DICANIO v. NORFOLK SOUTHERN RAILWAY COMPANY

Filing 91

ORDER OF COURT RE: PARTIES' REMAINING MOTIONS IN LIMINE: GRANTING 46 Defendant's Motion in Limine Regarding the Value of Medical and Other Fringe Benefits; GRANTING IN PART AND DENYING IN PART 50 Defendant's Motion in Limine to Exc lude Certain Testimony of Dr. Bernie Simons; and GRANTING 61 Plaintiff's Motions in Limine to Preclude Testimony or Evidence of Plaintiff's Rule G Violation and Subsequent Treatment and to Preclude Testimony or Evidence of the Public Law Board Decision and Related Appeal Documents. See Order for further details. Signed by Judge Arthur J. Schwab on 05/05/2015. (lcb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MARLA DICANIO,
Plaintiff,

14cv1273
ELECTRONICALLY FILED

v.
NORFOLK SOUTHERN RAILWAY
COMPANY,
Defendant.
ORDER OF COURT RE: PARTIES’ REMAINING MOTIONS IN LIMINE
(DOC. NOS. 46, 50, AND 61)
Presently before this Court are Motions in Limine filed by the Parties, in advance of the
upcoming jury trial, which is scheduled to begin on August 24, 2015. Doc. Nos. 46, 50, 61. The
issues have been fully briefed and are ripe for disposition. Doc. Nos. 47, 51, 62, 68-69, 71.
After consideration of these matters, including oral argument during the Preliminary Pretrial
Conference, the following Order is entered:
1. Defendant’s Motion in Limine Regarding the Value of Medical and Other Fringe Benefits
(Doc. No. 46) is GRANTED. In this Motion, Defendant moves this Court to exclude
evidence and testimony relating to the value of any lost medical and other fringe benefits
because damages should only be awarded for “out-of-pocket” costs. Plaintiff opposes
this Motion. Doc. No. 71, pg. 3. Plaintiff’s presentation of evidence as to her proposed
damages for medical and other fringe benefits shall be limited to actual “out-of-pocket”
losses. See Bradford v. UPMC, 2008 WL 191706, at *6 (W.D. Pa. Jan. 18,
2008)(McVerry, J.). Limiting Plaintiff’s potential recovery for medical and other
benefits to actual sums spent to obtain alternate coverage conforms with the purposes of

damages awards in employment discrimination cases, which is to make the aggrieved
party whole.;
2. Defendant’s Motion in Limine to Exclude Certain Testimony of Dr. Bernie Simons (Doc.
No. 50) is GRANTED IN PART AND DENIED IN PART. Defendant moves this
Court to find that Dr. Simons: (1) may only testify as a fact witness because he has not
filed an expert report pursuant to either Federal Rule of Civil Procedure 26(a)(2)(B) or
(a)(2)(C); (2) may not testify as to matters outside his personal knowledge or for which a
foundation of personal knowledge is not laid; (3) be excluded from testifying as to
Plaintiff’s diagnosis of Irritable Bowel Syndrome (“IBS”) and describing symptoms of
IBS in individuals other than Plaintiff; and (4) be excluded from testifying about
Plaintiff’s colonoscopy and polyps excision in August 2012 because these procedures do
not relate to IBS. Doc. No. 50.
In response to this Motion, Plaintiff contends that Dr. Simons’ proposed
testimony is proper because “his testimony is restricted to his treatment of Ms. DiCanio
and does not extend into the zone of expert testimony.” Doc. No. 71, pg. 1. Federal Rule
of Evidence 701 provides limitations for opinion testimony by a lay witness, including
that the testimony is “rationally based on the witness’s perception.” Dr. Simons may
testify, during trial, as to his treatment, examination, and diagnosis of Plaintiff, including
Plaintiff’s 2012 colonoscopy and polyps excision because these procedures have a
tendency to make a consequential fact more or less probable. Fed.R.Evid. 401.
However, Dr. Simons may not testify as to matters outside of his personal knowledge
because such testimony would constitute improper expert testimony. As noted during
the Preliminary Pretrial Conference, to the extent either party wishes to rely on Plaintiff’s
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diagnosis of IBS by Plaintiff’s gastroenterologist, Dr. Roseman, this evidence shall be
presented through Dr. Roseman’s direct testimony during trial or a videotaped
deposition.;
3. Plaintiff’s Motion in Limine to Preclude Testimony or Evidence of Plaintiff’s Rule G
Violation and Subsequent Treatment with Norfolk Southern’s Drug and Alcohol
Rehabilitation Services (“DARS”) (Doc. No. 61) is GRANTED. Plaintiff moves this
Court to preclude testimony or evidence of her prior work-related alcohol consumption
and subsequent treatment. Here, Plaintiff was punished for one action (alcohol
consumption), which included provisions for further drug and alcohol testing, and then
terminated for allegedly failing to submit to the required testing; this is not a situation
where an employee was warned of conduct and notified that similar conduct would cause
the employee to be subject to termination. As noted by the Court in its evidentiary
rulings, the key determination in this case is what happened after Plaintiff was informed
that she was subject to testing on July 8, 2012. Why Plaintiff was subject to testing does
not have a proper purpose because it could only be used to attempt to show that Plaintiff
has a past history of alcohol consumption during her employment, which would unduly
prejudice Plaintiff.
Defendant argues that this information is relevant to the determination of whether
Plaintiff was “otherwise qualified.” However, refusal to submit to a test, in and of itself,
renders an individual ineligible for duty and the jury may be informed of the same.
While Plaintiff’s prior Rule G may be relevant to why Plaintiff refused testing, that is not
what is at issue in this case. Rather, the jury’s inquiry must focus on Defendant’s actions
and whether it denied a reasonable accommodation in conjunction with the testing. The
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transcript of the September 17, 2012 formal investigation of Plaintiff’s alleged refusal to
test confirms this; the hearing officers and others present focused on the actions of
Plaintiff and her supervisors when she was informed of the testing, not why she was
subject to testing or her previous alcohol violation.
The Court finds that Defendant’s concerns about the effects of Plaintiff’s Rule G
violation on damages may be allayed by a post-trial motion, if the jury finds Defendant
liable. This is especially true where two of the three jury interrogatories on damages are
advisory. Therefore, Plaintiff’s past Rule G Violation and DARS treatment is both
irrelevant to the jury’s determination of liability and will not be admitted pursuant to
Federal Rule of Evidence 404(b).1;
4. Plaintiff’s Motion in Limine to Preclude Testimony or Evidence of the Public Law Board
Decision and Related Appeal Documents (Doc. No. 61) is GRANTED. The Court
recognizes that the United States Supreme Court has ruled that a labor board decision
may be admitted as evidence and afforded the weight a court deems appropriate.
Alexander v. Gardner-Denver Co., 415 U.S. 36, 60 (1974). However, in this case, the
Public Law Board’s decision that it “will not disturb the discipline assessed” is not
relevant to the ultimate issue because the decision of Public Law Board 7598 does not
address, and, as a result, would not have any impact on, the elements of a claim for denial
of rights under the Rehabilitation Act. D-22-D-25. Any findings contained within the
Board’s decision does not tend to make any fact of consequence more or less probable
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The Court is mindful of the need to apply the four-part test prescribed by the United States Court for the
Third Circuit in determining whether to admit evidence under Rule 404(b). U.S. v. Rahamin, 168
Fed.Appx. 512, 519 (3d Cir. 2006), citing U.S. v. Cruz, 326 F.3d 392, 395 (3d Cir. 2003). Because the
Court finds that the subject of Plaintiff’s Motion in Limine neither has a proper purpose nor is relevant,
the Court need not address the third or fourth part of the test.
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where the jury will be presented with competing versions of the facts of consequence
during the trial. Therefore, admitting evidence of this finding, which was: (1) based upon
an inadequate record with respect to Plaintiff’s claim and the underlying facts: (2) made
by arbitrators without special competence in regards to a Section 504 Rehabilitation Act
claim; and (3) based upon a different standard of review than the standard the jury will
employ, would be to allow irrelevant evidence to be presented to the jury. Fed.R.Evid.
402.; and
5. The trial scheduled to commence on August 24, 2015, will proceed in accordance with
these rulings.
SO ORDERED, this 5th day of May, 2015,
s/ Arthur J. Schwab
Arthur J. Schwab
United States District Judge

cc:

All Registered ECF Counsel and Parties

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