D. Testimony of Plaintiff Ferris
It is well settled that when "the complexities of the human body place
questions as to the cause of pain or injury beyond the knowledge of the
average layperson . . . the law requires that expert medical testimony be
employed." Redland Soccer Club, Inc. v. Department of Army of the United
States, 55 F.3d 827 (3d Cir. 1995) (quoting Gradel v. Inouye, 491 Pa. 534,
421 A.2d 674, 679 (1980)) (internal quotation omitted) (modification in
original). See also Bushman v. Halm, 798 F.2d 651, 659 (3d Cir. 1986)
("If the question of causal relation is so esoteric that lay minds cannot
form any intelligent judgment about it without expert aid an opinion from
an expert may be required.").
In this case, the Court must determine whether depression and other
mental conditions are the types of injuries about which a lay witness may
testify or whether such conditions are so complex as to require expert
testimony regarding diagnosis and causation. Although the Third Circuit
has not yet addressed this issue, the Court of Appeals for the District
of Columbia has explained that "[w]hereas testimony from lay witnesses
may be sufficient to establish that an individual is `distressed' in some
fashion, it may not be sufficient to establish that an individual suffers
from a particular medical condition such as alcoholism or depression
which only professional medical care providers may be qualified to
diagnose." Jefferson v. MilVets Sys. Tech., Inc., 172 F.3d 919, 1999 WL
66027, at *1 (D.C. Cir. Jan. 26, 1999) (unpublished).*fn8 See also
Villalba v. Consolidated Freightways Corp. of Del., 2000 WL 1154073, at
*4-5 (N.D.Ill. Aug. 14, 2000) (holding that any causal connection between
an accident involving plaintiff and a subsequent suicide attempt requires
expert testimony due to the complex nature of depression). This Court
agrees with the foregoing authority and concludes that Ferris will not be
permitted to testify regarding any specific medical diagnosis of his
mental ailments as the conditions from which he allegedly suffers
— depression and anxiety disorder — are complex injuries
beyond the knowledge of the average layperson. In addition, Ferris's
beliefs as to how his injuries were caused may not be presented to the
jury in the absence of expert testimony regarding causation, and, as
stated supra, all such evidence has been excluded.
Having concluded that plaintiff Ferris will not be permitted to testify
regarding the diagnosis of his alleged mental conditions or the cause of
those conditions, the Court now turns to the questions whether a
plaintiff must prove an actual injury in order to recover under the LMRDA
and, if so, whether such an injury may be established in the absence of
competent medical testimony.
E. Actual Injury Requirement Under the LMRDA
As noted supra, defendants seek to exclude any evidence of causation of
injuries and treatment of such injuries for both defendants. In
connection with this argument, defendants contend that plaintiffs
prove that plaintiffs suffered a physical injury in order to recover under
the LMRDA, citing Rodonich v. House Wreckers Union Local 95, 817 F.2d 967
(2d Cir. 1987). In Rodonich, the Second Circuit wrote that "[t]he
qualification that claims of emotional distress be supported by a
physical manifestation of injury is an appropriate safeguard against the
award of excessive and speculative damages against unions. . . ."
Rodonich at 977. In an effort to ensure that labor unions are not subject
to excessive and/or speculative damages of the kind that concerned the
Rodonich court, defendants argue that the Court should require (1) a
physical impact and (2) either extreme and outrageous conduct giving rise
to the condition or competent medical testimony to support the existence
of the condition alleged to have been caused by the Federation's
In response, plaintiffs argue that emotional distress claims may
survive under the LMRDA without proof of any actual physical injury,
citing Bradford v. Textile Workers of America, 563 F.2d 1138 (4th Cir.
1977). In Bradford, the Fourth Circuit concluded that a plaintiff who
brought suit under the LMRDA could recover, if entitled to any recovery,
for "mental suffering and humiliation." Id. at 1144. Bradford, however,
represents a minority view which this Court rejects. This Court concludes
that plaintiffs must demonstrate some actual injury in order to recover
under the LMRDA. See Rodonich, 817 F.2d 967; Bise v. International Bhd.
of Elec. Workers, AFL-CIO Local 1969, 618 F.2d 1299 (9th Cir. 1979).
Such actual injury may be established by plaintiffs' own testimony.
See Petramale v. Local No. 17 of Laborers' Int'l Union, 847 F.2d 1009,
1011-12 (2d Cir. 1988) (reversing judgment notwithstanding the verdict in
favor of defendant union in case where there was testimony that plaintiff
had become moody and argumentative, and had experienced marital
difficulties and trouble sleeping, but had presented no expert medical
testimony and had not sought medical treatment for his distress); Bise
v. International Bhd. of Elec. Workers, AFL-CIO Local 1969, 618 F.2d 1299
(9th Cir. 1979) (upholding decision to allow question of causation to be
presented to a jury in the absence of medical testimony regarding
plaintiffs' injuries in a suit brought under the LMRDA); Glover v. Ossey,
1995 WL 374029, at *10 (N.D.Ill. June 21, 1995) (holding that
"[p]laintiffs' testimony regarding loss of sleep, irritability,
humiliation, and the loss of the admittedly small monetary benefits of
[their union] position[s] will suffice to support an award of damages for
emotional distress" under the LMRDA and that "the jury may choose to
believe it or not"); see also Bolden v. Southeastern Pa. Transp. Auth.,
21 F.3d 29 (3d Cir. 1994) (concluding that expert medical testimony is
not required to establish emotional distress damages in a suit brought
pursuant to 42 U.S.C. § 1983).
Following the rationale set forth in Rodonich, Petramale, Bise, and
Glover, the Court concludes that evidence of emotional distress, standing
alone, is insufficient to support an award of damages under the LMRDA. In
this case, however, there is evidence of actual injury and the Court
concludes that such injury may be established by the testimony of
competent experts or plaintiffs themselves; the question of causation is
for the jury. See Petramale, 847 F.2d 1009; Bise, 618 F.2d 1299. With
respect to establishing Guarnieri's actual injury, Dr. Santora has the
requisite credentials and expertise to testify as to the physical
injuries related to Guarnieri's alleged mental conditions, as discussed
supra. In addition, both plaintiffs
will be permitted to testify
regarding their alleged symptoms and injuries, although plaintiff Ferris
may only testify to a limited extent as discussed supra Part II(D)
— he may only testify as to the nature and timing of his alleged
symptoms and injuries; he will not be permitted to testify as to any
particular diagnosis or the cause of his alleged injuries. Finally, as
discussed supra, the absence of expert testimony as to diagnosis and
causation does not preclude plaintiff Ferris from presenting to a jury
the question of causation and whether he suffered an actual injury. See
Petramale, 847 F.2d 1009, Bise, 618 F.2d at 1305; Bolden, 21 F.3d at
34-35. The Court is "confident that [the Court and the jury] can ensure
that plaintiffs recover only for actual injury even in the absence of
expert medical testimony" in this case. Bolden, 21 F.3d at 36.
F. Evidence of Plaintiffs' Medical Bills and Expenses
Defendants contend that any evidence of plaintiffs' medical bills and
medical expenses must be excluded as those bills were covered by the
Federation's medical insurance policy which does not provide for a right
of subrogation under the circumstances of this case. As set forth in the
policy, the requirement of subrogation — the need to reimburse the
insurer — is triggered only if plaintiffs are paid by a third-party
source. The Federation's medical insurance policy provides that "[i]f a
covered person makes a claim to us for medical, dental or loss of
earnings benefits under this plan prior to receiving payment from a third
party or its insurer, the covered person must agree, in writing, to repay
us from any amount of money they receive from the third party, or its
insurer." Federation Guardian Life Insurance Group Plan (Ex. 10 to Defs.'
Amended Mot. in Limine to Exclude Pls.' Expert Witnesses). Under the
terms of the policy, the employer (the Federation) and its insurer are
expressly excluded from the definition of a third-party source. As such,
the Court concludes that there is no right of subrogation in this case
and turns to the related issue of whether the collateral source rule is
Defendants argue that the collateral source rule — which
generally provides that a plaintiff's recovery is not to be reduced by
benefits received from a third party — does not apply where a
plaintiff receives the benefits from a defendant. Although this is true,
as a general rule, under state law,*fn9 the federal law on this issue,
applicable in this case, is less than clear. See Collins v. Star Warrant
Shipping Co., 1987 WL 31584, at *2 (E.D.Pa. Dec. 31, 1987) ("The
decisional authority in our circuit on whether federal law recognizes the
collateral source rule is somewhat sparse.").
In the context of Title VII and the ADEA, for example, federal courts
have held that unemployment compensation and social security benefits are
not to be deducted
from a back pay award. See, e.g., Craig v. Y & Y
Snacks, Inc., 721 F.2d 77 (3d Cir. 1983) (unemployment compensation and
Title VII). However, workmen's compensation benefits, which are paid
solely by the employer, have been deducted from a plaintiff's recovery in
some cases. See, e.g., Mason v. Association for Indep. Growth,
817 F. Supp. 550 (E.D.Pa. 1993) (declining to apply the collateral source
rule to permit double recovery for injuries in suit brought under the
ADEA where plaintiff had received workmen's compensation benefits that
were paid for solely by plaintiff's former employer).
In applying the collateral source rule in the context of employee
benefits, courts distinguish between those payments made entirely by the
defendant employer and those to which the employer merely contributes a
portion of the total benefit. In addition, in the context of insurance,
courts distinguish between insurance benefits provided to employees by
employers pursuant to contract or a collective bargaining agreement and
those benefits provided as a gratuity. See, e.g., Feeley v. United
States, 337 F.2d 924, 928 (3d Cir. 1964) ("[O]ne can justify a double
recovery where the original source was supplied by the plaintiff,
himself, out of resources that would otherwise have been available to him
for other purposes, or where the source was the result of a gift to the
plaintiff, in which there is an actual or presumed donative intent with no
thought given by the donor to compensate the plaintiff."); Chenoweth v.
Schaaf, 576 F. Supp. 1556, 1558 (W.D.Pa. 1984).
The record is devoid of any evidence of the details underlying the
provision of medical benefits to or on behalf of plaintiffs by the
Federation's insurer. Assuming, without deciding, that the collateral
source rule applies to suit brought under the LMRDA, the Court concludes
that, on the present state of the record, defendants' motion to exclude
any evidence of medical bills, drug bills, or any other bills for which
plaintiffs were reimbursed by the Federation must be denied without
For the foregoing reasons, Defendants' Amended Motion in Limine to
Exclude Plaintiffs' Expert Witnesses will be granted in part and
denied in part. An appropriate order follows.
AND NOW, this 20th day of July, 2001, upon consideration of Defendants'
Amended Motion in Limine to Exclude Plaintiffs' Expert Witnesses
(Document No. 61, filed March 26, 2001), Plaintiffs' Memorandum of Law
Contra Defendants' Amended Motion in Limine to Exclude Plaintiffs' Expert
Witnesses (Document No. 62, filed April 12, 2001), Reply Brief in Support
of Defendants' Amended Motion in Limine to Exclude Defense Expert
Witnesses (Document No. 63, filed April 20, 2001) and Plaintiffs'
Sur-Reply Memorandum Contra Defendants' Amended Motion in Limine to
Exclude Plaintiffs' Expert Witnesses (Document No. 69, filed June 28,
2001), the Court having conducted a Daubert hearing with respect to the
issues raised in the amended motion on June 22, 2001, for the reasons set
forth in the attached Memorandum, IT IS ORDERED that Defendants' Amended
Motion in Limine to Exclude Plaintiffs' Expert Witnesses (Document No.
61) is GRANTED IN PART and DENIED IN PART and the following testimony and
other evidence*fn10 will be PERMITTED:
1. Andrew C. Santora, psychologist, may testify regarding:
a. the cause of the physical symptoms related to the
mental conditions allegedly suffered by Nicholas R.
b. the causal connection between Nicholas R.
Guarnieri's alleged injuries and his removal from
c. the necessity and appropriateness of psychotropic
drugs prescribed to treat Nicholas R. Guarnieri's
alleged mental conditions.
2. Plaintiffs Sean Daly Ferris and Nicholas R.
Guarnieri may testify regarding the timing and nature
of the physical symptoms and emotional distress they
IT IS FURTHER ORDERED that the following testimony and other evidence is
1. Any testimony or other evidence offered by Andrew
C. Santora regarding the necessity and appropriateness
of drugs prescribed to treat those physical symptoms
and conditions not related to the alleged mental
conditions of Nicholas R. Guarnieri.
2. Any evidence or testimony offered by Andrew C.
Santora regarding the reasonableness of bills
submitted by other medical professionals for treatment
of Nicholas R. Guarnieri.
3. Any testimony by J. Fred Stoner, M.D.