# Scopelliti v. Traditional Home Health and Hospice

> District Court, M.D. Pennsylvania · September 24, 2021

URL: https://www.frixlaw.com/law-library/cases/10410845

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** September 24, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DINA SCOPELLITI,
Plaintiff
V. : 3:18-CV-40
(JUDGE MARIANI)
TRADITIONAL HOME HEALTH
AND HOSPICE
Defendant.
MEMORANDUM OPINION
I. INTRODUCTION
On January 5, 2018, Plaintiff Dina Scopelliti initiated the above-captioned action
against her former employer, Defendant Traditional Home Health and Hospice (hereinafter
“Traditional’). (Doc. 1). Plaintiff thereafter filed an Amended Complaint alleging
interference in violation of the Family Medical Leave Act (“FMLA”) (Count I), retaliation in
violation of the FMLA (Count Il) and “Disability Discrimination/Failure to Accommodate/
Retaliation” in Violation of Americans with Disabilities Act (“ADA”) (Count Il!) (Doc. 6). In
April, 2018, Count | of Plaintiffs Amended Complaint was dismissed with prejudice by
District Court Judge A. Richard Caputo, to whom this case was previously assigned. (See
Docs. 13, 14).
In August, 2019, following the close of fact discovery, the parties filed cross-motions
for summary judgment. The motions were thereafter referred to Magistrate Judge Martin C.
Carlson for the preparation and issuance of Reports and Recommendations (“R&R’s). (Doc.

45). In December, 2019, Judge Carlson issued two R&Rs, each addressing one motion for

summary judgment (Docs. 63, 70) and recommending that both parties’ motions be denied.
This Court adopted both R&Rs over the parties’ objections (see Docs. 75, 76), finding that a
number of triable issues of material fact existed as to the remaining causes of action. As a
result, Plaintiffs FMLA claim for retaliation concerning the termination of her employment
(Count Il) and Plaintiffs ADA/ADAAA claims for disability discrimination, failure to
accommodate, and retaliation (Count Ill) remain for trial, which is scheduled to commence

on October 12, 2021 (see Doc. 114).
Presently before the Court are the following in limine motions filed by Defendant:
1. “Motion in Limine to Preclude Plaintiff from Introducing Statements Allegedly made by
Co-Workers Regarding her Separation from Employment and/or Workplace
Discrimination” (Doc. 91);
2. “Motion in Limine to Preclude Plaintiff's Claim for Back Pay Damages” (Doc. 93);

3. “Motion in Limine to Preclude Plaintiffs Claim for Punitive Damages’ (Doc. 95);

4. “Motion in Limine to Preclude Plaintiffs Claim for Emotional Distress Damages’
(Doc. 97);
5. “Motion in Limine to Preclude Testimony of Plaintiffs Treating Physicians” (Doc. 99).
The Court will address these motions in turn.
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 (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.
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). See also,
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 387 (2008) (“Relevance and
prejudice under Rules 401 and 403 are determined in the context of the facts and
arguments in a particular case, and thus are generally not amenable to broad per se
rules.”). 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.” In re Paoij R.R. Yard PCB
Litig., 916 F.2d 829, 859 (3d Cir. 1990) (emphasis in original).
Finally, it is important to note that “in 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 (2000).
Ill. ANALYSIS
1. Defendant’s Motion in Limine to Preclude Plaintiff from Introducing Statements
Allegedly made by Co-Workers Regarding her Separation from Employment
and/or Workplace Discrimination (Doc. 91)
Defendant first moves for the exclusion at trial “of all statements Plaintiff claims were
made by co-workers representing their alleged disagreement with Plaintiff's separation from
employment and any statements Plaintiff may claim were made by co-workers regarding
discrimination in the workplace.” (Doc. 91). Defendant argues that such statements
constitute inadmissible hearsay and additionally claims that “any statement made by co-
workers concerning their opinions of Plaintiffs separation should be excluded under Federal
Rule of Evidence 403.” (Doc. 92, at 2, 5; see also, id. at 3-5).
Under the Federal Rules of Evidence, evidence is relevant if “it has any tendency to
make a fact more or less probable than it would be without the evidence; and .. . the fact is
of consequence in determining the action.” Fed. R. Evid. 401. Relevant evidence is
admissible unless otherwise provided by the Constitution, federal statute, Federal Rules of
Evidence, or other rules prescribed by the Supreme Court. Fed. R. Evid. 402. Relevant

evidence may be excluded “if its probative value is substantially outweighed by a danger of .

. . unfair prejudice, confusing the issues, [or] misleading the jury.” Fed. R. Evid. 403.
However, even if the Court deems the relevant evidence to be admissible, “[a] witness may
testify to a matter only if evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter.” Fed. R. Evid. 602. Further, the Third
Circuit has encouraged “firm adherence to the hearsay rules (Rules 801-807) in determining
whether a proffered statement truly is admissible in the first instance.” United States v.
Saada, 212 F.3d 210, 221 n.12 (3d Cir. 2000).
Here, Traditional’s motion does not present the Court with sufficient information or
detail. The Court cannot make an all-encompassing ruling as to admissibility divorced from

any actually-uttered statements that are being challenged. The Court does not — and, at
this stage of the proceedings, cannot — know which of Plaintiffs “co-workers”, if any, will be
called as witnesses, the content of those witnesses’ testimony, or for what purpose the
testimony and statements at issue will be offered. Nor does this Court know whether any
such testimony will even be offered at all. Although it is possible that certain testimony
would violate the restrictions set forth in Federal Rules of Evidence 403 or 404, or the
hearsay rules in 801 through 807, such a determination cannot be made prior to trial. If the
Plaintiff offers testimony at trial that Defendant considers inadmissible, Defendant must
raise any objection at that point, at which time the Court can better evaluate the testimony's
admissibility in light of its content and purpose.

The Court will therefore deny Defendant's motion without prejudice to be reasserted
by timely objection at trial which Defendant deems appropriate in response to specific
testimony which Plaintiff attempts to elicit.
2. Defendant’s Motion in Limine to Preclude Plaintiff's Claim for Punitive
Damages (Doc. 95)
Defendant further requests that “all evidence regarding Plaintiffs claim for punitive
damages” be excluded at trial. (Doc. 95). In response, Plaintiff argues that the issue of
punitive damages “must await trial when the factual record is fully developed. . .” (Doc. 112).
Preliminarily, as Defendant notes, and Plaintiff does not specifically dispute, punitive
damages are not available under the FMLA. See e.g., Thomas v. St. Mary Med. Ctr., 22
F.Supp.3d 459, 476 (E.D.Pa. 2014); Santosuosso v. NovaCare Rehab., 462 F.Supp.2d 590,
600-601 (D.N.J. 2006) (collecting cases); Zawadowicz v. CVS Corp., 99 F.Supp.2d 518,
540 (D.N.J. 2000). See also, Brown v. Nutrition Mgmt. Servs. Co., 370 F.App’x 267, 270 &
n.3 (3d Cir. 2010) (explaining that while never explicitly held by the Third Circuit, the parties’
conclusion in the case that punitive damages were not recoverable under the FMLA was
“supported by the statutory text of the FMLA, see 29 U.S.C. § 2617(a), and the decisions of

our sister courts of appeals.”).
Defendant is equally correct that punitive damages may not be recoverable in an
ADA retaliation claim. Although the Third Circuit has not addressed this issue in any
precedential opinion, the weight of the case law supports a finding that punitive damages
are not available in an ADA retaliation claim. See e.g., Kramer v. Banc of Am. Sec., LLC,

355 F.3d 961, 965 (7th Cir. 2004) (“We thus conclude that the 1991 Civil Rights Act does

not expand the remedies available to a party bringing an ADA retaliation claim against an
employer and therefore compensatory and punitive damages are not available.”), Alvarado

v. Cajun Operating Co., 588 F.3d 1261, 1270 (9th Cir. 2009) (adopting Seventh Circuit's
reasoning in Kramer and holding that punitive and compensatory damages are not available
in ADA retaliation claims); cf, Tucker v. Shulkin, 2020 WL 4664805 (3d Cir. 2020) (citing to
Kramer and Alvarado when “summarily affirm{ing] the District Court's January 14, 2020
dismissal decision because Tucker's remaining retaliation claim was not redressable, as he
cannot recover compensatory or punitive damages as remedies for retaliation under the
Rehabilitation Act. . .”). See also, Sabbrese v. Lowe's Home Ctrs., Inc., 320 F.Supp.2d 311
(W.D.Pa. 2004) (examining Kramer and finding that compensatory and punitive damages
were not available in ADA retaliation claim and Plaintiff's remedy was limited to equitable
relief); Leone v. N. Jersey Orthopedic Specialists, P.A., 2012 WL 1535198, *7 n.3 (D.N.J.
2012) (noting that “the weight of authority from district courts within the Third Circuit have
followed the Seventh Circuit's holding in Kramer that compensatory and punitive damages
are not available for ADA retaliation claims.”); Engle v. Physician Landing Zone, 2017 WL
5952941, *2 (W.D. Pa. 2017) (‘the district courts in the Third Court appear to have uniformly
held that the anti-retaliation provisions of the ADA do not authorize the award of
compensatory and punitive damages.”).

Nonetheless, Defendant ignores the fact that, in addition to Plaintiffs FMLA claim
and ADA retaliation claim, Plaintiffs claims of ADA discrimination and failure to
accommodate remain for trial. Punitive damages are available for such claims. See e.g.,
Gagliardo v. Connaught Lab's, Inc., 311 F.3d 565 (3d Cir. 2002) (punitive damages
available where jury found Defendant discriminated against Plaintiff in violation of the ADA).
See also, McFadden v. Biomedical Sys. Corp., 2014 WL 80717, *5-6 (E.D. Pa. 2014)
(punitive damages available for ADA claims of discrimination and failure to accommodate).
As the Third Circuit explained in Gagliardo,
Punitive damages are available under the ADA when “the complaining party
demonstrates that the respondent engaged in a discriminatory practice ... with
malice or with reckless indifference.” 42 U.S.C. § 1981a(b)(1) (2000). These
terms focus on the employer's state of mind and require that “an employer must
at least discriminate in the face of a perceived risk that its actions will violate
federal law.” Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 535-36, 119 S.Ct.
2118, 144 L.Ed.2d 494 (1999).
Gagliardo, 311 F.3d at 573.1
Defendant argues that, even if punitive damages are available in this action, Plaintiff
“presents no evidence warranting punitive damages under the ADA”. (Doc. 96, at 4; see id.
at 2-5). Defendant's argument on this point is premature. At this stage in the proceedings,
the Court is unable to determine whether Plaintiff will be able to present “evidence

1 Although punitive damages are available should Plaintiff succeed on her ADA claim of
discrimination, the Court reminds the parties that such damages may be capped. See 42 U.S.C. §
1981a(b)(3); Gagliardo, 311 F.3d at 570 (Gagliardo’s claims under ADA were subject to a “cap” limiting the
compensatory and punitive damages available to a claimant).

warranting punitive damages under the ADA”, as the Court is unaware of what testimony or
other evidence Plaintiff may offer in support of her claim for punitive damages.
Defendant further asserts that it would be prejudiced should Plaintiff be permitted to
“mention” punitive damages, as it would “unfairly prejudice[e] Traditional” and “could
engender sympathy for Plaintiff among the jurors”. (Doc. 96, at 4-5). This argument,
apparently brought in an attempt to invoke Rule 403, is unsupported by any case law or
legal reasoning and is premised entirely on Defendant's speculative concerns. Should
Plaintiff fail to present the requisite evidence to support a claim for punitive damages under
the ADA, such claim will be subject to dismissal by this Court on a properly brought Rule
50(a) motion. In addition, should the punitive damage claim be presented to the jury, they
will be fully instructed on the appropriate standard and how to make a proper determination

as to whether Plaintiff is entitled to any such award.
For the foregoing reasons, Defendant's motion to preclude Plaintiffs claim for
punitive damages (Doc. 95) will be granted in so far as Plaintiff may not seek punitive
damages under the FMLA or for her claim of retaliation under the ADA, but will be denied
without prejudice in all other respects.
3. Defendant's Motion in Limine to Preclude Plaintiff's Claim for Emotional
Distress Damages (Doc. 97)
Defendant additionally moves this Court to “exclude from trial all evidence regarding
Plaintiff's claim for emotional distress damages.” (Doc. 97). Defendant asserts that Plaintiff
should be precluded from introducing such evidence because she “can never meet her

burden of showing that she suffered ‘physically’ from her emotional distress.” (Doc. 98, at
1). In response to Defendant's motion, Plaintiff argues that Defendant is “improper[ly}"
seeking to “eliminate a claim through a motion in limine” (Doc. 106, at 2). Plaintiff further
asserts that she will “present multiple witnesses to prove a claim for emotional distress’,
including her father. (/d. at 3).
Initially, the Court notes that emotional distress damages are not available under the
FMLA. See Zawadowicz, 99 F.Supp.2d at 540; Lloyd v. Wyoming Valley Health Care Sys.,
Inc., 994 F.Supp. 288, 289, 291-293 (M.D. Pa. 1998) (“the FMLA does not provide for
damages for emotional distress, embarrassment, and humiliation (‘emotional distress’)’);
Pontes v. Rowan Univ., -- F.App’x --, 2021 WL 4145119, *5 (3d Cir. 2021) (District Court
correctly found that, under the FMLA, Plaintiff was not entitled to punitive damages or
damages for pain and suffering or emotional distress); Brown, 370 F.App’x 267, 270 & n.3.
Thus, any damages to which Plaintiff may be entitled for emotional distress must stem from
her ADA/ADAAA claims for discrimination and failure to accommodate.’

2 As this Court has explained in addressing Defendant's motion to preclude Plaintiffs claim for
punitive damages, supra, compensatory damages, which include emotional distress damages, are not
available in an ADA claim for retaliation. See Kramer, 355 F.3d at 965 (“We thus conclude that the 1991
Civil Rights Act does not expand the remedies available to a party bringing an ADA retaliation claim against
an employer and therefore compensatory and punitive damages are not available.”); Alvarado, 588 F.3d at
1270 (punitive and compensatory damages are not available in ADA retaliation claims); Tucker, 2020 WL
4664805 (3d Cir. 2020) (citing to Kramer and Alvarado when summarily affirming lower Court's dismissal
decision “because Tucker's remaining retaliation claim was not redressable, as he cannot recover
compensatory or punitive damages as remedies for retaliation under the Rehabilitation Act. . .”); Sabbrese,
320 F.Supp.2d at 331 (compensatory and punitive damages not available in ADA retaliation claim and
Plaintiffs remedy was limited to equitable relief); McFadden, 2014 WL 80717, *6; Leone, 2012 WL
1535198, *7 n.3; Engle, 2017 WL 5952941, *2.
10

“To recover emotional damages a plaintiff must show ‘a reasonable probability rather
than a mere possibility that damages due to emotional distress were in fact incurred as a
result of an unlawful act.” Gagliardo, 311 F.3d at 573 (quoting Spence v. Bad. of Ed., 806
F.2d 1198, 1201 (3d Cir. 1986)) (internal brackets omitted). Speculative damages cannot
be awarded. Bolden v. Se. Penn. Transp. Auth., 21 F.3d 29, 33 (3d Cir. 1994). Rather, a
plaintiff must present evidence of “actual injury . . . before recovering compensatory
damages for mental distress”. Gunby v. Penn. Elec. Co., 840 F.2d 1108, 1121 (3d Cir.
1988) (in §1981/Title VII action, evidence supporting award for emotional distress was
insufficient where the only evidence was plaintiff's testimony that he was “very upset,” that
he felt he “had been done wrong” and thought he “had been treated unfairly” in being
passed over for a promotion).
Similar to Plaintiffs claim for punitive damages, whether she is entitled to emotional
distress damages for her ADA claims of discrimination and failure to accommodate must
await the presentation of testimony and evidence and the completion of her case-in-chief.
The Court is currently unaware of who Plaintiff may call in support of her claims, what
testimony she may properly elicit, or what other admissible evidence may be offered, all of
which may support a claim of emotional distress. Thus, despite Defendant's invitation to do
so, the Court cannot make a determination at this time that Plaintiff's evidence is insufficient
or impermissibly speculative such that she should be precluded from claiming damages for
emotional distress.

11

Defendant’s motion to preclude Plaintiff's claim for emotional distress damages (Doc.
97) will therefore be granted in so far as Plaintiff may not recover emotional distress
damages for a violation of FMLA or ADA retaliation, but denied without prejudice in all other
respects.
4. Defendant’s Motion in Limine to Preclude Plaintiff's Claim for Back Pay
Damages (Doc. 93)
Traditional’s next motion in limine requests that “pursuant to the doctrine of
mitigation of damages” as well as other authorities, Plaintiff be precluded from recovering
back pay damages. (Doc. 93).
With respect to mitigation, as Defendant correctly notes (see Doc. 94, at 3), the
employer has the burden of proving that a plaintiff failed to mitigate his or her damages.
Here, Defendant impermissibly attempts to have this Court rule, prior to having heard or

seen any evidence, that it has met its burden of proof. Such a motion is grossly premature.
Defendant further argues that Plaintiff is not entitled to compensatory damages,
including back pay, for an ADA claim of retaliation. (Doc. 94, at 6-7). As set forth by the
Court, supra, recovery in an ADA claim for retaliation is limited to equitable relief and
compensatory damages are thus unavailable. Nonetheless, Defendant’s argument is
without merit here, where back pay requested in an ADA claim is an equitable remedy that
must be distinguished from the calculation of compensatory damages. See Spencer v. Wal-
Mart Stores, Inc., 469 F.3d 311, 316 (3d Cir. 2006) (explaining in ADA action that, unlike

12

compensatory damages, “it is obvious that back pay remains an equitable remedy to be
awarded within the discretion of the court’).
Defendant's motion to preclude Plaintiff's claim for back pay with therefore be denied
without prejudice.
5. Defendant’s Motion in Limine to Preclude Testimony of Plaintiff's Treating
Physicians (Doc. 99)
Defendant Traditional’s final motion in limine moves to “preclude Plaintiff's treating
physicians or specialist from offering any expert testimony in this matter.” (Doc. 99).
Specifically, Defendant argues that Plaintiff “should be precluded from offering causation
and prognosis testimony from her treating physicians or psychologists.” (Doc. 100, at 10).
In response, Plaintiff does not deny that she did not provide Defendant with any expert
reports, instead asserting that she “is not presenting her treating physicians for causation,
but rather diagnosis, treatment, their observations of Plaintiff and any statements made by
her to them.” (Doc. 110, at 2). Plaintiff argues that since she “does not seek to offer her
treating physicians as ‘experts’, Defendant cannot preclude Plaintiff from presenting her
treating physicians for permissible lay witness testimony.” (Doc. 110, at 2-3).
Pursuant to Federal Rule of Evidence 701, the opinion testimony of a witness who is
not testifying as an expert is limited to one that is (1) “rationally based on the witness's
perception”, (2) “helpful to clearly understanding the witness’s testimony or to determining a

3 The Court further notes that in Section F of Plaintiffs Pre-Trial Memorandum (Doc. 122, at 2),
entitled “Summary of Testimony of Each Expert Witness’, Plaintiff has stated “N/A”, further indicating that
she does not intend to call any witness to offer expert testimony.
13

fact in issue”, and (3) “not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702”, which governs testimony by an expert witness. Fed. R. Evid.
701. In light of Plaintiffs concession that she will not call any of her treating physicians to
offer expert testimony, and specifically that these witnesses will not be presented to offer
evidence of causation, to the extent that Plaintiff Scopelliti calls any medical witnesses at
trial, those witnesses will be limited to testimony as to facts gained in their diagnosis and
treatment of her. See McCann v. Miller, 502 F.App’x 163 (3d Cir. 2012) (District Court did
not abuse its discretion in barring expert testimony of treating physicians regarding
causation and prognosis where Plaintiffs did not disclose to Defendants their intent to call
the physicians as expert witnesses until shortly before trial); Allen v. Parkland Sch. Dist.,
230 F.App'x 189, 194 (3d Cir. 2007); Collins v. Prudential Inv. & Ret. Servs., 119 F.App’x
371, 380 (3d Cir. 2005). See also, Haines v. Davies, 2009 WL 331433, *3-4 (M.D. Pa.
2009) (permitting treating psychologist, testifying as a lay witness, to testify “as to her
personal knowledge, diagnosis, and treatment’, but not “as to the causation of Plaintiffs’
injuries or to opinions based on medical or scientific knowledge.”). Here, Scopelliti’s treating
physicians will be limited to the facts gained in their diagnosis and treatment of her and will
not be permitted to opine about the cause of her injuries and prognosis.
Defendant’s motion in limine (Doc. 99) will therefore be granted as set forth herein.
It remains the responsibility of Defendant to timely object at trial should counsel believe

14

Plaintiff is attempting to elicit testimony from her treating physicians/psychologists outside
the confines of Rule 701 and other applicable Rules of Evidence.
IV. CONCLUSION
For the forgoing reasons, Defendant's in limine motions (Docs. 91, 93, 95, 97, 99)
will be decided as set forth in this Memorandum Opinion. The rulings, however, do not alter
the parties’ responsibility to raise their objections at the appropriate time at trial, if warranted
in light of the evidence adduced by that time. A separate Order follows.
| i Lit
Robert D. Mariani
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10410845. Public record. Not legal advice.