing certain acts which relate to the claims that the
Borough had a custom or practice which allowed Semenza to abuse and exceed his power,
then the evidence may be relevant subject to other objections pursuant to the Federal Rules
of Evidence. including Rules 403 and 404(b). but in no case will evidence be admitted that
describes or relates to domestic conditions in Semenza's home.
10. Preclude Kyra Zacker from Offer[ing] any Testimony Related to the Borough
of Old Forge and the Employment of Lawrence Semenza and James
Krenitsky
The Borough's next motion requests that the Court preclude Plaintiffs mother. Kyra
Zacker. from offering any testimony related to the Borough and the employment of
Semenza and Krenitsky. (Doc. 276, at 23-24). Defendant's motion does not make clear
what purported testimony Zacker may offer which it deems inadmissible.
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The Court will thus defer ruling on Defendant's motion. The Court cannot know at
this time what answers counsel may attempt to elicit from Zacker, nor what Zacker will say
at trial. Therefore, the Court must wait to hear Zacker's testimony and any specific question
to which counsel may object in order to determine its relevance and admissibility.
11. Preclude any Reference to any Event Regarding the Plaintiff at the Borough
of Old Forge Governmental Offices
The Borough next states that "[t]he Plaintiffs Amended Complaint and all her sworn
testimony to date indicates that none of the complained of conduct occurred in the police
department or Borough administrative offices which are located together within the subject
building" and therefore "any and all testimony concerning the Plaintiff within the
Administrative Offices of Old Forge Borough must be precluded as nonprobative and highly
prejudicial." (Doc. 276, at 24).
The Court has already specifically addressed, and rejected, the Borough's
contention that nothing happened in the police department of administrative offices. What
conduct occurred, where, and whether it was done by an individual defendant in a private
capacity or under color of state law, are all questions for the jury. As the Court previously
stated:
[D]espite the Borough of Old Forge's contention, Semenza and Burdyn's
interactions were not limited to the firehouse and possibly occurred in the
police station or police vehicles. Plaintiff testified she communicated with
Semenza "multiple times on AIM [AOL Instant Messenger] and AOL" and that
on occasion Semenza would tell her to come to the police station from the fire
station. (Dep. of Burdyn, at 281). Burdyn also stated that she and Semenza
would spend time together alone at the police station (Trial Tr., Oct. 16,2013,
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at 72), later elaborating that "[y]ou couldn't come near me because I was with
him all the time in his office and the police station at his desk with him all the
time" (id. at 77). Other portions of Burdyn's testimony further support the
possibility that she spent what ajury might consider to be a significant amount
of time in the police department (see e.g., id. at 265-266,281,312,401-402;
see also, Trial Tr., Oct. 16, 2013, at 70, 71, 119).
Burdyn testified to a specific incident at the police station wherein she
went to the station on Halloween when she was 15 years old dressed in a
costume. On that occasion, she alleges that she sat on Semenza's lap and
that "he had his arms around me, touching my legs." (Dep. of Burdyn, at 401
402). This story is corroborated by several witnesses....
During her trial testimony, Burdyn also recalled an incident in the
weight room, "in the basement of the police and fire station", which was
accessible to both police officers and firefighters. On this occasion, Semenza
"kissed [her], he touched [her], he put his hands down [her] pants and
proceeded to touch [her]. ..." (Trial Tr., Oct. 16,2013, at 115-116, 273)....
Despite the incident in the police station at Halloween and in the
weight room shared by the police and fire departments, Burdyn offered that in
her opinion "[n]othing intimate happened in the Police Station" but admitted
that "affectionate" acts occurred there such as "sit[ting] at this desk [in
Semenza's office] or on the side of his desk, sit[ting] on the corner of the
desk, spend[ing] a lot of time there...." (Trial Tr. Oct. 17, 2013, at 6).
Burdyn further testified at her deposition that Semenza made inappropriate
comments in front of members of both the fire department and police
department, including "references to me as having sex with him ... [c]rude
comments ... [t]alking about my body ... [t]alking about my chest. ..."
(Dep. of Burdyn, at 265). Burdyn additionally testified that Semenza "bragged
about [supposedly having sex with Burdyn] to everybody at the police
department and anybody around him on many occasions." (ld. at 266).
Krenitsky also proffered that he saw Burdyn sitting on Semenza's lap one
time in Semenza's office at the police department and that Semenza would
make comments such as Burdyn's "ass looked nice in those shorts" and that
she was a "good-looking girl" in front of other people. (Proffer of Krenitsky, at
30-31). Krenitsky also testified at Semenza's criminal trial that "there were a
few times that [Burdyn] came in the police department and [Semenza] would
be at his desk in his office and she would sit on his lap." (Trial Tr., Oct. 18,
2013, at 49).
(Doc. 209, at 15-17).
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The Court will therefore deny the Borough's motion without prejudice. The motion
does not cite to any particular event or statement that Defendant believes should be
precluded and in essence requests a blanket ruling precluding evidence and testimony that
has yet to be presented to this Court. Further, it is clear from this Court's prior opinion that it
is possible that some relevant acts or statements may have been made in the Old Forge
police department or administrative building, thereby rendering Defendant's broad motion
inappropriate.
12. Preclude the Plaintiff from Offering any Testimony Concerning Inappropriate
Touching or Kissing by Defendant Semenza as the Plaintiff's Allegations are
not Time Specific and Therefore Unduly and Highly Prejudicial
The Borough's final request in its omnibus motion in limine asks that the Court
preclude Plaintiff 'from offering any testimony concerning inappropriate touching or kissing
between Plaintiff and Semenza because "Plaintiff is unable to pinpoint by date or month the
conduct of which she complains about relative to the alleged inappropriate conduct by"
Semenza. (Doc. 276, at 25-26).
Defendant's motion will be denied. Barring the introduction of such evidence would
preclude Plaintiffs ability to pursue her case and substantiate her claims. Defendant's
motion comes dangerously close to requesting that the Court, in effect, decide Plaintiffs
action under the guise of an evidentiary ruling. The alleged incidents at issue are highly
relevant to the claims against the Borough and Semenza and present substantive evidence
of her federal and state law claims which go to the heart of her case. Further, to the extent
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that Defendant argues that admission of this event is unduly prejudicial because Plaintiff
has not "pinpoint[ed] a specific date either by month, day or year" (Doc. 276, at 25-26), such
weaknesses in the testimony affects only the weight of the evidence, not its admissibility, as
well as the credibility of the witness, and is subject to questioning on cross-examination.
13. Conclusion
For the foregoing reasons, the Omnibus Motion in Limine of Defendant Old Forge
Borough (Doc. 275) will be decided as set forth in this Memorandum Opinion. Aseparate
Order follows.
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