The opinion
THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DONNA DAVIS JAVITZ,
Plaintiff .
v. 3:15-CV-2443
(JUDGE MARIANI)
LUZERNE COUNTY, et al.,
Defendants.
MEMORANDUM OPINION
Here the Court considers Plaintiffs Motion in Limine to Preclude Any Evidence or
Argument of Collateral Benefits. (Doc. 170.) With the motion, Plaintiff requests that the
Court preclude Defendants from arguing that Plaintiffs damages (lost past and future
wages) should be reduced or offset by her small private law practice or unemployment
benefits. (Id. at 1.)
|. BACKGROUND
On December 21, 2015, Plaintiff filed the above-captioned action after she was
terminated from her position as the Director of Human Resources of Luzerne County,
Pennsylvania. (Doc. 1.) Plaintiff was hired for the position on August 4, 2014, and was
terminated on October 26, 2015. (/d. □□ 39, 72, 78.) Pursuant to 42 U.S.C. § 1983, the
Complaint contained a Fourteenth Amendment procedural due process claim and a First
Amendment retaliation claim. (/d.) Plaintiff also asserted a Breach of Contract claim and a
claim for Violation of PA Whistleblower Act and Wrongful Termination in Violation of Public
Policy 43 P.S. Section 1423(A). (Id.) Defendants in the action are Luzerne County, Robert
Lawton, County Manager for Luzerne County at all relevant times, and David Parsnik,
Division Head for Administrative Services for Luzerne County at all relevant times. (/d. □□ 2-
4.) Plaintiff subsequently filed an Amended Complaint on February 19, 2016, (Doc. 18) and
a Second Amended Complaint on April 5, 2017, (Doc. 58).
In response to Defendants’ Motion for Summary Judgment (Doc. 66), the Court
issued a Memorandum Opinion (Doc. 108) and Order (Doc. 109) on March 29, 2018,
granting Defendants’ motion in part and directing the Clerk of Court to enter judgment in
favor of Defendants on Plaintiffs Fourteenth Amendment due process claim and First
Amendment retaliation claim. (Doc. 109 {fj 2, 3.) The Court also dismissed Plaintiffs state
law claims without prejudice pursuant to 28 U.S.C. § 1367(c)(3). (Id. 4.)
After the Court denied Plaintiffs Motion for Reconsideration Under Federal Rule of
Civil Procedure 59, Plaintiff appealed the Court’s determination regarding the First
Amendment and Fourteenth Amendment claims. (Docs. 113, 117, 118.) With its October
10, 2019, opinion, the Circuit Court affirmed the Court’s ruling regarding the Fourteenth
Amendment due process claim and remanded the matter for further proceedings regarding
the First Amendment retaliation claim. Javitz v. County of Luzerne, 940 F.3d 858 (3d Cir.
2019).
As a result of this decision, the only claim now before this Court is Plaintiff's First
Amendment retaliation claim. Plaintiff claims that she was terminated in violation of her
First Amendment rights after she filed a report with the Luzerne County District Attorney
alleging that Paula Schnelly, AFSCME local president and an employee of the District
Attorney’s office in Luzerne County, illegally recorded a meeting conducted by Plaintiff with
AFSME representatives and union members present. (Doc. 58 ff] 50, 51, 55.) The meeting
had to do with an unfair labor practice charge AFSME had filed with the Pennsylvania Labor
Relations Board against Luzerne County in or about March 2015. (Id. ff] 54-44.)
Defendants contend that “Plaintiff was terminated because of her conduct towards
the unions, her refusal to follow through with hiring a Human Resources Business Partner,
her failure to initiate policies, procedures and initiatives as directed and issues with the
employment application for a candidate for an assistant public defender.” (Doc. 67 {| 70
(citing Ex. 7 to Defendants’ Appendix at 42:11-24).)
Trial is set to commence on June 30, 2021. (See Doc. 198.) The parties have filed
numerous motions in limine (Docs. 147, 149, 151, 153, 169, 170), including Defendants’
motion at issue here, which are now ripe for disposition.
Il. STANDARD OF REVIEW
“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 evidence.” United States v.
Tartaglione, 228 F. Supp. 3d 402, 406 (E.D. Pa. 2017). A court may exercise its discretion
to rule in limine on evidentiary issues “in appropriate cases.” /n re Japanese Elec. Prods.
Antitrust Litig., 723 F.2d 238, 260 (3d Cir. 1983), rev'd on other grounds sub nom.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed.
2d 538 (1986). Nevertheless, a “trial court should exclude evidence on a motion in limine
only when the evidence is clearly inadmissible on all potential grounds.” Tartaglione, 228 F.
Supp. 3d at 406. “[I]n limine rulings are not binding on the trial judge, and the judge may
always change his mind during the course of a trial.” Ohler v. United States, 529 U.S. 753,
758 n.3, 120 S. Ct. 1851, 146 L. Ed. 2d 826 (2000). The Supreme Court has long
recognized that “[a] reviewing court is handicapped in an effort to rule on subtle evidentiary
questions outside a factual context.” Luce v. United States, 469 U.S. 38, 41 (1984). Thus,
a district court's ruling on a motion in limine “is subject to change when the case unfolds.”
ld. While this is particularly so if the actual testimony at trial differs from what was
anticipated in a party's motion in limine, but “even if nothing unexpected happens at trial, the
district judge is free, in the exercise of sound judicial discretion, to alter a previous in
limine ruling.” Id. at 41-42.
Further, while motions in limine may serve as a useful pretrial tool that enables more
in-depth briefing than would be available at trial, a court may defer ruling on such motions “if
the context of trial would provide clarity.” Frintner v. TruePosition, 892 F. Supp. 2d 699, 707
(E.D. Pa. 2012). Indeed, “motions in limine often present issues for which final decision is
best reserved for a specific trial situation.” Walden v. Georgia-Pacific Corp., 126 F.3d 506,
518 n.10 (3d Cir. 1997). Thus, certain motions, “especially ones that encompass broad
classes of evidence, should generally be deferred until trial to allow for the resolution of
questions of foundation, relevancy, and potential prejudice in proper context.” Leonard v.
Stemtech Health Scis., Inc., 981 F. Supp. 2d 273, 276 (D. Del. 2013). Moreover, “pretrial
Rule 403 exclusions should rarely be granted. . . . [A] court cannot fairly ascertain the
potential relevance of evidence for Rule 403 purposes until it has a full record relevant to
the putatively objectionable evidence.” /n re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 859
(3d Cir. 1990) (emphasis in original).
Ill. ANALYSIS
Plaintiff asserts that the Court should preclude Defendants from arguing that
Plaintiffs damages (lost past and future wages) should be reduced or offset by her small
private law practice or unemployment benefits pursuant to the collateral benefit rule. (Doc.
170 at 1,6.) Defendants respond that Plaintiffs income from her private law practice should
not be precluded from consideration because it is not precluded by the collateral benefit
rule. (Doc. 178 at 5.)
The Third Circuit explained the collateral benefit rule in Craig v. Y & Y Snacks,
Inc., 721 F.2d 77, 83 (3d Cir.1983).
Under the collateral benefit rule, payment which a plaintiff receives for his or
her loss from another source is not credited against the defendant's liability for
all damages resulting from its wrongful or negligent act. Restatement (Second)
of Torts § 920A(2) (1979); 3 L. Frumer, R. Benoit & M. Friedman, Personal
Injury § 4.03 (1965); see also Smith v. United States, 587 F.2d 1013, 1015 (3d
Cir.1978); Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 179-180 & n. 3 (3d
Cir.1977). In addition to unemployment compensation, payments under Social
Security or welfare programs and similar benefits have been treated as
collateral. See, e.g., Titchnell v. United States, 681 F.2d 165 (3d Cir.1982)
(Medicare); Smith v. United States, supra (Social Security); Varlack v. SWC
Caribbean, Inc., supra (government-reimbursed medical and rehabilitative
expenses); see also 3 L. Frumer, R. Benoit & M. Friedman, supra, at § 4.033);
Restatement (Second) of Torts, supra, at § 920A comment c(3).
The rationale for a rule that at first glance may appear to provide an
inequitable double recovery is that a wrongdoer should not get the benefit of
payments that come to the plaintiff from a source collateral to the
defendant. See Kauffman, 695 F.2d at 346-47 (quoting Gullett Gin, 340 U.S.
at 364, 71 S.Ct. at 339-340); Ford Motor, 645 F.2d at 195-96. There is no
reason why the benefit should be shifted to the defendant, thereby depriving
the plaintiff of the advantage it confers. See Kassman v. American
University, 546 F.2d 1029, 1034 (D.C.Cir.1976) (per curiam).
Craig, 721 F.2d at 83.
The Court agrees with Defendants that monies Plaintiff earned through her private
legal practice are not benefits from a collateral source as that doctrine has been defined in
this Circuit. Plaintiffs earnings from her law practice are not akin to unemployment
compensation, Social Security, or welfare programs—her earnings are not “payment which
[Plaintiff] receive[d] for... her loss from another source.” /d. (emphasis added). As stated
by Defendants, “[t]he money earned by Plaintiff through her private law practice was not
received as the result of any alleged actions of Defendants.” (Doc. 178 at 6.) Plaintiff did
not file a reply brief, and, therefore, she has not disputed this assessment.
Alternatively, Plaintiff contends that the income from her law practice should not be
considered in determining damages because it constitutes “moonlight work,” i.e., “work that
[Plaintiff] could have, and did, perform simultaneously while employed by Defendant.” (Doc.
170 at 6 (citing Smith v. Normandy Properties, LLC, Civ. A. No. 07-351, 2008 WL 4443827,
at * 2 (W.D. Pa. Sept. 26, 2008); Rodriguez v. Taylor, 569 F.2d 1231, 1243 (3d Cir. 1977)).)
Plaintiff sets out the following sums which Defendant's expert states she earned from her
private law practice: $1,032 in 2010; $7,008 in 2011; $7,391 in 2012; $8,885 in 2013; $416
in 2014; $6,323 in 2015; $40,168 in 2016; $4,964 in 2017; and $7,092 in 2018. (Doc. 170 at
3-4.)
Defendants posit that they are entitled to present testimony from Plaintiff and James
Stavros, their economic expert, regarding Plaintiff's failure or inability to perform her legal
practice while working for Luzerne County. (Doc. 170 at 7.) Defendants specifically argue
they are entitled to show that the $416.00 earned by Plaintiff from her law practice in 2014
was earned before her employment with the County began and the $6,326.00 earned in
2015 was earned after her employment with the County ended on October 26, 2015.
Implicit in this position is that if Plaintiff earned no money from her law practice while
employed by the County, amounts earned from her legal practice after her termination
cannot be considered “moonlight work” which would not affect an award of damages in that
“moonlight work” is what she could have undertaken while employed.
As with the Court's determination regarding the collateral source rule, Plaintiff does
not refute that Defendants should be allowed to offer evidence regarding whether income
from her private law practice should be considered “moonlight work” which would not be
considered in calculating damages. Therefore, Plaintiffs motion is properly denied.
IV. CONCLUSION
For the reasons discussed above, Plaintiffs Motion in Limine to Preclude Any
Evidence or Argument of Collateral Benefits (Doc. 170) will be denied. A separate Order is
filed simultaneously with this Memorandum Opinion.
A □□ ANMMA
obert D.\Mariani
United States District Judge