HOUSER v. BEARD et al
Filing
336
ORDER granting in part and denying in part 273 Motion in Limine; granting in part and denying in part 276 Motion in Limine; denying 279 Motion in Limine; denying 281 Motion in Limine; granting in part and denying in part 285 Motion in Limine. Signed by Judge Donetta W. Ambrose on 11/16/2015. (sps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DARIEN HOUSER,
Plaintiff,
vs.
LOUIS S. FOLINO, SUPERINTENDENT,
SCI-GREENE, DR. JIN, MD, PA DIGGS, and
LUCAS-ANTONICH,
Defendants.
AMBROSE, Senior District Judge
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No. 2:10-cv-00416
ORDER ON MOTIONS IN LIMINE
The Medical Defendants filed Motions in Limine. (ECF No. 273, 276, 279, 281 and 285).
Plaintiff filed a “Response and Objections to Medical Defendants, Jin, Diggs, and
Lucas-Antanovich Motion in Limine and Objections to Defendants Response to Plaintiff Motion in
Limine.” (ECF No. 318). The issues are now ripe for review.
1.
Motion in Limine No. 273: Medical Defendants’ Motion to Exclude the Testimony
of Andre Staton, George Ivan Lopez, Orlando Baez, Harvey Miguel Robinson, and
John Joseph Koehler, Jr.
Plaintiff’s Pretrial Statement lists five potential inmate witnesses: Andrew Staton, George
Ivan Lopez, Orlando Baez, Harvey Miguel Robinson and John Joseph Koehler, Jr. In addition,
Plaintiff produced Affidavits and Declarations from these five individuals as offers of proof
regarding the substance of the testimony each of these inmates may provide. (ECF No. 273).
The Medical Defendants move in limine to exclude the testimony of these proposed witnesses as
irrelevant and/or unfairly prejudicial.
To the extent that the five witnesses listed above intend to testify to medical treatment they
personally received or medical treatment they witnessed being provided to inmates other than
Plaintiff, I agree that such evidence is irrelevant to Plaintiff’s deliberate indifference claims under
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Federal Rules of Evidence 401 and 402 because such testimony does not have a tendency to
make the existence of any fact of consequence more or less probable than it would be without the
evidence.
Even if such evidence were minimally relevant, that probative value would be
substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the
jury, undue delay, and wasting time. See Fed. R. Evid. 403.
Accordingly, the motion in limine is GRANTED in part and DENIED in part as follows: It is
GRANTED as to Andre Staton, Orland Baez and Harvey Miguel Robinson and they are excluded
from testifying as their affidavits demonstrate that they have no personal knowledge of Plaintiff’s
condition or the conduct of the Defendants as it relates to Plaintiff’s claims. It is DENIED as to
Ivan Lopez and John Joseph Koehler, Jr. and they are permitted to testify but only as to their
observations of Plaintiff’s medical condition and their observations of Plaintiff’s pain and suffering.
2. Motion in Limine No. 276: Medical Defendants’ Motion to Preclude Hearsay,
Speculation and Irrelevant Evidence
The Medical Defendants move in limine to exclude the following items or categories of
evidence based on hearsay, speculation, and/or irrelevance: evidence of any other lawsuits
naming any of the Medical Defendants; evidence that Dr. Jin is responsible for other physicians
and providers at SCI-Greene; evidence that PA Diggs and/or CRNP Antanovich are responsible
for other medical providers at SCI-Greene; information that Plaintiff was told by other individuals;
information that Plaintiff overheard; and evidence or allegations regarding claims abandoned or
dismissed from Plaintiff’s Complaint or Amended Complaint. (ECF No. 276).
After careful review of the motion and Plaintiff’s response thereto, I agree that the
following evidence should be excluded:
evidence of other lawsuits against the Medical
Defendants and evidence about other claims that have been abandoned or dismissed from
Plaintiff’s Complaint or Amended Complaint (i.e., any claims except for the Eighth Amendment
deliberate indifference claims related to related to the lump in Plaintiff’s chest; ringing in his ears;
mask on face; knot in right testicle; and failure to educate as to side effects of medication). Such
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evidence is irrelevant under Federal Rules of Evidence 401 and 402 to Plaintiff’s remaining claims
because it does not have a tendency to make the existence of any fact of consequence more or
less probable than it would be without the evidence. Even if such evidence were minimally
relevant, that probative value would be substantially outweighed by the danger of unfair prejudice,
confusing the issues, misleading the jury, undue delay, and wasting time. See Fed. R. Evid. 403.
Regarding Defendants’ hearsay concerns, Plaintiff represents in his opposition that he
intends only to testify as to personal knowledge and will introduce evidence in the form of
documents and witness testimony, not “third-party hearsay.” See ECF No. 318, at 3. Although
Plaintiff denies an intent to offer hearsay evidence, he also states that he may testify as to things
he “heard for himself” and things “told [to him] directly.” (ECF No. 318, at 3). I caution Plaintiff
that he may not introduce any hearsay statements (hearsay statements are those statements not
made during the trial) to prove the truth of the matter asserted in the statement, unless: 1) the
statement is an admission of one of the Defendants; 2) a hearsay exception applies; or 3) the
statement is otherwise admissible as non-hearsay under the Federal Rules of Evidence. Fed. R.
Evid. 801, 802, 803. Because the pending motions and responses do not identify the specific
out-of-court statements potentially at issue, I am unable to rule on the admissibility of particular
statements at this juncture.
The parties may raise more specific hearsay objections as
appropriate at trial.
Regarding the third category of evidence – evidence that Dr. Jin, PA Diggs, and/or CRNP
Antanovich are responsible for other providers at SCI-Greene – such evidence is admissible only
to the extent it is relevant to whether the Medical Defendants themselves acted with deliberate
indifference to Plaintiff’s serious medical needs. To be clear, Plaintiff may not introduce such
evidence to prove that the Medical Defendants are liable simply because they were responsible
for other medical providers who may have been indifferent to Plaintiff’s medical needs.
Respondeat superior liability does not apply in Section 1983 actions. See Atkinson v. Taylor,
316 F.3d 257, 270 (3d Cir. 2003); Freeman v. Northumberland County, Civil No. 3:10–CV–2502,
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2012 WL 715276, at *4 (E.D. Pa. Mar. 5, 2012) (“Civil rights claims brought cannot be premised
on a theory of respondeat superior. . . . Rather, each named defendant must be shown . . . to
have been personally involved in the events or occurrences which underlie a claim.” (internal
citations omitted)). Because the motion and response raise general principles rather than target
particular evidence, I am unable to make individual admissibility rulings at this juncture. The
parties may raise objections to specific evidence if and when necessary at trial.
For these reasons Motion in Limine No. 276 is GRANTED in part and DENIED in part as
set forth above.
3. Motion in Limine No. 279: Medical Defendants’ Motion to Preclude Plaintiff’s
Expert, William S. Zillweger, M.D. from Testifying
The Medical Defendants move in limine to preclude Plaintiff’s medical expert, William S.
Zillweger, M.D., from testifying at trial. (ECF No. 279). Defendants’ primary argument is that Dr.
Zillweger’s opinions are inadequate because they are based on whether the Medical Defendants
violated applicable “standards of care.” (ECF No 280, Br. in Supp.). Defendants argue that,
although a standard of care test may be relevant in state-law negligence actions, it does not apply
to or support an Eighth Amendment deliberate indifference claim. Id. The Medical Defendants
further argue that Dr. Zillweger insufficiently supports his opinions with conclusory allegations and
that he fails to show causation. Id.
After careful review, I find that the Medical Defendants’ arguments go to the weight of Dr.
Zillweger’s opinions and not to admissibility. Dr. Zillweger opines on each of the five medical
conditions remaining in this case and the treatment Plaintiff received therefor. (ECF 279-1).
Defendants are free to argue the points above to the jury in attempting to discredit Dr. Zillweger’s
testimony. The jury instructions will provide further guidance as to the applicable legal standards
required to prove deliberate indifference, and Defendants may request additional limiting
instructions if necessary to avoid confusion or otherwise. Defendants also may raise appropriate
objections if warranted during the course of Dr. Zillweger’s testimony at trial.
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For all of these reasons, the motion in limine to preclude Dr. Zillweger’s testimony (ECF
No. 279) is DENIED.1
4. Motion in Limine No. 281: Medical Defendants’ Motion to Preclude Punitive
Damages
Plaintiff’s Amended Complaint seeks punitive damages. (ECF No. 81). The Medical
Defendants have moved in limine to preclude Plaintiff’s request for punitive damages on the
grounds that there is no evidence of egregious conduct and/or a conscious intent by the Medical
Defendants to harm or injure Plaintiff. (ECF No. 281, ¶ 1). The United States Supreme Court
has held that “a jury may be permitted to assess punitive damages in an action under § 1983
when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it
involves reckless or callous indifference to the federally protected rights of others.” Smith v.
Wade, 461 U.S. 30, 56 (1983). Courts within this Circuit have routinely permitted punitive
damages claims to proceed to a jury in prisoner litigation, including Eighth Amendment cases
alleging deliberate indifference to medical needs. See Douglas v. Jin, Civil Action No. 11-350,
2014 WL 1117934, at *2-*3 (W.D. Pa. Mar. 20, 2014) (citing cases).
The Supreme Court has stated that, in Section 1983 cases, it is “fair to say that acting or
failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is the
equivalent of recklessly disregarding that risk.”
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Farmer v. Brennan, 511 U.S. 825, 836-37
In his opposition, Plaintiff responds to the “standard of care” argument in part by suggesting that his action
is based not only on deliberate indifference, but also on state tort (presumably medical malpractice and
negligence) claims. (ECF No. 318, at 4). Although the Amended Complaint vaguely alludes to
unspecified “state tort claims,” Plaintiff, in December 2012, voluntarily dismissed all of the claims in his
Amended Complaint, except for the deliberate indifference claims against the Medical Defendants and
Defendant Folino related to the lump in his chest; ringing in his ears; mask on face; knot in right testicle; and
failure to educate as to side effects of medication. See ECF No. 184 (court order clarifying the docket);
ECF No. 140 (Pl.’s Motion for Voluntary Dismissal). Moreover, as I ruled previously (see ECF No. 335),
even if I were to find that Plaintiff’s Motion for Voluntary Dismissal did not encompass Plaintiff’s alleged
medical malpractice claims against the Medical Defendants, such claims are nevertheless barred because
Plaintiff failed to file a valid certificate of merit along with his claims as required under Pennsylvania law.
See, e.g., Turner v. Lopez, Civil Action No. 3:13-872, 2013 WL 6448313, at *9-*10 (M.D. Pa. Dec. 9, 2013)
(citing cases holding that the “certificate of merit” requirement is a substantive rule of law that applies in
medical malpractice proceedings in federal court); Hodge v. Dep’t of Justice, 372 F. App’x 264, 267 (3d Cir.
2010) (affirming dismissal of pro se medical negligence claim for failure to file a certificate of merit); Pa. R.
Civ. P. 1042.3 (certificate of merit requirement).
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(1994); see also In re Bayside Prison Litig., 331 F. App’x 987, 992 n.8 (3d Cir. 2009). This Court
already has held in its Opinion and Order denying Defendants’ Motion for Summary Judgment
that Plaintiff has stated facts that, if proven, could demonstrate that Defendants were deliberately
indifferent to Plaintiff’s serious medical needs. (ECF Nos. 211-212). If Plaintiff succeeds in
proving his claim of deliberate indifference, which has been adequately alleged, then he may be
entitled to recover punitive damages based on Defendants' “reckless or callous indifference to his
federally protected rights.”
As a result, the Medical Defendants' motion in limine to preclude Plaintiff's request for
punitive damages is DENIED.
See Douglas, 2014 WL 1117934, at *2-*3 and cases cited
therein.2
5. Motion in Limine No. 285: Medical Defendants’ Motion to Preclude Claims Based
on Time-Barred Medical Treatment or Care Decisions
The Medical Defendants’ final motion in limine seeks to preclude evidence of any claims
barred by the two-year statute of limitations applicable to section 1983 deliberate indifference
claims. (ECF No. 285). The Medical Defendants submit that the relevant time period at issue is
the two-year period prior to the filing of Plaintiff’s Amended Complaint on July 31, 2012. Id. ¶ 6.
They argue, therefore, that any medical treatment or care decisions made prior to July 31, 2010,
are not at issue and cannot provide a basis for liability. Id. ¶¶ 9-10.
Although I agree that a two-year statute of limitations applies to Plaintiff’s deliberate
indifference claims, the motion in limine is denied to the extent it seeks reconsideration of issues
that the Medical Defendants raised, and this Court rejected, at the summary judgment stage of
this litigation.
In particular, Magistrate Judge Eddy held as follows in her Report and
2
The Medical Defendants further argue in their brief that the Prison Litigation Reform Act, 18 U.S.C. §
3636(a)(1)(A), does not permit punitive damages awards. (ECF No. 282, at 2). Although the Medical
Defendants cite two cases within this District in support of this argument, those cases are against the great
weight of the case law within this Circuit, and I decline to adopt a similar interpretation of the PLRA here.
See Douglas, 2014 WL 1117934, at *3 (rejecting this same argument and citing considerable authority
supporting the availability of punitive damages in Eighth Amendment deliberate indifference cases involving
prisoners).
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Recommendation denying Defendants’ Motion for Summary Judgment as adopted by this Court:
The Medical Defendants' . . . argument is not convincing. All of Plaintiff's
conditions, though apparently first “contracted” in 2007, continue to plague him,
and he avers he has been seeking treatment for these conditions from that time to
the present, but his requests continue to fall on deaf ears. The alleged deliberate
indifference occurs each time treatment is refused or the deliberate indifference is
otherwise made manifest. See Anders v. Bucks County, 2014 WL 1924114, *5, n.
9 (E.D.Pa. 2014) (“Because deliberate indifference is manifest when ‘prison
authorities deny reasonable requests for medical treatment ... and such denial
exposes the inmate to undue suffering or the threat of tangible residual injury,’ the
plaintiff has a cause of action for each time her requests for medical care were
denied.”) (citing Lanzaro, 834 F.2d at 346–47).
A section 1983 claim accrues when the plaintiff knows, or has reason to know, of
the injury on which the claim is based. See Montgomery v. DeSimone, 159 F.3d
120, 126 (3d Cir.1998). Plaintiff will often know of the refusal or delay of needed
medical treatment when it occurs (although the exact timing of any delay in
providing medical treatment may not present a bright line of demarcation). See
Green v. Philadelphia County Prisons, 2006 WL 2869527, *6 (E.D.Pa. 2006)
(“With the plaintiff's § 1983 Eighth Amendment cause of action, the injuries
accrued on the date(s) that Avella and Sowers displayed the deliberate
indifference to Mr. Green's medical needs. It was on those days that Mr. Green
should have known he was injured under the Eighth Amendment.”).
Plaintiff's claims of deliberate indifference to his serious medical needs, therefore,
encompass[] any manifestations of deliberate indifference made within two years
of filing his initial complaint, which was on March 29, 2010. . . . .
(ECF Nos. 211, 212).
This ruling makes clear that the operative date for calculating the
applicable limitations period is March 29, 2010, the date of filing of the original complaint.
The Medical Defendants’ current arguments in favor of instead counting back from the
date of the Amended Complaint – July 31, 2012 – are untimely and unconvincing. As an initial
matter, the Medical Defendants failed to raise this relation-back argument in their motion for
summary judgment over two years ago and have provided no explanation for such failure.3 The
Medical Defendants’ cursory treatment of this issue in their current briefs, including a lack of
meaningful legal citation or analysis, fails to provide an adequate basis on which to revisit the
3
In their Brief in Support of their Motion for Summary Judgment, the Medical Defendants argued that the
limitations period commenced two years prior to the filing of the original complaint. (ECF No. 199, at 6).
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Court’s prior rulings on this issue.4
Accordingly, Plaintiff’s actionable claims include any manifestations of deliberate
indifference made within two years of his filing the initial Complaint, i.e., on or after March 29,
2008.
Although claims based on incidents of deliberate indifference prior to that date are
time-barred, evidence predating the limitations period may be admissible if it is relevant to any of
Plaintiff’s timely claims. I will rule on objections to the admissibility of such evidence, if any, at
trial.
For these reasons Motion in Limine No. 285 is GRANTED in part and DENIED in part as
set forth above.
AND NOW, on this 16th day of November, 2015, IT IS SO ORDERED.
BY THE COURT:
/s/Donetta W. Ambrose_____
Donetta W. Ambrose,
U. S. Senior District Judge
4
The Medical Defendants appear to acknowledge weakness in their relation-back argument as it pertains
to Defendants Jin and Diggs, stating that the argument is “especially true” as to the claims against
Defendant Lucas/Antanovich because she was not a named Defendant in the original complaint. (ECF
No. 286, at 3). Again, however, even with respect to Lucas/Antanovich, the Medical Defendants fail to
support their conclusory statements with any meaningful legal citation or analysis.
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