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

Filing 375

MEMORANDUM AND ORDER denying without prejudice 319 MOTION in Limine #17 filed by Shohola Camp Ground and Resort, 317 MOTION in Limine #15 filed by Shohola Camp Ground and Resort. Signed by Magistrate Judge Martin C. Carlson on November 19, 2019. (kjn)

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)

MEMORANDUM AND ORDER
I.

Factual Background

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 during a 2008
camping excursion at Cape Cod. The parties are currently preparing for trial on the
remaining negligence claims in this lawsuit. As trial approaches the parties have
filed some 30 motions in limine, including two motions filed by the plaintiff, (Doc.
301, 347), and 28 motions submitted by the defendant. (Docs. 302-327, 360).
We now turn to consideration of two of these motions.
Defense motion in limine Number 15, (Doc. 317), requests that the court
preclude reference to (1) camp “safety rules,” (2) the “safety” of the community or
the public at large, (3) the “safety” of the jurors themselves, and (4) potential harms

or “dangers” that could theoretically be caused by Shohola’s conduct. Shohola seeks
this relief based upon its concern that the plaintiff may pursue what Shohola refers
to as the “Reptile” theory in which counsel may endeavor to shift the focus of a tort
claim from the issues of actual harm, and causation to a more theoretical discussion
in the abstract of community safety.
Motion in limine Number 17, (Doc. 319), requests that this court enter an
order barring any lay witness -- including but not limited to plaintiff’s parents – from
opining, concluding, speculating, implying, or otherwise testifying to the cause,
nature, and extent of plaintiff’s alleged injuries, diagnosis, and prognosis, arguing
that these lay witnesses are not mental health professionals, and so are not qualified
to offer opinion testimony on these topics. Fed. R. Evid. 701, 702.
These motions have been briefed and argued by the parties and are, therefore,
ripe for resolution. (Doc. 366). For the reasons set forth below, the motions are
DENIED without prejudice to the consideration of appropriate objections at trial.
I.

Discussion
A. Motions in Limine--Guiding Principles

The Court is vested with broad inherent authority to manage its cases, which
carries with it the discretion and authority to rule on motions in limine prior to trial.
See Luce v. United States, 469 U.S. 38, 41 n.4 (1984); In re Japanese Elec. Prods.
Antitrust Litig., 723 F.2d 238, 260 (3d Cir. 1983), rev’d on other grounds sub nom.,
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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (the court
exercises its discretion to rule in limine on evidentiary issues “in appropriate cases”).
Courts may exercise this discretion in order to ensure that juries are not exposed to
unfairly prejudicial, confusing or irrelevant evidence. United States v. Romano, 849
F.2d 812, 815 (3d Cir. 1988). Courts may also do so in order to “narrow the
evidentiary issues for trial and to eliminate unnecessary trial interruptions.” Bradley
v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990) (citation omitted).
However, courts should be careful before doing so.
In considering motions in limine which call upon the Court to engage in
preliminary evidentiary rulings under Rule 403 of the Federal Rules of Evidence, we
begin by recognizing that these “evidentiary rulings [on motions in limine ] are
subject to the trial judge's discretion and are therefore reviewed only for abuse of
discretion ... Additionally, application of the balancing test under Federal Rule of
Evidence 403 will not be disturbed unless it is ‘arbitrary and irrational.’ ” Abrams v.
Lightolier Inc. 50 F.3d 1204, 1213 (3d Cir.1995) (citations omitted); see
Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 161 (3d Cir.1994) (reviewing in
limine rulings for abuse of discretion). Yet, while these decisions regarding the
exclusion of evidence rest in the sound discretion of the district court and will not
be disturbed absent an abuse of that discretion, the exercise of that discretion is
guided by certain basic principles.
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One of the key guiding principles is reflected in the philosophy which shapes
the rules of evidence. The Federal Rules of Evidence can aptly be characterized as
evidentiary rules of inclusion, which are designed to broadly permit fact-finders to
consider pertinent factual information while searching for the truth. The inclusionary
quality of the rules, and their permissive attitude towards the admission of evidence,
is embodied in three cardinal concepts. The first of these concepts is Rule 401's
definition of relevant evidence. Rule 401 defines what is relevant in an expansive
fashion, stating:

“Relevant evidence” means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence.
Fed. R. Evid. 401.
Adopting this broad view of relevance it has been held that: “Under [Rule]
401, evidence is relevant if it has ‘any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.’ [Therefore] ‘It follows that
evidence is irrelevant only when it has no tendency to prove the fact. Thus the rule,
while giving judges great freedom to admit evidence, diminishes substantially their
authority to exclude evidence as irrelevant.’ ” Frank v. County of Hudson, 924 F.

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Supp. 620, 626 (D.N.J.1996) citing Spain v. Gallegos, 26 F.3d 439, 452 (3d
Cir.1994) (quotations omitted).
This quality of inclusion embraced by the Federal Rules of Evidence, favoring
the admission of potentially probative proof in all of its forms, is further buttressed
by Rule 402, which generally defines the admissibility of relevant evidence in
sweeping terms, providing that:
All relevant evidence is admissible, except as otherwise provided by
the Constitution of the United States, by Act of Congress, by these
rules, or by other rules prescribed by the Supreme Court pursuant to
statutory authority. Evidence which is not relevant is not admissible.
Fed. R. Evid. 402.
Thus, Rule 402 expressly provides that all “[r]elevant evidence will be
admissible unless the rules of evidence provide to the contrary.” United States v.
Sriyuth, 98 F.3d 739, 745 (3d Cir.1996) (citations omitted). While these principles
favoring inclusion of evidence are subject to some reasonable limitations, even those
limitations are cast in terms that clearly favor admission of relevant evidence over
preclusion of proof in federal proceedings. Thus, Rule 403, which provides grounds
for exclusion of some evidence, describes these grounds for exclusion as an
exception to the general rule favoring admission of relevant evidence, stating that:

Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.
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Fed. R. Evid. 403 (emphasis added).
By permitting the exclusion of relevant evidence only when its probative
value is “substantially outweighed” by other prejudicial factors, Rule 403
underscores the principle that, while evidentiary rulings rest in the sound discretion
of the court, that discretion should consistently be exercised in a fashion which
resolves all doubts in favor of the admission of relevant proof in a proceeding, unless
the relevance of that proof is substantially outweighed by some other factors which
caution against admission.
These broad principles favoring the admission of relevant evidence also shape
and define the scope of this Court's discretion in addressing motions in limine like
those filed by the parties here, which seek a pre-trial ruling excluding a considerable
range of evidence largely on relevance and prejudice grounds. In the past the United
States Court of Appeals for the Third Circuit has cautioned against such preliminary
and wholesale exclusion of evidence, noting that it has “made clear that rulings
excluding evidence on Rule 403 grounds should rarely be made in limine.” Walden
v. Georgia–Pacific Corp., 126 F.3d 506, 518 n. 10 (3d Cir.1997). The reason for this
caution is evident: oftentimes a court “cannot fairly ascertain the potential relevance
of evidence for Rule 403 purposes until it has a full record relevant to the putatively
objectionable evidence.” Id.; see also In re Diet Drugs Products Liability Litigation,

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369 F.3d 293, 314 (3d Cir.2004). As the Court of Appeals has observed when
advising against excessive reliance on motions in limine to exclude evidence under
Rule 403:

[M]otions in limine often present issues for which final decision is best
reserved for a specific trial situation. American Home, 753 F.2d at 324;
cf. Luce v. United States, 469 U.S. 38, 41–42, 105 S.Ct. 460, 463–64,
83 L.Ed.2d 443 (1984) (holding that criminal defendant must testify to
preserve claim of improper impeachment with prior conviction) (“The
[in limine ] ruling is subject to change when the case unfolds,
particularly if the actual testimony differs from what was contained in
the defendant's proffer. Indeed even if nothing unexpected happens at
trial, the district judge is free, in the exercise of sound judicial
discretion, to alter a previous in limine ruling.”). This is particularly
true when the evidence is challenged as irrelevant or prejudicial; the
considerations weighed by the court will likely change as the trial
progresses. See Rosenfeld v. Basquiat, 78 F.3d 84, 91 (2d Cir.1996)
(“Unlike rulings that involve balancing potential prejudice against
probative value, the ruling in the present case was not fact-bound and
no real purpose other than form would have been served by a later
objection.”). We have also made clear that rulings excluding evidence
on Rule 403 grounds should rarely be made in limine. “[A ] court
cannot fairly ascertain the potential relevance of evidence for Rule 403
purposes until it has a full record relevant to the putatively
objectionable evidence. We believe that Rule 403 is a trial-oriented
rule. Precipitous Rule 403 determinations, before the challenging party
has had an opportunity to develop the record, are therefore unfair and
improper.” Paoli I, 916 F.2d at 859; see also In re Paoli R.R. Yard PCB
Litig., 35 F.3d 717, 747 (3d Cir.1994) ( “Paoli II” ). Under these and
similar circumstances, if a district court makes a tentative pre-trial
ruling, it has the opportunity to “reconsider [its] in limine ruling with
the benefit of having been witness to the unfolding events at trial.”
United States v. Graves, 5 F.3d 1546, 1552 (5th Cir.1993).
Walden, 126 F.3d at 518 n. 10.

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The Third Circuit has thus cautioned that “pretrial Rule 403 exclusions should
rarely be granted. . . . Excluding evidence as being more prejudicial than probative
at the pretrial stage is an extreme measure that is rarely necessary, because no harm
is done by admitting it at that stage.” In re Paoli R. Yard PCB Litig., 916 F.2d 829,
859 (3d Cir. 1990); see also Spain v. Gallegos, 26 F.3d 439, 453 (3d Cir. 1994)
(noting that the Third Circuit’s “cautious approach to Rule 403 exclusions at the
pretrial stage . . . .”). Moreover, the Third Circuit has characterized Rule 403 as a
“trial-oriented rule” such that “[p]recipitous Rule 403 determinations, before the
challenging party has had an opportunity to develop the record, are . . . unfair and
improper.” In re Paoli R. Yard PCB Litig., 916 F.2d at 859.
Accordingly, the principles which guide our consideration of motions in
limine urge courts to exercise their broad discretion sparingly in this field, and avoid
precipitous pre-trial rulings excluding evidence on relevance and prejudice grounds
or otherwise unduly curtailing the parties’ presentations of their case. It is against
the backdrop of these guiding legal tenets that we consider the parties’ motions in
limine.
B. Motions in limine 15 and 17 Will be Denied Without Prejudice.
Guided by these general principles, we turn to consideration of these motions
in limine.

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At the outset, in motion in limine in Number 15, (Doc. 317), Shohola invites
us to preclude reference to (1) camp “safety rules,” (2) the “safety” of the community
or the public at large, (3) the “safety” of the jurors themselves, and (4) potential
harms or “dangers” that could theoretically be caused by Shohola’s conduct. We will
decline this invitation at this time but invite the parties to raise objections to specific
evidence as the trial progresses. At the outset, recognizing the inclusionary nature of
the rules of relevance we find that evidence regarding safety rules and practices may
be relevant to the questions of negligence that lie at the heart of this case. We note
that we are not alone in this view. Quite the contrary, the potential relevance of such
matters has long been recognized by this court. Kube v. Bethlehem Steel Corp., 390
F.2d 506, 507 (3d Cir. 1968); Christner v. E. W. Bliss Co., 524 F. Supp. 1122, 1126
(M.D. Pa. 1981). Further, those cases which temper and limit the admissibility of
such evidence do so in a very fact-specific manner, taking into account the nature of
the specific safety rule, the facts of the case, and the relevance of the particular rule
to the claims of negligence as defined by the factual context of the case. Such a task
is ill-suited for pre-trial determination but rather must await trial.
As for motion in limine Number 17, (Doc. 319), which seeks to restrict lay
testimony regarding medical matters, determination of these questions concerning
lay opinion testimony involves consideration of the interplay between Rules 701 and

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702 of the Federal Rules of Evidence. Rule 701 specifically authorizes lay opinion
testimony, stating that:
If a witness is not testifying as an expert, testimony in the form of an
opinion is limited to one that is:
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to
determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.
Fed. R. Evid. 701.
Thus, Rule 701 specifically permits lay opinion testimony in certain instances.
Rule 702, in turn, provides that:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a
fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert has reliably applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702.
There is undoubtedly a place for both lay and expert opinion testimony in
cases like this which have a medical component. In fact, the court of appeals has
held that medical issues in litigation can be determined “through a combination of

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expert medical and lay testimony.” Schaar v. Lehigh Valley Health Servs., Inc., 598
F.3d 156, 161 (3d Cir. 2010). Thus, there is no absolute prohibition on lay opinion
testimony in this field, although we are enjoined “to carefully exercise a screening
function with respect to Rule 701 opinion testimony when the lay opinion offered
closely resembles expert testimony.” Asplundh Mfg. Div., a Div. of Asplundh Tree
Expert Co. v. Benton Harbor Eng'g, 57 F.3d 1190, 1202 (3d Cir. 1995). In practice,
when assessing opinion evidence on medical matters courts often draw a distinction
between symptom assessment and condition diagnosis, finding that: “Lay opinion
testimony on a specific medical diagnosis may not be admissible without proper
expert support, but lay testimony as to a plaintiff's symptoms generally is.” Williams
v. Hamilton Cty., Tennessee, No. 1:15-CV-74, 2018 WL 1586234, at *2 (E.D. Tenn.
Mar. 31, 2018). Plainly, though, this is a fact-bound and fact-intensive analysis
which will turn on the nature of the testimony provided and the skills and
qualifications of the witness. Therefore, it is not susceptible to resolution pre-trial in
the abstract or in broad strokes. Instead, these questions must also await trial.
Therefore, we will deny these two motions in limine at this time, we do so but
without prejudice to assessing the probative value and prejudicial effect of the
evidence at trial in the context of the proof presented during trial.

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An appropriate order follows.

S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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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
AND NOW this 19th day of November 2019, in accordance with the
accompanying memorandum, defense motions in limine Number 15, (Doc. 317) and
Number 17, (Doc. 319) are DENIED without prejudice to the consideration of
appropriate objections at trial.

S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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