The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JANE DOE, No. 4:21-CV-01343
Plaintiff, (Chief Judge Brann)
v.
LOYALSOCK TOWNSHIP SCHOOL
DISTRICT,
Defendant.
MEMORANDUM OPINION
APRIL 28, 2026
In advance of a trial beginning on June 1, 2026, the two parties have filed a
total of seven motions in limine.1 Four have been filed by the Plaintiff, Jane Doe,2
and three have been filed by the Defendant, Loyalsock Township School District
(“the District”).3 Each has been fully briefed and is now ripe for disposition.
All seven will be addressed in this opinion, with the Court beginning by
analyzing two of the motions, one filed by each party, that address identical subject
matter—prior allegations of misconduct against a non-party victim. Then the Court
will address the three remaining motions filed by the Plaintiff, before finishing by
reviewing the District’s other two motions.
1 See Docs. 96, 98, 100-02, 106, & 108.
2 See Docs. 100, 101, 106, & 108.
I. PRIOR ALLEGATIONS AGAINST NON-PARTY PERPETRATOR
Plaintiff has filed a motion requesting that the Court allow “the introduction
of evidence concerning prior complaints and reports of misconduct made against
Defendant Loyalsock Township School District’s (“District”) employee, Kelli
Vassallo (“Vassallo”), before the abuse of Plaintiff occurred.”4 Additionally, one of
the District’s motions in limine directly addresses this issue in a more specific
fashion. In that motion, the District asks the Court to “preclude[e] any evidence,
reference, argument or statement of Vas[s]allo’s prior acts of criminality as imputed
to the Defendant District’s actual knowledge of a Title IX violation and refusal to
remedy the same.”5
The District argues in its own motion — and its brief in opposition to
Plaintiff’s motion — that Plaintiff “intends to show, through non-propensity
evidence, that Vasallo’s 2010 ‘prior act’ infers that the District ‘knew’ the same truth
about the act as Vasallo – that a crime was committed.”6 This shows that despite a
surface Federal Rule of Evidence 404 argument, the heart of their argument is that
this evidence would be overly prejudicial and violate Rule 403.7 I will not belabor
the Rule 404 argument, as it is seemingly conceded by the Defendant.8 Rather, I will
4 Doc. 104, at 1.
5 Doc. 99, at 5.
6 Doc. 115, at 3-4; see also Doc. 99, at 3.
7 When this opinion refers to a Rule, it is referring to one contained in the Federal Rules of
Evidence.
8 After all, it claims that such evidence is not propensity evidence. See Doc. 99, at 3; Doc. 115,
at 3.
simply say that the Court agrees that Plaintiff is offering this evidence for a non-
propensity purpose—to show knowledge.9 Therefore, admission of this evidence
would not violate Rule 404(b).
The United States Court of Appeals for the Third Circuit has explicitly stated
that “pretrial Rule 403 exclusions should rarely be granted.”10 “Excluding evidence
as being more prejudicial than probative at the pretrial stage is an extreme measure
that is rarely necessary, because no harm is done by admitting it at that stage.”11 The
Court agrees with this logic. This is not a case where the Court has before it “a record
complete enough on the point at issue to be considered a virtual surrogate for a
trial record.”12 That is the sole requirement “to exclude evidence under Rule
403 at the pretrial stage,” and it is clear that it is not met in this case. As a result, an
objection to this evidence under Rule 403 is premature. However, the Plaintiffs may
raise this objection when such evidence is raised at trial.
As a final note on the arguments in these motions, the District repeatedly
makes assertions that despite their knowledge of allegations regarding Vassallo, a
police investigation into them yielded no charges.13 Evidence showing this and other
evidence that could rebut an argument of actual knowledge can and should be set
9 See United States v. Repak, 852 F.3d 230, 242 (3d Cir. 2017) (“The plain text of Rule
404(b) allows for the admission of other-acts evidence to show knowledge”) (citing Fed. R.
Evid. 404(b)).
10 In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 859 (3d Cir. 1990).
11 Id.
12 Id.
13 See Doc. 115, at 4-5; Doc. 121, at 2.
forth during this trial. However, the District offers no justification to wholly preclude
evidence that there was actual knowledge. 14
Therefore, Plaintiff’s motion to allow for the introduction of evidence that the
District had notice of prior allegations against Vassallo is granted. Additionally, the
District’s motion to preclude such evidence is denied without prejudice.15
II. PLAINTIFF’S JOINT MOTIONS IN LIMINE
Ms. Doe has filed three additional motions in limine. The first requests a
limitation of the testimony of the Defendant’s only proposed expert.16 The second
seeks to use multimedia and various types of evidence in the Plaintiff’s opening
statement.17 The third relates to the District referring to the juror’s responsibility as
taxpayers and implying that they would be responsible for paying any damages
award in this case.18 I will now address the merits of each of these motions.
A. Limitation of Dr. Elliot Atkins’ Testimony
The final motion in limine filed in this case was submitted by Plaintiff on
March 2, 2026 and addresses the testimony of the District’s one and only potential
14 The Court also disagrees with the District’s statement that this evidence “is not probative of
actual knowledge and, therefore, is not relevant to an analysis or finding of deliberate
indifference.” Doc. 121, at 2. The District has provided no cases, or arguments, supporting this
proposition. As a result, the Court is unconvinced by the bare assertion.
15 The District may re-raise this objection during the trial if it believes that it has a basis to
preclude this evidence.
16 Doc. 108. The Court recognizes that this was the motion in limine that was filed last in time.
These motions will not be addressed in the order in which that they were filed. Rather, they
are reorganized to allow for better use by the parties.
17 Doc. 100.
18 Doc. 106.
expert witness.19 This motion requests that the Court preclude “Elliot L. Atkins,
Ed.D, from offering evidence or testimony regarding ‘Litigation-Induced Trauma’
and malingering.”20 The Report of Dr. Aitkins purports to conduct “a forensic
evaluation of Jane Doe in an effort to assess the extent to which she may have
suffered psychological injury as the result of the alleged sexual abuse by her
basketball coach, Kelly Vasallo [sic], while a teenager in 2013-2014.”21
Despite Plaintiff’s attempt to frame this as a motion in limine, it is best
described as Daubert motion. Such motions are challenges under Rule 702,22 and
almost the entirety of the motion is based on a Rule 702 challenge.23 Therefore, the
Court will analyze the merits of this motion as a Daubert motion.
As an initial matter, the aspects of this opinion that challenge Dr. Atkins report
are untimely. On August 16, 2022, the Court issued a Case Management Order in
this case that explicitly stated that “[m]otions to exclude expert testimony shall be
filed no later than thirty days from receipt of the expert’s report.”24 While several
motions to extend the discovery and dispositive motions deadline were granted in
the time that has followed this August Order, none of them changed the requirement
that challenges to expert reports must be filed within thirty days of the receipt of the
19 Doc. 108.
20 Id.
21 Doc. 110, Ex. 1 (Dr. Atkins Report), at 2.
22 See In re Front Loading Washing Mach. Class Action Litig., No. CIV.A. 08-51 FSH, 2013 WL
3466821, at *1 (D.N.J. July 10, 2013).
23 See generally Doc. 110.
24 Doc. 21 ¶ 13.
expert report.25 The expert report of Dr. Atkins was produced on December 12,
2025,26 while the motion attempting to limit Dr. Atkins was not filed until March 2,
2026.27 This means that the motion to exclude portions of the expert’s testimony was
filed seventy-seven days after the expert’s report was produced—far more than the
thirty day allowance under this Court’s Order.28
Deadlines set by the Court — including those for the filing of challenges to
expert testimony— serve an important purpose; they are not made on a whim to fill
space in orders. Under the Federal Rules of Civil Procedure, a district court may
establish deadlines for parties to file motions, including Daubert motions and
motions in limine.29 Further, this Court has discretion to enforce its own orders.30
Federal Rule of Civil Procedure 16 states that scheduling orders should only be
modified for good cause.31 In the briefing on this motion, the issue of untimeliness
was not addressed by Plaintiff, nor was any justification for the tardiness provided.
This patently does not establish that there is good cause to modify the August 2022
Scheduling Order.32 The issue was also not raised by the District in its subsequent
25 See, e.g., Docs. 19, 56.
26 Doc. 110, at 1.
27 Doc. 108.
28 See Doc. 21 ¶ 13.
29 Fed. R. Civ. P. 16(b).
30 See id.; Taylor v. Shields, 744 Fed. Appx. 83, 87 (3d Cir. 2018).
31 Fed. R. Civ. P. 16(b).
32 See Sikkelee v. Precision Airmotive Corp., 522 F. Supp. 3d 120, 153 (M.D. Pa. 2021).
briefing. Nevertheless, this disobedience provides sufficient justification to deny this
motion.33
But it is important to note that there is a countervailing interest present, aside
from the disrespect of the Court’s orders.34 Under Federal Rule of Evidence 702 “a
trial judge acts as a gatekeeper to ensure that any and all expert testimony or evidence
is not only relevant, but also reliable.”35 As gatekeeper, a trial judge has three duties:
(1) “confirm the witness is a qualified expert”; (2) “check [that] the proposed
testimony is reliable and relates to matters requiring scientific, technical, or
specialized knowledge”; and (3) “ensure the expert’s testimony is ‘sufficiently tied
to the facts of the case,’ so that it ‘fits’ the dispute and will assist the trier of fact.”36
“The text of Rule 702 contains no exception to these requirements, so if they are not
satisfied, an expert cannot testify before the ‘trier of fact.’”37
With these countervailing interests in mind, “I find that it would be
inappropriate to wholly abdicate my role as gatekeeper and allow the jury to hear
potentially unfounded expert opinions on the basis that counsel failed to comply with
33 Pharmacy Corp. of Am. v. Askari, No. 21-2800, 2022 WL 3697342, at *5 (3d Cir. Aug. 26,
2022) (“The court set a deadline for Daubert motions, but he missed it. So if it was
a Daubert motion, the District Court reasonably denied it as too late.”).
34 See Sikkelee, 522 F. Supp. 3d at 153.
35 UGI Sunbury LLC v. A Permanent Easement for 1.7575 Acres, 949 F.3d 825, 832 (3d Cir.
2020) (internal quotation marks omitted).
36 Id. (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993)).
37 Id. (citing Fed. R. Evid. 702).
the scheduling Order.”38 As a result, I have thoroughly considered the merits of this
Daubert motion and will briefly analyze the issues within it.
Plaintiff does not attempt to challenge the qualifications of Dr. Atkins, she
only brings arguments related to the reliability and fit of his testimony.39 If neither
proves to be a sufficient justification for limiting Dr. Atkins’ testimony, then this
motion must be denied.40 I will now address each in turn.
1. Reliability
The Third Circuit has “concluded that ‘an expert’s testimony is admissible so
long as the process or technique the expert used in formulating the opinion is
reliable.’”41 Reliable expert testimony must be “based on the methods and
procedures of science, not on subjective belief and unsupported speculation” or
“mere haphazard, intuitive inquiry.”42 But it need not have the “best foundation” or
38 Sikkelee, 522 F. Supp. 3d at 153. Compare Daddio v. A.I. DuPont Hosp. for Children of
Nemours Found., 650 F.Supp.2d 387, 402 (E.D. Pa. 2009) (considering an untimely Daubert
motion on the merits) with Nw. Sav. Bank & Fin. Servs. v. NS First St. LLC, 2011 WL 6180874
at *5 (M.D. Pa. Dec. 13, 2011) (refusing to consider a Daubert motion filed more than a month
after the relevant deadline). The Court in Northwest Savings Bank noted that the motion at
issue was filed just nine days before trial was set to begin. Here, although the motion was filed
more than two months after the deadline, it was also filed more than three months before the
start of trial. That provides enough time “so that the expert’s proposed testimony can be
evaluated with care.” Feliciano–Hill v. Principi, 439 F.3d 18, 24 (1st Cir. 2006).
39 Doc. 110, at 2.
40 As an initial note, the Court finds no merit to any argument that the subject matter of Dr.
Atkins’ report is inherently unreliable or unhelpful to the trier of fact.
41 Kannankeril v. Terminix Int’l, 128 F.3d 802, 806 (3d Cir. 1997) (quoting In re Paoli R.R. Yard
PCB Litig., 35 F.3d 717, 742 (3d Cir. 1994)).
42 UGI Sunbury LLC v. A Permanent Easement for 1.7575 Acres, 949 F.3d 825, 833-34 (3d Cir.
2020) (internal quotation marks omitted).
be “supported by the best methodology or unassailable research.”43 It need only be
based on “good grounds.”44 To test the basis for the opinion, courts should consider
the following list of factors, none of which are dispositive:
(1) whether a method consists of a testable hypothesis; (2) whether the
method has been subject to peer review; (3) the known or potential rate
of error; (4) the existence and maintenance of standards controlling the
technique’s operation; (5) whether the method is generally accepted;
(6) the relationship of the technique to methods which have been
established to be reliable; (7) the qualifications of the expert witness
testifying based on the methodology; and (8) the non-judicial uses to
which the method has been put.45
Further, “[t]he admissibility inquiry … focuses on principles and methodology, not
on the conclusions generated by the principles and methodology.”46 “Once
admissibility has been determined, then it is for the trier of fact to determine the
credibility of the expert witness.”47 “Nonetheless, ‘conclusions and methodology are
not entirely distinct from one another.’”48 “The court ‘must examine the expert’s
conclusions in order to determine whether they could reliably flow from the facts
known to the expert and the methodology used.’”49
43 Id. (internal quotation marks omitted).
44 Id.
45 Id. (internal quotation marks omitted).
46 In re TMI Litig., 193 F.3d 613, 665 (3d Cir. 1999) (citing Kannankeril, 128 F.3d at 806).
47 Id.
48 Id. (quoting General Electric Co. v. Joiner, 522 U.S. 136 (1997)).
49 Id. (quoting Heller v. Shaw Industries, Inc., 167 F.3d 146, 153 (3d Cir. 1999)).
Plaintiff attacks Dr. Atkins reliability first based on his use of the “Structured
Interview of Malingered Symptoms (SIMS)” tool.50 She alleges that “Dr. Atkins fails
to address whether the SIMS is a generally accepted method of evaluating
malingering in the context of psychological impact of chronic childhood sexual
abuse, and he fails to describe the scientific methodology for administering this scale
in the context of his broader evaluation of Plaintiff.”51 But Plaintiff ignores that
“[e]xperts are not required to use “magic words” when expressing their opinions; the
substance of their testimony controls.”52 The substance of the testimony here shows
that it is based on more than a sufficient ground to qualify as the “good grounds”
needed to pass the reliability bar.53
The remaining objections to Dr. Arkins credibility appear to address the
“weight rather than admissibility because, at bottom, they constitute disagreements
with Dr. [Atkins’] methodology, facts that it believes Dr. [Atkins] should have
considered, and alternative methods it would have preferred.”54 For example,
Plaintiff points to facts—or the absence thereof—that Dr. Atkins does not mention
in his report.55 But “an expert's failure to consider every available fact or option
50 Doc. 110, at 5.
51 Id.
52 Braun v. Liu, No. 1:20-CV-01848, 2023 WL 11959812, at *5 (M.D. Pa. July 17, 2023).
53 UGI Sunbury LLC v. A Permanent Easement for 1.7575 Acres, 949 F.3d 825, 833-34 (3d Cir.
2020). The Court notes specifically that the “Phycological Testing” section of the report
provides a detailed explanation of the methods utilized by Dr. Atkins. See Doc. 110, Ex., at 9-
13. This appears sufficient to satisfy the reliability requirements.
54 Sikkelee v. Precision Airmotive Corp., 522 F. Supp. 3d 120, 156 (M.D. Pa. 2021).
55 See Doc 110, at 6.
“neither renders his methodology unreliable nor his report inadmissible but, rather,
goes to the weight of his testimony.”56 While these proffers provide several
compelling reasons why Dr. Atkins’ conclusions may not be correct, “cross-
examination provides the proper arena to demonstrate any shortcomings. It seems
clear that defense counsel will be able to adequately address its concerns at that
time.”57
Overall, I take note of Ms. Doe’s arguments, but they are best addressed
during the examination of Dr. Atkins.58 They do not offer a reason to disqualify him
as an expert or limit his testimony.59
2. Fit
Whether the opinion “fits” depends on whether it will “assist the trier of fact
to understand the evidence or to determine a fact in issue.”60 “‘Fit’ is not always
obvious, and scientific validity for one purpose is not necessarily scientific validity
56 Voilas v. Gen. Motors Corp., 73 F.Supp.2d 452, 462 (D. N.J. 1999).
57 Sikkelee, 522 F. Supp. 3d at 156. The notion that Dr. Atkins’ conclusion is undermined by it
being a suggestion can be raised in cross-examination. But the fact that an expert qualifies their
conclusion does not undermine their reliability. See Lillis v. Lehigh Valley Hosp. Inc., No. CIV.
97-3459, 1999 WL 718231, at *7 (E.D. Pa. Sept. 3, 1999) (“That an expert may, at some point
during his testimony, qualify his opinion does not render his opinion inadmissibly
speculative”), aff’d, 251 F.3d 154 (3d Cir. 2000).
58 Id.
59 Plaintiff has noted that she would like the opportunity to provide a rebuttal report from their
own expert. See Doc. 110, at 1-2 n.2. The Court sees no reason to preclude the additional filing
of this report, assuming it is timely produced to the District. Additionally, the District will be
provided with an opportunity to object to this report and allow for Dr. Atkins to address the
rebuttal — assuming he is qualified to do so.
60 In re TMI Litig., 193 F.3d 613, 663 (3d Cir. 1999).
for other, unrelated purposes.”61 “Thus, even if an expert’s proposed testimony
constitutes scientific knowledge, his or her testimony will be excluded if it is not
scientific knowledge for purposes of the case.”62
Plaintiff argues that the suggestion by Dr. Atkins that Ms. Doe’s damages are
diminished by litigation-based trauma does not assist the trier of fact.63 She also
points out that he has not, and cannot, opine the amount Plaintiff’s damages should
be diminished for this reason.64 I will not take a significant amount of time to address
this issue because this expert testimony appears to be helpful to the trier of fact. The
standard to determine whether the fit requirement is met is interpreted broadly.65
Here, the emotional harm that all agree that Plaintiff has suffered is directly at issue.
Expert testimony would assuredly assist the trier of fact in determining the root
causes of this damage and what role different factors and actors played in bringing
it about. Additionally, Plaintiff’s assertion that Dr. Atkins’ inability to put a dollar
amount on various parts of his opinion is inconsequential.66
As an additional note on this point, the Court wishes to address Plaintiff’s
assertion that Dr. Atkins’ testimony suggests “that Plaintiff’s distress stems from her
61 Id. at 670 (quoting Daubert, 509 U.S. at 591).
62 In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 743 (3d Cir. 1994).
63 Doc. 110, at 7-8.
64 Id. at 8.
65 See Am. Tech. Res. v. United States, 893 F.2d 651, 655 (3d Cir. 1990).
66 Benton v. Sims, No. CV 19-16157, 2022 WL 2952915, at *10 (D.N.J. July 26, 2022) (“[a]n
expert's proposed testimony should not be excluded merely because it fails to account for some
particular condition or fact which the adversary considers relevant.”) (internal quotation marks
omitted).
pursuit of justice.”67 This is a patent misrepresentation of Dr. Atkins’ report.68 His
report does not conclude or even impliedly make the assertion that Ms. Doe’s
distress has been solely caused by this litigation.69 Rather, it addresses a multitude
of factors that he believes have led to the mental health issues that have plagued her.
One of the factors mentioned is explicitly the interactions with Vassallo.70 If this
report, expert, or any expert report or witness attempted to conclude that there was
no harm caused by the abhorrent interactions between Ms. Doe and Vassallo, then
there would be a plethora of reliability, fit, and undue prejudice concerns. If such
statements are made, Plaintiffs can and should object, and those objections would
appear to have a more than sufficient basis to be sustained. However, this expert’s
report says nothing of the kind; it only attempts to assert that there may be multiple
causes of Plaintiff’s mental anguish.71 If there are other potential causes of the harm
she has suffered, it is directly relevant to the damages and causation issues in this
case and testimony on it would certainly assist the trier of fact.72
Overall, it appears that Dr. Atkins’ testimony would assist the trier of fact in
deciding this case, and, as a result, there is no fit problem with his testimony.
67 Doc. 110, at 8.
68 See D Doc. 110, Ex. 1, at 15-16.
69 See id.
70 Id. at 16
71 See id.
72 See, e.g., Hanna v. Giant Eagle Inc., No. 2:15CV1009, 2018 WL 11474894, at *1 (W.D. Pa.
Mar. 28, 2018).
3. Disposition of the Motion
For the foregoing reasons, Plaintiff’s motion to limit the testimony of Dr.
Atkins is denied without prejudice. However, I want to be explicit in explaining
exactly what the disposition of this motion means. Dr. Atkins has not been qualified
as an expert in this case. While the explanations in this opinion may indicate how
the Court could rule on a motion to proffer Dr. Atkins as an expert, no such motion
has been made. In fact, despite there being an indication that seven total expert
witnesses may be called at this trial, no witnesses have been offered or entered as an
expert in this case.73 It is for the District to establish the requirements for Dr. Atkins
to be entered as an expert and then offer him as such. Plaintiff has the same
responsibility to do both for her six potential experts.
However, based on my review of Dr. Atkins’ report and the briefing on this
motion, the Court is holding that it does not have sufficient grounds to limit his
testimony at this stage. But if—or more aptly, when—the District proffers Dr. Atkins
as an expert, Ms. Doe will have the opportunity to object on any reasonable basis to
Mr. Atkins as an expert — including re-raising portions of this motion that she
believes remain relevant.74
73 See Doc. 127, at 6, at; Doc. 131, at 13.
74 The same opportunity will be provided to the District when Plaintiff proffers her experts.
Because of the time this is expected to take, and in the interest of expeditiously trying this case,
the parties are strongly urged by the Court to discuss the admission of witnesses as experts in
advance of trial. If there is the possibility of a stipulation to witnesses being admitted as experts,
it would be in everyone’s interest to pursue it.
B. Use of Multimedia in Opening Statement
Plaintiff’s next motion in limine requests that the Court allow her to use
“multimedia aids in her opening statement, including, but not limited to the timeline
of events, limited portions of video depositions designated for trial, images, and
excerpts of admissible documents.”75 As the District has correctly pointed out, the
specific depositions, images, and documents Plaintiff seeks to use in her opening
statement, or even the timeline sought to be used, have not been disclosed to the
Court or opposing counsel.76
An “opening statement is not evidence in itself, but serves ‘to give the jury
the broad outlines of the case to enable the jury to comprehend it.”’77 Demonstrative
aids can be used during these opening statements at the Court’s discretion.78
However, these “aids should be based upon materials in evidence. Thus[,] they
should not ordinarily be used until opposing counsel has examined them and been
afforded an opportunity to call to the court’s attention any inconsistencies between
75 Doc. 105, at 1. The Court notes that there are scarce references in the brief in support to a
challenge under Rule 403. See Doc. 110, at 8. However, these references are directly
intertwined with Daubert challenges, and it is clear such Rule 403 challenges are utilized as a
vehicle to get the Court to address these Daubert arguments. Regardless, the Court will deny
the Rule 403 challenges to this evidence for these same reasons as the previous motions;
“[e]xcluding evidence as being more prejudicial than probative at the pretrial stage is an
extreme measure that is rarely necessary, because no harm is done by admitting it at that stage.”
In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 859 (3d Cir. 1990).
76 See generally Doc. 118.
77 United States v. De Peri, 778 F.2d 963, 978 (3d Cir. 1985) (quoting Government of the Virgin
Islands v. Turner, 409 F.2d 102, 103 (3d Cir.1969)).
78 Alicea v. United States, 100 F. Supp. 3d 457, 479 (E.D. Pa. 2015) (citing De Peri, 778 F.2d at
789).
the contents of a visual aid and the evidence which has been admitted.”79 The Court
further believes that it is prudent to treat all evidence proposed to be shown to the
jury in a similar fashion.
The motion set forth by the Plaintiffs is extremely vague and is almost entirely
made up of legal conclusions. None of the evidence sought to be included in the
opening statement — and, as a result, shown to the jury — has been disclosed outside
of opaque statements alluding to what these documents might be. While “no rule
requires Plaintiff's counsel to reveal to Defendants [her] opening statement,”80
showing the jury these documents during opening statements presents a vastly
different issue. It appears that Plaintiffs “in essence [seek] an advance evidentiary
ruling by the Court on the admissibility of these substantive evidentiary exhibits.”81
Such a ruling would assuredly allow for these images and documents to be shown to
the jury. The Court will not take the bait when it has not seen the exhibits.
Rather, the Court will deny this motion as premature. Instead, I will order
multimedia and documents sought to be used in either party’s opening to be
produced to the opposing counsel fourteen days prior to the start of trial.82 If the
opposing party objects to the usage of any of the evidence, its objections will be due
79 Bower v. O'Hara, 759 F.2d 1117, 1127 (3d Cir. 1985).
80 Hunter v. Kennedy, No. 17-CV-00007, 2020 WL 3980435 (M.D. Pa. July 14, 2020).
81 Brown v. Kia Motors Corp., No. 06-CV-0804, 2010 WL 135125 (W.D. Pa. Jan. 9, 2010).
82 See Good v. FirstEnergy Corp., No. 3:13CV149, 2016 WL 492804, at *5 (M.D. Pa. Feb. 9,
2016). However, it is important to note that while the documents and visual aids sought to be
used must be produced, the way they will be used and the contents of the opening statement,
generally, needed not and should not be disclosed to the opposing party.
seven days prior to the start of trial.83 This will allow the Court to focus on the
content of the objections and review the evidence prior to making a determination
on what can and cannot be used during the opening statements.
C. Taxpayer Impact Arguments or References
Ms. Doe’s final motion in limine invites the Court to preclude the District
from making “any statement or inference that: (1) a verdict against Defendant will
cost taxpayers money; (2) an award will burden the public treasury or government
resources; (3) jurors, as taxpayers, will personally bear the cost of any judgment;
and/or (4) the size of any award should be tempered because of its ultimate source
in public funds, or similar reference.”84 She alleges that such assertions would be
irrelevant under Rule 401, unduly prejudicial under Rule 403, and would be an
improper appeal to a jury’s interest as a taxpayer.85
As an initial matter, it is important to note what is actually requested in this
motion in limine. It appears to the Court that Plaintiff is not seeking to bar the
introduction of evidence that the District is a governmental entity. Such evidence is
clearly relevant and admissible.86 What Plaintiff does seek to prohibit are statements
83 See id.
84 Doc. 107, at 1-2.
85 See id. at 4-7.
86 See Coffman v. Greater Latrobe Sch. Dist., No. 25-462, 2026 WL 607518, at *2 (W.D. Pa.
Mar. 4, 2026) “a plaintiff must prove five elements to recover under Title IX …: (1) that the
defendant is a Title IX funding recipient . . . .”) (citing Gebser v. Lago Vista Ind. Sch. Dist.,
524 U.S. 274 (1998)). While the Court does not take it to be seeking this, such a motion would
be denied on a relevance or Rule 403 basis.
by the District that a damages award will be born by the public and the jurors
themselves as taxpayers.
Plaintiff’s argument that an appeal to a juror’s pecuniary interest as a taxpayer
is improper is sufficient reason to bar such statements. As a general matter,
“[a]ppealing to the sympathy of jurors through references to financial disparity is
improper.”87 Further, “appeals to class prejudice are highly improper and cannot be
condoned and trial courts should ever be alert to prevent them.”88 While the Third
Circuit has not explicitly stated that such references to a juror’s responsibility as a
taxpayer are improper, other circuits and district courts in this circuit have found it
to be objectionable.89 The Court agrees that such references to jurors as taxpayers
would be overly prejudicial and improper.90
87 Draper v. Airco, Inc., 580 F.2d 91, 95 (3d Cir. 1978).
88 United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 239 (1940).
89 See, e.g., United States v. Palma, 473 F.3d 899, 902 (8th Cir.2007) (“Remarks invoking the
individual pecuniary interest of jurors as taxpayers are universally viewed as improper.”);
United States v. Smyth, 556 F.2d 1179, 1185 (5th Cir.1977) (characterizing the statement
“that's your tax money being kicked in here” as a “highly improper appeal to the passion and
prejudices of the juror”); United States v. Beam, No. 1:10-CR-047, 2010 WL 4623934, at *1
(M.D. Pa. Nov. 5, 2010).
90 Other than pointing out that the funding of the District is relevant to the Title IX claim, there
does not appear to be a coherent legal argument set forth by the Defendant on this motion. See
generally Doc. 116. The District states in poetic fashion that “[t]his community is the true
defendant in this case and the community’s persona [sic] and financial contributions that come
from their hard-earned wages should not be cloaked in darkness during this trial.” Doc. 116, at
3. This sentiment highlights the potential prejudice that could arise if similar statements are
made during this trial; it shifts the focus of the trial to the jurors and their and their community’s
willingness to pay any potential damages. Such prejudice will not be risked when it is obvious
from the Defendant’s briefing that it is likely to make similar statements before the jury.
The District’s claim that fear is not a basis to exclude evidence is true on a
surface level, but if you examine what that fear is in this context, it becomes apparent
the fear of bias is simply a fear of undue prejudice. This, of course, can be a basis to
exclude relevant evidence under Rule 403. The Court believes that the statements
and inferences that are sought to be precluded here would simply be unduly
prejudicial and should be barred under Rule 403.
Therefore, this motion in limine is granted and all parties will be precluded
from making a statement or inference that: (1) a verdict against Defendant will cost
taxpayers money; (2) an award will burden the public treasury or government
resources; (3) jurors, as taxpayers, will personally bear the cost of any judgment;
and/or (4) the size of any award should be tempered because of its ultimate source
in public funds, or similar reference. If the District makes any such statements,
during opening statements or at any other time, the Court will call a sidebar and
inform the jury to disregard the assertion. However, it should be noted that this ruling
will not affect any party’s ability to raise evidence that the District is a governmental
entity that accepts federal funding.91
91 As a final note, the Court is baffled by the District’s statement that “[t]his community is the
true defendant in this case. . . . ” Doc. 116, at 3. If the jurors in this case are also the true
defendants of this lawsuit, then they should not be permitted to be on the jury. There would be
a logical conflict for almost every potential juror in the Middle District and a change of venue
would need to be sought. Such a result cannot be the intention of the District, so the Court will
choose to simply disregard this statement.
III. DEFENDANT’S MOTIONS IN LIMINE
Defendant raises two arguments, in separate motions in limine that have not
yet been addressed. Again, each issue that is raised will be addressed in turn.
A. Emotional Damages
Defendant’s first independent motion in limine asks the Court “for an order
precluding any statement, reference, or argument that Plaintiff is entitled to and
should be awarded emotional distress damages, and to preclude any recovery of
emotional distress damages by Plaintiff under Title IX.”92 Plaintiff counters that this
request is an impermissible use of a motion in limine and to the extent it seeks to
preclude certain evidence, that evidence would be admissible for other purposes.93
The Court agrees with both of Plaintiff’s arguments. “Motions in limine are
made prior to trial or the presentation of evidence in order to aid the clear
presentation of evidence.”94 “It is well settled that ‘[m]otions in limine address
evidentiary questions and are inappropriate devices for resolving substantive issues,’
such as the sufficiency of the evidence to support a claim or defense.”95 Motions in
limine are typically made “for the purpose of prohibiting opposing counsel from
mentioning the existence of . . . matters so highly prejudicial to the moving party
92 Doc. 96, at 1.
93 See Doc. 112, at 4-7.
94 United States v. Ramsey, 2021 U.S. Dist. LEXIS 192115, at *1 (E.D. Pa. Oct. 5, 2021).
95 Brooks v. State Coll. Area Sch. Dist., No. 4:22-CV-01335, 2023 WL 7130624 (M.D. Pa. Oct.
30, 2023) (Brann, C.J.) (quoting Bowers v. Nat’l Collegiate Athletic Ass’n, 563 F.Supp. 2d
508, 532 (D.N.J. 2008)).
that a timely motion to strike or an instruction by the court to the jury to disregard
the offending matter cannot overcome its prejudicial influence on the jurors’
minds.”96
It appears apparent on the face of the motion, and subsequent briefing in
support of it, that the District seeks a ruling of law that a 2022 United States Supreme
Court case bars an entire category of damages.97 This is not a request to aid in the
clear presentation of evidence, as is the proper purpose of motions in limine.98 While
the District argues this is a distinction without a difference,99 the Court believes this
is the exact type of request for a substantive issue ruling that serves as an improper
basis for a motion in limine.100 For this reason alone, the Court has sufficient
justification to deny the District’s motion in limine.101
However, it is also important to note that “[e]vidence should only be excluded
on a motion in limine if it is clearly inadmissible on all potential grounds.”102
96 United States v. Davis, 208 F.Supp. 3d 628, 632 (M.D. Pa. 2016) (citing O’Rear v. Fruehauf
Corp., 554 F.2d 1304, 1306 (5th Cir. 1977)).
97 See Doc. 96; Doc. 97, at 3 (citing Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212
(2022)).
98 United States v. Ramsey, 2021 U.S. Dist. LEXIS 192115, at *1 (E.D. Pa. Oct. 5, 2021).
99 See Doc. 122, at 1.
100 Brooks v. State Coll. Area Sch. Dist., No. 4:22-CV-01335, 2023 WL 7130624 (M.D. Pa. Oct.
30, 2023) (Brann, C.J.) (quoting Bowers v. Nat’l Collegiate Athletic Ass’n, 563 F.Supp. 2d
508, 532 (D.N.J. 2008)).
101 See Williams v. Pennsylvania Dep't of Corr., No. 2:22-CV-394, 2022 WL 1173195, at *1
(W.D. Pa. Apr. 20, 2022) (“any issues in the motion in limine that should be properly asserted
through a timely Rule 50(a) motion for judgment as a matter of law will be denied without
prejudice”).
102 Hunt v. Drake, No. 16-CV-1729, 2020 U.S. Dist. LEXIS 108003 (M.D. Pa. June 19, 2020)
(citing Feld v. Primus Techs. Corp., Civ. No. 4:12-1492, 2015 U.S. Dist. LEXIS 55262, at *1
(M.D. Pa. 2015)).
Plaintiff presents a strong argument that the evidence of emotional damages sought
to be excluded remains admissible in relation to her negligence claim.103 The Court
agrees,104 and believes that this provides a second justification to deny the District’s
motion.
For these reasons, this motion in limine will be denied without prejudice. The
District may re-raise such arguments in a potential judgment as a matter of law at
the close of Ms. Doe’s case or during the jury charge conference.105 If this issue is
re-raised at either point, both parties may request that the Court review and rely on
the briefs of this motion to aid its analysis.
B. Evidence of Grooming or Sex Abuse Outside of the School Setting
The District’s final motion in limine asks that the Court “preclude evidence at
trial of any reference, argument, or evidence of outside-of-school grooming or sex
abuse between Plaintiff and her abuser.”106 They base this request on Rule 403 by
arguing that it would be “unfairly prejudicial” and Rule 401 by arguing it is
irrelevant.107
103 See Doc. 112, at 6-8.
104 The District seems to tacitly concede this point, as it does not rebut these arguments in their
reply brief on this motion. See generally Doc. 122.
105 See Williams, 2022 WL 1173195, at *2.
106 Doc. 102.
107 See Doc. 103, at 2; Doc. 123, at 1-2. As the District pointed out in its reply brief, Plaintiff
seems to have misconstrued the basis of this motion. See Doc. 123, at 1-2. The District never
set out to make a Rule 404(b) argument and the Court will not undertake an analysis under that
Rule.
Initially, I will again note that an objection to this evidence under Rule 403 is
premature. “Excluding evidence as being more prejudicial than probative at the
pretrial stage is an extreme measure that is rarely necessary, because no harm is done
by admitting it at that stage.”108 I have already explained that this is not a case where
the Court has before it “a record complete enough on the point at issue to be
considered a virtual surrogate for a trial record.”109 That is the sole requirement “to
exclude evidence under Rule 403 at the pretrial stage,” and it is clear that it is not
met in this case. Therefore, Rule 403 will not bar this evidence.
Under the Federal Rules of Evidence, “the bar for what constitutes relevant
evidence is low.”110 Rule 401 establishes that the test for whether a piece of evidence
is relevant “ is whether the evidence has ‘any tendency to make a fact more or less
probable than it would be without the evidence,’ where ‘the fact is of consequence
in determining the action.’”111 It appears that this evidence easily clears the low bar
of Rule 401 and is likely relevant to elements of Plaintiff’s Title IX claim, among
other aspects of the case.112
108 Id.
109 Id.
110 Forrest v. Parry, 930 F.3d 93, 114 (3d Cir. 2019); see also Failla v. City of Passaic, 146 F.3d
149, 159 (3d Cir. 1998) (“The test of relevance under the Federal Rules of Evidence is low.”).
111 Id. (quoting Fed. R. Evid. 401 (emphasis added)).
112 For example, as part of their Title IX claim, Plaintiffs will need to prove actual knowledge.
See Bostic v. Smyrna School Dist., 418 F.3d 355, 360 (3d Cir. 2005). If evidence can be
proffered that shows that grooming actions were taken by Vassallo for an extended period of
time, it would have at least a small tendency to make out the critical element of actual
knowledge. That tendency, however small, is all that is required for evidence to be relevant.
Therefore, Rules 401 and 403 do not justify a finding that this evidence is
inadmissible and this final motion in limine will be denied without prejudice.
IV. SUPPLEMENT TO THE DISTRICT’S PRETRIAL MEMORANDUM
Defendant writes in its pre-trial memorandum that the rulings on these
motions in limine “will impact the manner in which this case is tried, in terms of the
number of witnesses, exhibits, and ultimately the length of the actual trial.”113 No
further analysis of these issues, or any other legal issues was provided in this
document. These memoranda serve a vital role in assisting Court and other parties
in their preparation for trial. In that vein, the Defendant will be directed to file a
supplement to their previously filed pretrial memorandum that addresses the issues
it concluded could not be addressed without decisions on these motions in limine.
This document must be filed with the Court within fourteen days of the date of this
Memorandum Opinion and Order.
113 Doc. 127, at 9.
V. CONCLUSION
For the foregoing reasons, Plaintiff’s motions in limine to introduce evidence
of prior complaints and to preclude taxpayer impact arguments or references are
granted. All other motions in limine are denied without prejudice.
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge