WILLIAMS v. CITY OF PITTSBURGH et al

Filing 150

ORDER granting 76 Motion in Limine; denying 78 Motion in Limine; granting in part and denying in part 80 Motion in Limine; granting in part and denying in part 82 Motion in Limine; granting 85 Motion in Limine; denying 87 Motion in Limine; granting 89 Motion in Limine. Signed by Judge Arthur J. Schwab on 3/31/2016. (lmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DAVID WILLIAMS,
Plaintiff,

15cv0402
ELECTRONICALLY FILED

v.
OFFICER ERIC BAKER, OFFICER
BRENDAN NEE, OFFICER NATHAN
AUVIL, and STEPHEN MATAKOVICH,
Defendants.
MEMORANDUM ORDER
RE: DEFENDANTS’ MOTIONS IN LIMINE (doc. nos. 76, 78, 80, 82, 85, 87, 89)
Plaintiff brought this civil rights lawsuit seeking damages for false arrest, false
imprisonment, and malicious prosecution. Presently before the Court are seven remaining
Motions in Limine filed by Defendants (doc. nos. 76, 78, 80, 82, 85, 87, 89)1, and ten Motions
in Limine filed by Plaintiff (doc. nos. 92, 93, 94, 95, 96, 97, 98, 99, 100, 101). Plaintiff has filed
Responses to Defendants’ Motions and Defendants have filed Responses to Plaintiff’s Motions.
The Court will address each of Defendants’ seven remaining Motions in Limine below
and will address Plaintiff’s ten Motions in Limine by way of a separate Memorandum Order:
DEFENDANTS’ SEVEN REMAINING MOTIONS IN LIMINE
1. Defendants’ Motion to Exclude Disciplinary and Complaint History
(Defendant’s Motion, doc. no. 76; Plaintiff’s Response, doc. no. 149)
Defendants anticipate that Plaintiff will want to ask the Defendant police officers if they
have ever been subject to discipline or other citizen complaints prior to the date of the event

Defendants’ Motion in Limine to Exclude Plaintiff’s Expert (doc no. 74) was granted by way of a
separate Memorandum Order of Court. See doc. no. 148.
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which is the subject of this lawsuit. Plaintiff filed a notice indicating that he did not wish to
contest this Motion. Doc. no. 149.
The issue(s) raised by this Motion are governed by F.R.E. 404(b). Specifically,
Defendants contend that it would be highly prejudicial if counsel for Plaintiff were to ask the
Defendants whether they had been disciplined or the subject(s) of citizens’ complaints prior to
the September 1, 2014 incident. The Court concurs with Defendant on this matter.
F.R.E. 404(b)(1) indicates that evidence of a crime or wrong or other act is not admissible
to demonstrate a person’s character and then prove that a person acted in accordance with that
character trait. None of the exceptions set forth in 404(b)(2) apply. The Court also notes that
Plaintiff does not contest this Motion.
For all of these reasons, the Court will grant the Defendants’ Motion in Limine (doc. no.
76).
2. Defendants’ Motion to Exclude Witnesses Patton, Terrana, and Monkelis
(Defendant’s Motion, doc. no. 78; Plaintiff’s Response, doc. no. 117)
In this Motion, Defendants argue that three witnesses listed by Plaintiff (Ryan Patton,
Christopher Terrana, and Jim Monkelis) have no “relevant first[-]hand knowledge of the events
surrounding Plaintiff’s arrest,” and suggest that their testimony is solely being used by Plaintiff
to proffer improper character testimony. Defendants therefore request that their testimony be
precluded. Plaintiff counters by arguing that within his claim for malicious prosecution, he seeks
an element of damage in the form of damage to his reputation.
The Court begins by noting that in Pennsylvania, in a malicious prosecution action,
compensatory damages may include harm to reputation, mental anguish, humiliation, and injury
to feelings. Wecht v. PG Pub. Co., 725 A.2d 788, 789 (Pa. Super. 1999), alloc. den., Wecht v.
P.G. Pub. Co., 743 A.2d 922 (1999). Pennsylvania case law does not require a plaintiff to
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present evidence of others’ loss of esteem for the plaintiff in order to prove damage to the
plaintiff’s reputation. See Joseph v. Scranton Times, L.P., 959 A.2d 322, 345 (2008) (holding in
a defamation case, the trial court did not commit error by awarding damage for harm to
reputation to the plaintiff which were based solely on the plaintiff’s and his families’ testimony);
Wilson v. Benjamin, 481 A.2d 328, 333 (1981) (the plaintiff in a defamation action may also
present testimony concerning his loss of reputation).
In the instant matter, Plaintiff will undoubtedly testify as to any alleged damage to his
own reputation. However, Plaintiff in this case also wants to offer evidence of damage to his
reputation through three specific community members: (1) Ryan Patton, who was Plaintiff’s
squad leader and platoon sergeant in Iraq; (2) Christopher Terrana, who was Plaintiff’s
supervisor at the Pennsylvania State Police; and (3) Jim Monkelis, a fellow state trooper.
Plaintiff contends that Messrs. Patton and Terrana will testify as to the nature of Plaintiff’s
reputation prior to his arrest on September 1, 2014, while Mr. Monkelis will testify as to
Plaintiff’s emotional state following his arrest.
Given the elements of damage available to Plaintiff in his malicious prosecution claim –
namely harm to reputation, mental anguish, humiliation, and injury to feelings – the Court finds
the testimony of each of these three individuals to be relevant under F.R.E. 401. Defendants’
objection to this testimony under F.R.E. 404 pertaining to impermissible character evidence is
overruled, again, given the elements of damage available to Plaintiff in his malicious prosecution
claim.
Accordingly, the Court will deny Defendants’ Motion in Limine (doc. no. 78) and will
allow each of the three witnesses to testify as follows: Messrs. Patton and Terrana may testify
as to Plaintiff’s reputation prior to his arrest on September 1, 2014. Mr. Monkelis may testify as

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to his own personal observations concerning Plaintiff’s emotional and physical state following
his arrest on September 1, 2014. However, Mr. Monkelis is precluded from offering any
psychological opinion regarding Plaintiff. He is not an expert witness and will not be permitted
to testify as such.
3. Defendants’ Motion to Exclude Exoneration Letter (Defendant’s Motion, doc.
no. 80; Plaintiff’s Response, doc. no. 112)
Defendants object to Plaintiff’s use of an “exoneration” letter dated November 19, 2014.
The Court has reviewed the Exhibit List (doc. no. 139) and the errata to the Exhibit List filed at
doc. no. 144. The Court notes that Plaintiff has not listed this “exoneration” letter dated
November 19, 2014 on the Exhibit List, but presumably, based on his Response to Defendant’s
Motion which indicates that he had placed it on the Exhibit List, this was an oversight, and he
wants to present the letter to the jury.2
The document at issue is an internal department correspondence from Captain Stephen K.
Eberly, the commanding officer of Troop A, Greensburg, Pennsylvania State Police, to Trooper
David Williams at Western Interdiction Unit of the Bureau of Criminal Investigation for the
Pennsylvania State Police. This correspondence notes that an administrative investigation
surrounding Plaintiff’s September 1, 2014 arrest was conducted by Corporal Maitland. The
correspondence states, inter alia, that after reviewing the investigative report and the surveillance
video footage of the event, the various violations of “Title 18 [were] unfounded.”

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The Court will order the Parties to file a Second Amended Exhibit List by April 4, 2016, with updated
Trial Exhibit notebooks. The Second Amended Exhibit List must eliminate any document(s) that are
excluded from evidence based upon this Order. The Second Amended Exhibit List should also contain the
specific objection (if any) remaining to a specific exhibit and the response to that objection by the
opposing party. It is insufficient from this Court’s perspective to merely state that a party “disputes” an
exhibit, which forces the Court to guess as to the nature of the objection and the response to said
objection.

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Plaintiff argues that this document is being offered to establish: (1) how Plaintiff became
aware that the Pennsylvania State Police investigation against him had concluded, and (2) that
Plaintiff would be permitted to resume his full duties with the Pennsylvania State Police.
Plaintiff claims that if the letter is excluded and he is only allowed to testify that the investigation
concluded in his favor, Plaintiff will be “highly prejudiced” because the jury will be likely to
draw “negative . . . unfounded inferences” against Plaintiff.
This Court acknowledges that portions of the letter are relevant. Accordingly, this matter
is governed by F.R.E. 403, where this Court must determine whether its probative value is
outweighed by the prejudice it may cause. The Court finds that most of the letter is not only
relevant but probative of the fact that an administrative investigation was conducted by the
Pennsylvania State Police into the charges that were brought against Plaintiff by Defendants.
However, paragraph number “2” is more prejudicial than probative and must be redacted, should
Plaintiff want to use the entire document. The Court also notes that Capt. Eberly is not listed as
a witness on either party’s witness list, and the opinions expressed by Capt. Eberly in paragraph
“2” are inadmissible.
Accordingly, the Court will grant in part and deny in part Defendants’ Motion in
Limine (doc. no. 80) to Exclude the Exoneration Letter as follows:
The Motion in limine is granted to the extent that paragraph “2” must be redacted if the
document is offered into evidence. The Motion in limine is also granted to bar Capt. Eberly – or
anyone else – from testifying as to the opinions set forth in paragraph “2.”
On the other hand, the Motion is denied to the extent that Plaintiff may offer the redacted
document into evidence as indicated above, and he, or Mr. Eberly, or any other witness with
first-hand knowledge on the parties’ witness lists, may testify that: (1) the Pennsylvania State

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Police conducted an administrative investigation relating to the charges brought by Defendants
against Plaintiff arising out of the September 1, 2014 incident; and (2) when the investigator
concluded his investigation, he issued a report dated November 19, 2014, which indicated that
his investigation was complete, and that “no further action [would] be taken” against Plaintiff.
4. Defendants’ Motion to Preclude any Argument that [Plaintiff’s] Arrest will
Affect [His] Ability to Testify [as a Pennsylvania State Trooper] (Defendants’
Motion, doc. no. 82; Plaintiff’s Response, doc. no. 123)
Defendants filed this Motion in Limine attempting to preclude Plaintiff from arguing that
he will be unable to testify as a police officer in future legal cases due to his arrest on September
1, 2014. Plaintiff claims that Defendants’ concern mischaracterizes the nature of the testimony
Plaintiff will adduce at trial. Plaintiff claims that every time he is required to testify in a criminal
prosecution, he will need to disclose his September 1, 2014 arrest and felony charges to the
prosecutor or expose himself to “an ambush” during cross-examination.
The Court will grant in part and deny in part Defendants’ Motion in Limine (doc. no.
82) to Exclude any Argument that Arrest will Affect Ability to Testify as follows:
The Motion will be granted to the extent that Plaintiff attempts to argue that he will be
precluded from testifying in future legal cases due to his arrest on September 1, 2014. However,
the Motion will be denied to the extent that Plaintiff will be allowed to use this testimony (i.e.,
having to disclose his September 1, 2014 arrest to the prosecution and (possibly) juries in
criminal cases) to prove the damage elements of harm to reputation, mental anguish, humiliation,
and injury to feelings in his malicious prosecution claim.
5. Defendants’ Motion to Exclude Text Messages (Defendants’ Motion, doc. no. 85;
Plaintiff’s Response, doc. no. 149)
Defendants filed this Motion indicating that they objected to Plaintiff’s use of “text
messages of Brendan Nee,” indicating that these text messages were set forth on Plaintiff’s
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Exhibit List. Again, as noted above, the Exhibit List provided to the Court at doc. no. 139 and
the Errata to the Exhibit List contain no such exhibit(s), and thus, the Court concludes that this
may have been yet another oversight on the part of Plaintiff. However, the Court notes that
Plaintiff filed a Notice indicating that he did not contest this particular Motion in Limine. As
noted, in light of this and other discrepancies between the Motions in Limine and the Exhibit
List, the Court will be ordering the Parties to file a Second Amended Exhibit List. See fn. 2,
above.
To close this particular issue – whether the text messages of Brendan Nee are admissible
– the Court finds that this evidence will not be permitted at trial. As explained by Defendants,
these messages relate to: (1) an inquiry made by Defendant Nee (of the City of Pittsburgh Police
Department), as to whether “an OMI investigation” was conducted regarding Plaintiff’s arrest;
(2) the instant lawsuit; and (3) Plaintiff’s absence from Defendant Nee’s deposition. Without
seeing the text message documents first-hand (they were not attached to the Motion or Brief in
Support of the Motion), the Court defers to the Defendants’ assertion (and Plaintiff’s “no
contest” Response) that these documents are not relevant under F.R.E. 401 and/or more
prejudicial than probative under F.R.E. 403.
Accordingly, the Court will grant this Motion in Limine (doc. no. 85).
6. Defendants’ Motion to Exclude Media Reports (Defendants’ Motion, doc. no. 87;
Plaintiff’s Response, doc. no. 120)
Defendants seek to exclude fifteen news articles that Plaintiff listed on his Pretrial
statement relating to the September 1, 2014 incident. These documents are listed on the Exhibit
List as “P-3” through “P-17”. Defendants claim these articles are precluded by: (1) F.R.E. 403
as being unfairly prejudicial, (2) F.R.E. 901 for lack of authentication, and (3) F.R.E. 801 as
hearsay. Defendants also argue that the fifteen articles (exhibit nos. P-3 through P-17) should be
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excluded as unnecessarily cumulative evidence. Plaintiff counters that these same articles are
relevant because they support his burden of proving harm to his reputation and (possibly) his
other elements of damage.
The Court finds that these articles are admissible under F.R.E. 403. Their probative value
with regard to alleged harm to Plaintiff’s reputation outweighs any prejudice. These documents
are not hearsay, as they are not being offered for the truth of their contents – they are being
offered to show that Plaintiff was mentioned in, or was the subject of, fifteen news articles
concerning the incident that took place on September 1, 2014. The fact that information was
published – whether that information was true or not true – purportedly caused harm to
Plaintiff’s reputation and purportedly caused him to suffer mental anguish, humiliation, and
injury to feelings.
For these reasons, the Court will deny Defendants’ Motion in Limine (doc. no. 87) to
Exclude Media Reports. These reports, however, may be offered solely for the purpose of
showing that news articles were published about the September 1, 2104 incident, which, in turn,
may have caused Plaintiff damage. These reports may not be offered to prove the truth of the
matters asserted therein. A limiting jury instruction as to this evidence may be necessary. The
Court will consider issuing such a jury instruction upon the proffer of (some or all) Exhibits
numbered P-3 through P-17. If any Party believes he needs a limiting instruction, said proposed
instruction should be filed with the Court by April 4, 2016, after consultation with opposing
counsel.
7. Defendants’ Motion to Exclude Matakovich Arrest and Termination
(Defendants’ Motion, doc. no. 89; Plaintiff’s Response, doc. no. 109)
Defendants seek to preclude any evidence pertaining to the recent arrest and termination of
Defendant Matakovich pursuant to F.R.E. 404(b), 608 and 609. Plaintiff counters that
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Defendant Matakovich was the “mastermind behind the scheme to file false criminal charges”
against Plaintiff. Notably, Plaintiff provided excerpts from Defendant Matakovich’s deposition
testimony which tend to show that Defendant Matakovich orchestrated the events that led to the
allegedly false charges. Plaintiff argues that this case is “virtually identical” to the “most recent
incident involving Defendant Matakovich which led to his arrest and termination, and thus
claims his arrest and termination are admissible under F.R.E. 404(b)(2). The Court disagrees
with Plaintiff.
The Court finds the evidence of Defendant Matakovich’s recent arrest and termination far
more prejudicial than probative. Incidentally, this Court does not agree that the facts of this case
and/or the involvement of Defendant Matakovich in this case are akin to the facts of the case or
Matakovich’s involvement in the case which caused him to be arrested and terminated from the
Pittsburgh Police Department.
Accordingly, this Court will grant Defendants’ Motion in Limine (doc. no. 89) to Exclude
Defendant Matakovich’s Arrest and Termination.

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ORDER
1. Defendants’ Motion in Limine to Exclude Disciplinary and Complaint History (doc. no.
76), is GRANTED.
2. Defendants’ Motion in Limine to Exclude Witnesses Patton, Terrana, and Monkelis (doc.
no. 78), is DENIED.
3. Defendants’ Motion in Limine to Exclude Exoneration Letter (doc. no. 80), is
GRANTED IN PART AND DENIED IN PART as described in detail above.
4. Defendants’ Motion in Limine to Preclude any Argument that [Plaintiff’s] Arrest will
Affect [His] Ability to Testify [as a Pennsylvania State Trooper] (doc no. 82), is
GRANTED IN PART AND DENIED IN PART as described in detail above.
5. Defendants’ Motion in Limine to Exclude Text Messages (doc. no. 85) is GRANTED.
6. Defendants’ Motion in Limine to Exclude Media Reports [Plaintiff’s exhibits numbered
P-3 through P-17] (doc. no. 87) is DENIED.
7. Defendants’ Motion in Limine to Exclude Matakovich Arrest and Termination (doc. no.
89) is GRANTED.

SO ORDERED, this 31st day of March,
s/ Arthur J. Schwab
Arthur J. Schwab
United States District Judge

cc:

ECF registered counsel of record

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