The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT STOUD :
Plaintiff : CIVIL ACTION NO. 3:17-2183
v. : (JUDGE MANNION)
SUSQUEHANNA COUNTY, :
Defendant :
MEMORANDUM
Presently before the court are three motions in limine filed by the
defendant Susquehanna County, (Doc. 66; Doc. 68; Doc. 70), and one
motion in limine filed by the plaintiff Robert Stoud, (Doc. 64). For the reasons
set forth below, the motions will be GRANTED IN PART and DENIED IN
PART. 1
I. LEGAL STANDARD
“The purpose of a motion in limine is to allow the trial court to rule in
advance of trial on the admissibility and relevance of certain forecasted
1 The facts and procedural history of this case were set forth in the
court’s memorandum dated July 7, 2020, (Doc. 56), and the court need not
repeat it herein except to note that the County is the only remaining
defendant in this case and the only remaining claims are Stoud’s Title VII
and Pennsylvania Human Relations Act (“PHRA”) retaliation claims in
Counts I and III, as well as the Title VII and PHRA hostile work environment
claims in Counts II and IV of the complaint.
evidence.” United States v. Tartaglione, 228 F.Supp.3d 402, 406 (E.D.Pa.
2017). On a motion in limine, evidence should only be excluded “when the
evidence is clearly inadmissible on all potential grounds.” Id. Evidentiary
rulings on motions in limine are subject to the trial judge’s discretion and are
therefore reviewed for an abuse of discretion. Abrams v. Lightolier, Inc., 50
F.3d 1204, 1213 (3d Cir. 1995); Bernardsville Bd. of Educ. v. J.H., 42 F.3d
149, 161 (3d Cir. 1994). “The Court is vested with broad inherent authority
to manage its cases, which carries with it the discretion and authority to rule
on motions in limine prior to trial.” Ridolfi v. State Farm Mutual Auto. Ins. Co.,
2017 WL 3198006, *2 (M.D.Pa. July 27, 2017). Further, “[c]ourts may
exercise this discretion in order to ensure that juries are not exposed to
unfairly prejudicial, confusing or irrelevant evidence.” Id. (citation omitted).
“A trial court considering a motion in limine may reserve judgment until
trial in order to place the motion in the appropriate factual context.”
Tartaglione, 228 F.Supp.3d at 406 (citation omitted). “Further, a trial court’s
ruling on a motion in limine is ‘subject to change when the case unfolds,
particularly if actual testimony differs from what was contained in the
movant’s proffer.’” Id. (citing Luce v. United States, 469 U.S. 38, 41 (1984)).
II. DISCUSSION
a. Future Earnings
In one of its motions in limine, (Doc. 70), the County seeks an advance
ruling precluding Stoud from presenting a claim at trial for loss of future
earnings since he has not presented any evidence on future earnings or front
pay and should not be permitted to speculate.
In response, Stoud contends that he should not be precluded from
doing so because, on July 14, 2020, he provided the County a breakdown of
damages in an email. In light of the fact that expert testimony is not required
to present evidence of front pay damages to a jury, Stoud argues that the
County has ample time to prepare any necessary cross-examination on the
issue of loss of future earnings.
The Third Circuit has held, “[I]t is well settled that the risk of lack of
certainty with respect to projections of lost income must be borne by the
wrongdoer, not the victim.” Bartek v. Urban Redevelopment Authority of
Pittsburgh, 882 F.2d 739, 746 (3d Cir.1989) (internal quotation marks
omitted). Thus, “[w]hile the risk of any speculation in the calculation of
damages is upon the employer, the victim ha[s] the initial burden of
identifying those positions upon which an award of damages is to be based.”
Id.
At this point, the court agrees that, while Stoud has not yet presented
evidence of his loss of future earnings, he is entitled to do so at trial, and he
is not required to utilize an expert to do so. See id. As long as Stoud has
some personal knowledge of his salary and his loss of income, which he
presumably does, Stoud may present his own testimony in support of this
argument. See Fed.R.Evid. 602 (requiring a witness have personal
knowledge of the matter about which he is testifying). Insofar as the County
predicts this evidence will be speculative or conclusory, that argument
pertains to the weight of the evidence presented, which is a question solely
for the jury. Accordingly, the court will DENY the County’s motion, (Doc. 70),
regarding future earnings.
b. Attorney-Client Privilege
Both parties’ have submitted motions in limine related to attorney-client
privilege regarding Stoud’s desire to call Attorney Michael Giangrieco, who
previously served as the County’s Solicitor, as a witness at trial.
In his motion in limine, (Doc. 64), Stoud argues that, despite his former
position as County Solicitor, he should be permitted to call Attorney
Giangrieco as a witness. Stoud anticipates that the County will object, citing
attorney-client privilege; however, Stoud counters this noting that Attorney
Giangrieco filed a complaint against the County on May 19, 2020, (Doc. 64-
1), in which Attorney Giangrieco states he repeatedly spoke to
Commissioner Arnold about her actions that were contrary to County policy
and could potentially expose the County to liability. Stoud cites the fact that,
in his complaint, Attorney Giangrieco indicates that his conversations with
Commissioner Arnold were not part of his job duties because there was
another attorney, one appointed by the County’s insurance company, who
was responsible for controlling Commissioner Arnold’s actions related to
litigation against the County. Stoud notes that there was in fact another
attorney, Attorney Robin Reed, who represented the County in EEOC
actions with Stoud and Maggie McNamara. Thus, because of County’s
retention of Attorney Reed, Stoud argues no attorney-client privilege exists
related to Attorney Giangrieco.
Even if the privilege did exist, however, Stoud argues that the crime-
fraud exception applies to defeat the privilege. This is so, Stoud argues,
because Attorney Giangrieco states in his complaint that the documents
prepared for the County’s responses to two EEOC complaints were false,
inaccurate, and did not reflect the facts given by him and others, that he and
others saw the responses and knew they was false, and that he and others
were asked to lie and change their prior statements in order to protect
Commissioner Arnold. Because lying and falsifying legal documents are
crimes, Stoud argues the crime-fraud exception applies and defeats the
attorney-client privilege.
Relatedly, Stoud seeks an advance ruling on whether he may question
Commissioners Hall, Arnold, and Warren about the County’s EEOC
responses and their knowledge of any lies or inaccuracies in them. Stoud
contends that this line of questioning would not violate attorney-client
privilege because it, too, falls under the crime-fraud exception.
The County, in response, (Doc. 77), and in its own motion in limine,
(Doc. 66), argues that the fact additional counsel was retained does not
mean that Attorney Giangrieco was not the County Solicitor and still acting
as the County’s attorney when providing advice to the Commissioners. The
County argues that Attorney Giangrieco cannot “pick and choose when he is
acting as the County’s attorney.” (Doc. 77, at 2). With regard to the crime-
fraud exception, the County argues that there must be evidence beyond an
accusation to defeat the privilege and that Stoud has offered no evidence
beyond the statements of the County’s “disgruntled former employee”—i.e.,
Attorney Giangrieco. (Doc. 77, at 3).
In his response, Stoud repeats his earlier arguments but additionally
contends that the County waived its privilege because, in their depositions,
Commissioners Hall and Warren disclosed confidential communications with
Attorney Giangrieco. For example, Stoud notes that Commissioner Hall
recounted conversations between Attorney Giangrieco, Commissioner
Arnold, and himself regarding Commissioner Arnold’s treatment of Stoud.
Thus, Stoud contends that the privilege was waived with respect to all
communications pertaining to Stoud’s employment with the County.
The attorney-client privilege, which protects confidential
communications between client and attorney, is strictly construed. United
States v. Doe, 429 F.3d 450, 454 (3d Cir. 2005). “A principal and reasonable
exception is that the privilege may not be used for the purpose of obtaining
advice to promote crime or fraud. Although broad, the privilege does not
allow a client to shield evidence of an intent to use an attorney’s advice to
further a criminal purpose.” Id. Thus, a crime-fraud exception applies to those
communications “between an attorney and client that are intended to further
a continuing or future crime or tort.” Id. (internal quotation marks omitted). In
determining whether the exception applies,
“the client’s intention controls and the privilege may
be denied even if the lawyer is altogether innocent.”
In re Grand Jury Proceedings, 604 F.2d 798, 802 (3d
Cir.1979). The privilege is not lost if the client
innocently proposes an illegal course of conduct to
explore with his counsel what he may or may not do.
Only when a client knowingly seeks legal counsel to
further a continuing or future crime does the crime-
fraud exception apply.
Doe, 429 F.3d at 454. In order to determine whether the exception applies,
the court must apply the reasonable basis test. In re Grand Jury, 705 F.3d
133, 155 (3d Cir. 2012). The “party seeking to apply the crime-fraud
exception must demonstrate that there is a reasonable basis to suspect (1)
that the privilege holder was committing or intending to commit a crime or
fraud, and (2) that the attorney-client communication or attorney work
product was used in furtherance of that alleged crime or fraud.” Id.
Here, the court disagrees with Stoud that the attorney-client privilege
does not apply to Attorney Giangrieco’s communications with County
employees merely because the County hired additional outside counsel.
Thus, the communications between the Commissioners and Attorney
Giangrieco about legal matters are covered by the privilege. The court,
however, agrees with Stoud that he should be permitted to question both
Attorney Giangrieco and the Commissioners with respect to those matters
that fall within the crime-fraud exception. For example, Stoud indicates that
he wishes to question Attorney Giangrieco and the Commissioners about
Attorney Giangrieco’s allegations that he and other employees saw the
County’s EEOC responses and knew portions of them were false, that he
and other employees asked that the falsities be corrected, and that he and
other employees were asked to lie and change statements to protect
Commissioner Arnold. Such communications between Attorney Giangrieco
and County employees and/or the Commissioners and the outside counsel
would fall squarely within the category of “communications between attorney
and client where the client’s purpose is the furtherance of a future intended
crime or fraud.” Consultation in furtherance of crime or fraud, 1 MCCORMICK
ON EVID. §95 (8th ed.).
The court finds that Stoud has demonstrated via Attorney Giangrieco’s
complaint, (Doc. 64-1), that there is a reasonable basis to suspect that
County employees intended to commit a crime—to wit, falsify legal
documents—despite Attorney Giangrieco’s and others’ apparent advice to
the contrary and that Attorney Giangrieco’s responses, albeit falsified, were
used in furtherance of that crime under the guidance of an attorney. This
evidence supports a waiver of the attorney-client privilege.
Accordingly, the County’s motion, (Doc. 66), is DENIED. Stoud’s
motion is GRANTED IN PART to the extent that he will be permitted to call
Attorney Giangrieco and the Commissioners as witnesses and question
them with respect to the aforementioned communications.
c. Expert Evidence Regarding Proper Human Resources
Procedures
Finally, Stoud argues that the County should not be permitted to submit
any evidence related to proper human resources or management
procedures at trial because, while Stoud complied with the court’s June 17,
2019 order, (Doc. 48),2 and timely submitted the expert report, (Doc. 69-1),
and curriculum vitae of his expert, human resources specialist Patricia
Staples, the County has not done so.
In its response, (Doc. 79), the County argues that the mere fact it made
the decision not to retain an expert does not mean it can be precluded from
discussing proper human resources and management procedures or the
County’s policies and procedures.
The County additionally filed its own motion in limine, (Doc. 68),
seeking to prelude Stoud from introducing Staples’s report and testimony.
The County argues that her expert report makes biased credibility
determinations and includes improper legal conclusions. For example, the
County argues that a section of Staples’s report “simply re-states several
allegations made by [Stoud] and declares that they constitute a violation of
Title VII[.]” (Doc. 69, at 3). The County argues that the majority of the report
2 The court’s June 17, 2020 order required that the County’s expert
reports, if any, be submitted by August 16, 2019. (Doc. 48).
is merely a recitation of the allegations in Stoud’s Complaint, as well as
statements from his deposition which, if accepted into evidence, will risk
misleading the jury by “uncritically lending of veneer of truth to those
assertions whose determination is in the province of the jury.” (Doc. 69, at
4). Finally, the County argues that the report improperly blames the actions
of third parties on the County and relies, at least in part, on a confidential
attorney-client privileged letter sent from Attorney Giangrieco to the
Commissioners—a letter which Stoud agreed was privileged.
Stoud, in response, argues that Staples’s testimony is relevant
because human resources and management policy is a factual issue here
and Staples has specialized knowledge that will assist the jury in
understanding the evidence. Stoud, however, states he would agree to
redacting certain portions of the report if he is permitted to introduce ten
areas of the report that he has highlighted which, he argues, are necessary
to assist the jury. These areas include the following:
(1) Derogatory comments by Commissioners Arnold and
Warren referencing Stoud’s personal appearance,
how he interacted, and that he is not from
Susquehanna County;
(2) McNamara’s performance not rising to a level where
termination was appropriate;
(3) The lack of one-on-one communication of work
expectations and/or changing expectations that were
not reviewed with Stoud or McNamara;
(4) That the defense of a subordinate’s work is not
grounds for disciplinary action;
(5) That a self-administered progressive disciplinary
policy is “not normal”;
(6) The threats and ultimatums to Stoud that he would
be fired if he did not discipline McNamara—this being
an example of an intimidating, hostile, or offense
work environment;
(7) That there was no legitimate business reason to gain
access to Stoud and McNamara’s emails;
(8) Commissioner Arnold’s admission that she talked
with others about Stoud having an inappropriate
relationship with McNamara thereby undermining his
authority;
(9) That Commissioner Arnold’s actions indicated that
she had a limited understanding of basic
management principles and was circumventing the
chain of command; and
(10) That Commissioner Arnold personally disliked Stoud
and her actions toward him were reflective of her
personal feelings, as opposed to specific work-
related issues.
(Doc. 76-1, at 2-6).
The standard of admissibility for expert testimony is governed by the
Federal Rules of Evidence, specifically Rule 702, and the United States
Supreme Court’s decision in Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579 (1993). Rule 702 states:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if:
(a) 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; (b) the testimony is based on sufficient facts or
data; (c) the testimony is the product of reliable
principles and methods; and (d) the expert has
reliably applied the principles and methods to the
facts of the case.
Fed.R.Evid. 702.
The Third Circuit has interpreted Rule 702, as analyzed in Daubert and
its progeny, to include “three distinct substantive restrictions on the
admission of expert testimony: qualifications, reliability and fit.” Elcock v.
Kmart Corp, 233 F.3d 734, 741 (3d Cir. 2000). The proponent of the expert
“bears the burden of establishing the reliability and admissibility of the
expert’s testimony by a preponderance of the evidence.” Burke v. TransAm
Trucking, Inc., 617 F.Supp.2d 327, 331 (3d. Cir. 2009). Rule 702 has a
liberal policy favoring admissibility. Pineda v. Ford Motor Co., 520 F.3d 237,
243 (3d Cir.2008).
i. Qualifications
In order for a witness to be qualified as an expert, “he must first be
qualified by virtue of specialized expertise.” Elcock, 233 F.3d at 741. The
standard to be qualified as an expert was articulated by the Third Circuit as
follows:
Rule 702 requires the witness to have specialized
knowledge regarding the area of testimony. The
basis of this specialized knowledge can be practical
experience as well as academic training and
credentials. We have interpreted the specialized
knowledge requirement liberally, and have stated
that this policy of liberal admissibility of expert
testimony extends to the substantive as well as the
formal qualification of experts. However, at a
minimum, a proffered expert witness . . . must
possess skill or knowledge greater than the average
layman . . . .
Id. (internal citations and quotation marks omitted).
Here, Stoud argues that Staples has specialized knowledge in human
resources and management beyond the common sense of a lay juror that
will help the jury understand the County employees’ actions toward Stoud.
Stoud, however, does not elaborate on how she attained this specialized
knowledge and, therefore, the court is unable to determine whether Staples
is qualified in those areas.
ii. Reliability
The reliability threshold in Rule 702 “requires expert testimony to be
‘based on the methods and procedure of science, not on subjective belief
and unsupported speculation.’” UGI Sunbury LLC v. A Permanent Easement
for 1.7575 Acres, 949 F.3d 825, 833-34 (3d. Cir.2020) (internal quotation
marks omitted). “Courts look for rigor, not mere haphazard, intuitive inquiry.”
Id. (internal quotation marks omitted). The court is required to determine
whether the expert’s testimony is supported by “good grounds.” Id. (internal
quotation marks omitted).
Both the Supreme Court in Daubert and the Third Circuit have
explained that many factors ought to be considered when determining
whether an expert’s testimony is based on “good grounds.” Id. These factors
include:
(1) whether a method consists of a testable
hypothesis; (2) whether the method has been subject
to peer review; (3) the known or potential rate of
error; (4) the existence and maintenance of
standards controlling the technique’s operation; (5)
whether the method is generally accepted; (6) the
relationship of the technique to methods which have
been established to be reliable; (7) the qualifications
of the expert witness testifying based on the
methodology; and (8) the non-judicial uses to which
the method has been put.
Id. at 834 (quoting Pineda v. Ford Motor Co., 520 F.3d 237, 247-48 (3d
Cir.2008). No one factor is dispositive, but the court is required to analyze
these factors to some extent. UGI Sunbury, 949 F.3d at 834.
Once again, Stoud has not provided any information that sheds any
light into Staples’s methodology other than her report which indicates that
she reviewed various legal filings in this case. (Doc. 76-1, at 2). Upon review
of the report, (Doc. 76-1), the court must agree with the County that it
consists almost entirely of recitations of Stoud’s allegations followed by a
conclusion that the actions taken by County employees were inappropriate.
It does not appear to the court that Staples’s report gives any additional
insight into the issues of this case beyond that which could be provided by
an ordinary lay witness. Moreover, the court agrees with the County that
presenting Stoud’s allegations in the context of an expert report would tend
to lend a veneer of truth to those assertions and would indeed be prejudicial
to the County.
Accordingly, the court will GRANT WITHOUT PREJUDICE the
County’s motion to preclude the introduction of Patricia Staples’s testimony
and report. (Doc. 68). In the event Stoud can establish the qualifications,
reliability, and fit of Staples as an expert witness, he may move to introduce
her as an expert witness at a later time, provided he has complied with the
disclosure requirements of Rule 26 Federal Rule of Civil Procedure.
Finally, with respect to the portion of Stoud’s motion in limine, (Doc.
64), that seeks to preclude the County from submitting any evidence related
to proper human resources and management procedures at trial, the motion
is DENIED. Although Stoud argues that the County did not “comply” with the
court’s June 17, 2019 order and timely submit an expert report, the
introduction of evidence related to proper human resources and
management procedures does not necessarily require an expert witness and
the County does not indicate that it intends to introduce such evidence via
an expert witness. Accordingly, the County will not be precluded from
introduction of such evidence.
III. CONCLUSION
For the above stated reasons, Stoud’s motion in limine, (Doc. 64), is
GRANTED IN PART and DENIED IN PART. The County’s motion in limine
regarding future earnings, (Doc. 70), is DENIED. The County’s motion in
limine regarding attorney client privileged material, (Doc. 66), is DENIED.
The County’s motion in limine regarding Stoud’s expert report, (Doc. 68), is
GRANTED WITHOUT PREJUDICE to Stoud to move to for the admission
of Staples as an expert witness.
An appropriate order will follow.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATE: October 13, 2020
17-2183-03