Figaniak et al v. Fraternal Order of Owl's Home Nest et al

Filing 224

MEMORANDUM OPINION AND ORDER REGARDING PARTIES' MOTIONS IN LIMINE: Denying 143 Motion in Limine; Denying 144 Motion in Limine; Deferring ruling on 145 Motion in Limine; Denying 146 Motion in Limine; Granting in part and deferring in part ruling on 147 Motion in Limine; and Deferring ruling on 148 Motion in Limine. Signed by Senior Judge Frederick P. Stamp, Jr on 7/14/17. (soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
THOMAS G. FIGANIAK and
VALERIE A. FIGANIAK, as
Administrators of the
Estate of Kevin Figaniak,
Plaintiffs,
v.

Civil Action No. 5:15CV111
(STAMP)

FRATERNAL ORDER OF OWL’S HOME NEST,
LOYAL ORDER OF OWLS NEST LODGE 2558,
d/b/a THE OWLS NEST,
a West Virginia corporation,
YE OLDE ALPHA, INC.,
a West Virginia corporation,
CRAIG TYLER PEACOCK, individually,
JARRETT CHANDLER, individually,
and TYLER JOHNSON, individually,
Defendants.
MEMORANDUM OPINION AND ORDER
REGARDING PARTIES’ MOTIONS IN LIMINE1
Defendant Tyler Johnson (“Johnson”) has filed five motions in
limine to preclude certain evidence, and the plaintiffs have filed
one motion in limine to preclude the defendants from presenting
certain evidence.

The trial in this civil action is scheduled to

commence on July 25, 2017.

This Court will address those motions

in limine and set forth its findings, as discussed below.2

1

This Memorandum Opinion and Order sets forth in more detail
the rulings given at the supplemental pretrial conference held on
July, 12, 2017.
2

For a more thorough background of this civil action, see ECF
No. 175.

1.

Johnson’s Motion in Limine #1 - To Exclude the Testimony

of Wayne K. Ross, M.D. (ECF No. 143) - DENIED.
Johnson asks this Court to preclude or limit the testimony of
the

plaintiffs’

pathologist.

expert,

The

Wayne

plaintiffs

K.

Ross,

intend

to

M.D.,
present

a
Dr.

forensic
Ross’s

conclusions that all blows to their deceased son’s (“Kevin”) head,
including those attributable to Johnson, contributed to Kevin’s
death and that Kevin suffered severe conscious pain when being hit
and for several seconds after losing consciousness.
Johnson does not contest Dr. Ross’s qualifications to be
certified as an expert on forensic pathology, his methods, or the
usefulness of his testimony to the jury.

Rather, he argues that

Dr. Ross’s opinions are unreliable because they are not based on
sufficient facts or data, and because he did not reliably apply his
expertise to all of the facts of this case.

Specifically, he

argues that Dr. Ross’s opinions are “based upon ‘alternative facts’
that cannot be established by independent evidence” and upon his
own speculation about the circumstances of Kevin’s injuries.

ECF

No. 143-1 at 1.
Rule 702 permits a “witness who is qualified as an expert by
knowledge, skill, experience, training, or education” to provide an
opinion and testimony if: (1) “the expert’s scientific, technical,
or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;” (2) “the

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testimony is based on sufficient facts or data;” (3) the testimony
is the product of reliable principles and methods;” and (4) “the
expert has reliably applied the principles and methods to the facts
of the case.”

Fed. R. Evid. 702.

The court “must ensure that any

and all [expert] testimony or evidence admitted is not only
relevant, but reliable.”

Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579, 589 (1993).

To assess reliability of expert

testimony, the court may consider:
(1) whether the particular scientific theory “can be (and
has been) tested”; (2) whether the theory “has been
subjected to peer review and publication”; (3) the “known
or potential rate of error”; (4) the “existence and
maintenance of standards controlling the technique’s
operation”; and (5) whether the technique has achieved
“general acceptance” in the relevant scientific or expert
community.
United States v. Crisp, 324 F.3d 261, 266 (4th Cir. 2003) (citing
Daubert, 509 U.S. at 593-94).

This is a flexible analysis because

“[r]ather than providing a definitive or exhaustive list, [these
factors] merely illustrate[] the types of factors that will ‘bear
on the inquiry.’”

Id. (citing Daubert, 509 U.S. at 593-94).

The differential diagnosis methodology used by Dr. Ross is “a
standard scientific technique [to] identify[] the cause of a
medical problem” that will not be excluded for failure to “rule out
every possible alternative cause” so long as the expert provides
some “explanation for why she has concluded [that an alternative
cause] was not the sole cause.”

United States v. Chikvashvili, __

F.3d __, 2017 WL 2485295, *6-7 (4th Cir. June 9, 2017).
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Dr. Ross

based his medical conclusion on the physical evidence of trauma to
Kevin’s body and the autopsy.

He concluded that he could not

conclude to a degree of medical certainty that any one blow caused
Kevin’s death. He further concluded that Kevin would have suffered
conscious pain when being hit and for several seconds after losing
consciousness.

While Johnson argues that Dr. Ross’s conclusions

are based on factual errors as to how the fight actually occurred,
Dr. Ross made clear in his deposition testimony that his opinions
were not based on the witnesses’ testimony he reviewed but were
“based upon the physical evidence and scientific methodology”
outlined in his expert report.

ECF No. 169-7 at 6.

To the extent

that the evidence of how the fight and the blows to Kevin’s head
actually

occurred

conclusions,

contradict

“[v]igorous

or

cast

doubt

cross-examination,

on

Dr.

Ross’s

presentation

of

contrary evidence, and careful instruction on the burden of proof
are the traditional and appropriate means of attacking shaky but
admissible evidence.”

Daubert, 509 U.S. at 596.

Accordingly, the

defendant’s motion is DENIED.
2.

Johnson’s Motion in Limine #2 - To Exclude the Testimony

of Camille B. Wortman, Ph.D. (ECF No. 144) - DENIED.
Johnson asks this Court to preclude or limit the testimony of
the plaintiffs’ expert Camille B. Wortman, Ph.D., a psychologist.
The plaintiffs intend to introduce Dr. Wortman’s testimony as
evidence of their emotional suffering to prove damages.

4

Johnson

argues that Dr. Wortman’s opinions are not reliable because she
relied

only

upon

the

plaintiffs’

biased

and

inaccurate

understandings of the circumstances of their son’s death, rather
than grounding her opinions in what actually happened.
Damages in a wrongful death action include “[s]orrow, mental
anguish, and solace which may include society, companionship,
comfort, guidance, kindly offices and advice of the decedent.”

W.

Va. Code § 55-7-6(c)(1). Thus, the plaintiffs’ emotional reactions
to what they believe happened to their son, regardless of bias and
inaccuracies,

are

relevant

to

their

damages.

Dr.

Wortman’s

reliance on her interviews of the plaintiffs, their deposition
testimony, and their victim impact statements is proper for making
a determination of the plaintiffs’ mental perceptions and emotional
states.

Further, Dr. Wortman’s conclusions will be helpful to the

jury in evaluating the plaintiffs’ grief and their beliefs about
how

their

son

died.

Her

analysis

provides

a

framework

for

evaluating and understanding the plaintiffs’ admittedly biased and
inaccurate understandings of their son’s death that will assist the
jury in determining any damages for emotional harm.

Accordingly,

Johnson’s second motion in limine (ECF No. 144) is DENIED.
3.

Johnson’s Motion in Limine #3 - To Exclude Certain

Testimony of Mr. and Mrs. Figaniak (ECF No. 145) - DEFERRED.
Johnson argues that the plaintiffs should be precluded from
testifying about the factual circumstances of their son’s death,

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Johnson’s prior physical altercations, Johnson’s statements to them
in the hospital after the fight, and their opinions about other
witnesses’ characters for truthfulness. The plaintiffs assert they
intend to testify only about Johnson’s post-fight statements to
them, information about their son and their family, and about their
emotional loss.
As discussed above, the plaintiffs’ testimony about their son,
their familial relationship, and their emotional loss is relevant
to their damages.

However, this Court believes the admissibility

of their testimony on other potential topics noted in Johnson’s
motion

will

be

best

considered

in

context

at

the

trial.

Accordingly, Johnson’s third motion in limine (ECF No. 145) is
DEFERRED.
4.

Johnson’s Motion in Limine #4 - To Exclude the Testimony

of George Barrett (ECF No. 146) - DENIED.
Johnson asks this court to preclude the plaintiffs’ expert
economist George Barrett (“Barrett”) from testifying about his
conclusions based on one of the methodologies he used to calculate
Kevin’s lost earning capacity.

The plaintiffs intend to offer

Barrett’s testimony and conclusions regarding Kevin’s lost earning
capacity based upon two methods of analysis of economic data.

In

his first analytical method, Barrett used salary data from a survey
conducted by the National Association of Colleges and Employers
(“NACE”) to determine the median salary of a person with Kevin’s

6

expected

four-year

degree.

Barrett

then

applied

“work-life

adjustments” to the median salary to determine Kevin’s expected
lifetime earning capacity.
Johnson argues that Barrett’s analysis is unreliable because
the NACE data set is too small and because it did not reflect
Kevin’s precise major.

He argues that Barrett should have use

United States Census data rather than the NACE data set because it
is larger and participation is compulsory.
The NACE data set is a 2016 salary survey frequently relied
upon by economic experts, businesses, and educational institutions.
The

survey

methodology.

adheres

to

widely

accepted

statistical

sampling

While Census data may offer a more complete data set

than the NACE data set, that does not mean the NACE data set is
unreliable or does not adhere to widely accepted statistical
methodology.

Further, Barrett’s methodology is sound and applies

generally accepted economic analysis to estimate Kevin’s lost
earning capacity.

Any inconsistencies regarding the data set or

how Barrett’s calculations relate specifically to Kevin are best
developed

through

cross-examination

and

evidentiary

context.

Accordingly, Johnson’s fourth motion is limine (ECF No. 146) is
DENIED.

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5.

Johnson’s Motion in Limine #5 - To Exclude Evidence of

Punitive Damages (ECF No. 147) - GRANTED IN PART AS FRAMED AND
DEFERRED IN PART.
Johnson asks this Court to preclude the plaintiffs from
presenting any evidence or argument as to punitive damages.
plaintiffs seek punitive damages only against Johnson.

The

Johnson

specifically argues that, under West Virginia Code § 55-7-29, the
plaintiffs are not entitled to punitive damages unless they first
prove Johnson acted with a malicious state of mind.

Thus, he asks

this Court to preclude the plaintiffs from arguing they are
entitled to punitive damages or presenting any evidence as to the
amount of any punitive damages they seek.

Johnson has since filed

a supplemental brief to this motion requesting, in the alternative,
that this Court bifurcate the issues of liability and punitive
damages.
Section 55-7-29 provides that:
An award of punitive damages may only occur . . . if a
plaintiff establishes by clear and convincing evidence
that the damages suffered were the result of the conduct
that was carried out by the defendant with actual malice
toward the plaintiff or a conscious, reckless and
outrageous indifference to the health, safety and welfare
of others.
W. Va. Code § 55-7-29(a).
Appeals

recently

held

that

The West Virginia Supreme Court of
§

55-7-29

applies

retroactively.

Martinez v. Asplundh Tree Expert Co., __ S.E.2d __, 2017 WL

8

2626648, *6-7 (W. Va. June 16, 2017).

Thus, this Court finds it to

apply in this civil action.
Further, the presentation at trial of evidence regarding the
amount of punitive damages to be paid, especially evidence of
Johnson’s ability to pay, presents a substantial danger of unfair
prejudice to Johnson.

Such evidence has the potential to unfairly

prejudice the jury’s determination of Johnson’s liability.

This

Court believes bifurcation is appropriate to abate the risk of such
unfair prejudice. Accordingly, the trial of these proceedings will
be bifurcated in accordance with the following procedure.3

3

Section 55-7-29 suggests the following procedure:

(1) In the first stage of a bifurcated trial, the jury
shall determine the liability for compensatory damages
and the amount of compensatory damages, if any.
(2) If the jury finds during the first stage of a
bifurcated trial that a defendant is liable for
compensatory damages, then the court shall determine
whether sufficient evidence exists to proceed with a
consideration of punitive damages.
(3) If the court finds that sufficient evidence exists
to proceed with a consideration of punitive damages, the
same jury shall determine if a defendant is liable for
punitive damages in the second stage of a bifurcated
trial and may award such damages.
(4) If the jury returns an award for punitive damages
that exceeds the amounts allowed under subsection (c) of
this section, the court shall reduce any such award to
comply with the limitations set forth therein.
W. Va. Code § 55-7-29(b).
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During the first phase of trial, the jury will determine the
defendants’ liability for compensatory damages and the amount of
any compensatory damages. The plaintiffs will also be permitted to
present evidence that Johnson acted with “actual malice or with
conscious,

reckless

and

outrageous

“health, safety and welfare.”

indifference”

to

W. Va. Code § 55-7-29(a).

Kevin’s
If the

jury finds that Johnson is liable for compensatory damages, the
jury will then answer a special interrogatory on whether it finds
by clear and convincing evidence that Johnson acted with “actual
malice or with conscious, reckless and outrageous indifference” to
Kevin’s “health, safety and welfare.”

W. Va. Code § 55-7-29(a).

If the jury finds that punitive damages are appropriate, the
parties

will

be

permitted

to

present

evidence

and

argument

regarding the amount of punitive damages to be paid, and the jury
will then determine that amount.
This Court finds that bifurcation largely resolves Johnson’s
fifth motion in limine.

Accordingly, Johnson’s fifth motion in

limine (ECF No. 147) is GRANTED IN PART AS FRAMED AND DEFERRED IN
PART.
6.

Plaintiffs’ Motion in Limine to Exclude Evidence of

Alleged Prior Bad Acts By the Deceased Kevin Figaniak and the
Nickname “Figaniak the Maniac” (ECF No. 148) - DEFERRED.
The plaintiffs ask this Court to preclude the defendants from
presenting evidence showing Kevin had violent propensities or a

10

short temper, any prior instances of Kevin’s aggression, or Kevin’s
lacrosse

nickname

“Figaniak

the

Maniac.”

In

response,

the

defendants argue that they intend to present such evidence only to
rebut any evidence presented by the plaintiffs to show Kevin’s
character for peacefulness.
Federal Rule of Evidence 404 prohibits evidence of “a person’s
character or character trait” or of “a crime, wrong, or other act
to prove a person’s character” to show that “on a particular
occasion the person acted in accordance with the character or
trait.”

Fed. R. Evid. 404(a)(1), (b)(1).

However, such evidence

may be used for any other purpose if it is otherwise admissible.
It appears that the defendants’ intended use of evidence of
Kevin’s violent propensities are barred by Rule 404.

Similarly,

any evidence presented by the plaintiffs to show that Kevin had a
character for peacefulness to prove he was not aggressive or
violent on the night of his death would be barred by Rule 404.
However,

because

it

is

unclear

how

any

evidence

of

Kevin’s

character will be presented and for what precise purposes, this
Court believes that the plaintiffs’ motion will be best determined
in context at trial. Accordingly, the plaintiffs’ motion in limine
(ECF No. 148) is DEFERRED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.

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DATED:

July 14, 2017

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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