TALLEY v. GILMORE et al

Filing 220

MEMORANDUM ORDER, indicating that, for reasons more fully stated within, 169 Defendants' motion in limine to preclude award of compensatory damages is granted; 170 Defendants' motion in limine to preclude any evidence of the Disabili ty Rights Network Settlement Agreement and the Testimony of Angus Love and Alexandra Morgan-Kurtz is granted; 171 Defendants' motion in limine to preclude testimony of Department of Corrections Secretary John Wetzel is granted; 172 Defendant s' motion in limine to allow testimony and evidence of Plaintiff's misconducts is granted; 173 Plaintiff's motion to exclude purported expert opinions of Jason G. Roof, M.D., is granted; 175 Plaintiff's motion in limine to ex clude mental health records is denied; 177 Defendants' motion to preclude testimony of Major Curtis Grice and Lt. Matthew Luciano is granted; 178 Plaintiff's motion in limine to exclude evidence of other crimes, wrongs, or other acts is granted in part and denied in part; 180 Plaintiff's motion in limine to exclude undisclosed expert testimony is denied, as there is no undisclosed expert testimony; 182 Plaintiff's motion in limine to exclude evidence regarding Pla intiff's other lawsuits and complaints is granted as unopposed; 184 Defendants' motion in limine to preclude the trial testimony of Plaintiff's expert Harry Krop, Ph.D. Motion in Limine is granted; 186 Defendants motion in limine to preclude punitive damages is denied; and 190 Defendants' motion in limine to preclude any evidence of the Department of Justice Investigation is granted. See Memorandum Order for details. Signed by Chief Magistrate Judge Cynthia Reed Eddy on 11/7/2019. (bsc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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QUINTEZ TALLEY,
Plaintiff,
vs.
J. BURT, ANKRAM, and WETTGEN,
Defendants.

2:16-cv-01318
Chief United States Magistrate Judge
Cynthia Reed Eddy

MEMORANDUM ORDER
AND NOW, this 7th day of November, 2019, presently for consideration before the Court
are the following:
(1) The parties’ cross-motions in limine to exclude each other’s expert witnesses (ECF
Nos. 173 and 184);
(2) Plaintiff’s motion in limine to exclude mental health records (ECF No. 175);
(3) Plaintiff’s motion in limine to exclude evidence of other crimes, wrongs, or other acts
(ECF No. 178);
(4) Plaintiff’s motion in limine to exclude undisclosed expert testimony (ECF No. 180);
(5) Plaintiff’s motion in limine to exclude evidence regarding Plaintiff’s other lawsuits and
complaints (ECF No. 182);
(6) Defendants’ motion in limine to preclude award of compensatory damages (ECF No.
169);
(7) Defendants’ motion in limine to preclude any evidence of the Disability Rights
Network Settlement Agreement and the Testimony of Angus Love and Alexandra
Morgan-Kurtz (ECF No. 170);

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(8) Defendants’ motion in limine to preclude testimony of Department of Corrections
Secretary John Wetzel (ECF No. 171);
(9) Defendants’ motion in limine to allow testimony and evidence of Plaintiff’s
misconducts (ECF No. 172);
(10)

Defendants’ motion to preclude testimony of Major Curtis Grice and Lt. Matthew

Luciano (ECF No. 177);
(11)

Defendants’ motion in limine to preclude punitive damages (ECF No. 186); and

(12)

Defendants’ motion in limine to preclude any evidence of the Department of Justice

Investigation (ECF No. 190).
The motions are fully briefed and ripe for disposition. Each motion will be address in seriatim.
1. Plaintiff’s motion in limine to exclude purported expert opinions of Jason Roof, M.D.
(ECF No. 173) and Defendants’ motion in limine to preclude the trial testimony of
Plaintiff’s expert Harry Krop, Ph.D. (ECF No. 184).
The parties have filed cross-motions in limine to exclude each other’s expert witnesses.
Under Federal Rule of Evidence 702, courts must allow expert testimony when “(1) the testimony
is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods reliably to the facts of the
case.” These requirements are often referred to in shorthand as “qualification, reliability, and fit.”
See, e.g., In re Unisys Sav. Plan Litig., 173 F.3d 145, 156 (3d Cir.1999). Under the rule announced
in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469
(1993) and expanded in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), district courts must
ensure that experts—scientific and otherwise—will offer testimony that is methodologically sound
and relevant to the facts of the case before admitting their expert testimony. Daubert, 509 U.S. at
590–91; Kumho, 526 U.S. at 149.

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After reviewing the expert reports and the arguments of counsel, the Court finds that it is
clear from the reports that the testimony of the proposed experts are not relevant and, therefore,
will not be helpful to resolving this case.
Defendants seek to preclude the testimony of Plaintiff’s expert, Harry Krop, Ph.D., who
opines “regarding the differential diagnosis of Plaintiff’s mental health conditions, ” ECF No. 199
at 2, and as to what Plaintiff’s mental health diagnosis should have been in 2015, based on an
evaluation of Plaintiff conducted on May 17, 2019. The Court agrees with Defendants that such
an opinion is not relevant, is speculative and confuses the issue involved in the case. The only
issue for the jury to consider is whether or not Defendants retaliated against Plaintiff by adjusting
his stability code after Plaintiff filed a grievance. There is no allegation that Defendants in this
case incorrectly diagnosed Plaintiff or failed to provide Plaintiff with proper treatment. Allowing
Dr. Krop to opine as to Plaintiff’s diagnosis runs the danger of misleading the jury, confusing the
issues, and undue delay pursuant to Fed. R. Evid. 403.
Similarly, Plaintiff seeks to preclude the testimony of Defendants’ expert, Jason Roof,
M.D., who opines based on his review of Plaintiff’s medical records that Plaintiff did not suffer
from a mental illness as defined by the DOC Mental Health Policy and thus did not met the criteria
for D-Code inmates. However, as the Court of Appeals for the Third Circuit has recently stated,
“[w]hat is good for the goose is good for the gander.” Shifflett v. Korszniak, 934 F.3d 356, 367
(3d Cir. 2019). Again, this case does not involve a question of whether or not Plaintiff was
misdiagnosed or whether or not Plaintiff received appropriate mental health care. This only issue
for the jury is whether or not Defendants retaliated against Plaintiff by adjusting his stability code
after he filed a grievance. Dr. Roof’s proffered testimony suffers from the same infirmities as that
of Dr. Krop’s proffered testimony. To allow Dr. Roof to opine as to whether or not Plaintiff

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warranted a D Stability Code runs the danger of misleading the jury, confusing the issues and
undue delay pursuant to Fed. R. Evid. 403.
For all these reasons, the parties’ cross-motions in limine to exclude each other’s expert
witnesses are GRANTED.
2. Plaintiff’s motion in limine to exclude mental health records (ECF No. 175).
Plaintiff requests that the Court exclude all of Plaintiff’s mental health records pre-dating May
13, 2015 as being irrelevant and unduly prejudicial and all his mental health records post-dated
May 13, 2015 as being irrelevant. Plaintiff also argues that his mental health records are subject
to the psychotherapist-patient privilege. Finally, Plaintiff asserts that the records should be
excluded for not being produced during discovery.
Defendants respond that Plaintiff put his mental health at issue by claiming that he was
seriously mentally ill and therefore should not have been reclassified as a C stability code and that
such reclassification was retaliatory. Defendants also agree that they will be offering limited
testimony of the records that are dated “soon after May13, 2015,” including Dr. Hylbert’s note on
May 28, 2015, that Plaintiff should remain on C code. (ECF No. 192, p. 1). They also argue that
such evidence is highly relevant to Plaintiff’s claim that his stability code change was improper.
They argue that the records are not unfairly prejudicial and that Plaintiff waived any privilege he
may have in his mental health records by putting his mental health stability code at issue in this
case and by filing certain of those records on the docket of this case. They also assert that the
mental health records were provided to the Plaintiff once counsel was appointed to represent him.
The Court agrees with Defendants. Plaintiff’s mental health was put at issue in this case.
Defendants’ defense in this case is that the stability code change was not retaliatory but was based
on Plaintiff’s mental health which is reflected in his mental health records. The mental health

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records prior to May 13, 2015 and closely thereafter are therefore relevant to the case. While Fed.
R. Evid. 403 allows the court to exclude relevant evidence that is unfairly prejudicial, these records
are not unfairly prejudicial as they go directly to the issue in this case. Plaintiff’s psychotherapistpatient privilege is waived as Plaintiff placed his mental health at issue and personally filed
portions of his mental health records on the docket. Finally, the mental health records were
produced to Plaintiff’s counsel in accordance with the Court’s order.
Plaintiff’s motion to exclude mental health records is DENIED.
3. Plaintiff’s motion in limine to exclude evidence of other crimes, wrongs, or other acts
(ECF No. 178).
Plaintiff seeks to exclude evidence of other crimes, wrongs, or other acts pursuant to Fed.
R. Evid. 404(b)(2). Plaintiff argues that his institutional misconducts and prior convictions
have no bearing on the issue before the Court and that his misconducts pose a high risk of
unfair prejudice and substantially outweigh any probative value. Defendants agree that they
will not present any evidence of Plaintiff’s convictions, sentences, or length of incarceration
as they are not relevant; however, they argue that Plaintiff’s misconduct charges are relevant
as they provide evidence of the motive for Plaintiff’s outbursts to try to convince mental health
practitioners and staff members that he is seriously mentally ill. (ECF No. 193, p. 2). If
Plaintiff is found to be seriously mentally ill, the type of restrictive housing he can be placed
in is restricted compared to inmates who are not seriously mentally ill and he could avoid being
placed in the RHU if found to be seriously mentally ill. They argue that the evidence is not
offered as character evidence pursuant to Fed. R. Evid. 404 or 405, but rather would be offered
as motive evidence for Plaintiff to “fake[] a serious mental illness.” Id. at 3.
Fed. R. Evid. 404(b) prohibits the use of a crime, wrong, or other act to prove a person’s
character. Fed. R. Evid. 405 provides methods of proving character. Defendants are not
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offering Plaintiff’s misconduct as evidence of Plaintiff’s character, but as evidence of an
explanation of Plaintiff’s actions that could otherwise be construed as serious mental illness.
Defendants considered Plaintiff to be “malingering” or “faking” certain symptoms of serious
mental illness. The misconducts are relevant to Defendants’ defense of this case. While the
evidence may be prejudicial under Rule 403, it is not unduly prejudicial. It has a proper
evidentiary purpose under Rule 404(b) and is of such probative value as to outweigh prejudice
to Plaintiff. See United States v. Smith, 725 F.3d 340 (3d Cir. 2013)(citing Huddleston v.
United States, 485 U.S. 681 (1988)).
Plaintiff’s motion in limine to exclude evidence of other crimes, wrongs, or other acts is
GRANTED in part and DENIED in part. Any evidence of Plaintiff’s prior convictions,
sentences, or length of incarceration is excluded from evidence. Any misconducts relied upon
by Defendants in making the determination of whether Plaintiff was seriously mental ill up
until May 14, 2015 is admissible. Plaintiff may submit a proposed limiting jury instruction.
4.

Plaintiff’s motion in limine to exclude undisclosed expert testimony (ECF No. 180).
Plaintiff seeks to exclude any undisclosed expert testimony such as testimony from

Plaintiff’s treating physicians. Defendants respond there is no undisclosed expert testimony.
Defendants’ expert’s report has been disclosed to Plaintiff. . (ECF No. 191, p. 1). Defendants
also assert that Plaintiff’s treating physicians, mental health providers and the Defendants
themselves will be primarily called as fact witnesses to testify about Plaintiff’s mental health
treatment.
To the extent that Plaintiff is arguing that such facts witnesses should not be allowed to
provide an opinion as to Plaintiff’s mental health status, Fed. R. Evid. 701 allows a lay witness
“with firsthand knowledge” to offer “ an opinion akin to expert testimony in most cases, so

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long as the trial judge determines that the witness possess sufficient and relevant specialized
knowledge or experience to offer the opinion.” Wilburn v. Maritrans GP, Inc., 139 F.3d 350,
356 (3rd Cir. 1998); Walker v. Mankey, No. 14-1504 (W.D. Pa. 2018)(M.J. Lenihan) at ECF
No. 344). Plaintiff is challenging the reason that Defendants changed his stability code and
Defendants can testify as to the reasons for their determination/opinion that the stability code
was changed. These witnesses will not be asked to answer hypothetical questions, but will be
given an opportunity to testify to the reasons for their actions in changing Plaintiff’s stability
code.
Plaintiff’s motion in limine to exclude undisclosed expert testimony is DENIED, as there
is no undisclosed expert testimony.
5. Plaintiff’s motion in limine to exclude evidence regarding Plaintiff’s other lawsuits and
complaints (ECF No. 182).
GRANTED, as unopposed. (ECF No. 189).
6. Defendants’ motion in limine to preclude award of compensatory damages (ECF No. 169).
Defendants seek to preclude an award of compensatory damages arguing that Plaintiff
has not suffered any physical damages by reason of the reclassification of his mental stability
code, but “[r]ather the only injury he suffered was the mental or emotional harm allegedly
caused by the loss of certain privileges to inmates who have a D mental health stability code
that may not be available to inmates who have a C mental health stability code.” (ECF No.
169, at 2).
Plaintiff responds that “he is seeking compensatory damages for calculable and
ascertainable loss of D-Code privileges as a result of the Defendants violating his First
Amendment rights - not just emotional or mental harm.” (ECF No. 196 at 4). Specifically,
Plaintiff argues that he is entitled to $75,000 in compensatory damages jointly and severally
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against the three defendants because,
[w]hen Defendants abruptly changed Mr. Talley’s stability code from D-Code to a
C-Code, he was stripped of his right to 20 hours of out-of-cell time per week, and
received only 5 hours of out-of-cell time per week for the 89-week period that he
remained at SCI-Greene. At approximately $56 per hour for each of the 15 hours
per week that he was deprived of out-of-cell time, Mr. Talley is entitled to $75,000
in compensatory damages.
Pl’s Pretrial Statement, at 7-8 (ECF No. 155). In support of his position, Plaintiff cites two
Ninth Circuit cases, an Eighth Circuit case, an Eleventh Circuit Case, and an Eastern District
of Pennsylvania case, Castle v. Clymer, 15 F. Supp. 640 (E.D. Pa. 1988),1 none of which are
binding on this Court.
The

Prison

Litigation

Reform

Act

(“PLRA”)

expressly

provides

that

“[n]o Federal civil action may be brought by a prisoner confined in jail, prison, or other
correction facility, for mental or emotional injury suffered while in custody without a prior
showing of physical injury[.]” 42 U.S.C. § 1997e(e). The Court of Appeals for the Third
Circuit has not ruled upon the narrow issue of whether an award of damages for mental harm
- as opposed to whether a claim can be brought - is precluded absent a jury finding of physical
injury. While it is clear that within the Third Circuit, under the PLRA, a prisoner must suffer
a physical injury to bring a claim based solely upon mental or emotional injury, Mitchell v.
Horn, 318 F.3d 523 (3d Cir. 2003),
[i]t is not entirely clear that Section 1997e(e) precludes an award of damages for
The Court finds that Plaintiff’s reliance on these five cases is misplaced. Importantly none
of the decisions discuss the applicability of the PLRA as to compensatory damages. Further, it
does not appear that the plaintiff in Hazel was incarcerated at the time he filed his complaint
thereby precluding the applicability of the PLRA to his compensatory damages; the complaint in
H.C. ex rel Hewett v. Jarrad was filed before the enactment of the PLRA, the plaintiff in Thompson
was awarded compensatory damages for the loss of personal property, which was a calculable and
ascertainable loss, and the plaintiff in Castle was awarded compensatory damages for the loss of
his para-law library clerk position as a result of being retaliatorily transferred to a new facility,
also a calculable and ascertainable loss.
1

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emotional injury absent a jury finding of physical injury; rather, the statute focuses
upon the pretrial stage, by precluding the prisoner from bringing an action seeking
damages for emotional injury absent a prior showing of physical injury. A narrow
reading of the statute’s language arguably accords with the statutory purpose of
decreasing the number of inmate suits and enabling the pretrial dismissal of such
suits where only emotional injury is alleged: Under this view, if a plaintiff has
survived summary judgment by pointing to evidence that would enable a reasonable
jury to find physical injury, it would not offend the statute’s purpose to permit the
jury to award damages for emotional distress even if the jury did not find physical
injury. However, because it is far from clear that this view will ultimately prevail,
the safer course may be to incorporate the physical injury requirement into the jury
instructions.
Model Civ. Jry. Inst. § 4.8.1 cmt. n. 126 (3d Cir. July 2019) (emphasis added).
The Court is not persuaded that Plaintiff suffered a “calculable and ascertainable loss” as
a result of the alleged retaliation when his mental health status code was changed, but rather
finds that his claims are consistent with a claim for nominal damages. As this Court reads the
complaint, “the only actual injury that could form the basis he seeks would be mental and/or
emotional injury.” Allah v. Al-Hafeez, 226 F.3d 247, 251 (3d Cir. 2000) (“Allah seeks
substantial damages for the harm he suffered as a result of defendants’ alleged violation of his
First Amendment right to free exercise of religion. As we read his complaint, the only actual
injury that could form the basis for the award he seeks would be mental and/or emotional
injury. . . . Accordingly, Allah’s claims for compensatory damages are barred by § 1997e(e).
. . . [T]he allegations in Allah’s complaint are consistent with a claim for nominal damages . .
. .”).
Accordingly, Defendants’ motion is GRANTED.
7. Defendants’ motion in limine to preclude any evidence of the Disability Rights Network
Settlement Agreement and the Testimony of Angus Love and Alexandra Morgan-Kurtz
(ECF No. 170).
Defendants seek to preclude evidence of the Disability Rights Network Settlement
Agreement and testimony related thereto. They argue that the settlement agreement is not an
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issue in this case, there is no claim that the settlement agreement controls the outcome of this
case, nor were the parties to this case parties to the settlement agreement. The issue in this
case is whether Defendants changed Plaintiff’s stability code in retaliation for a grievance filed
by the Plaintiff.
Plaintiff argues that he is not offering the settlement agreement or related testimony “to
substantiate Plaintiff’s retaliation, or some other, claim. Rather, Plaintiff intends to offer the
Settlement Agreement as evidence of the policies and procedures governing inmate mental
health status at the time Plaintiff’s mental health stability code was downgraded from D-code
to a C-code and to dispute the credibility of Defendants’ contention that the down grading was
made in service to some penological interest.” (ECF No. 198, p. 2).
Fed. R. Evid. 401 provides that “evidence is relevant if: (a) it has any tendency to make a
fact more or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” The Court finds that evidence of the settlement
agreement and related testimony is not relevant in this case. Even if it were relevant, its
probative value is substantially outweighed by a danger of confusing the issues, misleading the
jury, and undue delay pursuant to Fed. R. Evid. 403.
Defendants’ motion to preclude any evidence of the Disability Rights Network Settlement
Agreement and the Testimony of Angus Love and Alexandra Morgan-Kurtz is therefore
GRANTED.
Further, it appears that the definition of Serious Mental Illness and the privileges to which
a D roster inmate is entitled are agreed upon by the parties and may therefore be admitted as a
part of the parties’ stipulations.

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8. Defendants’ motion in limine to preclude testimony of Department of Corrections
Secretary John Wetzel (ECF No. 171).
Defendants seek to preclude the testimony of Department of Corrections Secretary John
Wetzel. Defendants argue that Secretary Wetzel is outside the Court’s subpoena range, that
he is not a defendant in this case, and that as a high government official he cannot be compelled
to testify as a witness absent extraordinary circumstances, which are not present here.
Defendants assert that extraordinary circumstances are subject to a five part test: (1) whether
the testimony is necessary to obtain relevant information that is not available from another
source; (2) whether the official has first-hand information that could not be reasonable obtained
from other sources; (3) whether the testimony is essential to the case; (4) whether the
[testimony] would significantly interfere with the ability of the official to perform his or her
government duties; and (5) whether the evidence sought is available through an alternative or
less burdensome means. Johnson v. Att’y Gen. of State of N.J., 2015 WL 4915611 at *3 (D.N.J.
2015).
Plaintiff responds that that even though Secretary Wetzel is outside the 100 mile-range, he
could attend the trial without “substantial expense” and could appear by video pursuant to the
Court’s earlier order. (ECF No. 200). He also argues that Secretary Wetzel’s testimony is the
only DOC witness it will call regarding the Disability Rights Network litigation and Settlement
Agreement as he was the sole defendant in that case and has necessary firsthand knowledge.
Because the Court has ruled that no evidence or testimony regarding the Disability Rights
Network litigation and Settlement Agreement will be admissible, Plaintiff’s argument as to
Secretary Wetzel’s necessary firsthand knowledge regarding those matters is now without
weight. Further, the Court finds that any evidence of relevant policies is available from other
sources, Secretary Wetzel has no relevant firsthand knowledge that cannot be obtained from
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other sources, Secretary Wetzel’s knowledge is not essential to the case, and any policy
evidence sought from him is available through an alternative or less burdensome means.
Therefore, Defendants’ motion in limine to preclude testimony of Department of
Corrections Secretary John Wetzel is GRANTED.
9. Defendants’ motion in limine to allow testimony and evidence of Plaintiff’s misconducts
(ECF No. 172).
GRANTED, in compliance with the Court’s ruling on Plaintiff’s motion in limine at ECF
No. 178.
10. Defendants’ motion to preclude testimony of Major Curtis Grice and Lt. Matthew Luciano
(ECF No. 177).
Defendants seek to preclude the testimony of Major Curtis Grice and Lt. Matthew Luciano.
Plaintiff proffers these witness as to testify regarding alleged physical assaults against Plaintiff
by corrections officers and Plaintiff’s alleged suicidal tendencies during a time he was on
temporary transfer to SCI-Benner. Defendants argue that Major Grice is outside of the Court’s
subpoena range and that the proffered testimony is irrelevant. They also argue that testimony
about physical assaults by non-Defendants at a place hundreds of miles away, even if relevant,
would be unduly prejudicial.
Plaintiff responds that the proffered testimony is relevant in an effort to counter and refute
Defendants’ efforts to implicate manipulative behavior by Plaintiff. (ECF No. 201).
The issue in this case is not whether Defendants were correct in their assessment of the
Plaintiff’s mental health status, the issue is whether he was changed from stability code D to
C because of a retaliatory motive by Defendants. The proffered evidence is not relevant to the
issue in this case. Even if it were relevant, its probative value is substantially outweighed by

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a danger of confusing the issues, misleading the jury, and undue delay pursuant to Fed. R.
Evid. 403.
Therefore, Defendants’ motion to preclude testimony of Major Curtis Grice and Lt.
Matthew Luciano is GRANTED.
11. Defendants’ motion in limine to preclude punitive damages. (ECF No. 186)
Defendants seek to preclude Plaintiff’s request for punitive damages arguing that “there
will be no evidence at trial that Defendants acted with evil motive or acted with reckless or
callous indifference” or, in the alternative, that “the trial be bifurcated and that Plaintiff be
precluded from litigating his punitive damages claim during the liability stage.” (ECF No 186
at 1-2).

Plaintiff responds that he has alleged that Defendants deliberately retaliated against

him for exercising his First Amendment rights when he filed a grievance, and has alleged that
Defendants’ conduct rises to the level entitling him to punitive damages. As such, the Court
should not exclude Plaintiff’s claim for punitive damages and should allow Plaintiff to present
it to the jury.
The Court agrees with Plaintiff. 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 the Third Circuit have routinely permitted punitive damages claims
to proceed to a jury in prisoner litigation. If Plaintiff succeeds in proving his claim of
retaliation, which has been adequately alleged, then he may be entitled to recover punitive
damages based on Defendants’ “evil motive or intent” or “reckless or callous indifference to
his federally protected rights.” Accordingly, at this time, Defendants’ motion is DENIED

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WITHOUT PREJUDICE to Defendants raising the issue again at the close of trial. The
Court plans to present to the jury the punitive damage claim. However, the Court will instruct
the jury that it cannot award punitive damages unless if finds that Defendants acted in a reckless
manner.
Federal Rule of Civil Procedure 42(b) provides that a court may order a separate trial on
separate claims “for convenience, to avoid prejudice, or to expedite and economize.” The
decision to bifurcate is left to the trial court’s discretion after weighing “the various
considerations of convenience, prejudice to the parties, expedition, and economy of resources.”
Emerick v. U.S. Suzuki Motor Corp., 750 F.2d 19, 122 (3d Cir. 1984). Plaintiff’s retaliation
claim and his claim for punitive damages will have significant overlapping evidence. After
weighing the various considerations, the Court concludes that bifurcating the punitive damage
claim is unnecessary. Accordingly, Defendants’ request to bifurcate the issue of punitive
damages is DENIED.
12. Defendants’ motion in limine to preclude any evidence of the Department of Justice
Investigation (ECF No. l90).
Defendants seek to preclude any evidence of the Department of Justice Memoranda
“Investigation of the Pennsylvania Department of Corrections’ Use of Solitary Confinement
on Prisoners with Serious Mental Health Illness and/or Intellectual Disabilities” and
“Investigation of the State Correction Institute at Cresson and Notice of Expanded
Investigation” (“DOJ Memoranda”).
Plaintiff argues that the DOJ Memoranda “directly contravene Defendants’ position” as to
why Plaintiff’s stability code was changed. (ECF No. 212 at 2). Plaintiff argues that the DOJ
memoranda includes a finding “that a very significant number of the prisoners currently
designated as not having a SMI and thus are assigned to PDOC’s second category indeed have
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SMI . . . .” (ECF No. 212.)

The DJO also found that SCI-Greene, the facility where the

alleged retaliation took place, “is the facility using solitary confinement on the greatest number
of prisoners by far.” Id. Plaintiff argues that the DOJ Memoranda “go directly to the issue of
why Plaintiff’s stability code was changed.” Id.
Further, Plaintiff argues that the DOJ Memoranda is relevant to Plaintiff’s claim of punitive
damages and the Memoranda “detail a system-wide failure on the part of the DOC to properly
diagnose inmates suffering from mental illness.”

Id. at 3.

“The Memoranda further

demonstrates the Defendants’ deliberate indifference to inmate mental health and disregard of
the policies and procedures established to treat and manage inmates with mental illnesses at all
levels.
After careful consideration, the Court concludes that for the same reasons that any evidence
of the Settlement Agreement will be excluded, the DOJ Memoranda will likewise be excluded.
Under Fed. R. 401, the Court finds that evidence of DOJ Memorandum and related testimony
is not relevant in this case. The issue in this case is not whether Plaintiff was given proper
mental health treatment. The sole issue in this case is whether the change in Plaintiff’s mental
status code occurred as a result of a retaliatory motive by Defendants. Further, even if the DOJ
memoranda were relevant, the probative value is substantially outweighed by a danger of
unfair prejudice, confusing the issues, misleading the jury, and undue delay pursuant to Fed.
R. Evid. 403. Therefore, this motion is GRANTED.
So ORDERED this 7th day of November, 2019.
BY THE COURT:
s/Cynthia Reed Eddy
Cynthia Reed Eddy
Chief United States Magistrate Judge

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cc:

All Counsel of Record
(via ECF electronic notification)

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