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Mike Shumek v. Ken Mcdowell

January 19, 2011


The opinion of the court was delivered by: Chief Judge Kane


Pending before the Court are ten separate motions in limine, seven of which have been filed by Plaintiff and three of which have been filed by Defendant. This memorandum will address each motion in limine in turn.


In his first motion in limine,*fn1 Plaintiff seeks to preclude testimony and reference to United States v. Costanzo, Criminal Action No. 3:08-cr-9, at trial. (Doc. No. 43.) According to Plaintiff, it appears that Defendant "will somehow try to associate Plaintiff with the criminal conviction of Mr. Costanzo, who defrauded Lackawanna County in workers' compensation dealings while working as their Third Party Administrator." (Id. ¶ 1.) Plaintiff states that he had no involvement in the scheme to defraud. (Id. ¶ 2.) Plaintiff avers that matters related to the Costanzo case are irrelevant, and, even if probative, they would be highly prejudicial to Plaintiff.(Id. ¶ 4.)

Defendant states that he has never alleged that Plaintiff was implicated in the Costanzo scheme to defraud. (Doc. No. 141 at 4.) Yet Defendant maintains that Costanzo's criminal prosecution and conviction is relevant in rebutting Plaintiff's political patronage claim because it supports Defendant's decision to fire Plaintiff and demonstrates that Plaintiff's firing was not politically motivated. (See id. at 1-3.) In support, Defendant points to the related case of Delhagen v. McDowell, 3:08-cv-00285, in which Defendant testified on deposition that the grand jury indictment and investigation into overpayment of funds to the workers' compensation provider was a basis for Defendant's decision to replace management personnel such as Plaintiff. (Id.) In response, Plaintiff argues: (1) that Defendant may not rely on his deposition in Delhagen to support reference to Costanzo in the present case; (2) that the evidence shows that Defendant has committed perjury because Plaintiff was fired before the Costanzo indictment came down; and (3) that the Costanzo evidence is not relevant because Plaintiff was not fired for cause.*fn2

(Doc. No. 150 at 2-12.) Plaintiff further argues that allowing Defendant to reference Costanzo will unduly prejudice him because Defendant has merely "cherry pick[ed]" several documents related to Costanzo, and that curing such prejudice would require the production of "all invoices and all documents related to Costanzo and his workers' compensation activities." (Id. at 8.)

"'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. "All relevant evidence is admissible." Fed. R. Evid. 402. However, 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." Fed. R. Evid. 403.

Defendant's knowledge of the Costanzo indictment and his belief-however mistaken-that the indictment reflects on Plaintiff's fitness as an employee is relevant evidence. Although Plaintiff is correct that Defendant may not rely on in his deposition in Delhagen as proof of his intent in terminating Plaintiff, Defendant may testify as to his recollection of events that led to his decision to terminate Plaintiff. Defendant may testify to his knowledge of the Costanzo matter and how the information impacted his decision to terminate Plaintiff. See Fed. R. Evid. 602 (stating that a witness may generally testify to a matter if "evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter"). To the extent that Defendant seeks to testify as to facts made known to him after Plaintiff was terminated, the Court agrees that this testimony must be excluded as bearing no relation to Defendant's decision to terminate Plaintiff. Therefore, any testimony concerning Costanzo must be limited to any knowledge that Defendant had prior to Plaintiff's termination on January 7, 2008. Testimony as to events that occurred in Costanzo subsequent to the date of termination is not relevant on the issue of the reasons for Plaintiff's termination. Furthermore, to the extent that Defendant's testimony contradicts the evidentiary record, Plaintiff may impeach that testimony.

Plaintiff's Rule 403 objection is moot as to any material that came to Defendant's attention after Plaintiff's termination. Although Plaintiff may be correct that the probative value of such evidence is outweighed by the risk of unfair prejudice to Plaintiff, evidence of the outcome of the Costanzo indictment and evidence that Plaintiff signed certain vouchers is excluded under the Court's ruling on Plaintiff's relevancy objection. However, Defendant's testimony regarding his reasons for terminating Plaintiff are of the utmost relevance. The Court cannot find at this juncture that the relevance of the anticipated testimony-that Defendant believed that the Costanzo indictment warranted the dismissal of Plaintiff and others-is outweighed by the danger of unfair prejudice to Plaintiff.


In his second motion in limine, Plaintiff seeks to preclude Defendant from offering into evidence documents from 2003 and 2004 that were apparently produced by Defendant on October 22, 2010, only two weeks before the pretrial conference. (Doc. No. 40.) The disputed documents appear to include several requests for funding from Costanzo, each of which includes Plaintiff's signature of approval. Discovery closed on November 1, 2009. Plaintiff avers that he will be "prejudiced by the inclusion of documents [because] he has no idea how they relate to this matter [and] was [not] able to find out their relevance during discovery." (Doc. No. 40 ¶ 3.)

In opposing Plaintiff's motion in limine to exclude these documents, Defendant argues that the documents demonstrate that Plaintiff was negligent in performing his duties as an office manager. (Doc. No. 145 at 3.) Specifically, Defendant claims that the documents show that Plaintiff "improperly approved over $204,000.00 in payments to Mr. Costanzo, a criminal convicted of stealing from Lackawanna County." (Id.) Defendant avers that his actions were not taken in bad faith and that he "provided [the] documents as soon as practically possible after obtaining them." (Doc. No. 144 ¶ 2; Doc. No. 145 at 4.) Defendant further argues that Plaintiff will not be prejudiced by the documents' admission because Plaintiff's "own signature appear[s] on nearly every page" and so Plaintiff "was aware of all these documents." (Doc. No. 145 at 4-5.)

Federal Rule of Civil Procedure 26(a) requires a party to produce "a copy-or a description by category and location-of all documents . . . that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses." Fed. R. Civ. P. 26(a)(1)(A)(ii). A party who has made a Rule 26(a) disclosure is under a duty to supplement "in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Fed. R. Civ. P. 26(e)(1)(A). Where a party fails to provide information as required by Rule 26(a), the party is not allowed to use that information at trial "unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). In considering whether to exclude evidence, the Third Circuit has directed that the following factors be taken into consideration:(1) the prejudice or surprise to the party against whom the witness testifies; (2) the ability of the opposing party to cure any such prejudice; (3) the effect of allowing or excluding testimony on the trial of the case; (4) any bad faith or willfulness involved in the presentation of such testimony; and (5) the importance of the testimony to be excluded or omitted to the overall case.

Hill v. Reederei F. Laeisz G.M.B.H., Rostock, 435 F.3d 404, 425 (3d Cir. 2006) (citing Quinn v. Consol. Freightways Corp., 283 F.3d 572, 577 (3d Cir. 2002) (citing Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 904-05 (3d Cir. 1977))).

After considering the five Meyers factors, the Court must grant Plaintiff's second motion in limine (Doc. No. 40). First, Plaintiff would be unduly prejudiced by the inclusion of the limited number of documents produced at the eve of trial. As argued by Plaintiff in his first motion in limine: Defendants cannot cherry-pick what documents to turn over.

Defendants cannot just turn over [several] invoices, but rather all invoices and all documents related to Costanzo and his workers' compensation activities, which clearly they have not since many of the exhibits that were introduced in the Costanzo matter have not been produced here. . . . Plaintiff is not an FBI agent, an IRS agent, or a US Attorney, he is simply a worker in a county office who fully preformed his job as directed. Plaintiff never had access to Costanzo's personal accounts to see that Costanzo was siphoning off monies . . . . (Doc. No. 150 at 8-9.) Allowing Defendant to selectively disclose and offer into evidence a limited number of invoices in the Costanzo matter-without requiring the production of all related invoices and other documents -would severely hamper Plaintiff's ability to rebut Defendant's claim that Plaintiff negligently oversaw the payment of funds to Costanzo. Second, such prejudice could be cured, but would likely require much more discovery and would certainly delay trial. Third, an over-emphasis on the Costanzo matter is likely to disrupt the orderly and efficient disposition of this case, as it could result in a "trial within a trial." The Court is unconvinced that Defendant withheld this information wilfully or in bad ...

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