FARTHING v. PENNSYLVANIA STATE POLICE
Filing
108
MEMORANDUM. SIGNED BY MAGISTRATE JUDGE HENRY S. PERKIN ON 8/2/13. 8/2/13 ENTERED AND COPIES E-MAILED.(er, )
<![CDATA[
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
_________________________________________
:
JOSEPH FARTHING,
:
CIVIL ACTION
Plaintiff,
:
:
vs.
:
NO. 11-1052
:
PENNSYLVANIA STATE POLICE,
:
Defendant.
:
_________________________________________ :
Henry S. Perkin, M.J.
August 2, 2013
MEMORANDUM
This matter is before the Court on Defendant’s Third Motion in Limine
Withdrawing Defendant’s Pending Motion in Limine filed on June 17, 2013. Plaintiff’s
Memorandum in Response was filed on July 10, 2013, Defendant’s Supplemental Brief in
Support of the Motion was filed on July 26, 2013, Plaintiff’s Memorandum in Opposition of the
Defendant’s Supplemental Brief was filed on July 29, 2013 and Defendant’s Reply to the
Response to the Supplemental Brief was filed on July 29, 2013. Having reviewed the
contentions of the parties, the Court is prepared to rule on this matter.
Bolden Consent Decree
Defendant moves to exclude evidence of Bolden v. Pennsylvania State Police,
Civ. A. No. 73-2604, a class action race discrimination case filed in 1973 and its progeny as well
as testimony of Benjamin Brooks, Tyree Blocker and Mark Lomax. Defendant notes that the
Bolden litigation applied to hiring and promotion within the ranks of the PSP, which are not at
issue in the instant case. In addition, Defendant contends that the Bolden litigation is temporally
remote from the incidents in this case. Plaintiff vigorously opposes exclusion of references to the
Bolden litigation. The Bolden Consent Decree was dissolved in 1999. While this Court agrees
that the Bolden litigation is temporally remote from the incidents in this case, the fourteen years
since dissolution of the Bolden consent decree is relevant to Plaintiff’s racial discrimination
claims. Accordingly, although references to Bolden will be excluded at trial, Plaintiff may
introduce evidence regarding events which have transpired since that time.
Events Outside the Scope of the EEOC Charge
Defendant moves to preclude all references beyond the scope of Plaintiff’s EEOC charge
including the denial of honorable discharge and any evidence of alleged racial discrimination
encountered by Plaintiff in the ESS before the events at issue in his EEOC charge. Defendant
notes that Plaintiff’s denial of an honorable discharge occurred over nine months following
Plaintiff’s retirement and alleged discriminatory treatment of Plaintiff by Lt. Kruse or Lt. Kulick,
Lt. Kruse’s predecessor, occurred years before the events at issue. For example, Plaintiff may
attempt to place on the record that Lt. Kulick chose a white corporal rather than Plaintiff as
second in command or that Lt. Kruse chose a white corporal to fill in when he was on annual
leave. Defendant claims that these incidents are untimely and should be barred because a
plaintiff may only bring suit in federal courts on claims within the scope of the EEOC charge
itself or “the scope of the EEOC investigation which can reasonably be expected to grow out of
the charge of discrimination, including new acts which occurred during the pendency of
proceedings before [the EEOC].” Mot. at 5 (quoting Robinson v. Dalton, 107 F.3d 1018,
1025–26 (3d Cir. 1997). Moreover, Defendant contends that such information would lead to
explanations of why those events occurred, which will lead to a separate mini-trial, confuse the
jury and otherwise unduly lengthen trial.
2
Plaintiff responds that the evidence that he was subject to racial discrimination at
the ESS before the events giving rise to this action is being introduced solely for background
purposes, and not as a distinct claim for relief which is wholly consistent with Supreme Court
and Third Circuit precedent. See, e.g., National R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
113 (2002), Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515, 521 (3d Cir. 2003).
Plaintiff further argues that the timely filing of an EEOC charge is not a jurisdictional
prerequisite to bringing suit in federal court but is subject to the doctrines of waiver and estoppel.
Zipes v. TransWorld Airlines, Inc., 455 U.S. 385, 393 (1982); accord Waiters v. Parsons, 729
F.2d 233, 236 (3d Cir. 1984). Plaintiff notes that the Defendant never raised the issue of
Plaintiff’s alleged failure to exhaust his administrative remedies in a motion to dismiss or in its
summary judgment motion. Even if Defendant had not waived the issue or is not estopped from
raising it, Plaintiff argues that “[t]he relevant test in determining whether [a plaintiff] was
required to exhaust . . . administrative remedies. . . is whether the acts alleged in the subsequent
Title VII suit are fairly within the scope of the prior EEOC complaint, or the investigation arising
therefrom.” Waiters, 729 F.2d at 237. Plaintiff argues that he meets that test because his EEOC
charge alleged continuing racial discrimination against him by the PSP, it pointed specifically to
the PSP’ s history of intentional racial discrimination against minorities (as evidenced by the
Bolden litigation) and, as to himself, referenced being denied the assignment to head the ESS and
then being banished to a year of desk duty at the Gap. Subsequently, and while his case was still
pending with the EEOC, Plaintiff claimed that he was forced to retire from the PSP and later was
denied an honorable discharge. Both of these issues were included in his federal court lawsuit as
part of his Title VII race discrimination claim against the PSP.
3
As Defendant notes, in determining the scope of the investigation, this Court must
examine “1) whether the disputed claim would have been discovered by the EEOC in the course
of a reasonable investigation; and 2) whether the claim ‘which would have been uncovered [was]
reasonably within the scope of the charge filed with the EEOC.’” Supp. Br. at 4-5 (quoting
Tourtellotte v. Eli Lilly and Co., 2013 WL 1628603, at *4 (E.D. Pa. Apr. 16, 2013)(citing Davis
v. Kraft Foods N. America, 2006 WL 237512, at *6 (E.D. Pa. Jan. 31, 2006)(quoting Hicks v.
ABT Assoc., Inc., 572 F.2d 960, 967 (3d Cir. 1978)). In this case, we agree with Plaintiff that the
disputed claim as to the background information of Plaintiff’s treatment in the ESS prior to the
events giving rise to this action and the denial of an honorable discharge to Plaintiff would have
been discovered by the EEOC in the course of a reasonable investigation and that those claims
were reasonably within the scope of the charge filed with the EEOC because they substantially
overlap with Plaintiff’s constructive discharge claim in his exhausted administrative charge.
Thus, Defendant’s Motion is denied with respect to evidence of Plaintiff’s denial of an honorable
discharge and evidence of alleged racial discrimination encountered by Plaintiff in the ESS
before the events at issue in his EEOC charge.
Carter v. Commonwealth of Pa, PSP
Next, Defendant seeks to preclude Plaintiff from introducing at trial the complaint
and answer and all references to the case Carter v. Commonwealth of PA, PSP, No. 08cv5421
(E.D. Pa.). Carter was a class action in which the plaintiffs raised Title VII and ADEA claims
regarding the alleged restriction of overtime compensation to minority plaintiffs assigned to a
PSP troop with duty related to construction work on the Pennsylvania Turnpike. The context is a
400-hour overtime limit on troopers assigned to certain duties that do not include ESS duties. In
4
that context, the PSP admitted:
125. As a result of the Grievance Board’s decision, in mid-2007, the PSP
implemented 400 hour limit on overtime per trooper.
129. However, while the troopers subject to the August 22, 2007 cease and desist
list were prohibited from working overtime, other troopers throughout the
department continued to receive overtime hours far exceeding the departments
imposed 400 hour restriction rule, benefitting their yearly salary and retirement
earnings.
Defendant contends that the Carter case has no relevance to Plaintiff’s case
because the instant case involves ESS, a specialized unit not subject to the 400-hour limit that
applied to overtime for construction work on the turnpike. The admission that the PSP had not
enforced its overtime policy for troopers assigned to the turnpike is a far cry from overtime
abuse/theft. Alternatively, Defendant argues that unfair prejudice to the PSP outweighs any
probative value, because a jury could inappropriately confuse what applies to non-specialized
units such as a construction crew and what applies to ESS. Defendant contends that any
clarification between the ESS and non-specialized rank and file including an explanation that the
400-hour restriction does not apply to ESS, would lead to additional confusion and unduly
lengthen trial.
Plaintiff responds that there is a “well-established rule that factual allegations in
the trial court pleadings of a party in one case may be admissible in a different case as evidentiary
admissions of that party.” Hardy v. Johns-Mansville Sales Co., 851 F.2d 742, 745 (5th
Cir.1988); see Pfizer Inc. v. Teva Pharmaceuticals USA, Inc., 2006 WL 3041102 at *4 (D.NJ.
Oct. 26, 2006); see also David F. Binder, Hearsay Handbook § 35:1 (4th ed. 2012) (noting that
courts have deemed it reversible error to preclude assertions made by a party-opponent in a
5
pleading in another case). Plaintiff contends that these two admissions are relevant in this case
because the first relates to the timing of the newly-promulgated 400 hour rule which was adopted
in 2007, the same year that the PSP undertook its investigation of Plaintiff for overtime abuse.
Plaintiff notes that there is no evidence that the 400 hour rule was applied to officers working in
the ESS, and a jury could conclude that the PSP did not consider it important to limit the number
of overtime hours that ESS could work because their hours were a function of their protectees’
schedules. Second, Plaintiff contends that these admissions are relevant because they support his
claim that the PSP singled him out for selective enforcement. In Plaintiff’s Supplemental
Memorandum of Law, Plaintiff’s counsel states that he will present the Defendant’s Answer in
Carter for one purpose: establishing the facts that the Defendant had a 400 hour overtime limit
that it did not enforce.
Defendant distinguishes Carter as not relevant to the instant litigation because
some of the plaintiffs in Carter were white and the overtime limit in Carter is not applicable to
specialized units such as ESS. This Court does not agree with Defendant, however, that
clarification between the ESS and non-specialized rank and file including an explanation that the
400-hour restriction does not apply to ESS, would lead to additional confusion and unduly
lengthen trial. Accordingly, Defendant’s Motion is denied with respect to the Carter litigation.
Further, the parties are granted permission to call Attorneys Tucker and Henzes to testify at trial.
PSP Statistics
Defendant next seeks to exclude Plaintiff’s use of evidence of Defendant’s
personnel statistics/demographic data with breakdowns by minority percentages, such as enlisted
retirements, honorable discharges, and temporary transfers. Because the parties have not
6
exchanged exhibits, this portion of Defendant’s Motion is denied without prejudice for
Defendant to raise it after the exhibits are exchanged and the Court has the subject exhibits
before it.
Statements By Cindy Smyser.
Plaintiff testified at his deposition about statements allegedly made to him by Ms.
Smyser, who was a member of Governor Rendell’s staff, was not deposed and who is now
deceased. Defendant contends that any statements by Ms. Smyser or references to statements by
her are hearsay and no exceptions apply to render them admissible. Plaintiff argues that Ms.
Smyser’s statements will not be introduced for the truth of the matter asserted, i.e., that the
Defendant discriminated against Plaintiff by not assigning him to head the ESS, but rather as
circumstantial proof of the timing and reason for the Defendant’s decision to reassign Plaintiff
and impose a “no contact” order on him.
Plaintiff testified at his deposition that on October 25, 2007, the morning that he
was informed of his reassignment to desk duty at Fort Indiantown Gap, Ms. Smyser asked him
why Bruce George was appointed as detail leader instead of Plaintiff and asked “are they doing
this to you because you’re black?” She then told Plaintiff that she “was being completely left in
the dark as to what was going on with the detail, and she wanted to know what was happening
because that was her responsibility.” She then stated to Plaintiff that “she was going to call
Colonel Miller to find out why – to find out what was going on.” N.T. Farthing, pp. 106-107.
Clearly, Ms. Smyser’s question “are they doing this to you because you’re black?”
can be introduced for no other purpose than the matter asserted, that Plaintiff was discriminated
against based on his race, which is one of the reasons asserted by Plaintiff for the Defendant’s
7
decision to reassign him and impose a no contact order on him. Accordingly, reference to any
statements by Ms. Smyser, an unavailable witness, will be excluded.
Evidence Regarding Christopher D’Amico’s Character
Defendant moves to exclude character evidence regarding Christopher D’Amico,
the complainant in the investigation into overtime abuse against Plaintiff and Lt. Kruse, as
unfairly prejudicial and may cause the jury to infer propensity or intent to discriminate against
Defendant. Defendant contends that jury confusion and the extended length of trial would
outweigh any probative value that Mr. D’Amico’s character evidence may have beyond what is
in the Internal Affairs Investigative Report regarding overtime abuse itself. Defendant argues
that Plaintiff should not be permitted to turn this trial into a trial about Mr. D’Amico, especially
since he retired from the PSP under sudden circumstances and Defendant contends that Mr.
D’Amico is not an appropriate comparator to Plaintiff. Defendant specifically moves to exclude
evidence which it contends is not related to the general investigation report about Plaintiff
including all references to an alleged falling out between D’Amico and Governor Rendell, all
evidence related to D’Amico’s sexual activity apart from what is contained in the General
Investigation Report For IAD 2007-0002 and D’Amico’s giving the bracelet to Sous-Chef
Yancey, who was convicted years later.
Mr. D’Amico’s credibility and motives in submitting his overtime complaint
against Plaintiff are at issue and evidence of his credibility is admissible under Federal Rule of
Evidence 404(b) to show his intent and motive in filing his complaint. Defendant’s Motion to
preclude specific evidence of all references to an alleged falling out between D’Amico and
Governor Rendell, all evidence related to D’Amico’s sexual activity apart from what is contained
8
in the General Investigation Report For IAD 2007-0002 and D’Amico’s giving the bracelet to
Sous-Chef Yancey, who was convicted years later are premature, and Defendant’s Motion must
be denied without prejudice for Defendant to object to introduction of this specific evidence at
trial.
Plaintiff’s Exhibit No. 31
January 14, 2004 Email Exchange Between Christopher D’Amico and Thomas Tarsavage
Defendant seeks to exclude Plaintiff’s Exhibit 31, a January 13, 2004 e-mail
exchange between Christopher D’Amico and Thomas Tarsavage which was attached as an
exhibit to Sgt. Sharif’s general investigation report regarding overtime abuse by Lt. Kruse and
Plaintiff. Defendant contends that the email has no probative value, because nothing in the
adjudication of the charges against Plaintiff and Lt. Kruse was decided based solely on what Mr.
D’Amico said and the admission of the email or any reference to it will create undue publicity
and sidetrack the jury from the material issues in this case. Defendant notes that Sgt. Sharif
included the email in his report because it reflected negatively on Mr. D’Amico’s character.
Sharif Dep. at 118. Plaintiff responds that since the email was good enough to be part of the
Defendant’s official report, it is fair game to introduce it at trial. This Court agrees with
Defendant, therefore the email and references to the email will be excluded from evidence at
trial.
Activities Regarding Prostitution in Southeast Asia
Defendant seeks to exclude evidence regarding activities by Lt. Kruse and Lt.
Lawver regarding prostitution in Southeast Asia. Defendant argues that Plaintiff can only show a
strong suspicion that Kruse and Lawver paid for prostitution in Southeast Asia until Martin’s
9
admission in 2010 well after Kruse and Lawver separated from the PSP in January of 2009.
Defendant argues that nothing was “of record” until after Kruse and Lawver retired from PSP to
show that they solicited prostitutes or that their solicitation of prostitutes was illegal in the
country where it occurred, therefore nothing about their sexual behavior is material. Defendant
contends that Plaintiff cannot show that timing from when any such hypothetical report was
received could possibly have rendered discipline possible prior to Kruse’s and Lawver’s
retirements in January of 2009, which, according to Defendant, precludes Plaintiff from using
innuendo to suggest that Defendant did not investigate members with sex-related violations
worse than Plaintiff’s violations. Defendant contends that any reference even to just prostitution,
let alone sex trafficking, will result in a complex voir dire and an even more complex,
convoluted trial suggesting an unfair perspective of the PSP to the jury as well as a trial within a
trial. As such, Defendant contends that prejudice would far outweigh any perceivable evidentiary
value.
Plaintiff notes in response that during the course of the PSP’s overtime abuse
investigation of Lieutenant Kruse and Plaintiff, that Lt. Sharif uncovered evidence that Kruse and
two other white Lieutenants, Brad Lawver and Douglas Martin, had engaged in the solicitation of
prostitutes in southeast Asia. Sharif Dep. at 52-59. The PSP opened a “sexual misconduct”
internal affairs investigation regarding these three officers. Id. at 54-57. Together, the PSP and
the F.B.I. were jointly involved in this sexual misconduct investigation. Pawlowski Dep. at 89.
At no time was Plaintiff a subject of it. Skurkis Dep. at 171; Sharif Dep. at 123-124. According
to the United States Attorney's Office for the Middle District of Pennsylvania, the F.B.I. referred
the case back to the PSP for follow-up. See Unopposed Motion of the United States for a
10
Protective Order, at ¶ 3.
Sgt. Sharif, who was assigned by the PSP to the sexual misconduct investigation,
testified that he worked virtually full time on that case starting in November 2007. Sharif Dep. at
165-166. In the course of his investigation, he found “hundreds and hundreds” of internet images
and e-mails that supported the charges against Kruse, Lawver and Martin. Id. at 160-161. The
PSP itself concluded their solicitation activities violated the law of Thailand, the law of
Pennsylvania and the PSP’s own Field Regulations. Id. at 162-163; see also Sharif’s General
Investigation Report, IAD 2009-0101 and accompanying documents. Despite the evidence
against Kruse, Lawver and Martin, the PSP took no disciplinary action against them for their
infractions. Pawlowski Dep. at 185, 191-194. Each was allowed to retire, despite the fact that
had the PSP’s Disciplinary Officer, Captain Bryon Locke, been made aware of the evidence
against them, he would have had each of them subject to a court-martial. Locke Dep. at 30-31,
52-5 3.
This evidence is admissible to show at trial that non-protected class members,
who committed acts of “comparable seriousness” to the plaintiff’s, were treated more favorably.
See McDonnell Douglas, 411 U.S. at 804; Ansell, 347 F.3d at 521. Accordingly, Defendant’s
Motion is denied as to evidence regarding activities by Lt. Kruse and Lt. Lawver regarding
prostitutes in Southeast Asia.
Testimony of Sherwin Bostick and Michael Napier
Defendant next moves to preclude the testimony of Sherwin Bostick and Michael
Napier. Both men, who are African-American, worked with Plaintiff in the ESS, Mr. Napier for
about 13 years and Mr. Bostick for about 8 years. Mr. Bostick retired in 2003 and Mr. Napier
11
retired in October of 2008. As to Mr. Bostick, Defendant seeks preclusion of his testimony
because he has direct knowledge only about events he witnessed as an ESS member prior to his
retirement in 2003. Bostick Dep. at 6-7. Defendant contends that if Mr. Bostick were permitted
to testify about his own alleged experiences of race discrimination or what he perceived to be
race discrimination in the treatment of others, it would lead to a trial within a trial and prejudice
would outweigh any perceivable evidentiary value. In addition, because Mr. Bostick moved to
Florida upon retiring, Defendant argues that his testimony regarding events after his retirement
must be based upon what he heard from other ESS members and except for what Plaintiff told
Mr. Bostick during telephone conversations after Mr. Bostick’s retirement, everything he learned
about any alleged discrimination in ESS is through hearsay. Anything told by Plaintiff to Mr.
Bostick, according to Defendant, is inadmissible as duplicative self-serving admissions which
add nothing to what Plaintiff himself can testify to directly and would confuse the jury and
unnecessarily lengthen the trial. See F.R.E. 801(d).
As to Mr. Napier, Defendant argues that he was not working in June through
November of 2006 because he was on medical leave, and knows of the investigation into Kruse
and Plaintiff only through hearsay. Defendant further argues that Mr. Napier’s knowledge of
alleged race discrimination within ESS once Lt. Kruse became detail leader, is limited to his
understanding of D’Amico’s complaint, his hearing D’Amico’s “racist” toast at a wedding in
2004 or 2005, his understanding that Kruse communicated policy decisions with white
supervisors but not black supervisors (information that has to be hearsay because Napier was not
a supervisor), the fact that Kruse retained Cpl. Laughner as second in command after the former
ESS head, Lt. Kulick, retired in 2002, when Laughner had less seniority in rank than Farthing,
12
that Kruse appointed Cpl. George second in command after Laughner retired, and that he heard
Farthing’s self-serving descriptions of his assignment to protect the residence of the Lt. Governor
at Fort Indiantown Gap. Defendant contends that none of the above testimony should be
admissible because most regards immaterial events from years before the events at issue, and the
rest is hearsay. Moreover, Defendant argues that it is unduly prejudicial.
Plaintiff notes that both Messrs. Bostick and Napier testified in their depositions
about racism in the ESS, both during the time it was headed by Lieutenant Kruse and, before that,
when it was headed by Lieutenant Kulick. This racism, they testified, cost black officers -including themselves and plaintiff Farthing -- ESS command and other desirable assignments to
which they were entitled. They also testified about Plaintiff’s skills, abilities and
professionalism; about yearly performance reviews and their significance; about the way
overtime was assigned in the ESS; about Plaintiff’s re-assignment to desk duty at the Gap and the
embarrassment that caused him; and about the significance of receiving, or being denied, an
honorable discharge.
The testimony of both Mr. Bostick and Mr. Napier as Plaintiff’s co-workers is
relevant to Plaintiff’s claims in this case and a blanket exclusion of this evidence is incompatible
with the way that employment discrimination cases must be tried. See Quinn v. Consolidated
Freightways Corp. of Delaware, 283 F.3d 572, 578 (3d Cir. 2002). Thus, Defendant’s Motion is
denied as to the testimony of both Mr. Bostick and Mr. Napier at trial.
How Cpl. Loughner Became Second In Command and
How Cpl. George Became Scheduler of the ESS
Defendant next moves to preclude evidence that (1) Plaintiff was bypassed from
13
becoming the executive officer of the ESS in favor of Corporal Robert Loughner; and (2) that
Plaintiff was initially bypassed in joining the ESS in favor of a white officer. Defendant argues
that the probative value of this ESS history from early in the last decade, specifically a decision
before 2003 taken by prior ESS head, Lt. Kulick, making Cpl. Loughner, who is white, the
second in command, rather than Plaintiff who had more ESS experience, and Plaintiff’s expected
testimony that he joined the ESS in the 1990s only after successfully grieving his
non-appointment . While some historic background may be tangentially related to the current
dispute, Defendant argues that its probative value is outweighed by the potential for prejudice
and confusion. Plaintiff responds that the Third Circuit has repeatedly held, so long as evidence
is relevant, it rarely should be precluded under Rule 403.
In weighing this evidence pursuant to F.R.E. 403, we find that the probative value
of this evidence is outweighed by the potential for prejudice. Moreover, although we have
precluded Plaintiff from introducing evidence related to the Bolden litigation, the relevance of
the employment decisions made with respect to Plaintiff far outweigh any danger of unfair
prejudice to Defendant. This aspect of the Defendant’s Motion is denied.
Non-Issuance of Performance Evaluations to Plaintiff in 2007 and 2008
Defendant moves to preclude evidence of the non-issuance of annual performance
reviews to Plaintiff in 2007 and 2008 as not relevant because some ESS members received
performance reviews in 2007 and 2008 but other ESS members also did not receive performance
reviews in those years. Plaintiff intends to introduce evidence that he received no performance
review in either 2007 or 2008 as supportive of his constructive discharge claim and also his claim
that he was essentially “excommunicated.” This information is relevant to Plaintiff’s claims in
14
this case, particularly Plaintiff’s claim that Defendant did not follow its own rules regarding
performance reviews and Defendant will have an opportunity to present evidence explaining the
reasons for issuance and non-issuance of performance reviews. Defendant’s motion as to annual
performance reviews is denied.
Testimony By The Hon. Marjorie O. Rendell
Former Governor Schweiker and Former Governor Ridge
Defendant moves to preclude the testimony at trial of the Honorable Marjorie O.
Rendell and former Governors Mark Schweiker and Tom Ridge on the basis that their testimony
will cause prejudice by unduly influencing the jury in addition to causing media publicity.
Plaintiff contends that the testimony of these three high ranking individuals is necessary to
support his claims of pretext, and each witness has relevant facts to present including plaintiff’s
dedication, loyalty and professionalism and when Plaintiff was assigned to protect them, he was
subject to their schedules, day or night. Moreover, Plaintiff correctly notes that their status as
fact witnesses is no different than that of any other witness in the case, and the Court will so
instruct the jury. Thus, Defendant’s Motion is denied as to the trial testimony of Judge Rendell
and former Governors Schweiker and Ridge.
The Motion of the United States for A Protective Order
Defendant moves to preclude introduction at trial of the “Unopposed Motion of
the United States for a Protective Order” on the basis that it will confuse the jury members who
are not learned in the law. Plaintiff responds that an averment by the Assistant United States
Attorney in that motion for protective order that the sexual misconduct investigation involving
Kruse, Lawver and Martin “was referred to the PSP without further action by the F.B.I.” is
15
relevant to Plaintiff’s claim that the Defendant, although it was aware of the misconduct of these
three former troopers for some time, did nothing to discipline them. Pursuant to Federal Rule of
Evidence 403, the possibility of prejudice does not outweigh the probative value of this evidence.
Accordingly, Defendant’s Motion is denied as to the motion for protective order.
The Expert Report of Plaintiff’s Economist, Andrew Verzilli, M.B.A.
Defendant moves to preclude introduction of the expert report of Defendant’s
economic expert, Andrew Verzilli, M.B.A., from evidence as inadmissible and hearsay. Plaintiff
responds that Mr. Verzilli was disclosed as Plaintiff’s economic loss expert during discovery,
Defendant chose not to depose Mr. Verzilli and Defendant did not file a Daubert motion to
preclude Mr. Verzilli’s testimony. Mr. Verzilli will be permitted to testify regarding Plaintiff’s
economic loss and refer to his report during his testimony. As there is no valid reason proffered
to exclude Mr. Verzilli’s testimony or introduction of his expert report into evidence,
Defendant’s motion is denied in this respect.
Expert Testimony of Dr. Garry Mueller
The trial testimony of Dr. Mueller will be limited to the facts gained during his
treatment of plaintiff. Further, Dr. Mueller will not be permitted to set forth any expert causation
or prognosis testimony based on facts beyond his treatment of plaintiff. See Allen v. Parkland
Sch. Dist., No. 06-1560, 230 Fed. Appx. 189, 2007 U.S. App. LEXIS 9671 (3d Cir. Apr. 27,
2007). To allow otherwise would circumvent Rule 26(a)(2)(B) of the Federal Rules of Civil
Procedure. See Lauria v. AMTRAK, No. 95-1561, 1997 U.S. Dist. LEXIS 3408, at *4-*6 (E.D.
Pa. Mar. 24, 1997)(Hutton, J.).
16
Sgt. Sharif’s 2013 Discrimination Lawsuit and EEOC/PHRA Charge
Plaintiff concedes that he does not intend to introduce any evidence regarding Sgt.
Farzad Sharif’s EEOC charge or Sgt. Sharif’s pending discrimination lawsuit in the United
States District Court for the Middle District of Pennsylvania entitled Sharif v. Manning, 1:13-cv0096 (M.D. Pa.), which was filed against the Defendant and several of its former and current
officials.
For the foregoing reasons, Defendant’s Motion in Limine is granted in part and
denied in part. An Order consistent with this Memorandum will be contemporaneously filed.
BY THE COURT:
/s/ Henry S. Perkin
HENRY S. PERKIN
UNITED STATES MAGISTRATE JUDGE
17
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
