ENGLISH v. GREYHOUND LINES, INC.
Filing
76
MEMORANDUM AND/OR OPINION RE: MOTION IN LIMINE (DOC. #63). SIGNED BY MAGISTRATE JUDGE TIMOTHY R. RICE ON 10/19/2011. 10/19/2011 ENTERED AND COPIES E-MAILED.(tomg, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ALICIA ENGLISH,
Plaintiff
v.
GREYHOUND BUS LINES, INC.,
Defendant
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CIVIL ACTION
No. 10-CV-613
MEMORANDUM OPINION
TIMOTHY R. RICE
U.S. MAGISTRATE JUDGE
I.
October 19, 2011
INTRODUCTION
This case arises from a February 24, 2008 accident involving a Greyhound bus.
Greyhound stipulates to its negligence, but the parties disagree on bus passenger Alicia English’s
damages. English alleges she suffered neck and back injuries. English acknowledges a history
of alcohol and illicit drug abuse, and she seeks to exclude such evidence. See Plaintiff’s Motion
in Limine to Preclude Evidence of Plaintiff’s Illicit Drug and Alcohol Abuse at 2-4, English v.
Greyhound Bus Lines, Inc., No. 10-613 (E.D. Pa. Aug. 17, 2011) [hereinafter Pl. Motion].
Greyhound claims evidence of English’s substance abuse is relevant to her damages and her
medical treatment history before and after the accident. Defendant’s Memorandum of Law at 3,
English v. Greyhound Bus Lines, Inc., No. 10-613 (E.D. Pa. Oct. 7, 2011) [hereinafter Def.
Memo. of Law].
Although the high probative value of the substance abuse evidence is not substantially
outweighed by the risk of unfair prejudice to English, see Fed. R. Evid. 403, a high risk of unfair
prejudice remains. For the reasons that follow, her motion is granted on the condition that
English stipulates: (1) she will not seek damages for the lien from the State of New York for
prescription drug payments; and (2) she lacked consistency with her medical care both before
and after the accident. This stipulation will diminish the probative value of her substance abuse
and tip the Rule 403 balance in her favor. Otherwise, her motion is denied since the probative
value and risk of unfair prejudice are equally high.
II.
FACTUAL HISTORY
English sought treatment for neck pain in January of 2006, two years before the bus
accident. Def. Memo. of Law at Ex. A. Greyhound contends English was unable to undergo
breast reduction surgery, which had been recommended to help alleviate her neck pain, because
she could not first attain the required one year of sobriety. Id. at 5-6.
After the bus accident, English was instructed to attend physical therapy sessions three
times per week. Id. at 2. She attended only nine sessions over three months. Id. At her
deposition, English testified she missed several physical therapy appointments because her drug
and alcohol abuse would cause her to miss her ride. See Pl. Motion at 2-4. She also testified she
was hungover during physical therapy, and she was told her alcohol use affected her symptoms.
Id.
An orthopedic physician hired by Greyhound has noted English’s history of substance
abuse. Def. Mem. of Law, Ex. B. at 12. He opined that her “need for narcotic usage has
increased rather than diminished, even after her [post-accident] cervical spine surgery.” Id.
Thus, Greyhound contends English’s claim for reimbursement of prescription drug expenses is
not completely related to the accident. Def. Memo. of Law at 6-7.
2
III.
DISCUSSION
The Federal Rules of Evidence define “relevant evidence” broadly. See Fed. R. Evid.
401 (“‘Relevant evidence’ means 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.”); Hurley v. Atlantic City Police Dep’t, 174 F.3d 95, 109-10 (3d
Cir. 1999) (“Rule 401 does not raise a high standard.”). Evidence of English’s illicit drug and
alcohol use is relevant in at least three ways:
First, in a negligence action, a jury can consider whether the plaintiff has failed to
mitigate damages. English’s illicit drug and alcohol use is relevant to show her alleged failure to
mitigate damages because, according to English’s deposition testimony, she missed several
physical therapy appointments due to her substance use. See Pl. Motion at 2-4. English said that
drinking alcohol and using cocaine affected her ability to attend physical therapy because she
“would miss [her] ride” and was hungover while she was undergoing physical therapy. Id. at 23. She also continued to use alcohol despite being warned it was affecting her symptoms. Id. at
3.
Second, English’s drug and alcohol use is relevant to rebut English’s claim that the bus
crash was the sole cause of her neck injury. English sought treatment for neck pain in January of
2006, more than two years before the bus accident. Def. Memo. of Law at Ex. A. Greyhound
alleges English’s doctor recommended she have breast reduction surgery to help alleviate her
neck pain before the accident, but English was unable to do so because she could not first attain
the required one year of sobriety. Id. at 5-6. Such evidence is relevant to the questions of
causation and the extent of her damages from the accident.
3
Third, English’s drug and alcohol abuse is relevant to challenge English’s damages for
prescription drug expenses. Dr. David R. Pashman, an orthopedic physician hired by
Greyhound, noted English had a history of substance abuse and concluded her “need for narcotic
usage has increased, rather than diminished, even after her cervical spine surgery.” Def.’s Mem.
of Law, Ex. B at 12. English’s history of substance abuse has some tendency to prove that at
least some prescriptions were unnecessary, and English had improperly sought the medication
for reasons unrelated to the accident.1
Where a party objects to the presentation of evidence under Rule 403, I have broad
discretion to perform the necessary balancing test and determine admissibility. See Sprint/United
Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008); United States v. Vosburgh, 602 F.3d 512,
537 (3d Cir. 2010). English must show the probative value of evidence regarding her substance
abuse is substantially outweighed by impermissible factors, such as the risk of unfair prejudice or
jury confusion. Fed. R. Evid. 403. English’s history of illegal cocaine use and alcohol abuse
may inflame or confuse the jury. Simply put, it could cause the jury to focus on English’s
character flaws and not on whether her damages are related to the bus accident. The jury may
decide English is not entitled to pain and suffering damages, or it may speculate she would use
any damage award to abuse drugs. This, of course, would be impermissible reasoning to justify a
verdict for Greyhound.
1
Evidence of English’s alcohol and drug abuse to challenge her credibility is excluded,
however, unless it becomes necessary to impeach English’s testimony with regard to her ability
to recall events. Such evidence has low probative value on the issue of truthfulness and would
constitute an impermissible attack on her character. See Fed. R. Evid. 404(a). Moreover, the
risk of unfair prejudice substantially outweighs any marginal probative value. See Fed. R. Evid.
403.
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The risk of unfair prejudice, however, can be eliminated if English stipulates she will not
seek damages for the lien from the State of New York for prescription drug payments, and that
she lacked consistency with her medical care both before and after the accident. Her stipulation
would diminish the relevance of her drug and alcohol abuse. Cf. Old Chief v. United States, 519
U.S. 172, 191-92 (1997) (recognizing that a party’s right to prove its case without stipulations
that diminish its “full evidentiary force” must be balanced with the need to minimize unfair
prejudice under Rule 403). Her stipulation will preclude English from gaining an unfair
advantage by eliminating probative evidence of one possible explanation for the extent of her
injuries and her treatment history. Thus, the jury will not be misled by the absence of
Greyhound’s highly probative evidence of substance abuse on several contested issues. It also
will prevent the jury from being improperly influenced by inflammatory evidence of substance
abuse.
Such a conditional ruling is justified by Rule 102, which states the “rules shall be
construed to secure fairness,” and to ensure “the truth may be ascertained and proceedings justly
determined.” Fed. R. Evid. 102. “Rule 403, read in light of Rule 102, contemplates a flexible
scheme of discretional judgment by trial courts designed to minimize the evidentiary costs of
protecting parties from unfair prejudice.” United States v. Jackson, 405 F. Supp. 938, 945
(E.D.N.Y. 1975).
Absent English’s stipulation, however, the risk of unfair prejudice does not substantially
outweigh the evidence’s high probative value, especially if the jury is properly guided by an
instruction carefully limiting its use of the evidence, as contemplated by Rule 105.
An appropriate order follows.
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