"R.D" v. Shohola Camp Ground and Resort

Filing 330

MEMORANDUM OPINION AND ORDER denying 272 MOTION in Limine to Preclude Late Submitted Records, any Reference to them or Treatment therein by any Witness, Plaintiff or Plaintiff's expert witnesses from NYPS filed by Shohola Camp Ground and Resort. Signed by Magistrate Judge Martin C. Carlson on October 23, 2019. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
“R.D.,”
Plaintiff,
v.
SHOHOLA, INC.,
Defendant.

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Civil No. 3:16-CV-01056

(Magistrate Judge Carlson)

MEMORANDUM OPINION AND ORDER
I.

Statement and Facts of the Case
The plaintiff, “R.D.,” commenced this action on June 3, 2016, alleging that

the defendant, Shohola, Inc., is liable to him for the injuries he incurred when he was
sexually assaulted on one of the defendant’s overnight camping trips. The second
amended complaint asserted claims of negligence, negligent supervision, battery,
and negligence per se, and sought compensatory and punitive damages, as well as
attorney’s fees, for the physical and emotional harm the plaintiff suffered. (Doc. 27).
Following roughly two years of discovery in this case, the defendant filed a
motion for summary judgment. (Doc. 202). This court granted the motion with
respect to the plaintiff’s negligent supervision, battery, and negligence per se claims,
but denied the motion with respect to the direct negligence claim. (Doc. 230). We
concluded that Shohola had a general duty of care to adequately protect and

supervise its minor campers under the Restatement (Second) of Torts §§ 314A and
315, given the relationship between the campers and the camp.
Given the nature of these longstanding claims, which entail alleged
psychological injuries stemming from sexual trauma, the issue of R.D.’s mental
health and treatment has been a central concern throughout this litigation, and the
parties have amassed considerable medical and psychiatric evidence relating to
R.D.’s on-going mental health treatment. Now, in anticipation of trial, the defendant
has filed the instant motion in limine to preclude the use of, or any reference to, the
plaintiff’s most recent mental health treatment records, which were disclosed to the
defendant on July 26, 2019 and detail psychiatric treatment that R.D. received from
August 2018 until May 2019. Shohola contends that it has been prejudiced by the
late disclosure of these records, and thus, the plaintiff should be barred from using
these records in any way at trial. For the plaintiff’s part, counsel contends that the
defendant has not been prejudiced or surprised by these records which simply
confirm R.D.’s on-going treatment, and that the late disclosure of the records was
not intended to mislead or surprise the defendant.
In our view, these records, which were received by the defense in July of 2019,
simply confirm what all parties already knew, that R.D. was receiving on-going
mental health treatment. Recognizing that the remedy of preclusion of evidence is
an extreme sanction reserved for the most grace of discovery abuses, after
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consideration, and for the reasons set forth below, we find that the plaintiffs should
be permitted to use these records, and we will deny the defendant’s motion, but upon
request will consider providing the defense the opportunity to depose these treatment
providers.
II.

Discussion
Shohola contends that the plaintiff should be precluded from using the

treatment records because he has failed to comply with the discovery mandates in
Federal Rule of Civil Procedure 26(a). Rule 26(a)(1)(A)(ii) states that:
[A] party must, without awaiting a discovery request, provide to the
other parties: . . . a copy--or description by category and location--of all
documents, electronically stored information, and tangible things that
the disclosing party has in its possession, custody, or control and may
use to support its claims or defenses, unless the use would be solely for
impeachment[.]
Fed. R. Civ. P. 26(a)(1)(A)(ii). In addition, Rule 26(e) provides that a party must
supplement its initial disclosures under Rule 26(a) “in a timely manner if the party
learns that in some material respect the disclosure or response is incomplete or
incorrect, and if the additional or corrective information has not otherwise been
made known to the other parties during the discovery process or in writing.” Fed. R.
Civ. P. 26(e)(1)(A).
In the same vein, Rule 37(c)(1) provides that if a party “fails to provide
information or identify a witness as required in Rule 26(a) . . . the party is not allowed
to use that information or witness to supply evidence . . . at trial, unless the failure
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was substantially justified or harmless.” Fed. R. Civ. P. 37(c)(1). The burden is on
the non-producing party to prove substantial justification or that its failure to produce
was harmless. U.S. Fire Ins. Co. v. Omnova Solutions, Inc., No. 10–1085, 2012 WL
5288783, at *2 (W.D. Pa. Oct. 23, 2012).
The Third Circuit Court of Appeals has set forth several factors for courts to
consider when deciding whether the exclusion of evidence is an appropriate
sanction: “(1) the prejudice or surprise of the party against whom the excluded
evidence would have been admitted; (2) the ability of the party to cure that prejudice;
(3) the extent to which allowing the evidence would disrupt the orderly and efficient
trial of the case or other cases in the court; and (4) bad faith or wilfulness in failing
to comply with a court order or discovery obligation.” Nicholas v. Pennsylvania
State University, 227 F.3d 133, 148 (3d Cir. 2000) (citing Konstantopoulos v.
Westvaco Corp., 112 F.3d 710, 719 (3d Cir. 1997)). The Court has supplemented
this list of factors to include: “(5) ‘the importance of the excluded testimony’ and
(6) the party’s explanation for failing to disclose.” Dzielak v. Whirlpool Corp., 2017
WL 1034197, at *29 (D.N.J. Mar. 17, 2017) (citing Konstantopoulos, 112 F.3d at
719). However, we are reminded that “the exclusion of critical evidence is an
‘extreme’ sanction, not normally to be imposed absent a showing of willful
deception or ‘flagrant disregard’ of a court order by the proponent of the evidence.”

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Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894, 905 (3d Cir.
1977) (internal citations omitted); Dzielak, 2017 WL 1034197, at *29.
In the instant case, we find that a consideration of the factors set forth by the
Court of Appeals weighs against the exclusion of these medical treatment records.
At the outset, we cannot overlook the importance of the evidence to the plaintiff.
The plaintiff’s ongoing mental health treatment is undoubtedly relevant to the harm
he claims he suffered from the alleged assault that took place at the defendant’s
overnight camp. Moreover, these records consist of only nineteen pages of notes
from the providers at New York Psychiatric Services (“NYPS”), which the plaintiff
has indicated were disclosed to confirm the nature of the ongoing psychiatric
treatment the plaintiff is undergoing. (Doc. 278, at 9). The plaintiff has not raised
any new claims or moved to supplement any of his expert reports based on these
treatment records, and instead merely asserts that these records are being used for
the sole purpose of showing that R.D. has continued to undergo psychiatric treatment
in the years following the assault.
Additionally, and more significantly, we cannot conclude that the late
disclosure of these records surprised or unduly prejudiced the defendant. Indeed, as
the plaintiff points out, Dr. Pitman provided reports in November 2017 and March
2018. The 2017 report opines that the plaintiff should continue “an ongoing
psychotherapeutic relationship with a provider competent in treating” the plaintiff’s
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mental health issues. (Doc. 281, at 4). In March 2018, Dr. Pitman noted that the
plaintiff “will be moving to New York soon, and would prefer to find a therapist
there.” (Id., at 9). Thus, it is evident that the defendant was aware of the ongoing
nature of the plaintiff’s mental health treatment. See Bieber v. Nace, 2012 WL
727631, at *3 (M.D. Pa. Mar. 6, 2012) (finding that any prejudice the defendant
suffered as a result of late-submitted medical testimony concerning the plaintiff’s
ongoing treatment was minimal, given the other evidence that indicated that the
plaintiff would need ongoing treatment). In assessing the prejudice which might flow
from this late disclosure, we also observe that these records were received by the
defense in July of 2019, nearly five months before the scheduled trial of this case.
Thus, the defense has had ample opportunity to consider the relevance of these 19
pages of treatment records
Finally, we can discern no willfulness or bad faith on the part of the plaintiff
concerning the disclosure of these records in July of 2019, months prior to the trial
of this case. As we have stated, important evidence should be excluded only upon a
showing of “willful deception or ‘flagrant disregard’ of a court order by the
proponent of the evidence.” Meyers, 559 F.2d at 905 (internal citations omitted).
Moreover,
The Third Circuit has made clear that in the context of discovery
sanctions, willfulness and bad faith “involve[ ] intentional or selfserving behavior.” Adams, 29 F.3d at 875. By contrast, an attorney's
“negligent behavior” or “failure to move with ... dispatch”—even if
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“inexcusable”—will not suffice to establish willfulness or bad faith. Id.
(citing Donnelly v. Johns–Manville Sales Corp., 677 F.2d 339, 342 (3d
Cir. 1982)).
Bowers v. National Collegiate Athletic Ass’n, 564 F.Supp.2d 322, 340 (D.N.J.
2008).
Here, the plaintiff candidly concedes that it would have been ideal to disclose
the records at an earlier time. (Doc. 278, at 2). However, counsel initially notes that
they were unaware of the plaintiff’s treatment at NYPS at the time treatment began
in August 2018. Moreover, counsel contends that, “[t]hroughout 2018 and 2019, the
focus of this complex and fiercely contested litigation shifted to issues other than
damages, such as the deposition of Defendant’s investigator . . . and the parties’
motions to preclude certain expert testimony.” (Id., at 6). Thus, even if the plaintiff’s
counsel can be considered negligent for failing to disclose these documents at an
earlier time, this does not suffice to establish the bad faith required for the exclusion
of evidence. Rather, by their own admission, it is clear that counsel was subsumed
in other aspects of this litigation, such as the Trobe deposition and the motions to
preclude expert testimony. Accordingly, we cannot conclude that there was any
willfulness or bad faith on the part of the plaintiff or his counsel in the late
submission of these medical treatment records.
In sum, we conclude that the plaintiff should be permitted to use the NYPS
treatment records at trial for the very limited purpose of confirming R.D.’s on-going
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mental health treatment, even though they were submitted late. The defendants have
not shown how they would be prejudiced by information concerning the plaintiff’s
ongoing mental health treatment, particularly because the plaintiff has not asserted
any new claims or moved to supplement his expert reports based on these records.
Rather, it is clear that the defendants were aware that the plaintiff would be
continuing treatment, although no specific providers were identified. Further, the
disclosure of this information nearly five months prior to trial in our view minimizes
any undue prejudice to the defense arising from the release of these 19 pages of
treatment notes. Given that we have found no undue prejudice to the defendants
which cannot be cure by other means, and that we have concluded there was no
willfulness, bad faith, or flagrant disregard on the part of the plaintiff concerning the
late disclosure of these records, we will not exclude these records under Rule 37.1
An appropriate order follows.

We recognize that the defendant has raised concerns regarding the inability to
take depositions of the plaintiff’s providers at NYPS. (Doc. 272-1, at 9). While we
question the necessity of depositions of these providers given the seemingly
cumulative nature of the treatment records, we note that the defendant would have
ample time to conduct such depositions in the weeks before trial is set to begin in
December and that the plaintiff reports that he would not object to those
depositions. To that end, we would give consideration to any motion the defendant
may file for leave to depose these providers in the upcoming weeks.
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
“R.D.,”

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Plaintiff,
v.
SHOHOLA, INC.,
Defendant.

Civil No. 3:16-CV-01056

(Magistrate Judge Carlson)

Order
For the reasons set forth in the accompanying Memorandum Opinion, the
defendant’s motion in limine seeking to bar the plaintiff’s use of medical treatment
records from NYPS, (Doc. 272), is DENIED.
So ordered this 23rd day of October 2019.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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