Harris v. Q & A Associates, Inc.

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF WEST VIRGINIA

ELKINS

FRIEDRICHS HARRIS, Administrator

of the Estate of Evan M. Harris,

Plaintiff,

v. Civil Action No. 2:16-CV-46

(BAILEY)

Q&A ASSOCIATES, INC., et al.,

Defendants.

ORDER RULING ON MOTIONS IN LIMINE

Pending before this Court are the Plaintiff’s Omnibus Motions in Limine [Doc. 76],

Defendants’ Motion in Limine to Exclude Evan M. Harris’ Treating Physicians From

Providing Expert Testimony at Trial [Doc. 84], Defendants’ Motion in Limine to Prohibit

Plaintiff From Introducing Expert Opinions During the Trial of this Matter Not Previously

Disclosed [Doc. 85], and Defendants’ Omnibus Motion in Limine [Doc. 86]. The Court will

rule on the Motions in the order in which they were filed.

A. Plaintiff’s Omnibus Motions in Limine [Doc. 76]

The plaintiff’s Omnibus Motions in Limine contains seventeen separate requests.

This Court will address each in turn.

1. Alleged Criminal Activity or Encounters with Law

Enforcement by Evan M. Harris or Evan’s Biological Parents

The plaintiff seeks an Order barring any reference, testimony, exhibits, evidence or

argument regarding any criminal activity or contact Evan M. Harris or his biological parents

had with law enforcement. The plaintiff appears to argue that such evidence should be

excluded under Federal Rule of Evidence 403, as “[t]he only reason for introducing such

evidence would be to prejudice the jury” against Evan M. Harris and his family, and “is

severely more prejudicial than probative and could only seek to improperly influence the

jurors sitting to try the issues in this case.” [Doc. 76]. The defendants, in response, object

only to the “exclusion of relevant evidence pertaining to ‘any alleged criminal activity or

encounters with law enforcement by Evan M. Harris’ to the extent Q&A or its agents had

information regarding any such activities . . .” [Doc. 101]. Defendants further argue that this

evidence is both relevant and necessary to give a complete picture of Evan M. Harris, given

the plaintiff’s continuous construction of this case as being about a “troubled young adult.”

[Id.].

First, while the plaintiff argues that allowing such evidence would be inappropriate

because Evan Harris’s interactions with law enforcement have no bearing on his credibility

because “he was never convicted of any of these crimes and they are not crimes of false

swearing,” this is not the appropriate standard, as Evan Harris is not a witness. Fed. R.

Evid. R. 609(a) (“The following rules apply to attacking a witness’s character for

truthfulness”) (emphasis added). As such, the only applicable rules are those contained

in the 400 series of the Rules of Evidence.

Specifically, Rule 401 provides that evidence is relevant if it has a “tendency to make

the existence of any fact . . . more probable or less probable than it would be without the

evidence.” Fed. R. Evid. 401. Relevant evidence is generally admissible, Fed. R. Evid.

402, but may be excluded “if its probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative evidence.” Fed. R.

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Evid. 403. If such evidence is offered to prove the character of a person and to show that

he acted in conformity with such character, the evidence is inadmissible. Fed. R. Evid.

404(b). Such evidence may be admitted, however, if it is offered for a proper purpose,

“such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence

of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). To determine whether such

admission is proper, the Supreme Court has set out three considerations—the evidence

must be admitted for a proper purpose, it must be relevant, and its relevancy must not be

outweighed by the danger of unfair prejudice. Huddleston v. United States, 485 U.S.

681, 691–92 (1988). The parties have only argued as to relevancy, and have not

addressed the lynchpin of 404(b) evidence—a proper purpose.

Neither the plaintiff nor the defendants have made a proper argument as to why

evidence of prior arrests or other interactions with law enforcement should be inadmissible

or admissible, and this Court will, accordingly, DENY IN PART the plaintiff’s motion. If the

parties would like to address this issue, the objection may be made with specificity. Insofar

as the defendants do not object to the plaintiff’s request to exclude any such evidence

regarding the criminal history of Evan M. Harris’s biological parents, the Court will GRANT

IN PART the motion.

2. Medical History of Evan M. Harris’s Biological Mother

The plaintiff seeks an Order barring any references, testimony, exhibits, evidence,

and/or argument regarding any medical history of Evan M. Harris’s biological mother [Doc.

76]. The defendants object, in part, to the exclusion of “relevant evidence pertaining to ‘any

medical history of Evan M. Harris’s biological mother’ to the extent Q&A or its agents had

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information regarding any such medical history . . .” [Doc. 101]. The defendants state they

do not intend to link Evan Harris’s suicide to his biological mother’s battles with mental

illness and drugs, but that the evidence was part of the records provided to Q&A prior to

Evan Harris’s admission into the program and it “offer[s] context about the circumstances

of Evan Harris’s life.” [Id.].

This Court concurs. While it would be inappropriate to link Evan Harris’s suicide to

his mother’s struggles with mental illness or drug abuse without expert testimony, such

evidence, which was provided to the defendants prior to Evan Harris’s admission into the

program, is highly relevant to the circumstances of Evan Harris’s life, as understood by the

defendants during his participation in the program. As such, this Court DENIES the

plaintiff’s motion in limine, and will not exclude relevant evidence regarding Evan Harris’s

biological mother’s medical history.

3. Collateral Source Benefits

Without objection [Doc. 101, p. 4], this motion is GRANTED.

4. Defendants’ Ability to Pay Any Judgment

Without objection [Doc. 101, p. 4], this motion is GRANTED, and will apply equally

to arguments made by all parties as to the ability or inability to pay a judgment.

5. Impact of Large Jury Verdict on Q&A Associates, Inc.

Without objection [Doc. 101, p. 5], this motion is GRANTED.

6. Responsibility or Contribution to Injuries or Damages by Non-Parties

The plaintiff seeks an order barring the defendants from introducing any evidence

of fault by non-party individuals or entities [Doc. 76, p. 8]. Specifically, the plaintiff argues

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that the defendants are foreclosed from “looking for someone else to blame” because the

allegations in this case are only against the defendants, and that if the defendants believed

someone else was responsible, they should have filed a third-party complaint [Id.]. The

defendants object to this motion “to the extent it limits Defendants [sic] ability to question

or otherwise present evidence during trial as to a non-parties supervision, treatment, or

interaction with Evan Harris.” [Doc. 101, p. 5].

Federal Rule of Civil Procedure 14 provides that “[a] defending party may, as third-

party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it

for all or part of the claim against it.” Fed. R. Civ. P. 14(a)(1) (emphasis added). A

defendant is not required to assert such a complaint, and there is no reason to believe that

such a complaint would have been appropriate in this case—the question is not simply

whether the defendants assert that someone else may have contributed to the injury, but

whether or not another that someone else could be liable to the defendants.

West Virginia “law recognizes that ‘[a]n intervening cause, in order to relieve a

person charged with negligence in connection with an injury, must be a negligent act, or

omission, which constitutes a new effective cause and operates independently of any other

act, making it and it only, the proximate cause of the injury.’” Sydenstricker v. Mohan, 217

W.Va. 552, 559, 618 S.E.2d 561, 568 (2005) (quoting Estate of Postlewait ex rel.

Postlewait v. Ohio Valley Med. Ctr., Inc., 214 W.Va. 668, 674, 591 S.E.2d 226, 232

(2003)). “[T]he defense can be established only through the introduction of evidence by

a defendant that shows the negligence of another party or a nonparty.” Id. (quotations

omitted). Evidence of fault may, therefore, be appropriately admitted to argue intervening

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cause. Accordingly, this Court DENIES the plaintiff’s motion in limine.

7. Nature of Plaintiff’s Employment of Attorney or Fee Structure

Plaintiff seeks an Order precluding “any evidence[,] references, testimony, exhibits,

evidence, and/or argument regarding how Evan Harris’s family contacted counsel or

counsel’s fee structure.” [Doc. 76, p. 9]. Without objection [Doc. 101, p. 7], this Court

GRANTS the plaintiff’s motion and bars such arguments by either party.

8. Settlement Discussions

Plaintiff seeks an Order barring evidence of any settlement discussions—essentially,

plaintiff asks this Court to comply with Federal Rule of Evidence 408. Because the

defendants do not object, the motion is GRANTED.

9. Sequestration of Witnesses

Plaintiff seeks an Order sequestering witnesses [Doc. 76, p. 10]. While the plaintiff’s

motion is titled as “Motion in Limine to Sequester All Trial Witnesses During Trial, with the

Exception of the Named Parties,” the content of the motion appears to request

sequestration of all parties. The defendants do not object generally to sequestration, but

object to references regarding the presence or non-presence of named parties. This Court

will GRANT the plaintiff’s motion insofar as it seeks to sequester non-party trial or expert

witnesses, and any remaining issues may be raised at the pre-trial conference.

10. “Winning the Lottery” Arguments

Plaintiff seeks an Order barring “any references, testimony, exhibits, evidence,

and/or arguments regarding any potential jury verdict as hitting the lottery, hitting a jackpot,

or being any kind of financial windfall for the wrongful death of their son.” [Doc. 76, p. 11].

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There being no objection [Doc. 101, p. 7], this Court GRANTS the plaintiff’s motion.

11. Purpose of Action to Compensate Plaintiff’s Counsel

Plaintiff seeks an Order “prohibiting any references, testimony, exhibits, evidence,

and/or argument insinuating that the purpose of this lawsuit is to compensate Plaintiff’s

counsel.” [Doc. 76, p. 12]. The defendants do not object provided that the same rule

applies to bar plaintiff from making such arguments about defense counsel [Doc. 101, p.

8]. With no objection, this Motion will be GRANTED. The ruling applies equally to all

parties.

12. Exclusion of Expert Opinions Outside of those Already Disclosed by

Defendants

Plaintiff seeks an Order “prohibiting any references, testimony, exhibits, evidence,

and/or argument referring to expert witness opinions beyond those stated in the

Defendants’ expert witness disclosure.” [Doc. 76, p. 13]. While this Court and the parties

are already obligated to abide by the Federal Rules of Evidence and the Federal Rules of

Civil Procedure, without objection, this Court will GRANT the motion. This ruling applies

equally to all parties.

13. Jury of their Peers or Fair Trial Arguments

Plaintiff seeks an Order “prohibiting any references, testimony, exhibits, evidence,

and/or argument suggesting Defendants cannot get a fair trial because they are not being

judged by a jury of their peers.” [Doc. 76, p. 13]. Defendants do not object [Doc. 101, p.

8]. As such, this Court GRANTS the plaintiff’s motion.

14. Ad Hominem Attacks on Plaintiff’s Counsel

Plaintiff seeks an Order “prohibiting all personal Ad Hominem statements,

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inferences, suggestions, arguments or the like that attack the attorneys in the case.” [Doc.

76, p. 13]. Defendants do not object [Doc. 101, p. 8]. As such, this Court GRANTS the

plaintiff’s motion. The ruling equally applies to all parties.

15. Causation Arguments

Plaintiff seeks an Order “prohibiting any references, testimony, exhibits, evidence,

and/or argument that the Plaintiff must establish causation with certainty and/or that the

Plaintiff must eliminate any and all other possibilities.” [Doc. 76, p. 14]. Defendants object

“to the extent it limits Defendants [sic] ability to question or otherwise present evidence

during trial as to a non-parties [sic] supervision, treatment, or interaction with Evan Harris.”

[Doc. 101, p. 8]. For the reasons discussed above, supra § 2.6, this Court GRANTS IN

PART the plaintiff’s motion as framed, but DENIES IN PART the plaintiff’s motion insofar

as it seeks to limit the defendants’ ability to present a theory of intervening cause.

16. Reputation or Skill of Plaintiff’s Counsel

Plaintiff seeks an Order “prohibiting any and all references, testimony, exhibits,

evidence, and/or arguments regarding the reputation or skill of counsel.” [Doc. 76, p. 15].

There being no objection [Doc. 101, p. 9], this Court GRANTS the plaintiff’s motion. This

ruling applies equally to all parties.

17. Exclusion of Testimony of Daniel Bruce Thistlethwaite

Plaintiff seeks an Order excluding “the testimony of Defendant’s expert witness on

the basis that it is unreliable; not based upon any scientific principles, and devoid of any

suggestion that his method of evaluating the facts of this case are at all accepted in the

field.” [Doc. 76, p. 21]. Plaintiff requests a Daubert hearing and, ultimately, exclusion of

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Dr. Thistlethwaite’s testimony.

Federal Rule of Evidence 702 was “intended to liberalize the introduction of relevant

expert evidence.” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 260–61 (4th Cir.

1999). A qualified expert’s testimony is admissible “if it concerns (1) scientific, technical,

or other specialized knowledge that (2) will aid the jury . . . to understand or resolve a fact

at issue.” Id. It is the role of the trial court to ensure that the expert testimony “is not only

relevant, but reliable.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589

(1993).

To be relevant, the evidence must “help the trier of fact to understand the evidence

or to determine a fact in issue.” Fed. R. Evid. 702(a). Another aspect of relevancy is

whether there is a sufficient “fit”—“whether expert testimony proffered in the case is

sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.”

Daubert, 509 U.S. at 591 (citing United States v. Downing, 753 F.2d 1224, 1242 (3d Cir.

1985)). Among other factors, relevance and reliability determinations are guided by:

(1) whether the particular scientific theory “can be (and has been) tested;” (2)

whether the theory “has been subjected to peer review and publication;” (3)

the “known or potential rate of error;” (4) the “existence and maintenance of

standards controlling the technique’s operation;” and (5) whether the

technique has achieved “general acceptance” in the relevant scientific or

expert community.

United States v. Crisp, 324 F.3d 261, 266 (4th Cir. 2003) (citing Daubert, 509 U.S. at

593–94). This is a flexible test, because “Daubert’s five factors neither necessarily or

exclusively apply to every expert.” Crisp, 324 F.3d at 266; Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 150 (1999) (“We agree with the Solicitor General that ‘[t]he

factors identified in Daubert may or may not be pertinent in assessing reliability, depending

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on the nature of the issue, the expert’s particular expertise, and the subject of his

testimony.”). “All Daubert demands is that the trial judge make a ‘preliminary assessment’

of whether the proffered testimony is both reliable . . . and helpful.” Maryland Cas. Co. v.

Term-O-Disc., Inc., 137 F.3d 780, 783 (4th Cir. 1998). While trial judges are to act as

gatekeepers to unreliable or irrelevant expert testimony, “[v]igorous cross-examination,

presentation of contrary evidence, and careful instruction on the burden of proof are the

traditional and appropriate means of attacking shaky but admissible evidence.” Daubert,

509 U.S. at 596.

The plaintiff argues that (1) Dr. Thistlethwaite lacks any experience, skill or training

in evaluating a program like Journey WV; (2) Dr. Thistlethwaite’s opinion that the program

was sufficient to meet Evan Harris’s needs is insufficient because the index of documents

he reviewed does not include the program description, assessments, peer review, or

evidence regarding the program; and (3) the Daubert factors are unsatisfied.

This Court finds Dr. Thistlethwaite to be qualified in the field of psychiatry, and his

report and anticipated testimony to be both relevant and reliable. The first step in the

analysis is to determine whether Dr. Thistlethwaite is “qualified as an expert by knowledge,

skill, experience, training, or education” to render the opinions which he has proffered. Fed.

R. Evid. 702. To be qualified as an expert under Rule 702, a witness must have

“knowledge, skill, experience, training, or education” in the subject area of the testimony.

The qualification will be determined by “the nature of the opinion [the expert] offers.”

Gladhill v. Gen. Motors Corp., 743 F.3d 1049, 1052 (4th Cir. 1984).

Dr. Thistlethwaite has a bachelor’s degree in chemistry and a medical degree from

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West Virginia University. Dr. Thistlethwaite did his residency in general psychiatry at the

Charleston Area Medical Center, and is board certified by the Diplomate American Board

of Forensic Medicine, the Diplomate American Board of Forensic Examiners, and the

American Board of Psychiatry & Neurology. Dr. Thistlethwaite is also a member of the

American Psychiatric Association, the American Academy of Psychiatry and the Law, and

the American College of Forensic Examiners. In total, Dr. Thistlethwaite has nearly thirty

years in experience in the field of psychiatry and mental health, including three years as

the Chief of Psychiatry at Thomas Memorial Hospital, several years as a consultant for the

West Virginia Department of Juvenile Corrections in Charleston, West Virginia, nearly

twenty-seven years as a psychiatrist in private practice, and currently holds a position at

West Virginia University as an Assistant Clinical Professor of Psychiatry. Further, Dr.

Thistlethwaite has given several presentations at continuing education meetings,

conferences, and seminars, on subjects including:

1. VNS—A New Treatment Strategy for Major Depressive Disorder

2. Fine Tuning the Treatment of Depression: Augmentation Strategies

and Managing Complex Patients

3. Successful Management of Depression: A Physiological Approach

4. Clinical Solutions to Managing Complicated Depression.

It is clear that Dr. Thistlethwaite is qualified in the field of psychiatry by virtue of his

education and experience in the field. Further, Dr. Thistlethwaite’s opinion is also reliable.

In forming his opinion, Dr. Thistlethwaite reviewed an extensive amount of records,

including various evaluations performed on Evan Harris, including two neuropsychological

evaluations, three psychological evaluations, the report by Kevin Fenstermacher, Dr. Pelt’s

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file on Evan Harris, the notes from Evan Harris’s counseling sessions with Dr. Jen Randall,

medical records, records from the other programs Evan Harris had been enrolled in,

excerpts from Evan Harris’s diary, and pharmacy records. These are the kind of facts and

data that “experts in the particular field would reasonably rely on . . . in forming an opinion.”

Fed. R. Evid. 703. That the plaintiff may believe the expert did not review facts that he

considers necessary to formulate an opinion does not affect its admissibility, although it

may affect the weight of the testimony at trial. While the plaintiff may disagree with Dr.

Thistlethwaite’s conclusion, it is irrelevant to the question of admissibility—this Court need

not determine that the expert’s opinion is irrefutable or scientifically meticulous, the

question is of reliability and relevancy.

Next, this Court concludes that Dr. Thistlethwaite’s opinion is relevant. The

proposed testimony and the opinions offered “will help the trier of fact to understand the

evidence or to determine a fact in issue.” Fed. R. Evid. 702. While the plaintiff is not

required to present expert testimony to proceed to trial, that does not render the defense

expert’s testimony irrelevant. Dr. Thistlethwaite’s testimony would likely aid the jury in

understanding the evidence and determining the facts in issue, particularly the claims

regarding supervision, program design, and assessments. Specifically, Dr. Thistlethwaite

opines that the risk assessments performed by the defendants were appropriate and

conformed to the standard of care that would be expected and that there were no

indications to the defendants that Evan Harris was at risk of suicide based upon his

behavior and history.

Further, the Court notes that many of the plaintiff’s arguments appear to be directed

towards expert testimony on the overall program—however, Dr. Thistlethwaite’s opinion is

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limited to his opinions on the nature of the program that Evan Harris enrolled in, his review

of the records for any signs that would alert the staff to a suicide risk, evidence of suicide

risks in Evan Harris’s history, and other specific subjects. Accordingly, the plaintiff’s motion

is DENIED.

B. Defendants’ Omnibus Motions in Limine [Doc. 86]

The defendants’ Omnibus Motions in Limine contains twenty-five separate requests.

This Court will address each in turn.

1. Alleged Wrongful Acts Not Previously Listed in the

Complaint, Discovery Responses, and Supported by Expert

Testimony

Defendants seek an Order barring any reference or argument to any alleged

wrongful acts not previously disclosed [Doc. 86, p. 2]. Plaintiff objects to the motion insofar

as it would require expert support for wrongful acts [Doc. 93, p. 1]. This Court cannot

ascertain precisely what the defendants seek to exclude or the grounds for such exclusion,

particularly considering the inconsistent language—the defendants have requested

exclusion of alleged wrongful acts “not previously listed in the complaint, discovery

responses, and supported by expert testimony” as well as “or supported by expert

testimony.” [Doc. 86, p. 2]. As such, this Court will DENY the motion, and the defendants

may object as the specific issue develops at trial or raise the issue with specificity at the

pretrial conference.

2. Evidence Not Produced By Plaintiff

Defendants seek an Order excluding any evidence or reference to such evidence

that was not properly, previously disclosed [Doc. 86, p. 2]. Without objection [Doc. 93, p.

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2, As such, the motion is GRANTED. The ruling applies equally to all parties.

3. Other Settlements or Settlement Offers

The defendants seek an Order barring evidence of any settlements, offers of

settlements, or statements in connection with settlements by any defendant or agent [Doc.

86, p. 2]. The plaintiff does not object [Doc. 93, p. 2]. As such, this Court GRANTS the

defendants’ motion.

4. References to Privileged Material

The defendants seek an Order barring “any mention or reference, in any form, of any

matters which have transpired between its attorneys (including the attorneys as

representatives) and its employees or representatives, (including conversations between

the attorneys and such persons and/or all transactions connected thereto), about evidence

or matters which this Court has determined or determines during the course of trial to be

privileged.” [Doc. 86, p. 3]. The plaintiff objects to this motion insofar as the defendants

have not provided the Court with a list of privileged documents, but does not object to the

exclusion of privileged material “provided the information or material at issue is in fact

privileged.” [Doc. 93, p. 2]. This Court is currently unaware of any claims of privilege that

have been raised or determined. Without details, this Court cannot make such a broad

ruling and DENIES the motion.

5. “Hired Gun” Type Statements or Other Derogatory Remarks

Concerning Counsel for Defendants or Experts

The defendants seek an Order barring the plaintiff from characterizing defense

counsel or experts as “hired guns,” “a traveling road show,” a “circus,” “a dog and pony

show,” and other similar derogatory remarks [Doc. 86, p. 4]. The plaintiff objects to the

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motion to the extent that it would “insulat[e] Defendants’ experts from criticism” and states

that he intends to use the defendants’ expert’s pay on cross examination. Insofar as the

defendants seek to bar ad hominem attacks on defense counsel and experts, the motion

is GRANTED; the plaintiff will, however, be allowed to cross examine defense witnesses

as to their professional background, expertise, rates, methods, and conclusions. This ruling

applies equally to all parties.

6. Reference to Size, Location, Specialization, or

Representation by Defense Counsel

There being no objection [Doc. 93, p. 3] this motion is GRANTED. This ruling will

apply equally to all parties.

7. Any Reference to Hearsay Statements Regarding the

Defendants From Any Media Articles or Television Programs

The defendants seek an Order barring “any reference to or evidence considering

television or radio programs or newspaper or magazine articles regarding an alleged

‘investigation’ or other similar matters regarding young adult residential programs, including

Q&A Associates, Inc.” [Doc. 86, p. 5]. Specifically, the defendants argue that all of the

aforementioned are hearsay without any applicable exception, are irrelevant, and any

probative value the programs or articles might have would be outweighed by the risk of

unfair prejudice. The plaintiff objects, and argues that the statements are both relevant and

non-hearsay [Doc. 93, p. 4].

The Court DENIES this motion. It would be improper for this Court to order the

blanket exclusion of a broad swath of evidence without knowing the specific evidence

sought to be excluded. Such a ruling risks excluding admissible evidence, and should

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instead be addressed by proper objections at trial. See A.Hak Industrial Servs. BV

Techcorr USA, LLC v. A.Hak Indus. Servs. B.V., 2014 WL 12591696, at *1 (N.D. W.Va.

2014) (Groh, J.) (collecting cases).

8. Opinions Concerning State of Mind or Knowledge

The defendants seek an Order barring testimony “by individuals who have never

worked for any of the Defendants, but who attempt to interpret documents of the

Defendants as evidence of a Defendant’s ‘state of mind.’” [Doc. 86, p. 6]. The defendants

also move the Court to exclude “Plaintiff’s witnesses from testifying about the meaning or

contents of any documents of a Defendant that are inadmissible or have not been admitted

into evidence, or that can be understood by the jury without expert assistance.” [Id.]. The

defendant does not specify what specific evidence they seek to preclude and, while they

list several grounds by which the unspecified testimony could be barred, this Court cannot

rule on the admissibility of such evidence at this time. This motion is DENIED—if a witness

offers testimony outside of their own personal knowledge, violates the best evidence rule,

or offers testimony that crosses the line between expert and lay testimony, the defendants

may object.

9. References Concerning Objections of Counsel During

Depositions

There being no objection, the motion is GRANTED [Doc. 93, p. 6].

10. References to Defendants’ Counsel’s Arguments in Other

Cases

The defendants seek an Order barring reference to any arguments made defense

counsel in other cases [Doc. 86, p. 8]. There being no objection [Doc. 93, p. 7], the motion

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is GRANTED. This ruling applies equally to all parties.

11. Witness Equally Unavailable

The defendants seek an Order barring reference to the absence of a potential

witness that was equally available to all parties [Doc. 86, p. 8]. There being no objection

[Doc. 93, p. 7], the motion is GRANTED.

12. Persons in the Courtroom Assisting Counsel

The defendants seek an Order barring reference to any individuals who are or are

not present in the courtroom, including observers and those assisting counsel [Doc. 86, p.

8]. There being no objection [Doc. 93, p. 7], the motion is GRANTED.

13. Effect of Jury’s Answers to Questions in the Charge

The defendants seek an Order barring the plaintiff from informing the jury of the

effect of its answer to the questions in the charge [Doc. 86, pp. 8–9]. There being no

objection [Doc. 93, p. 7], this motion is GRANTED.

14. This Motion in Limine and Other Court Rulings on Matters

Outside the Jury’s Presence

The defendants seek an Order barring any mention of this Court’s pre-trial rulings

and any other rulings made outside of the presence of the jury [Doc. 86, p. 9]. There being

no objection [Doc. 93, p. 7], this motion is GRANTED.

15. Referring to the Plaintiff as a “Victim”

The defendants seek an Order barring any reference to Evan Harris or the plaintiff

“or other relevant individuals” as “victims.” [Doc. 86, p. 9]. Specifically, the defendants

argue that this term would mislead or inflame the jury because it “implies the existence of

a ‘criminal’ legal proceeding.” [Id.]. This Court finds no such connotation, and believes that

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the jury is more than competent to understand the nature of the proceedings. Accordingly,

the motion is DENIED.

16. Referring to Defendant Q & A Associates, Inc. as a “For-

Profit Facility”

The defendants seek an Order barring any reference to defendant Q&A Associates

as a “for-profit facility.” [Doc. 86, p. 10]. Specifically, the defendants seek exclusion under

Rule 403, and argue that any such statements are unduly prejudicial, improper, and

inflammatory. The question under Rule 403 is not simply one of prejudice, but of unfair

prejudice—all evidence offered against a party is, by its very nature, inherently

prejudicial—and in this case, the probative value of identifying the defendant’s status as

a for-profit facility, rather than a licensed treatment facility under West Virginia law, is not

outweighed by any unfair prejudice. Accordingly, this motion is DENIED.

17. Making Reference to the Young Adult Residential Program

Industry as a “Multi-Billion-Dollar Industry” or Otherwise

Discussing the Market Cap of Such Industries

The defendants seek an Order barring any reference to or argument that young

adult residential programs are a “multi-billion dollar industry” or the general market

valuation of the industry [Doc. 86, p. 11]. The plaintiff objects, and argues that such

evidence is relevant to the defendants’ motivation to keep Evan Harris in the program.

Under Rule 402, irrelevant evidence is not admissible—to be relevant, evidence must have

some tendency to make a fact of consequence to the action more or less probable. Fed.

R. Evid. 401, 402. Arguments or reference to the size or value of the general young adult

residential program industry does not make any fact of consequence more or less

likely—the fact that the overall industry is profitable bears no apparent or logical relevance

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to any motivation of the defendants. Accordingly, this motion is GRANTED.

18. Requesting Sequestration of Non-Party Witnesses

Without objection [Doc. 93, p. 10], this motion is GRANTED.

19. Evidence Concerning the Profit and Profit Percentage

The defendants seek an Order barring the introduction of any documents or

testimony regarding the profit or profit percentage of young adult residential programs,

including Journey WV [Doc. 86, p. 12]. The plaintiff objects insofar as the order would

exclude reference to Q&A Associates’ for-profit status and argues that the profitability of

the program is relevant to the question of punitive damages [Doc. 93, p. 10]. As there has

been no bifurcation, the plaintiff is correct in stating that profitability is relevant to punitive

damages and should be admitted. As such, the defendants’ motion is DENIED—the

defendants may object to the improper usage or introduction of such evidence at trial.

20. Evidence of or Reference to Documents Allegedly Not

Produced by Defendants

The defendants seek an Order barring evidence or reference to any documents

allegedly originating from the defendants that were allegedly not produced by the

defendants during discovery [Doc. 86, p. 13]. Plaintiff does not object, but reserves the

right to refer to or produce such evidence if a motion to compel was filed and ruled upon

[Doc. 93, p. 11]. As such, the motion is GRANTED. This ruling applies equally to all

parties.

21. Any Reference or Evidence of References to Any

Defendant’s Financial Position

The defendants seek an Order barring any evidence or reference to the defendants’

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financial position [Doc. 86, p. 13]. The plaintiff objects, and argues that evidence of the

defendants’ financial position is relevant to the question of punitive damages [Doc. 93, p.

11]. As the plaintiff seeks punitive damages in this case and it has not been bifurcated,

evidence of the defendants’ financial position is relevant to the question of punitive

damages. The defendants may seek an appropriate limiting instruction if the issue arises

at trial. The motion is DENIED.

22. Cost of Defense in this and Other Cases

The defendants seek an Order barring reference to the cost of defense in this case

and other cases [Doc. 86, pp. 13–14]. The plaintiff objects to the extent that such an Order

would bar evidence relating to the compensation received by defense experts [Doc. 93, p.

12]. The motion is GRANTED insofar as it seeks to exclude reference to the cost of

defense in this case and other cases, but DENIED insofar as it was intended to seek

exclusion of evidence of compensation to experts. This ruling applies equally to all parties.

23. Exclude Lay Witnesses From Offering Expert Opinions

The defendants seek an Order barring “any lay witnesses in this matter from offering

any testimony outside of their personal knowledge or any opinion without first laying the

proper foundation.” [Doc. 86, p. 14]. Despite the broad request, the defendants only

address the potential testimony of Friedrichs Harris, and state that they anticipate that he

will testify about his son’s mental state and the adequacy of the treatment he received. The

plaintiff does not object to prohibiting lay witnesses from offering testimony outside of their

personal knowledge or opinion without laying a proper foundation, and states certain

witnesses he anticipates calling.

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Fact witnesses may provide lay opinions if they are “rationally based on the

witness’s perception,” “helpful to clearly understand[] the witness’s testimony or to

determin[e] a fact in issue,” and “not based on scientific, technical, or other specialized

knowledge within the scope of Rule 702.” Fed. R. Evid. 701. The Court will comply with

this rule at trial, and will not allow fact witnesses to offer opinions based on scientific,

technical or other specialized knowledge—this Court will not, however, issue a blanket

ruling barring opinion testimony from lay witnesses without any specificity.

This Court will GRANT the motion insofar as it seeks to preclude Friedrichs Harris

from testifying as to the adequacy of the treatment his son received, based upon his

specialized knowledge as a doctor, as this kind of testimony would cross into the purview

of expert testimony. Mr. Harris may, however, testify to facts about the treatment his son

received and his son’s mental state that are within his personal knowledge so long as the

proper foundation is laid. This Court will DENY the remainder of the motion at this time.

Such a broad order would simply order the parties to comply with the Rules of Evidence,

which this Court—and hopefully parties in this Court—strive to do at all times. If a lay

witness offers impermissible testimony at trial, the defendants may object at that time.

24. “Man on the Moon” Question and Argument

The defendants seek an Order barring the plaintiff from making any arguments or

inflammatory comments, including “man on the moon” arguments, references to the

salaries of the defendants’ executives, references to boardrooms, corporate accounts and

expenditures, and “golden rule” arguments [Doc. 86, p. 15]. The plaintiff objects insofar as

the defendants seek to exclude “reference to information concerning the operation of

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Defendants’ business that is relevant to this case.” [Doc. 93, p. 13].

Such arguments are impermissible, and the defendants’ motion is GRANTED insofar

as it seeks exclusion of the above listed impermissible arguments. The motion is DENIED

insofar as it was intended to exclude “information concerning the operation of Defendants’

business that is relevant to this case,” [Doc. 93, p. 15]. The defendants may object at trial

as the specific evidence or issue develops.

25. Exclude Evidence From Opening Statement

The defendants ask this Court to order each party to disclose any exhibits intended

for use in opening statements to the opposing party thirty-six hours prior to trial to allow the

parties time to consider the materials and object [Doc. 86, pp. 15–17]. The plaintiff does

not object [Doc. 93, p. 14]. Accordingly, this Court will GRANT the motion, and ORDERS

each party to disclose any exhibits intended for use in opening statements to opposing

counsel thirty-six hours before trial is to begin.

C. Defendant’s Motion in Limine to Exclude Evan M. Harris’s Treating

Physicians From Providing Expert Testimony at Trial [Doc. 84]

The defendants move this Court to prohibit Evan Harris’s treating physicians from

offering any testimony at trial beyond the treatment that they provided to him [Doc. 84].

Specifically, the defendants request that the treating physicians’ opinions be limited to “their

factual observations within the course of the treatment they provided to Evan Harris and

nothing more.” [Id.]. In response, the plaintiff argues that only one treating physician has

been identified, Paul Pelts, M.D., and then states that he does not anticipate using Evan

Harris’s “treating physicians’ testimony as expert testimony in this case.” [Doc. 94].

Presumably, the plaintiff means that he does not anticipate using the testimony of Dr. Pelts’

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as expert testimony in this case, and that the other individuals, Kevin Fenstermacher,

Ph.D., and Christie Woodfin, Ed.D., will also only be offered as fact witnesses.

Pursuant to Rule 26(a)(2) of the Federal Rules of Civil Procedure, “a party must

disclose to the other parties the identity of any witness it may use at trial to present

evidence under Federal Rule of Evidence 702, 703, and 705.” Fed. R. Civ. P. 26(a)(2)(A).

Moreover, “[u]nless otherwise stipulated or ordered by the court, this disclosure must be

accompanied by a written report.” Fed. R. Civ. P. 26(a)(2)(B). Rule 26.01(b) of the Local

Rules of Civil Procedure provides that:

The disclosures described in Fed. R. Civ. P. 26(a)(2)(B) shall not be required

of witnesses who have not been specially retained or employed by a party to

give expert testimony in the case, including physicians and other medical

providers who examined or treated a party or party’s decedent unless the

examination was for the sole purpose of providing expert testimony in the

case.

Here, there is no indication that Dr. Pelts examined or treated Evan Harris for the

sole purpose of providing expert testimony in the case. Instead, it appears that Dr. Pelts

was disclosed solely in his capacity as a doctor who treated Evan Harris before his death.

As such, a written report was not required under Rule 26(a)(2), and his testimony will not

be excluded on that ground. The defendants also argue for the exclusion of treating

physician testimony on relevance grounds—however, this Court finds that Dr. Pelts’ fact

testimony is relevant to several issues in this case, as Evan Harris’s mental state is a

central issue in this action. As such, this Court DENIES the defendants’ motion [Doc. 84]

insofar as it seeks to exclude the testimony of Dr. Pelts as to the facts of treatment, and will

address objections to the testimony, if needed, as they develop.

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D. Defendants’ Motion in Limine to Prohibit Plaintiff from Introducing Expert

Opinions During the Trial of this Matter Not Previously Disclosed [Doc. 85]

The defendants move this Court to prohibit the plaintiff from introducing any expert

opinions and reports that have not been disclosed. As this Court ruled above, supra A.12,

the parties are bound to follow the Rules of Evidence and the Rules of Civil Procedure, and

expert opinions not properly disclosed may not be admitted. Accordingly, this motion is

GRANTED [Doc. 85]. Any expert opinions that have not been properly disclosed will not

be admitted in this matter.

CONCLUSION

Consistent with this Order, this Court GRANTS IN PART and DENIES IN PART the

Defendants’ Omnibus Motion in Limine [Doc. 86], GRANTS IN PART and DENIES IN

PART Plaintiff's Omnibus Motions in Limine [Doc. 76], DENIES the Defendants’ Motion in

Limine to Exclude Evan M. Harris’ Treating Physicians From Providing Expert Testimony

at Trial [Doc. 84], and GRANTS Defendants’ Motion in Limine to Prohibit Plaintiff from

Introducing Expert Opinions During the Trial of this Matter Not Previously Disclosed [Doc.

85].

It is so ORDERED.

The Clerk is directed to transmit copies of this Order to all counsel of record herein.

DATED: June 22, 2018.

UNI ATES DISTRICT JU

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