United States District Court, W.D. Pennsylvania
November 14, 2005.
ANTONIO M. CHATMAN, Plaintiff,
CITY OF JOHNSTOWN, PENNSYLVANIA and OFFICER MICHAEL S. PAGE, Defendants.
The opinion of the court was delivered by: KIM GIBSON, District Judge
MEMORANDUM OPINION AND ORDER
This case comes before the Court on Defendants City of
Johnstown (hereinafter the "City") and Police Officer Michael S.
Page's (hereinafter "Officer Page") (collectively "Defendants")
Motion in Limine to Preclude the Testimony of Lisa L. Lazzari,
Esquire (Document No. 63). Upon consideration of Defendants'
motion, Antonio M. Chatman's (hereinafter "Plaintiff") Response
to Defendants' Motion in Limine to Preclude the Testimony of Lisa
L. Lazzari, Esquire, and based upon relevant case law, the Court
shall grant in part and deny in part the Defendants' motion for
the following reasons.
The parties in the case sub judice are well aware of the
procedural history giving rise to the above-captioned civil
action. See Court Memorandum Opinion and Order, dated August 6,
2004 (Document No. 42) which granted summary judgment in favor of
both Defendant Page and City of Johnstown on Plaintiff's federal
cause of action pursuant to 42 U.S.C. § 1983;*fn1 and Court Memorandum Opinion and Order, dated August 31, 2005 (Document No.
58) whereby the Court determined that pursuant to
28 U.S.C. § 1367, the Court would exercise supplemental jurisdiction over the
Plaintiff's remaining state law claims against both Defendant
Page and the City of Johnstown. Consequently, a jury sitting in
the United States District Court for the Western District of
Pennsylvania shall be the ultimate fact-finders for the
Plaintiff's following claims: (1) Plaintiff's federal claim
pursuant to 42 U.S.C. § 1983 ("Section 1983") alleging that while
acting under color of state law, Defendant Officer Page violated
the Plaintiff's Fourth Amendment rights; (2) Plaintiff's state
law claim against Defendant Officer Page for assault and battery;
(3) Plaintiff's state law claim against Defendant Officer Page
for negligence; and (4) Plaintiff's state claim against the City
of Johnstown for negligence pursuant to the Pennsylvania
Political Subdivision Tort Claims Act, 42 Pa.C.S.A. § 8542, et
On September 7, 2005, the Defendant' filed a Motion in Limine
to Preclude the Testimony of Lisa L. Lazzari, Esquire (Document
No. 63). Thereafter, on October 27, 2005, the Plaintiff filed a
Response to Defendants' Motion in Limine to Preclude the
Testimony of Lisa L. Lazzari, Esquire (Document No. 70)
requesting that the Court grant Plaintiff the opportunity to
present Attorney Lazzari as a fact witness and a legal expert.
The Court observes that in order to address Defendants' motion
and Plaintiff's response, the Court must also include relevant facts which occurred prior
to the date that the Plaintiff filed the above-captioned civil
action on July 19, 2002.
On October 26, 2001, the Plaintiff entered a plea of guilty in
state court to the charges of flight to avoid apprehension and
resisting arrest. (Document No. 63). At the change of plea
hearing, the Plaintiff was represented by Attorney Lazzari, a
member of the Cambria County Public Defender's Office. Id.
These charges related to the events that surrounded the
Plaintiff's arrest by Officer Page on August 14, 2001 upon which
the case sub judice is based. Id.
On April 19, 2004, the Plaintiff identified Attorney Lazzari as
an "expert legal witness" in Plaintiff's Supplemental Pre-Trial
Memorandum. (Document No. 30).
On June 9, 2004, during a status conference the Plaintiff
represented to the Court that the Plaintiff intended to call
Attorney Lazzari as a fact witness regarding the circumstances
surrounding Plaintiff's guilty plea. (Document No. 63).
Consequently, the Defendants have filed a Motion in Limine to
Preclude the Testimony of Attorney Lazzari. Id.
The Defendants assert in their motion that the Plaintiff should
be barred from eliciting the testimony of Attorney Lazzari.
(Document No. 63). Specifically, the Defendants allege that as a
matter of judicial estoppel Plaintiff is precluded from asserting
an inconsistent position at trial with a position he previously
took when he entered a plea of guilt to charges of resisting
arrest and flight to avoid apprehension. Id. Defendants also
allege that her testimony will likely "confuse the issue, mislead
the jury, and waste time". Id.; Federal Rule of Evidence 403.
In response, the Plaintiff argues that the "purpose of Attorney
Lazzari's testimony is to explain why the Plaintiff entered his
guilty plea per the incident which led to this civil action." (Document No. 70). The Plaintiff also states that Attorney
Lazzari will testify "as a legal expert to explain the grading of
certain crimes per the Pennsylvania Crimes Code." Id.
Furthermore, the Plaintiff asserts that "[n]one of the issues in
the Sec. 1983 claim have been determined in the state criminal
proceeding. . . ."; nor has "the Plaintiff taken any action which
would justify judicial estoppel of Attorney Lazzari's testimony."
Id. In fact, the Plaintiff claims that he "is not taking a
position which is inconsistent with an earlier position, nor is
the Plaintiff misleading this Court or" the state court. Id.
Rather, the Plaintiff indicates that the "impetus of Attorney
Lazzari's testimony is the rationale behind the entry of the
plaintiff's guilty plea per the criminal charges relating to the
incident which resulted in this civil action." Id.
A. Judicial Estoppel
The Court observes that the doctrine of judicial estoppel "is
an equitable doctrine which precludes a party from assuming a
position in a legal proceeding that contradicts or is
inconsistent with a previously asserted position." Malascalza v.
National R.R. Passenger Corp., 1996 WL 159650, *3 (D.Del. 1996)
(citing Delgrosso v. Spang & Co., 903 F.2d 234, 241 (3d Cir.
1990)).*fn3 In order to impose the doctrine of judicial estoppel, a district
court must find that a party has met the following three
First, the party to be estopped must have taken two
positions that are irreconcilably inconsistent. See
Ryan Operations G.P. v. Santiam-Midwest Lumber Co.,
81 F.3d 355, 261 (3d Cir. 1996). Second, judicial
estoppel is unwarranted unless the party changed his
or her position `in bad faith i.e., with intent to
play fast and loose with the court.' Id. Finally, a
district court may not employ judicial estoppel
unless it is `tailored to address the harm
identified' and no lesser sanction would adequately
remedy the damage done by the litigant's misconduct.
Klein v. Stahl GMBH & Co. Maschinefabrik,
185 F.3d 98, 108 (3d Cir. 1999).
Montrose Medical Group Participating Savings Plan v. Bulger,
243 F.3d 773
, 779 (3d Cir. 2001).
Noticeably absent from the requirements for asserting judicial
estoppel is that an issue must be actually litigated in a prior
proceeding, or that the party asserting judicial estoppel must
meet a mutuality requirement. "One reason for these differences
is that judicial estoppel is a matter of federal law, not state
law, see Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166 n. 3
(4th Cir. 1982), especially when the court's jurisdiction is
based on the presence of a federal question rather than the
diversity of the parties." Lowery v. Stovall, 92 F.3d 219, 223
(4th Cir. 1996). Thus, "judicial estoppel may apply in a
particular case `where neither [issue preclusion] nor equitable
estoppel . . . would apply'." Id. (quoting Allen,
667 F.2d at 1166-67); see also Mark J. Plumer, Note, Judicial Estoppel:
The Refurbishing of a Judicial Shield, 55 Geo. Wash.L.Rev. 409,
435 (1987) ("Judicial estoppel is properly defined as a bar
against the alteration of a factual assertion that is
inconsistent with a position sworn to and benefitted from in an
earlier proceeding.") (quoted in Lowery, 92 F. at 223). 1. State Court Proceeding and Federal Court Proceeding
As a threshold matter, the Court must determine whether the
position asserted by the Plaintiff during the state court
proceeding is inconsistent with the proffered testimony of
Attorney Lazzari. Specifically, the Court observes that during
the state court proceeding (Document 64, Exhibit F, Plea/Sentence
Transcript), the Plaintiff entered a plea of guilty to a charge
of resisting arrest, 18 Pa.C.S.A. § 5104, and to a charge of
flight to avoid apprehension, 18 Pa.C.S.A. § 5126.*fn4 At
the plea hearing, counsel from the District Attorney's Office in
Cambria County recited the facts upon which the two charges were
This was an incident that occurred on August 14 of
2001, several officers from the Johnstown Police
force were involved in this matter. One officer
spotted the Defendant near the bus transit center on
Main Street in the City of Johnstown. When he was
spotted he began to run. A chase pursued, he was
wanted for warrants and the police knew that. A chase
pursued through the City of Johnstown. At one point
Officer Michael Page saw the Defendant go through a
walkway between two buildings on Franklin Street, he
is a K-9 patrol officer, he removed his dog and
yelled to the Defendant stating, stop, stop, or I'll
unleash my dog.
The Defendant continued to run at which point he did
unleash the dog. When the officer got through the
alley, he saw the Defendant on a dumpster and the dog
below. He assisted the Defendant off of the dumpster
at which point the Defendant continued to resist
arrest and the dog in the process injured him by
biting him about the face and head and then it ended.
(Document 64, Exhibit F, Plea/Sentence Transcript, pp. 5-6).
Thereafter, the state court established on the record that the
Plaintiff knowingly and voluntarily entered into a plea of guilty as to the charges of resisting arrest and flight to avoid
apprehension. Id. at p. 7.
In Plaintiff's federal civil action, the Plaintiff's position
is that Officer Page violated his right to be free from
unreasonable seizure and excessive force. (Document Nos. 28 &
26). Specifically, the Plaintiff asserts that Officer Page's
conduct demonstrates the use of excessive force in that the
Plaintiff received multiple bite wounds from a K-9 police dog
during Officer Page's attempt to effect an arrest. In order to
prevail on his federal claim, the Plaintiff will have to
establish that Officer Page's use of force was objectively
unreasonable "under the `facts and circumstances of [the]
particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of
the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.'" Neeley v.
Samis, 183 F.Supp.2d 672, 67 (D.Del. 2002) (quoting Graham v.
Connor, 409 U.S. 386, 396, 109 S.Ct. 1865, 1870-1871,
104 L.Ed.2d 443, 57 USLW 4513 (1989).
The Defendants opine that the Plaintiff's current position in
the federal arena is inconsistent with his state court hearing.
Specifically, the Defendants argue that the Plaintiff intends to
argue "that he did not attempt to elude the police or prevent
Officer Page from effecting his lawful arrest . . ." (Document
No. 64, p. 3). Conversely, the Plaintiff asserts that the
"Plaintiff is not taking a position which is inconsistent with an
earlier position . . ." (Document No. 70, p. 4). In fact, the
Plaintiff alleges that the purpose of attorney Lazzari's
testimony is twofold: (1) to explain the rationale behind the
entry of the Plaintiff's plea of guilt; and (2) to testify as a
"legal expert to explain the grading of certain crimes per the
Pennsylvania Crimes Code." Id. at 2.
The Court observes that based upon the Plaintiff's
representations to the Court, the Plaintiff does not intend to
argue an inconsistent position during the federal court
proceeding. Specifically, the Plaintiff's present position regarding the circumstances of
his guilty plea is not contradictory to the position that he took
when he pled guilty. During his guilty plea hearing, the
Plaintiff admitted that he resisted arrest by Officer Page, and
he was found guilty of a misdemeanor of the second degree.
Additionally, the Plaintiff admitted that he attempted to flee to
avoid apprehension, and he was found guilty of a misdemeanor of
the second degree on that charge.
The Plaintiff's present request to have Attorney Lazzari
testify does not appear to address the factual circumstances
regarding Plaintiff's attempt to evade arrest on August 14, 2001;
rather, the Plaintiff indicates that she will testify regarding
the factual circumstances surrounding why the Plaintiff
determined to accept responsibility for these two criminal
charges. Indeed, the Plaintiff does not suggest in his Response
to Defendants' Motion in Limine that he seeks to adopt a position
that is inconsistent with the state court proceeding; more
precisely, the Plaintiff wants to explain "the rationale behind
the entry of the Plaintiff's guilty plea per the criminal charges
. . ." (Document No. 70, p. 4). Accordingly, the Court determines
that the first criteria under the Third Circuit framework, which
was reiterated in Montrose, supra, has not been met in order
for the Court to properly apply the equitable doctrine of
judicial estoppel; therefore, Attorney Lazzari's testimony will
not be precluded based upon the doctrine of judicial estoppel.
The Court next addresses Defendants' claim that Attorney
Lazzari's testimony should be excluded pursuant to Federal Rule
of Evidence 403.
B. Federal Rule of Evidence 403
Initially, the Court observes that the admission of the
Plaintiff's guilty plea is not at issue in the present motion;
rather, the admission of testimony to explain the reasons for the
plea of guilty is the issue disputed between the parties. The
Defendants argue that Attorney Lazzari's testimony will mislead the jury and cause confusion of the civil
issues before the Court in this federal civil action. (Document
No. 64). Conversely, the Plaintiff asserts that Attorney
Lazzari's testimony will not mislead the jury or the Court;
instead, her testimony will explain factual circumstances
regarding the guilty plea, and her testimony will provide expert
legal analysis to assist the jury. (Document No. 70).
Federal Rule of Evidence 403 provides: "Although relevant,
evidence 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.Evid. 403. Thus, based upon the text of Rule
403, "otherwise relevant and admissible evidence may only be
excluded if the probative value of the evidence is substantially
outweighed by its prejudicial effect." U.S. v. Universal
Rehabilitation Services (PA), Inc., 205 F.3d 657, 664 (3d Cir.
2000). Accordingly, the Court must determine whether Attorney
Lazzari's testimony is relevant and admissible for the purpose(s)
it is being offered, i.e., to explain why the Plaintiff entered a
plea of guilt.
Federal Rule of Evidence 401 provides as follows:
Definition of Relevant Evidence. `Relevant
evidence' means evidence having any tendency to make
the existence of any fact that is of consequence to
the determination of the action more probable or less
probable than it would be without the evidence.
Fed.R.Evid. 401. Rule 402 further provides:
Relevant Evidence Generally Admissible; Irrelevant
Evidence Inadmissible. All relevant evidence is
admissible, except as otherwise provided by the
Constitution of the United States, by Act of
Congress, by these rules, or by other rules
prescribed by the Supreme Court pursuant to statutory
authority. Evidence which is not relevant is not
admissible. Fed.R.Evid. 402. Reviewing these Federal Rules of
Evidence, the Court reiterates that the Plaintiff
does not attempt to argue for or against the
admissibility of the Plaintiff's plea of
guilty;*fn5 in fact, it appears to the Court
that the crux of Defendants' motion is whether the
testimony of Attorney Lazzari is relevant such that
any explanation of Plaintiff's decision to enter a
plea of guilty would tend "to make the existence of
any fact that is of consequence to the determination
of the action more probable or less probable than it
would be without the evidence." Fed.R.Evid. 403.
Based upon this Court's determination that the Plaintiff's
guilty plea in the prior state court proceeding is admissible in
this federal civil action, see n. 5, supra, the Court finds
that the Plaintiff has not sufficiently set forth the relevance
of Attorney Lazzari's testimony such that it would aid the trier
of fact in making determinations regarding whether Officer Page
and the City of Johnstown violated the Plaintiff's federal and
state rights. In fact, explanations as to why a criminal
defendant would enter a plea of guilt go directly to legal issues
of voluntariness of a waiver to proceed to trial, or
voluntariness of entering a plea agreement. Such issues are not
before the Court; consequently, granting testimony that would
explain the reason(s) why the Plaintiff entered into a plea of
guilt in the prior state court proceeding would mislead the jury
in that they may consider issues that are not before the Court in this federal
civil action. The Court also determines that allowing Attorney
Lazzari to testify would also confuse issues of criminal conduct
and issues of civil liability. Furthermore, the production of the
transcript of the Plaintiff's Plea/Sentence Hearing in the state
court proceeding is certainly the best of evidence of whether the
Plaintiff understood the factual circumstances surrounding his
plea of guilt; therefore, any testimony attempting to explain
what the Plaintiff understood at that time would lead to the
"needless presentation of cumulative evidence." Fed.R.Evid. 403.
Accordingly, the Court determines that based upon the guiding
principles set forth in Federal Rules of Evidence 401, 402 and
403, the Plaintiff has failed to demonstrate both the relevance
of Attorney Lazzari's testimony and that the probative value (if
any) of Attorney Lazzari's testimony is not substantially
outweighed by the danger of unfair prejudice, which would result
from the confusing issues which would ultimately mislead the
jury. Therefore, based upon the record in the case sub judice,
relevant case law, and the Federal Rules of Evidence, the Court
determines that Attorney Lazzari may not testify as to the facts
surrounding why the Plaintiff entered into his plea of guilt
during the prior state court proceeding; accordingly, the
Defendants' Motion in Limine to Preclude the Testimony of Lisa L.
Lazzari, Esquire is granted in part.
C. Federal Rule of Evidence 702
In consideration of Plaintiff's proffer that Attorney Lazzari's
testimony would be offered as an expert witness to explain the
"grading of certain crimes per the Pennsylvania Crimes Code", the
Court briefly reviews the standard for the admission of expert
testimony pursuant to Federal Rule of Evidence 702.
Pursuant to Rule 702, a district judge must initially determine
under Rule 104(a) "whether the expert is proposing to testify to (1) scientific knowledge
that (2) will assist the trier of fact to understand or determine
a fact in issue." Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Next,
the district judge "must ensure that any and all scientific
testimony or evidence admitted is not only relevant, but
reliable." Id. at 589.
Based upon the Plaintiff's cursory proffer of Attorney
Lazzari's testimony as an expert witness, the Court finds that
the Plaintiff has failed at this procedural posture to
demonstrate the relevance of Attorney's Lazzari's testimony as
they apply to the facts of the case sub judice. In particular,
the Plaintiff does not establish the relevance of the grading of
crimes in the Pennsylvania Crimes Code to the federal and state
causes of action to be determined by the jury. However, the Court
shall err on the side of caution and shall deny without prejudice
Plaintiff's proffer of Attorney Lazzari as an expert witness.
Accordingly, the Court shall grant without prejudice the
Defendants' Motion in Limine to Preclude the Testimony of Lisa L.
Lazzari, Esquire with regard to Attorney Lazzari testifying as an
An appropriate order follows. ORDER
AND NOW, this 14th day of November, 2005, upon
consideration of Defendants City of Johnstown (hereinafter the
"City") and Police Officer Michael S. Page's (hereinafter
"Officer Page") (collectively "Defendants") Motion in Limine to
Preclude the Testimony of Lisa L. Lazzari, Esquire (Document No.
63), and Antonio M. Chatman's (hereinafter "Plaintiff") Response
to Defendants' Motion in Limine to Preclude the Testimony of Lisa
L. Lazzari, Esquire, and based upon the record in the case sub
judice, relevant case law, and the Federal Rules of Evidence,
IT IS HEREBY ORDERED that Court shall grant in part the
Defendants' motion in that Attorney Lazzari may not testify as to
the factual circumstances surrounding the Plaintiff's plea of
guilt in a prior state court proceeding;
IT IS FURTHER ORDERED that the Court shall grant without
prejudice the Defendants' motion in limine concerning whether
Attorney Lazzari may testify as an expert witness in the case
© 1992-2005 VersusLaw Inc.