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.
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.
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 ...