MIECZKOWSKI v. THE SALVATION ARMY

Filing 65

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable James M. Munley on 11/21/17. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAWN MIECZKOWSKI,
Plaintiff
v.

:
No. 3:15cv2146
:
:
(Judge Munley)
:
:
THE SALVATION ARMY,
:
Defendant
:
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MEMORANDUM
Trial is scheduled in the above-captioned matter for December 4, 2017. A
pretrial conference was held in this case on March 10, 2017, at which time no
motions in limine were presented to the court. On May 12, 2017, plaintiff filed her
trial brief (Doc. 54) which contained arguments regarding excluding certain
testimony from trial. The defendant responded on June 5, 2017. (Doc. 57). On
November 15, 2017, plaintiff filed objections to deposition testimony related to
her motions in limine. (Doc. 64). As such, we will treat the arguments that plaintiff
raises in her trial brief as fully briefed motions in limine that are ripe for
disposition, and will include in our ruling plaintiff’s objections to deposition
testimony.
Background
This case involves a slip and fall accident that occurred on September 14,
2013, at the Salvation Army Thrift Store in Wilkes-Barre, PA. (Doc. 1, Exh. A,

Compl. ¶ 8). Plaintiff Dawn Mieczkowski alleges that as she dropped off a
donation at the defendant’s donation drop off location, she tripped and fell over
“an uncontrolled and unkempt accumulation of donated household goods, bags,
clothing, toys, and other matter, present upon the walkway leading to the
donation drop off area.” (Id.) As a result of her fall, plaintiff sustained serious and
permanent injuries including but not limited to a minimally displaced L1
compression fracture. (Id. ¶ 11). Based upon these facts, plaintiff filed a two
count complaint asserting simple negligence and negligent supervision against
the defendant.
Discussion
As noted above, pending before the court are plaintiff’s motions in limine as
well as her objections to the deposition testimony of Dr. Michael Banas, an
independent medical examiner who conducted an examination of plaintiff
following her injuries. Plaintiff’s motions in limine raise arguments concerning the
proper duty of care that defendant owed to plaintiff while she was on The
Salvation Army’s premises, the affirmative defenses that plaintiff expects the
defendant to raise, and a specific line of anticipated testimony involving the
cause of her fall, which plaintiff asserts is hearsay. Plaintiff’s objections to the
deposition testimony of Dr. Banas essentially repeats the hearsay argument that
she makes in her motions. We will address these matters seriatim.
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I.

Standard of Care
Plaintiff’s position is that on September 14, 2013, she entered defendant’s

property as a business invitee, one who is invited to enter or remain on land for a
purpose directly or indirectly connected with business dealings with the owner of
the land. (Doc. 54, Pl.’s Trial Br., at 3). Because of this status, plaintiff argues
that the defendant had an affirmative duty to protect her not only against known
dangers, but also against those dangers which could be discovered with
reasonable care. While the defendant does not object to this classification, we
decline to issue a ruling at this time. The parties have both filed proposed points
for charge which include the proper standard of care. Upon the conclusion of
testimony at trial we will meet with counsel and determine the proper instruction.
II.

Anticipated Defenses
Plaintiff anticipates that the defendant will assert the defense that the

clutter at the donation drop box was an open and obvious danger, and therefore,
plaintiff assumed the risk. Plaintiff seeks a ruling that assumption of the risk will
not be allowed to be presented to the jury as a defense. She asks us to consider
ruling on these issues at this time because “reasonable minds can not differ in
the conclusion that the danger to Plaintiff was not open and obvious and the
gravity of the harm could not have been anticipated by Plaintiff, or any
reasonable person in Plaintiff’s position.” (Id. at 5).
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The question of whether a danger is known or obvious is generally a
question of fact for the jury. Howell v. Clyde, 620 A.2d 1107, 1108 n.1 (Pa. 1993).
This case was filed in October of 2015, and has gone through discovery for the
last two years. We expect that the parties will be moving forward with the
scheduled trial in two weeks. Whether the conditions at the drop off location
amounted to an open and obvious danger is clearly not agreed upon, as it goes
to the heart of this controversy. Thus, it is the role of the jury to listen to the facts,
of which significant dispute exists, and come to a conclusion as to whether
plaintiff should have been aware of the danger that existed.
III.

Statements Regarding the Cause of Plaintiff’s Fall Found in
Plaintiff’s Medical Records
Plaintiff avers that her injury occurred when she tripped over an

accumulation of donated goods. Plaintiff anticipates that the defense will
introduce evidence to show that she was at fault for her own injuries via
statements and testimony that she actually fell while standing on a table at the
drop off location, and that she fell approximately two feet onto her buttocks. She
argues that this evidence should be excluded because not only is it hearsay, but
the defense will not be able to lay proper foundation for it to be admitted.
A. General Admissibility of Statements in Plaintiff’s Medical
Records

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The defendant seeks to admit plaintiff’s medical records into evidence,
which were created following her accident. These medical records include
statements made to someone at the hospital regarding the cause of plaintiff’s fall.
Plaintiff calls our attention to two specific statements: (1) a statement in the
record that plaintiff “was standing on a table placing items into a Salvation Army
Truck when the table moved causing her to fall[;]” and (2) a statement that
plaintiff “was packing up a truck when she fell backwards two feet onto her
buttocks.” (Doc. 54 at 8). The parties agree that the medical records themselves
are admissible under Federal Rule of Evidence 803(6)(b), the “business records”
exception to hearsay.
Plaintiff contends that the statements contained within the records,
however, are inadmissible as they constitute hearsay within hearsay, a violation
of Federal Rule of Evidence 805. Defendant’s argument is two-fold: (1) the
statements are not hearsay as they are expressly defined as not hearsay within
Federal Rule of Evidence 801(d)(2)(A) (defining a statement offered against an
opposing party that was made by the party in an individual or representative
capacity as a statement that is not hearsay); and (2) even if the statements are
deemed hearsay, they qualify as an exception to hearsay under Rule 803(4)
because they were statements made for the purpose of medical diagnosis or
treatment.
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While we agree with the defendant that if plaintiff herself made the abovereferenced statements to medical personnel they would qualify as opposing party
statements, we decline to analyze them as such. Based on the evidence that has
been provided to the court, we are without knowledge as to the declarant.
Without this knowledge, we are unable to determine whether the declarant would
qualify as an opposing party. Provided that the defendant is able to establish
proper foundation at trial,1 however, we find that the statements do qualify as
exceptions to hearsay under Rule 803(4).
“Statements for purposes of medical diagnosis or treatment” are not
excluded by the hearsay rule when those statements are “made for – and [are]
reasonably pertinent to – medical diagnosis or treatment; and describ[e] medical
history; past or present symptoms or sensations; their inception; or their general
cause.” FED. R. EVID. 803(4). The rule does not require that the declarant be a
party to the action. Such statements are regarded as inherently reliable because
of the recognition that one seeking medical treatment is keenly aware of the
necessity for being truthful in order to secure proper care. FED. R. EVID. 803(4)
advisory committee note.
Plaintiff asserts that the defendant will be unable to establish proper foundation
as the doctor who authored the records was not deposed. A witness may testify
to a matter only if evidence is introduced sufficient to support a finding that the
witness had personal knowledge of the matter. FED. R. EVID. 602. We remind the
parties that the burden is on the proffering party to establish a foundation at trial
for intended evidence.
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1

We agree with the defendant that the statements in plaintiff’s medical
records that “[plaintiff] was standing on a table placing items into a Salvation
Army Truck when the table moved causing her to fall[;]” and “[plaintiff] was
packing up a truck when she fell backwards two feet onto her buttocks” describe
the general cause of the symptoms for which she was being treated by a
physician. It can be assumed that someone—perhaps plaintiff or her daughter—
relayed this information to medical personnel so that plaintiff’s injuries could be
adequately assessed. As such, we will allow this evidence to be admitted.
B. Deposition Testimony of Dr. Banas
Based on the same reasoning above, plaintiff asks us to strike deposition
testimony in which Dr. Banas references the same above-mentioned statements
concerning the cause of plaintiff’s fall. We decline to do so.
As we discussed, the defendant will be allowed to introduce these
statements so long as they are able to lay the proper foundation. Here, however,
the defendant may rely on Federal Rule of Evidence 703 for their admissibility.
An expert may base an opinion on facts or data in the case that the expert “has
been made aware of or personally observed.” FED. R. EVID. 703. So long as other
experts in Dr. Banas’ field would reasonably rely on this kind of information in
forming an opinion on the subject, the facts or data need not necessarily be
admissible for the opinion to be admitted. Id. Plaintiff admits that the role of an
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independent medical examiner is to “perfor[m] a review of records, physical
evaluation, and produc[e] a report in connection with their findings based upon
their expertise and knowledge,” which is what Dr. Banas did in this case. (Doc.
64 at 5). Dr. Banas will be permitted to base his opinion on statements made in
the plaintiff’s medical records.
Plaintiff also takes issue with deposition testimony of Dr. Banas in which,
after reviewing plaintiff’s medical records, he states that “[i]t’s important to know
the mechanism of the injury documented by the medical team after the event in
question with regards to the mechanism of and also any correlation with the
history the patient provides to me.” (Id. at 4) (citing Exhibit “A” page 21 lines 824). Plaintiff appears to disagree with Dr. Banas’ opinion, arguing that: (1) the
“mechanism of the injury” in question would be a fall, and more information as to
how the fall occurred is not important and (2) “correlation of the history of
plaintiff’s injuries” is not part of Dr. Banas’ duties in performing an independent
medical evaluation. (Id. at 5).
We find that Dr. Banas’ testimony of what is important when conducting an
evaluation of a patient is admissible. As an expert witness, Dr. Banas is able to
testify in the form of an opinion if the expert’s knowledge will help the jury to
understand the evidence or to determine a fact in issue. FED. R. EVID. 702(A).
This is not to say that plaintiff must or is expected to agree with the expert’s
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opinion; her arguments are simply more appropriate for cross-examination,
where plaintiff is, of course, permitted to challenge Dr. Banas’ methods.
Ultimately, we find that Dr. Banas’ testimony may help the jury to understand
whether the hospital team would have reasonably asked plaintiff the cause of her
fall when she was admitted to the hospital, and if so, why that information is
important. Accordingly, we will deny plaintiff’s request to strike this testimony
from Dr. Banas’ deposition.
Conclusion
For the foregoing reasons, we decline to adopt a standard of care owed to
the plaintiff at this time. The defendant will be permitted to assert the affirmative
defenses of open and obvious danger and assumption of the risk. Plaintiff’s
motions in limine regarding the statements relating to the general cause of her
fall will be denied. We will also deny plaintiff’s objections to the deposition
testimony of Dr. Banas. An appropriate order follows.

Date: November 21, 2017

BY THE COURT:

s/ James M. Munley_______
JUDGE JAMES M. MUNLEY
United States District Court

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