PIERSON v. STENGER et al
MEMORANDUM ORDER granting in part and denying in part 43 Motion in Limine; granting in part and denying in part 45 Motion in Limine; granting in part and denying in part 58 Motion in Limine. Signed by Magistrate Judge Maureen P. Kelly on 9/5/2018. (ndf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JASON STENGER in his individual capacity
and ZACHARY WEBB in his individual
Civil Action No. 17-326
Chief Magistrate Judge Maureen P. Kelly
Re: ECF Nos. 43, 45, and 58
Defendants Jason Stenger and Zachary Webb have filed two Motions in Limine, ECF
Nos. 43 and 45, seeking to preclude the introduction of certain evidence related to: (1) other
litigation naming Defendants as parties, (2) "hearsay evidence," and (3) medical costs incurred
by Plaintiff as a result of Defendants' conduct at issue in this matter. Plaintiff also has filed a
Motion in Limine seeking to preclude introductipn of evidence of: ( 1) his social drinking habits,
(2) the condition of the driver placed under arrest, and (3) the circumstances at the scene just
prior to the incident at issue. ECF No. 58. Upon consideration of the various Motions in Limine
and the briefs filed in support and in opposition thereto, ECF Nos. 44, 46, 49, and 61, the
Motions in Limine are granted in part and denied in part as more fully set forth below.
Certain basic evidentiary principles guide the resolution of each of the pending motions.
Generally, relevant evidence is admissible in a trial and irrelevant evidence is not admissible.
Fed. R. Evid. 402. "Relevant evidence" is "evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence." Fed. R. Evid. 402. Relevant evidence may be
precluded where "its probative worth is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading to the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence." Fed. R. Evid. 403. These Rules
of Evidence govern the disposition of each of the Motions in Limine.
1. Evidence of Other Lawsuits Naming Either Defendant
Defendants move to preclude Plaintiff from presenting evidence oflawsuits in which they
may have been named. ECF Nos. 43, 44 at 2. Plaintiff responds that in the course of discovery,
Defendants disclosed that neither Defendant Stenger nor Defendant Webb has been named in a
lawsuit, other than the instant action pending before the Court. ECF No. 49. In reliance upon
Defendants' representations, Plaintiff states he does not intend to introduce any evidence related
to other lawsuits. Id. Accordingly, Defendants' motion is denied as moot.
2. Hearsay Evidence
Defendants next move to preclude as inadmissible hearsay anticipated testimony by
Plaintiff that may be based upon what other individuals who were present at the scene may have
told him or that he overheard in discussions with other individuals. ECF Nos. 43, 44 at 2-3.
Hearsay is "a statement that ( 1) the declarant does not make while testifying at the current trial or
hearing; and (2) a party offers in evidence to prove the truth of the m~tter asserted." Fed. R.
Evid. 801 (c). Hearsay evidence is generally inadmissible at trial unless otherwise provided by
statute, the Federal Rules of Evidence, or other rules prescribed by the United States Supreme
Court. Fed. R. Evid. 802.
The Federal Rules of Evidence set forth several exceptions to the hearsay rule, including
Rule 803 (1) which permits admission of evidence consisting of a "present sense impression"
which generally occurs when "[a] statement describing or explaining an event or condition [is]
made while or immediately after the declarant perceived it." Fed. R. Evid. 803(1). Likewise,
Rule 803(2) provides an exception to the hearsay rule for an "excited utterance" when "[a]
statement relating to a startling event or condition [was] made while the declarant was under the
stress of excitement that it caused." Fed. R. Evid. 803(2).
"For a hearsay statement to qualify as an excited utterance, the party seeking to introduce
the statement must show each of the following: (1) a startling event occurred, (2) a statement
relating to the circumstances of the startling event was made, (3) the declarant making the
statement must have had an opportunity to personally observe the events, and (4) the statement
was made before the declarant had time to reflect and fabricate." Prescott v. R & L Transfer,
Inc., 111 F. Supp. 3d 650, 65. (W.D. Pa. 2015) (internal citations omitted). "The rationale for
the excited utterance exception lies in the notion that excitement suspends the declarant's powers
of reflection and fabrication, consequently minimizing the possibility that the utterance will be
influenced by self interest and therefore rendered unreliable." Id.
In this matter, Plaintiff has not yet sought to introduce any hearsay statements relative to
the incident at issue, and the Court is not in a position to determine whether the cited exceptions
may or may not apply. Accordingly, the Motion in Limine to exclude Plaintiffs testimony
regarding statements made by others at the scene of the incident is denied without prejudice as
premature. The Court will revisit Defendants' Motion when and if Plaintiff seeks to introduce
any such evidence at trial, and upon Defendants' timely and proper objection.
3. Evidence of Plaintiff's Medical Bills
Defendants seek to preclude admission of Plaintiffs medical bills if offered to prove the
extent of his pain and suffering and otherwise, to the extent such bills exceed amounts actually
paid and owing. ECF Nos. 45, 46 at 1-2. Under Pennsylvania law, damages for past medical
expenses, although recoverable to the fullest extent of the injury sustained, are limited to those
expenses that "have been actually paid, or such as, in the judgment of the jury, are reasonably
necessary to be incurred." Moorhead v. Crozer Chester Med. Ctr., 765 A.2d 786, 789 (Pa. 2001),
abrogated on other grounds, Northbrook Life Ins. Co. v. Com., 949 A.2d 333, 336-337 (2008)
and (quoting Goodhart v. Pa. R.R. Co., 177 Pa. 1, 35 A. 191, 192 (Pa. 1896)).
Plaintiff indicates that he does not intend to introduce evidence of the cost of medical
services for the purpose of determining his pain and suffering, but as evidence of the
compensatory special damages suffered as a direct result of the Defendants' actions. ECF No.
50. Further, Plaintiff correctly contends that the collateral source rule permits a tort victim to
recover the full extent of medical expenses incurred as a result of Defendants' tortious conduct,
regardless of the existence of coverage for such expenses from some collateral source, e.g.,
Accordingly, the Court grants in pait and denies in part Defendants' Motion in Limine.
Evidence of Plaintiffs medical expenses that exceed any amounts actually paid and/or owing, or
likely to be incurred in the future as a result of Defendants' conduct, is precluded. Evidence of
medical expenses that do not exceed amounts paid or owing, or likely to be incurred in the
future, and related to Defendants' conduct, is otherwise admissible for purposes of calculating
4. Plaintiff's social drinking history
Plaintiff has filed a Motion in Limine to preclude introduction of his history of social
drinking habits, with specific reference to his history as a "heavy drinker." ECF No. 58.
Defendants agree that evidence of Plaintiffs social drinking habits at any time other than the
evening in question is irrelevant and will not be admitted. Accordingly, Plaintiffs Motion in
Limine with respect to Plaintiffs past alcohol use is denied as moot.
5. Evidence of Alcohol Use and Events Leading to Incident
Plaintiff also seeks to preclude introduction of Plaintiffs alcohol use on the evening in
question, as well as evidence of the condition of the third-party driver and Defendants' actions in
effectuating his arrest, prior to Plaintiffs arrival on the scene. Plaintiff contends that the
condition of the suspect as well as Defendants' actions are irrelevant to the Defendants' use of
force against him.· ECF No. 58 at 2-3.
Plaintiffs protestations to the contrary, the Court concludes that the jury requires an
understanding of the events leading to Plaintiffs incident, and that such evidence is relevant and
probative as to the reasonableness of Defendants' conduct under the circumstances presented.
See,~' Brigham City v. Stuart, 547 U.S. 398,404 (2006)("An action is 'reasonable' under the
Fourth Amendment, regardless of the individual officer's state of mind, as long as the
circumstances, viewed objectively, justify [the] action." (internal quotations omitted)). A jury
making a reasonableness assessment also "may consider the possibility that the persons subject
to the police action are violent or dangerous, the duration of the action, whether the action takes
place in the context of effecting an arrest, the possibility that the suspect may be armed, and the
number of persons with whom the police officers must contend at one time." See Kopec v. Tate,
361 F.3d 772, 777 (3d Cir. 2004). As the Supreme Court has stated, "[t]he 'reasonableness' of a
particular use of force must be judged from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight. ... The calculus ofreasonableness must embody
allowance for the fact that police officers are often forced to make split-second judgments-in
circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is
necessary_in a particular situation." Graham v Connor, 490 U.S. 386, 396-97 (1989).
Because the evidence Plaintiff seeks to exclude provides context for the events placed at
issue, the Motion in Limine to exclude evidence of the condition of parties at the scene of the
incident, as well as the circumstances leading up to Plaintiffs arrest, is denied. However, the
Court cautions that evidence as to this issue will not be admitted to create a trial within a trial instead such evidence can be used only to the extent necessary to set the stage for the incident at
For the foregoing reasons, and as set forth herein, this 5th day of September, 2018, IT IS
HEREBY ORDERED, Defendants Motions in Limine, ECF Nos. 43 and 45, are granted in part
and denied in part; and Plaintiffs Motion in Limine, ECF No. 58, is granted in part and denied in
BY THE COURT:
MAUREEN P. -''".,,_,,__,,,___,y
CHIEF UNITED STATES MAOIST
All counsel of record via CM/ECF
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