Bird v. Borough of Moosic

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

HEATHER BIRD,

Plaintiff, CIVIL ACTION NO. 3:18-cv-02289

v. (SAPORITO, M.J.)

BOROUGH OF MOOSIC, et al.

Defendants.

MEMORANDUM

Before the court are five motions in limine filed by the plaintiff,

Heather Bird (Doc. 115; Doc. 122; Doc. 124; Doc. 126; Doc. 130)., and four

motions in limine filed by the defendants, Borough of Moosic and Richard

Janesko. (Doc. 133; Doc. 135; Doc. 137; Doc. 139). The motions are fully

briefed, and argument thereon was held before the Court on February 16,

2022. At that argument leave was granted to allow the defendants to

supplement their brief in opposition to the plaintiff’s motion in limine to

preclude the testimony of defense expert witness, Meredith Ann

Dominick. The defendants’ supplemental brief was timely filed on

February 21, 2022. (Doc. 167). The plaintiff was given until February

24, 2022, within which to supplement her brief, but chose not to do so.

I. Statement of Facts

As we write for the parties, the court incorporates by reference the

recitation of the facts set forth in our Memorandum dated September 27,

2021. (Doc. 97).

II. Legal Standards

“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.” In re Japanese Elec. Prods.

Antitrust Litig. 723 F. 2d 238, (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 Heath Scis., Inc. , 981 F.Supp. 2d 273, 276

(D. Del. 2013). See also, Sprint/United Mgmt. Co. v. Mendelsohn, 552

U.S. 379 (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 Paoli 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 the trial.” Ohler v. United States, 529 U.S. 753, 758

n.3 (2000).

III. Discussion

A. The plaintiff’s motions in limine

1. To preclude testimony of Meredith Ann Dominick

and her expert report

Here, the plaintiff seeks preclude the testimony of defense expert

witness, Meredith Ann Dominick, because she asserts that the testimony

is layman’s testimony disguised as expert testimony. (Doc. 115). In their

witness list (Doc. 119), the defendants have listed Meredith Ann

Dominick as a defense expert witness. In her motion in limine, the

plaintiff has attached Ms. Dominick’s report dated March 31, 2020. (Doc.

121-1). At the Daubert hearing held on February 16, 2022, Ms. Dominick

testified. Apparently, Ms. Dominick is purportedly an expert in police

administration who has opined that, upon review of the information and

documents provided to her, she found no evidence of discrimination based

upon gender or seniority status. She further opined that she found no

evidence of hostile work environment or retaliation for the plaintiff filing

her initial claim. The curriculum vitae of Ms. Dominick is attached to

the defendants’ brief in opposition to the motion. (Doc. 152-1).

Rule 702 of the Federal Rules of Evidence provides that “a witness

qualified as an expert by knowledge, skill, experience, training, or

education” may provide opinion testimony “if (1) the testimony is based

upon sufficient facts or data, (2) the testimony is the product of reliable

principles and methods, and (3) the witness has applied the principles

and methods reliably to the facts of the case.” Fed. R. Evid. 702. Courts

have described the function of the district court in determining whether

to admit expert testimony as a “gatekeeping” one. The trial judge has

“the task of ensuring that an expert’s testimony both rests on a reliable

foundation and is relevant to the task at hand.” Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993). Thus,

[t]he objective of that requirement is to ensure the

reliability and relevancy of expert testimony. It is

to make certain that an expert, whether basing

testimony upon professional studies or personal

experience, employs in the courtroom the same

level of intellectual rigor that characterizes the

practice of an expert in a particular field.

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999).

At the hearing, Ms. Dominick testified that she did not employ any

scientific or technological means to reach the conclusions contained in

her report. Rather, she simply calculated the plaintiff’s hours worked for

the years in question by reviewing the calendars and timecards, and

concluded that, in her opinion, within a reasonable degree of police

administration certainty, she did “not see nor [could she] find where the

Plaintiff, Heather Bird, was discriminated against by the Borough of

Moosic or the Moosic Borough Police Department based on her gender . .

. or by seniority.” (Doc. 121-1, at 7). These issues are for the jury to

determine. Further, Ms. Dominick admitted that she is not trained in

human resource issues related to discriminatory or retaliatory practices,

nor does she have any educational background or certifications in human

resources. While she has had substantial involvement with local police

departments in various capacities over several years, we find that the

opinions expressed by her could be made by anyone who simply reviewed

time records of the Moosic Borough Police Department. Also, it was

learned during her testimony that Ms. Dominick was once previously

admitted as an expert witness in a state court for a sexual assault charge.

She was never admitted in any court as an expert in the field of police

administration.

After Ms. Dominick’s testimony, the court brought to counsel’s

attention the case of Hogan v. City of Easton, Civil Action No. 04-CV-

00759, 2007 WL 4859769 (E.D. Pa. Apr. 16, 2007), which permitted an

expert witness to testify on administration of a police department of the

approximate size of the City of Easton police department. The

defendants rely upon Hogan in their supplemental brief in opposition to

the motion. Nevertheless, Hogan is easily distinguishable from the facts

of our case. In Hogan, the expert testimony also involved the subjects of

police practices in the areas of barricaded persons and use of force. The

proffered expert was permitted to testify in the factual context of

deficiencies in the response to an incident by an Easton police officer

which resulted in police gunfire giving rise to Hogan being wounded. The

proffered expert testified regarding the absence of necessary policies,

procedures, and supervision within the police department and their effect

on the department’s culture, pattern, and practice. Here, the plaintiff

alleges she was discriminated against because of her gender and that she

exercised her First Amendment rights. She also asserts that she was

retaliated against because she brought the complaint in this matter.

We are not persuaded that Ms. Dominick’s testimony would aid the

jury in deciding the issues before the court. Therefore, we will grant the

plaintiff’s motion.

2. To preclude exhibits and testimony about

plaintiff’s lawsuits not the subject of the instant

case

In this motion, the plaintiff seeks to preclude exhibits and

testimony about plaintiff’s lawsuits that are not the subject of this case.1

(Doc. 122). Nevertheless, the plaintiff has not listed which specific

lawsuits she seeks to preclude. Under these circumstances, the court

cannot adequately rule on this motion and therefore we will defer a ruling

on this motion until the time of trial.

3. To preclude testimony of Dr. Barbara Ziv and her

expert report

Here, the plaintiff seeks to preclude the testimony of a defense

expert witness, Dr. Barbara Ziv, and her expert report. (Doc. 124). We

previously ruled that a Daubert hearing was unnecessary. (Doc. 157). In

this motion, the plaintiff asserts that Dr. Ziv’s testimony is unreliable as

it is not based on any psychological testing. Further, the plaintiff argues

that Dr. Ziv’s report is not admissible because it fails to list her

compensation for producing her report and providing testimony.

1 This also includes the consolidated action filed to Docket No. 3:19-

cv-01232 which this court previously consolidated by order dated August

12, 2019. (Doc. 9).

In response, the defendants contend that Dr. Ziv is a psychiatrist,

and she has been previously qualified as an expert witness in the field of

forensic psychiatry in state courts in Pennsylvania, New Jersey,

Delaware, California, Virginia, and New York, as well as several United

States District Courts. Further, they maintain that her education,

training, practice, and experience fully qualify her as an expert witness

under Fed. R. Civ. P. 702. Upon review of her report, the court finds that

Dr. Ziv has demonstrated a reliable methodology to arrive at her opinions

rendered within reasonable medical certainty. Her compensation

package has been provided to plaintiff’s counsel. Therefore, this motion

will be denied.

4. To preclude exhibits and testimony that are

irrelevant and not within the scope of this

litigation that started in 2018

Here, the plaintiff seeks to preclude exhibits and testimony that are

irrelevant and not within the scope of this litigation that commenced in

2018. (Doc. 126). In support of this motion, the plaintiff has attached

excerpts of her deposition (Doc. 126-2), whereby she was asked several

questions regarding whether she made certain statements that (1) she

would move out of the borough; (2) that if Assistant Chief Holland is

named chief, she would be moved up to full time; (3) that other part time

officers better watch how they treat her or she will sue them; (4) that she

was offered approximately $400,000 to settle this matter; (5) that she

declined the settlement offer because she wants at least $1,000,000; and

(6) that this lawsuit is not personal that its about the insurance company.

In her support brief, the plaintiff does not argue whether these alleged

statements are relevant to this case. Rather, she argues the defendants

“should be precluded from presenting any damaging information that is

irrelevant just to paint a bad picture of Plaintiff.” (Doc. 129, at 3). The

incidents potentially include an undescribed incident at Turkey Hill and

discipline issues that occurred before this suit was commenced.

In response, the defendants contend that F.R.E. 404(b) applies to

admit “other acts” in the employment discrimination context for the

proper purpose of establishing or negating discriminatory intent.

Nevertheless, we are not presented with the context of any such

testimony. Therefore, we will defer ruling on this motion until the time

of trial.

5. To preclude exhibits and testimony about plaintiff

being on workers compensation unless

preapproved by the Court.

Here, the plaintiff seeks to preclude exhibits and testimony about

the plaintiff receiving worker’s compensation benefits. (Doc. 130). The

plaintiff argues that in 2019, she was injured on the job and has been off

from her regular duties as a police officer for the Borough of Moosic and

receives workers’ compensation benefits. She contends that any mention

of her workers’ compensation status unless preapproved by the court,

would be prejudicial in that the jury may construe her status as being

lazy.

At the argument, defense counsel indicated that he has no intention

of cross-examining the plaintiff regarding her outstanding workers’

compensation claims. He has also stated the same position in his brief

in opposition to the motion. (Doc. 148, at 3). As the defendants point out,

it would be premature to preclude all evidence regarding her workers’

compensation claims as it is unknown what testimony the plaintiff will

offer at trial concerning her current work status, her current income, and

her current employment status. Therefore, the court will defer a ruling

on this motion until the time of trial.

B. The defendants’ motions in limine

1. To preclude argument or evidence that the

promotion of three (3) regular part time officers to

full-time status in 2018 was “illegal” or improper

The defendants seek to preclude argument by counsel or evidence

through witnesses that that the promotion of the three regular part time

officers to full time status in 2018 was “illegal” or improper. (Doc. 133).

They contend that the promotions were not “illegal” or improper, but

rather the result of a labor grievance and arbitration decision that

required the Borough to eliminate its past practice of employing 32-hour

per week police officers. They further argue that allowing the plaintiff to

cast the otherwise lawful promotions as “illegal” will serve to confuse or

mislead the jury, and it will create a trial-within-a-trial scenario forcing

them to defend Council’s decision to promote the officers under the terms

of the underlying arbitration decision.

The plaintiff asserts that her use of the word “illegal” by her is

consistent with the dialogue she had with defendant Janesko on June 14,

2018, when she asked him about the Borough hiring the officers without

a civil service process which she alleged was “illegal.” (Doc. 147, at 2).

We will not preclude the plaintiff from testifying that she told Chief

Janesko that she alleged that the hiring of the male police officers was

illegal as it constitutes the dialogue between the plaintiff and Janesko.

Therefore, we will deny this motion.

2. To preclude testimony from plaintiff’s treating

physicians

Here, the defendants seek to preclude testimony from plaintiff’s

treating physicians, Dr. Edward Heffron and Dr. Cynthia Maritato, both

of whom were listed on plaintiff’s witness list, because they were not

identified as expert witnesses and they did not author expert reports.

(Doc. 135). The defendants further contend that the treating physicians

may offer testimony about their diagnosis and treatment of the plaintiff

but not about the cause of her injuries and her prognosis. In response,

the plaintiff relies upon Pease v. Lycoming Engines, No. 4:10-CV-00843,

2012 WL 162551 (M.D. Pa. Jan. 19, 2012) contending that in Pease, Judge

Conner, of this court, permitted a plaintiff’s treating physician to testify

to causation and not just diagnosis and treatment.

“The Federal Rules of Evidence do not distinguish between lay and

expert witnesses, but ‘rather between expert and lay testimony.’ It is

clear that in the Third Circuit treating physicians may testify as lay

witnesses regarding diagnosis and treatment under some

circumstances. . . . [But] treating physicians’ testimony on prognosis and

causation will inherently be based on scientific, technical, or specialized

knowledge within the scope of Rule 702 [of the Federal Rules of

Evidence].” Pease, 2012 WL 162551, at *12 (citations and footnote

omitted). Therefore, to the extent a party intends to offer the testimony

of a treating physician on issues of prognosis or causation, the party is

required to disclose the treating physician as an expert witness under

Rule 26(a)(2)(A).

Rule 26(a)(2)(A) requires a party to disclose the identity of any

witnesses it intends to use to present expert opinion evidence at trial. See

Fed. R. Civ. P. 26(a)(2)(A). Generally, the time for these disclosures is

prescribed in a case management order issued under Rule 16(b). See Fed.

R. Civ. P. 26(a)(2) advisory committee note (1993). In the absence of a

stipulation or court order to the contrary, expert disclosures must be

made at least 90 days before trial. Fed. R. Civ. P. 26(a)(2)(D).

The nature and content of this disclosure depends on whether the

expert is a “retained” expert. An expert who is “retained or specially

employed to provide expert testimony in the case” must prepare and sign

a detailed, often highly technical, written report. See Fed. R. Civ. P.

26(a)(2)(B). But an expert witness who is not “retained or specially

employed to provide expert testimony” is not required to produce the

detailed written report required by Rule 26(a)(2)(B); instead, the party is

simply required to disclose “the subject matter on which the witness is

expected to present [expert] evidence” and “a summary of the facts and

opinions to which the witness is expected to testify.” See Fed. R. Civ. P.

26(a)(2)(C); see also Longo v. Hanger Prosthetics & Orthotics, Inc., Civil

Action No. 3:12-cv-02445, 2015 WL 915479, at *2 (M.D. Pa. Mar. 3, 2015).

A treating physician is typically a “non-retained” expert subject to

the less onerous disclosure requirements of Rule 26(a)(2)(C). See Pease,

2012 WL 162551, at *13 (“A treating physician is not necessarily retained

or specially employed to provide expert testimony simply because he or

she proffers on causation and prognosis. This conclusion is bolstered ‘by

the obvious fact that doctors may need to determine the cause of an injury

in order to treat it.’”); see also Longo, 2015 WL 915479, at *3 (quoting

Pease); Fed. R. Civ. P. 26(a)(2) advisory committee note (1993) (“A

treating physician, for example, can be deposed or called to testify at trial

without any requirement for a written report.”); Fed. R. Civ. P.

26(a)(2)(C) advisory committee note (2010) (“A witness who is not

required to provide a report under Rule 26(a)(2)(B) may both testify as a

fact witness and also provide expert testimony . . . . Frequent examples

include physicians or other health care professionals . . . . The (a)(2)(C)

disclosure obligation does not include facts unrelated to the expert

opinions the witness will present.”). “To determine whether a party

retained or specially employed a treating physician to provide expert

testimony, the relevant inquiry is ‘whether the treating physician

acquired his opinion as to the cause of the plaintiff’s injuries directly

through his treatment of the plaintiff.’” Pease, 2012 WL 162551, at *13

(quoting another source).

Our facts are distinguishable from the facts in Pease. As in Pease,

we find that Ms. Bird’s treating physicians had to be disclosed as experts

pursuant to Fed. R. Civ. P. 26(a)(2). There, the court gave the plaintiff

fourteen days to provide the defense with the subject matter of the

treating physician’s expert testimony and a summary of the facts and

opinions to which the witnesses were expected to testify under Rule

26(a)(2)(C). The court also permitted the defendant to request additional

medical records from Pease treating physicians and to depose them

within thirty days of the entry of the court’s order. Here, we do not have

the luxury of the additional time within which to provide the required

summary of testimony as well as to allow the defense to depose Ms. Bird’s

treating physicians. Therefore, we will allow Ms. Bird’s treating

physicians to testify regarding their examination, diagnosis, and

treatment of Ms. Bird. In granting this motion, the plaintiff is precluded

from eliciting any causation testimony from her treating physicians.

3. To preclude Dr. Heffron’s psychological report on

Heather Bird related to her employment

Here, the defendants seek to preclude Dr. Heffron’s psychological

report on Heather Bird related to her employment. (Doc. 137). Dr.

Heffron’s report is part of plaintiff’s 2004 Commonwealth of

Pennsylvania Municipal Police Officers’ Education and Training

Commission Psychological Examination. The psychological examination

was performed on February 13, 2004. Dr. Heffron, a licensed psychologist

authored his report as part of the plaintiff’s original Act 235 Certification.

The defendants argue that the report was irrelevant to this litigation and

should be excluded from trial. In addition, they contend that any

testimony from Dr. Heffron is also irrelevant and inadmissible.

At the argument, plaintiff’s counsel, argued that the Dr. Heffron’s

report and any potential testimony from him is relevant to show that, in

2004, the plaintiff had no documented psychological issues. Further, the

plaintiff asserts that by making Dr. Heffron’s report part of a trial

exhibit, the defendants have acknowledged its relevance. Further, the

plaintiff contends that Dr. Heffron’s testimony and report can be used to

contradict or illustrate problems if the conclusion reached by the

defendant’s expert, Dr. Barbara Ziv.

Generally, relevant evidence is admissible at trial. Fed. R. Evid.

402. Evidence is relevant if: “(a) it has any tendency to make a fact more

or less probable than it would be without the evidence; and (b) the fact is

of consequence in determining the action.” Fed. R. Evid. 401. The court,

however, may preclude relevant evidence from trial where it is “probative

value is substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury,

undue delay, wasting time, or needlessly presenting cumulative

evidence.” Fed. R. Evid. 403. “The Federal Rules of Evidence embody a

strong and undeniable preference for admitting any evidence having

some potential for assisting the trier of fact.” Holbrook v. Lykes Bros.

Steamship Co., Inc., 80 F.3d 777, 780 (3d Cir. 1996) (internal quotation

marks and citation omitted).

Recognizing that this is a matter of relevance, it is premature to

rule on this issue prior to trial. Therefore, we will defer our ruling on this

matter.2

4. To preclude testimony from Father Carmen G.

Bolock

Here, the defendants seek to preclude the testimony of Father

Carmen G. Bolock on the basis that the proposed testimony (1) has no

probative value to the plaintiff’s claims; (2) is prejudicial; and (3) is

cumulative. At the argument, it appears that the plaintiff intends to

utilize Fr. Bolock to testify about the plaintiff’s emotional distress. At

this point, we will defer a ruling until the time of trial.

An appropriate order follows.

s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

U.S. Magistrate Judge

Dated: February 25, 2022

2 The court acknowledges the motion to quash filed by Dr. Heffron

along with a brief in support thereof. (Doc. 169; Doc. 170). This issue

may be resolved through resolution of Dr. Heffron’s motion to quash.