T.B. v. NEW KENSINGTON-ARNOLD SCHOOL DISTRICT

Filing 91

MEMORANDUM ORDER GRANTING IN PART AND DENYING IN PART re 72 MOTION in Limine to Exclude Evidence of Alleged Facebook Post filed by NEW KENSINGTON-ARNOLD SCHOOL DISTRICT, 74 MOTION in Limine to Exclude Evidence that Contradicts Guilty Plea filed by NEW KENSINGTON-ARNOLD SCHOOL DISTRICT, 76 MOTION in Limine to Exclude Testimony of Michele R. Konopisos filed by NEW KENSINGTON-ARNOLD SCHOOL DISTRICT, 70 MOTION in Limine TO EXCLUDE TESTIMONY OR EVIDE NCE OF PLAINTIFFS MOTHERS VERBAL ALTERCATION WITH TEACHER filed by T.B., 69 MOTION in Limine TO RECOGNIZE WITNESSES AS ADVERSE AND EXAMINE AS IF ON CROSS EXAMINATION filed by T.B., 71 MOTION in Limine TO EXCLUDE VIDEO OF BUS STOP INCIDENT AND FIGHT filed by T.B. Signed by Magistrate Judge Cynthia Reed Eddy on 7/5/2017. (ajt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PITTSBURGH
T.B., A MINOR, BY HER NEXT FRIEND
AND PARENT, T.B.;
Plaintiff,
vs.
NEW KENSINGTON-ARNOLD SCHOOL
DISTRICT,
Defendant,

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2:15-CV-00606-CRE

MEMORANDUM ORDER
CYNTHIA REED EDDY, United States Magistrate Judge.
AND NOW, this 5th day of July, 2017, the following came before the court for
consideration:
(1) Plaintiff’s motion in limine to recognize witnesses as adverse and examine as if on
cross examination [ECF No. 69];
(2) Plaintiff’s motion in limine to exclude testimony or evidence of Plaintiff’s mother’s
verbal altercation with teacher [ECF No. 70];
(3) Plaintiff’s motion in limine to exclude video of bus stop incident and fight [ECF No.
71];
(4) Defendant’s motion in limine to exclude evidence of alleged Facebook post [ECF No.
72];
(5) Defendant’s motion in limine to exclude evidence that contradicts guilty plea [ECF
No. 74]; and
(6) Defendant’s motion in limine to exclude testimony of Michele R. Konopisos [ECF
No. 76].
The motions are fully briefed and ripe for disposition. Each motion will be addressed
seriatim.

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1. Plaintiff’s motion in limine to recognize witnesses as adverse and examine as if on
cross examination [ECF No. 69]
Plaintiff’s motion in limine to recognize witnesses as adverse and examine as if on cross
examination is GRANTED. Plaintiff’s motion is unopposed. Plaintiff may call School District
personnel in her case in chief and recognize such witnesses as adverse witnesses and use leading
questions as if on cross-examination. The scope of the examinations shall be confined to the
witnesses’ knowledge of District policies and procedures concerning bullying and sexual
harassment and their role in implementing and enforcing such policies and procedures.
Defendant may examine these witnesses during Plaintiff’s case in chief as if calling the witness
during the Defendant’s case in chief. Plaintiff may then re-direct the witness as if on crossexamination in Defendant’s case in chief relating to the subject matter of the testimony
developed by defense counsel on direct.

Any further questioning will be subject to the

undersigned’s discretion at trial.
2. Plaintiff’s motion in limine to exclude testimony or evidence of Plaintiff’s mother’s
verbal altercation with teacher [ECF No. 70]
Plaintiff’s motion in limine to exclude testimony or evidence of Plaintiff’s mother’s
verbal altercation with teacher is GRANTED.

Any testimony or evidence relating to the

altercation between Ms. LaCava and Plaintiff’s mother at the local convenience store is excluded
as it is not probative of or relevant to proving or disproving any element of Plaintiff’s alleged
Title IX violation under Federal Rule of Evidence (“F.R.E”) 401 and 403. However, this order
does not preclude any testimony or evidence relating to any parent-teacher conference between
Plaintiff’s mother and Ms. LaCava, as such evidence or testimony is relevant in determining
whether the School District acted with deliberate indifference.
3. Plaintiff’s motion in limine to exclude video of bus stop incident and fight [ECF No.
71]
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Plaintiff’s motion in limine to exclude video of bus stop incident and fight is GRANTED
IN PART. Defendant may not use the video of the bus stop incident and fight as it is unfairly
prejudicial to the Plaintiff under F.R.E. 403 and has the potential of confusing the jury in making
their determination of whether Plaintiff was subjected to peer-on-peer sexual harassment in
violation of Title IX. Defendant may, however, use the video for impeachment purposes, subject
to the court’s discretion and any renewed objection at trial.
4. Defendant’s motion in limine to exclude evidence of alleged Facebook post [ECF No.
72]
Defendant’s motion in limine to exclude evidence of alleged Facebook post is DENIED.
The statements made in the Facebook post are not hearsay under F.R.E. 801, as the statements
are not asserted for their truth, but rather are evidence of Plaintiff’s harassment.

Further,

testimony concerning this Facebook post is relevant under F.R.E. 401 as it tends to prove that
Plaintiff was harassed by her peers. Defendant’s argument that the Facebook post could not have
been created during the school day because students cannot access Facebook on the district’s
server is unconvincing, as students have the ability to access Facebook and other social media
sites through their personal electronic devices during the school day, regardless of whether the
School District blocks such access on its servers.

Further, there is evidence that students

harassed Plaintiff with regards to this Facebook post while Plaintiff was in school, and that
students spread rumors of the Facebook post during school hours, thus it is relevant to show
peer-to-peer harassment within the purview of Title IX. Defendant’s argument that it did not
have the authority to rectify out of school behavior by punishing the student who created the
Facebook post is not at issue here. Any confusion regarding the School District’s obligations to
address sexual harassment will be resolved by an appropriate jury instruction.

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5. Defendant’s motion in limine to exclude evidence that contradicts guilty plea [ECF
No. 74]
Defendant’s motion in limine to exclude evidence that contradicts guilty plea is
DENIED.

To the extent that Defendant seeks to offer evidence of Plaintiff’s juvenile

adjudication for impeachment purposes, Defendant is precluded from doing so under F.R.E.
609(d). See Powell v. Levit, 640 F.2d 239, 241 (9th Cir.1981) (“The trial court has no discretion
to admit [juvenile adjudication] evidence in a civil proceeding.”); see also 28 C. Wright, A.
Miller & E. Cooper, Federal Practice and Procedure § 6138 (2008) (“[T]he legislative history of
subdivision (d) clearly reflects the intent of Congress to permit exceptions only in criminal
cases.”).
6. Defendant’s motion in limine to exclude testimony of Michele R. Konopisos [ECF
No. 76]
Defendant’s motion in limine to exclude the testimony of Michele R. Konopisos is
DENIED without prejudice as moot. Plaintiff indicated in her response that she does not intend
to call Ms. Konopisos at a witness in her case-in-chief. Should Plaintiff attempt to call Michele
R. Konopisos as a witness, Defendant may renew its objection at that time.

So ordered.

DATED this 5th day of July, 2017.

BY THE COURT:
s/Cynthia Reed Eddy
United States Magistrate Judge

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