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Hearn v. Wilkins Township

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


July 25, 2007

PATRICK J. HEARN, PLAINTIFF,
v.
WILKINS TOWNSHIP, PENNSYLVANIA, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Ambrose, Chief District Judge.

MEMORANDUM OPINION and ORDER

Defendants have filed an omnibus Motion in Limine to Preclude Certain Evidence. (Docket No. 61). Specifically, Defendants seek to exclude eight different types of evidence.*fn1 Id. Plaintiff responded to the same. (Docket Nos. 64, 67-70, 72, 74, 75).

With regard to the first Motion, Defendants seek to exclude evidence of a civil action brought by police chief Keith Guthrie against Defendant, Wilkins Township and some of the individual Defendants, based on Rule 403. (Docket No. 61, ¶¶ 4-7). Defendants argue that this evidence will confuse the issues, mislead the jury, and has little probative relevant value. Id. In response, Plaintiff argues that Chief Guthrie has evidence that would tend to prove an intent to treat Plaintiff differently by Defendant, Wilkins Township. (Docket No. 75, pp. 1-3). I agree with Defendants to the extent that if there is testimony that can be elicited to prove intent to treat Plaintiff differently by Defendant, Wilkins Township, said evidence will not be precluded. However, the fact that Guthrie filed a lawsuit against Defendant is not relevant.

With regard to the second Motion, Defendants seek to exclude evidence of disputes between Mr. Vargo and his neighbors based on Rules 404 (improper attack on character) and 403 (irrelevant, prejudicial, and more likely to mislead and confuse the jury, and waste of time). (Docket No. 61, ¶¶ 8-9). In response, Plaintiff contends that this evidence is probative of a corporate culture of retaliation directed at employees and citizens who disagree with commissioners and managers at Wilkins Township. (Docket No. 75, p. 2-4). From what I can gather, Mr. Vargo allegedly placed a statue of a young boy bent over exposing his derriere in response to his neighbor's call for Mr. Vargo's and Ms. Bradley's resignations. Id. I find this evidence will not assist in the development of a reasonable inference in the context of, and is irrelevant to, Plaintiff's claims set forth in his Second Amended Complaint. Therefore, Defendants' second Motion is granted.

With regard to the third Motion, Defendants seek to exclude evidence of the personal dispute between Mr. Vargo and a postal carrier, Leo Lay, based on Rules 404 and 403. (Docket No. 61, ¶¶ 10-11). In response, Plaintiff contends that this evidence is admissible to prove intent and a corporate culture of retaliation directed at employees and citizens. (Docket No. 75, p. 5). Plaintiff, however, does not tell me how this evidence proves intent and of what intent. Furthermore, I find this evidence will not assist in the development of a reasonable inference in the context of, and is not relevant to, Plaintiff's claims set forth in his Second Amended Complaint. Therefore, Defendants' third Motion is granted.

With regard to Defendants' fourth Motion, they seek to preclude evidence of slander because actions for slander must be brought within one year of the slanderous statement. (Docket No. 61, pp. 12-14). Just because Plaintiff may not be able to recover for slanderous statements made outside of the one year statute of limitations does not mean that the alleged statements are not relevant for another purpose. Defendants, however, have failed to provided me with the objectionable statements. Therefore, I am unable to engage in an analysis as to whether said statements are relevant. Consequently, Defendants' fourth Motion is denied without prejudice.

With regard to Defendants' fifth Motion, they seek to preclude evidence of newspaper articles based on Rule 403. (Docket No. 61, ¶¶15-16). Defendants do not identify, however, which newspaper articles they are objecting to other than to state that the "various" newspaper articles pertain to reporting about the Hearn matter and other citizen concerns with Wilkins Township. Id. I have reviewed Plaintiff's Pre-trial Statement and find only one newspaper article listed as an exhibit. (Docket No. 58, Ex. 20). Defendants have not provided me with a copy of said article. As a result, I am unable to engage in a proper 403 analysis.*fn2 Consequently, Defendants' fifth Motion is denied without prejudice.

With regard to Defendants' sixth Motion, they seek to preclude videotaped deposition testimony of the individually named Defendants because Plaintiff's counsel's employee videotaped the deposition in violation of Rules 30(b)(4)*fn3 and 28*fn4 of the Federal Rules of Civil Procedure and Rule 28 of the Federal Rules of Evidence. (Docket No. 61, ¶¶ 17-19). Plaintiff acknowledges that the depositions were videotaped by a member of his staff. (Docket Nos. 69 and 70, p.2). Plaintiff further argues, however, that the depositions were simultaneously recorded by traditional stenographic means. Id. Plaintiff's employee may be permitted to operate recording equipment at a deposition while it is being simultaneously recorded by stenographic means by an officer authorized pursuant to Rule 28 (see Moore's Federal Practice, 3d ed., §28.32). As a result, Defendants' sixth Motion is denied.

With regard to Defendants' seventh Motion, they seek to preclude testimony of medical experts, Mark Foster, M.D., Rich Kozakiewicz, M.D., and Richard Rosenthal, M.D. because Plaintiff has failed to produce any expert reports of these physicians. (Docket No. 61, ¶20). In response, Plaintiff states that the physicians are not experts, but treating physicians. (Docket No. 74). As a result, Defendants' seventh Motion is denied.

With regard to Defendants' eighth Motion, they seek to preclude the testimony of Plaintiff on facts giving rise to his Complaint because counsel for Plaintiff instructed Plaintiff not to respond to the questions as calling for a legal conclusion. (Docket No. 61, ¶¶21-24). Defendants' counsel, however, never attempted to file a motion to compel or call me for a ruling on the objection. The questions could have been reformulated to elicit the testimony that was sought during the discovery stage. Consequently, the eighth Motion is denied.

THEREFORE, this 25th day of July, 2007, after careful consideration and for the reasons set forth above, it is ordered that Defendants' Motion in Limine (Docket No. 61) is granted in part and denied in part.

Donetta W. Ambrose, Chief U. S. District Judge


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