Berardelli et al v. Allied Services Institute of Rehabilitation Medicine
Filing
81
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 1/27/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
TRACI BERARDELLI and
:
JOSEPH BERARDELLI, on behalf
of their daughter M.B., a minor,
:
and individually on their own
behalf,
:
CIVIL ACTION NO. 3:14-0691
(JUDGE MANNION)
:
Plaintiffs
:
v.
:
ALLIED SERVICES INSTITUTE
OF REHABILITATION MEDICINE,
Defendant
:
:
MEMORANDUM
Pending before the court are a number of motions in limine filed by the
parties ahead of the trial scheduled in this matter for January 30, 2017. The
court will consider each motion as it appears on the docket.
Initially, the plaintiffs have filed a motion to preclude the testimony of the
defendant’s expert, Corey J. Andres. (Doc. 54). The plaintiffs argue that the
testimony must be excluded in its entirety because it consists solely of legal
opinions. Moreover, to the extent that the defendant intends to offer Mr.
Andres’s testimony in support of the affirmative defenses of fundamental
alteration or direct threat, the plaintiffs argue that the opinions should be
excluded because Mr. Andres has no factual basis to opine as to either
defense.
In considering the plaintiffs’ initial motion in limine, the court has already
ruled in its memorandum addressing the defendant’s motion for summary
judgment that Mr. Andres may not render any opinions tied to any legal
conclusions. The court indicated, however, that Mr. Andres may render
opinions as to how the conduct of the dePaul School met the requirements of
the Rehabilitation Act. Moreover, to the extent that the plaintiffs disagree with
Mr. Andres’s opinions, the plaintiffs can cross-examine him. The weight of
such evidence is then for the jury. For these reasons, the plaintiffs’ motion to
preclude the testimony of Corey J. Andres will be denied.
The plaintiffs have next filed a motion in limine to preclude any evidence
about re-training the minor plaintiff’s service dog, “Buddy”, to wear a dander
t-shirt. (Doc. 55). Here, the plaintiffs argue that such evidence is not relevant
and that, even if relevant, its probative value is substantially outweighed by
a danger of confusing the issues or misleading the jury.
Upon review, the court finds that the testimony with respect to retraining Buddy to wear a dander t-shirt is relevant to determine whether the
minor plaintiff was offered appropriate and reasonable accommodations. The
record demonstrates that it was the plaintiffs, those most familiar with Buddy’s
training, who proposed that Buddy wear a dander t-shirt. The plaintiffs’ own
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expert, Amy Bennett, has provided deposition testimony indicating that Buddy
could have been trained to wear a dander t-shirt and that requesting Buddy
to do so would be a reasonable way to accommodate Buddy’s presence at
the dePaul School where other children with allergies attended. The court
finds that the evidence is relevant as to whether the minor plaintiff was offered
reasonable accommodations and as to whether the dePaul School acted with
deliberate indifference toward the minor plaintiff. Further, in light of the fact
that the plaintiffs’ own expert has testified that training for Buddy was
available and reasonable, this testimony would also go to the plaintiffs’
mitigation of damages. As such, the court will deny the plaintiffs’ motion in
limine to preclude evidence of re-training Buddy to wear a dander shirt.
In their third motion in limine, the plaintiffs seek to preclude any
evidence that another child at the dePaul School, “M.H.”, had severe allergies
to dogs. (Doc. 57). Again, the plaintiffs argue that any such testimony has no
probative value and, even if it did, any such value would be substantially
outweighed by the risks of confusing the issues, misleading the jury and
wasting time. The plaintiffs also argue that such testimony cannot be
introduced because the defendant has no expert to present such testimony.
As to the testimony relating to M.H.’s allergies, the court finds that such
evidence is relevant, in that it goes to whether the defendant acted with
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deliberate indifference to the minor plaintiff. Further, whether the school acted
reasonably under all of the circumstances at the time is relevant to the
plaintiffs’ negligence claim. Finally, as to this testimony, while the defendant’s
lay witness, Suzanne Rickard, cannot testify to matters which require
scientific, technical, or other specialized knowledge, she may certainly testify
as to her knowledge of M.H.’s allergies, her perceptions and what she
witnessed or experienced. Therefore, the court will also deny the plaintiffs’
motion in limine to preclude evidence of M.H.’s allergies at trial.
Finally, relating to the plaintiffs’ motions in limine, the plaintiffs have
requested that the court preclude any evidence of accommodations made for
the minor plaintiff other than the use of Buddy. (Doc. 59). Here, the plaintiffs
argue that the defendants may attempt to introduce evidence relating to other
accommodations it provided to the minor plaintiff over the two years she
attended the dePaul School. The plaintiffs argue that such evidence of other
accommodations is not relevant and, even if it were, its probative value is
substantially outweighed by a danger of confusing the issues and misleading
the jury.
The court finds that evidence relating to other accommodations provided
by the defendant to the minor plaintiff is relevant to whether or not the
defendant was deliberately indifferent to the minor plaintiff and to whether the
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defendant acted negligently. Moreover, in light of the fact that the plaintiffs are
seeking punitive damages, the jury is entitled to consider the entire picture of
the relationship between the defendant and the minor plaintiff in determining
damages. Therefore, the plaintiffs’ motion in limine seeking to exclude
evidence of other accommodations will be denied.
The defendant has submitted one motion in limine, in which it seeks to
preclude and/or limit the expert testimony of Ann Cook, LSW. (Doc. 56). In
doing so, the defendant argues that, although the plaintiffs produced an
impact statement prepared by Ms. Cook, a therapist who treats the minor
plaintiff, they did not identify any witnesses in their Rule 26(a)(2) disclosures
who would testify on the issue of damages. The defendant argues that Ms.
Cook testified that the minor plaintiff suffers from anxiety and depression, but
she admitted that she could not say that those conditions were related to any
actions or inactions by the dePaul School within a reasonable degree of
medical certainty. The defendants argue that, since Ms. Cook cannot testify
within the requisite certainty required for admissibility, her testimony should
be precluded. Even if the testimony is allowed, however, the defendant
argues that her testimony should be limited to her treatment of the plaintiff up
to May 18, 2015, as the plaintiffs have not produced any treatment records
after that date.
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With respect to the defendant’s motion, this court has already ruled in
relation to the defendant’s motion for summary judgment that the plaintiffs
have presented sufficient evidence, by way of Ms. Cook, that the minor
plaintiff suffered damages as a result of the defendant’s failure to allow Buddy
to attend school with her. Moreover, the court finds that the plaintiffs had no
duty to supplement their disclosures under Fed.R.Civ.P. 26(e). Therefore, the
defendant’s motion in limine will be denied.
An appropriate order shall issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: January 27, 2017
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