The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
LAUREN MASTRIPOLITO, : CIVIL ACTION
: NO. 19-21708
Plaintiff, :
:
v. :
:
JEFFRESON HEALTH-NEW JERSEY :
:
Defendant. :
M E M O R A N D U M
EDUARDO C. ROBRENO, J. January 28, 2022
I. INTRODUCTION
Plaintiff Lauren Mastripolito brings this action against
Defendant Jefferson Health - New Jersey alleging that Defendant
created a hostile work environment. Plaintiff alleges that she
was sexually assaulted by a coworker (Anthony Hailey) at
Defendant’s Washington Township Dialysis Center and, after
reporting the alleged assault, Defendant failed to take
appropriate remedial measures in violation of Title VII of the
Civil Rights Act of 1964 and New Jersey’s Law Against
Discrimination (“NJLAD”).
Before this Court is Defendant’s motion in limine to (A)
exclude the testimony and report of Plaintiff’s expert Michael
Torchia, (B) exclude evidence of the criminal history of Anthony
Hailey, (C) exclude evidence of Anthony Hailey’s discipline
record, (D) exclude evidence of a prior incident report
involving Anthony Hailey, and (E) exclude evidence of statements
Anthony Hailey made to another coworker, Mary Pentz, over a
decade prior. The Court held a hearing on these issues on
January 4, 2022.
For the following reasons, Defendant’s motion will be
granted in part and denied in part.
II. LEGAL STANDARD
Motions in limine “allow the trial court to rule in advance
of trial on the admissibility and relevance of certain
forecasted evidence.” United States v. Tartaglione, 228 F. Supp.
3d 402, 406 (E.D. Pa. 2017) (citing Bradley v. Pittsburgh Bd. of
Educ., 913 F.2d 1064, 1069 (3d Cir. 1990)). “The trial court
should exclude evidence on a motion in limine only when the
evidence is clearly inadmissible on all potential grounds.” Id.
(citing Leonard v. Stemtech Health Sciences, Inc., 981 F. Supp.
2d 273, 276 (D. Del. 2013)). The party seeking to exclude
evidence “bears the burden of demonstrating that the challenged
evidence is inadmissible ‘on any relevant ground.’” Apotex, Inc.
v. Cephalon, Inc., No. 2:06-CV-2768, 2017 WL 2362400, at *2
(E.D. Pa. May 31, 2017) (quoting Leonard, 981 F. Supp. 2d at
276).
III. DISCUSSION
A. Motion to Exclude the Expert Report of Michael Torchia
Defendant moves to exclude the expert report of Michael
Torchia. Michael Torchia is an employment lawyer based in
Pennsylvania who has previously testified as an expert on
workplace investigation in other cases. In this case, Mr.
Torchia authored a report on whether Defendant properly
conducted a workplace investigation relating to complaints made
by Plaintiff.
Plaintiff offers Mr. Torchia’s report on an issue related
to vicarious liability. “[E]mployer liability for co-worker
harassment exists only if the employer failed to provide a
reasonable avenue for complaint or, alternatively, if the
employer knew or should have known of the harassment and failed
to take prompt and appropriate remedial action.” Huston v.
Procter & Gamble Paper Prod. Corp., 568 F.3d 100, 104 (3d Cir.
2009). “[T]he law does not require that investigations into
sexual harassment complaints be perfect. Rather, to determine
whether the remedial action was adequate, we must consider
whether the action was reasonably calculated to prevent further
harassment.” Knabe v. Bury Corp., 114 F.3d 407, 412 (3d Cir.
1997) (internal citations and quotation marks omitted). However,
an “investigation might be carried out in a way that prevents
the discovery of serious and significant harassment by an
employee such that the remedy chosen by the employer could not
be held to be reasonably calculated to prevent the harassment.”
Id. at 414. The Third Circuit emphasized that “an employer can
be held liable if a faulty investigation renders its subsequent
remedial action inadequate, i.e., not reasonably calculated to
prevent further harassment.” Id. Plaintiff seeks to offer Mr.
Torchia’s testimony to help the trier of fact to determine
whether the investigation was carried out in manner that impeded
“the discovery of serious and significant harassment.” Id.
Defendant does not contest Mr. Torchia’s credentials.
Rather, Defendant argues that Mr. Torchia’s report goes to the
ultimate legal issue of whether Defendant’s actions were
“reasonably calculated to prevent further harassment,” and
allowing Mr. Torchia to testify would not assist the trier of
fact. Def. Mot. at 3, ECF No. 70-1 (emphasis omitted). These
will be addressed in turn.
1. Whether Mr. Torchia’s Report Contains Legal
Conclusions
Though “[t]he District Court has discretion to determine
whether expert testimony will help the trier of fact . . . the
District Court must ensure that an expert does not testify as to
the governing law of the case” as “an expert witness is
prohibited from rendering a legal opinion.” Berckeley Inv. Grp.
Ltd. v. Colkitt, 455 F.3d 195, 217 (3d Cir. 2006). “[T]he line
between admissible and inadmissible expert testimony as to the
customs and practices of a particular industry often becomes
blurred when the testimony concerns a party’s compliance with
customs and practices that implicate legal duties.” Id. at 218.
The Third Circuit has permitted experts to “opine on
established industry customs and standards, provided the
testimony stops short of defining the legal duties arising from
industry customs or opining on whether the defendant has
complied with those duties.” Jordan v. Temple Health Sys., Inc.,
No. 16-5561, 2018 WL 3649019, at *2 (E.D. Pa. Aug. 1, 2018)
(citing Berckeley, 455 F.3d at 218). In Berckeley, a case
involving whether the defendant made material misrepresentations
with respect to an offshore securities purchase agreement, the
Third Circuit held that an expert in offshore securities
transactions could testify about the “customs and business
practices in the securities industry at the time the parties
entered into the Agreement” as this could “provide[] an
important context which will aid the jury in determining whether
[appellee] had the requisite scienter at the time to evade the
registration requirements.” 455 F.3d at 218. However, the expert
would not be permitted to “testify as to whether [appellee]
complied with legal duties that arose under federal securities
laws.” Id.
Similarly, in First Nat. State Bank of New Jersey v.
Reliance Elec. Co., the Third Circuit affirmed a district
court’s decision to permit an expert on the Uniform Commercial
Code to testify as to the customs of the banking industry “to
assist the trier of fact with bank and industry practices” and
to “provide[] information on whether the [b]ank’s conduct
warranted status akin to that of a holder in due course in light
of banking practices.” 668 F. 2d 725, 731 (3d Cir. 1981).
However, the expert was not permitted to testify about the legal
duties arising from banking customs, or to make an ultimate
conclusion on whether the “[b]ank lacked good faith and/or had
notice of claims, thereby denying it holder-in-due-course
status.” Id.
Defendant argues that Mr. Torchia’s report includes several
pages that outline the relevant caselaw and legal standard that
should be excluded. Defendant points to Jordan, where a court in
the Eastern District of Pennsylvania excluded an expert report
authored by Mr. Torchia that described the federal law and
relevant regulations relating to the American with Disabilities
ACT (“ADA”) and EEOC in an ADA case. 2018 WL 3649019, at *1. In
that case, the court excluded Mr. Torchia’s opinion because
“[t]he majority of the report consists of recitations of case
law and federal regulations” and the only opinions “relate
directly to the legal duties existing under the ADA, and unduly
infringe on the judge’s lawgiving and jury's fact-finding.” Id.
at *2. Because Mr. Torchia’s proffered testimony did not contain
any opinions regarding industry standards, the court found that
it would not “‘help the trier of fact to understand the
evidence’ beyond what will already be provided by fact witnesses
and this Court’s legal instructions.” Id. at *3 (citing Fed. R.
Evid. 702).
Here, Mr. Torchia’s report does contain several pages
detailing recitation of caselaw and the relevant legal standard.
This portion of Mr. Torchia’s report is not admissible. However,
Mr. Torchia’s report also includes relevant information
regarding the industry standard, the admissibility of which is
discussed below.
2. Whether Mr. Torchia’s Report Will Assist the
Trier of Fact
Defendant argues that the remainder of Mr. Torchia’s
testimony regarding the relevant industry standard will not be
helpful to the trier of fact. When considering whether an expert
may testify the trial judge must:
(1) confirm the witness is a qualified expert; (2) check
the proposed testimony is reliable and relates to
matters requiring scientific, technical, or specialized
knowledge; and (3) ensure the expert’s testimony is
‘sufficiently tied to the facts of the case,’ so that it
‘fits’ the dispute and will assist the trier of fact.
UGI Sunbury LLC v. A Permanent Easement for 1.7575 Acres, 949
F.3d 825, 832 (3d Cir. 2020) (quoting Daubert v. Merell Dow
Pharm., 509 U.S. 579, 591 (1993)). Defendant argues that Mr.
Torchia is unable to satisfy the third requirement in that his
testimony will not “fit” the dispute or “assist the trier of
fact.” Id. This condition relates “primarily to relevance,” so
the expert’s testimony must be related to the issues at hand.
Daubert, 509 U.S. at 591.
Defendant first argues that the portion of Mr. Torchia’s
report that discusses the industry standard is not relevant to
the issues at hand. Defendant avers that because “the law does
not require that investigations into sexual harassment
complaints be perfect,” an opinion on the adequacy of the
investigation is unnecessary. Knabe, 114 F.3d at 412. As noted,
“to determine whether the remedial action was adequate, we must
consider whether the action was reasonably calculated to prevent
further harassment.” Id. (internal citations and quotation marks
omitted). However, an “investigation might be carried out in a
way that prevents the discovery of serious and significant
harassment by an employee such that the remedy chosen by the
employer could not be held to be reasonably calculated to
prevent the harassment.” Id. at 414. Thus, Mr. Torchia’s
testimony on the relevant industry standards may help the trier
of fact to determine whether the investigation was carried out
in manner that impeded “the discovery of serious and significant
harassment.” Id.
Defendant additionally relies upon several cases in which
courts excluded expert testimony on the sufficiency of an
employer’s investigation, finding that such testimony would not
assist the trier of fact. Defendant points to Knox v. PPG
Industries, Inc., a case where the Western District of
Pennsylvania excluded testimony from an expert in workplace
investigations, finding that the jury was capable of
understanding whether the defendant conducted a flawed
investigation and that the expert’s testimony “would suggest a
higher standard [for investigations] than what the law
requires.” No. 15-1434, 2018 U.S. Dist. Lexis 42508, at *3 (W.D.
Pa. March 15, 2018). However, Knox is inapposite as there is no
argument here that Mr. Torchia’s report suggests a higher
standard for investigations than what is legally required.
Defendant also relies on Crawford v. George Lynch, Inc., a
case where the District of Delaware considered whether to
exclude an expert report that discussed whether the defendant-
employer deviated from standard employer practices. No. 10-949,
2013 WL 6504361, at *1 (D. Del. Dec. 9, 2013). Crawford
specifically dealt with whether an employer exercised reasonable
care to prevent and correct harassing behavior in the context of
the Faragher-Ellerth affirmative defense as applied to a
supervisory harassment claim. Id. The Crawford court excluded
portions of the expert’s report that involved industry standards
because the report “generally refer[red] to ‘standard practice’
or ‘standards in the industry’ that are ‘typically put in place
by organizations’” without explaining the methodology that
governs the sufficiency of the industry standards. Id. at *2.
Here, Crawford is also inapposite because the Defendant has not
disputed Mr. Torchia’s methodology.
In response, Plaintiff points to several cases where courts
have found that expert testimony regarding an employer’s
response to complaints of harassment were admissible. See, e.g.,
Fantazzi v. Temple Univ. Hosp., Inc., No. 00-3175, 2003 U.S.
Dist. Lexis 9731, at *5 (E.D. Pa. May 13, 2003) (allowing expert
testimony “that [defendant] failed to take adequate steps to
prevent retaliation against Plaintiff,” but excluding the
expert’s “proposed legal conclusion that [defendant] retaliated
against Plaintiff”); Blakely v. Continental Airlines, No. 93-
2194, 1997 U.S. Dist. LEXIS 22074, *9 (D.N.J. Sept. 9, 1997)
(finding the expert’s testimony “will be limited to the general
policies and practices a company may undertake in an effort to
be effective in preventing and addressing allegations of sexual
harassment”).
Significantly, Plaintiff points to two recent cases where
Mr. Torchia was permitted to offer his opinion on the relevant
industry standards. In Vandergrift v. City of Philadelphia, the
plaintiff brought a claim of hostile work environment and argued
that the defendant ineffectively handled an investigation
pertaining to plaintiff’s claims of sexual harassment and
discrimination. 228 F. Supp. 3d 464, 488 (E.D. Pa. 2017). The
defendant had argued that it exercised reasonable care to
prevent and correct any harassment and discrimination. In its
decision resolving summary judgment, the Eastern District of
Pennsylvania allowed the plaintiff’s hostile work environment
claim to proceed, citing, as a reason, Mr. Torchia’s expert
report that outlined deficiencies in the defendant’s
investigation. Id. Later, the same court found that Mr. Torchia
“[m]ay opine relying upon alleged deviations from cited nonlegal
standards in conducting workplace investigations necessary to
refute the affirmative defense of acting reasonably and promptly
to correct or prevent alleged discrimination.” Vandergrift v.
City Of Phila., No. 16-2999, Ord. at 1, ECF No. 52. The
Vandergrift court found that the proposed testimony identified
deficiencies in the defendant’s investigation, which are
relevant to the determination of whether the defendant took
adequate measures to address the plaintiff’s allegations. Id. at
3-5. On the other hand, the court found that Mr. Torchia would
not be permitted to testify about whether defendant’s conduct
violated applicable law. Id. at 7.
Similarly, in Barnes v. Shell Exploration and Prod. Co.
Appalachia, the Middle District of Pennsylvania permitted Mr.
Torchia to testify about the sufficiency of an investigation in
a case involving supervisory harassment, but did not permit Mr.
Torchia to testify about the relevant legal standards or
caselaw. No. 18-1497, Ord. at 6-7, ECF No. 117.
Under these circumstances, Mr. Torchia will be permitted to
submit an updated report, consistent with this opinion, that
offers an opinion on the relevant industry standards for
conducting a proper and appropriate investigation. As noted, Mr.
Torchia may not include opinions on the relevant caselaw and
legal standard. Additionally, Mr. Torchia’s report may not offer
an ultimate conclusion about whether Defendant’s conduct
violated the relevant industry standards.
B. Motion to Exclude Mr. Hailey’s Past Criminal History
Plaintiff does not oppose Defendant’s motion to exclude
evidence of Mr. Hailey’s criminal history so it will be granted
as unopposed.
C. Motion to Exclude Evidence of Mr. Hailey’s Past
Workplace Conduct
Defendant seeks to exclude evidence of prior written
discipline that Mr. Hailey, Plaintiff’s alleged assailant, had
received during his employment with Defendant and Defendant’s
predecessor, Kennedy University Health System. Defendant argues
that evidence relating to attendance issues, performance write-
ups, absences, and issues related to Mr. Hailey not taking a
patient’s vital signs correctly are in no way relevant to the
acts Mr. Hailey is accused of committing in this case.
Defendant argues that such evidence is inadmissible
pursuant to Federal Rule of Evidence 404 as it is evidence of a
past act that is “not admissible to prove a person’s character
in order to show that on a particular occasion the person acted
in accordance with the character.” Fed. R. Evid. 404(b)(1). To
be admissible under Rule 404(b):
(1) The evidence must have a proper purpose under Rule
404(b); (2) it must be relevant under Rule 402; (3) its
probative value must outweigh the prejudicial effect
under Rule 403; and (4) the [district] court must charge
the jury to consider the evidence only for the limited
purpose for which it was admitted.
Becker v. Arco Chem. Co., 207 F.3d 176, 189 (3d Cir. 2000)
(citing J & R Ice Cream Corp. v. Cal. Smoothie Licensing Corp.,
31 F.3d 1259, 1268 (3d Cir. 1994)).
With respect to the first prong, evidence must be relevant
to a non-propensity purpose to be admissible. United States v.
Repak, 852 F.3d 230, 243 (3d Cir. 2017). When a proponent
contends that the evidence “is both relevant and admissible for
a proper purpose, ‘the proponent must clearly articulate how
that evidence fits into a chain of logical inferences, no link
of which may be the inference that the defendant has the
propensity to commit the crime charged.’” Becker, 207 F.3d at
191 (citing United States v. Morley, 199 F.3d 129, 133 (3d Cir.
1999)). Defendant argues that there is no non-propensity purpose
for which this evidence can be admitted. In response, Plaintiff
argues that this evidence pertains to Mr. Hailey’s overall
credibility because a member of Defendant’s human resources
department previously testified during her deposition that Mr.
Hailey would bend the rules to “would work the rules in his
favor.” Berwick Dep. 45:18-46:5, ECF No. 52-7. Plaintiff seeks
to introduce such evidence and testimony at trial.
The Court does not find that Plaintiff has shown how this
“evidence fits into a chain of logical inferences.” Becker, 207
F.3d at 191. Plaintiff clearly seeks to use this evidence to
show that because Mr. Hailey has allegedly broken the rules in
the past, he was likely to do so with respect to Plaintiff. The
Court finds that Plaintiff does not seek to offer this evidence
for a proper purpose that is admissible under Rule 404(b).1
Accordingly, Defendant’s motion will be granted on this ground.
D. Motion to Exclude Evidence of a Prior Incident
Relating to Alleged Sexual Misconduct
During the course of Defendant’s investigation, a human
resources representatives found a somewhat illegible handwritten
incident report dated May 26, 2008 and a related corrective
action notice in Mr. Hailey’s department file. The incident
1 Pursuant to Federal Rule of Evidence 404(b)(2), evidence of
another wrong or act “may be admissible for another purpose,
such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.”
report appears to involve a prior allegation of assault against
Mr. Hailey by a patient. Defendant anticipates that Plaintiff
will seek to introduce these documents as evidence of a prior
incident of harassment that human resources personnel should
have questioned Mr. Hailey about during the investigation.
Plaintiff argues that this evidence is relevant of whether
Defendant took “prompt and appropriate remedial action” when
conducting its investigation. Huston, 568 F.3d at 104.
Defendant argues that admitting such evidence would violate
Federal Rules of Evidence 403 as it would be more prejudicial
than probative to allow such evidence to be admitted. See Fed.
R. Evid. 403 (“The court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . .
unfair prejudice”). Defendant argues that the jury may assume
that Mr. Hailey engaged in an unwanted sexual act with a patient
even though the incident report is otherwise illegible. The
related corrective action notice also does not include any
details other than a note that Defendant was suspended.
Because the incident report is more than a decade old, is
somewhat illegible, and does not clearly describe what Mr.
Hailey was accused of, the Court finds that, pursuant to Rule
403, the danger of unfair prejudice of introducing the incident
report and related corrective action notice would substantially
outweigh any probative value such evidence may have.
Accordingly, the Court will grant Defendant’s motion on this
ground.
E. Defendant’s Motion to Exclude Evidence Regarding
Comments Mr. Hailey Made to Mary Pentz
After Plaintiff reported Mr. Hailey for allegedly
assaulting her, Plaintiff informed Defendant that she allegedly
found a note written by Mr. Hailey in her vehicle. Defendant
investigated this claim. During the course of Defendant’s
investigation into the origin of the note, Defendant’s human
resources personnel interviewed another employee, Mary Pentz.
Following the interview, Lakisha Reddick, a staff member in
Defendant’s human resources department, sent an e-mail recapping
her interview with Ms. Pentz to her supervisor, Julie Ellis. Ms.
Ellis made the final determination about Plaintiff’s
allegations. However, Ms. Ellis never followed up with or
otherwise acknowledged Ms. Reddick’s e-mail. The e-mail
provides:
Mary stated that ‘[Mr. Hailey] was always creepy and had
made a comments [sic] to her that he would ‘teach her to
love him they [sic] way he loved her’. Mary felt that
was just bizarre since she did not know where those
comments came from. According to Mary this comment was
at least 15 years ago and there had been no recent
incidents with Anthony. Mary stated that Anthony was
always friendly.
Def. Mot. at 29, ECF No. 70-1.
Defendant argues that the contents of the e-mail are
hearsay as Plaintiff would offer them for the truth of the
matter. In response, Plaintiff avers that Mr. Hailey’s
statements, Ms. Pentz’s statements, and the e-mail itself are
not being offered for the truth of the matter. Instead,
Plaintiff seeks to use the e-mail to show that Ms. Reddick e-
mailed the report to her supervisor, Ms. Ellis, and Ms. Ellis
never followed up with or otherwise acknowledged the e-mail.
Because, as noted, a central issue in this case is whether
Defendant’s human resources department conducted an
“investigation . . . in a way that prevent[ed] the discovery of
serious and significant harassment by an employee such that the
remedy chosen by the employer could not be held to be reasonably
calculated to prevent the harassment,” Plaintiff argues that
this is probative of whether Ms. Ellis conducted a proper
investigation before making a decision in this case. Knabe, 114
F.3d at 414.
At the hearing, Defendant argued that allowing Plaintiff to
introduce the e-mail for this limited person would increase the
likelihood of confusing the relevant issues under Federal Rule
of Evidence 403. The Court finds that the probative value of
whether Ms. Ellis conducted a proper investigation is not
substantially outweighed by the danger of confusing the issue.
In any case, a limiting instruction will cure any danger of
confusion.
Accordingly, Plaintiff may not offer the e-mail for the
truth of the matter, but may use this e-mail for the limited
purpose of supporting the argument that Ms. Ellis failed to
consider the material information provided by her staff members.
If Plaintiff chooses to offer this evidence, the Court will give
a limiting instruction to that effect.
IV. CONCLUSION
For the foregoing reasons, Defendant’s motion will be
granted in part and denied in part. An appropriate order
follows.