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David Palmer v. Samuel Nassan

February 9, 2011

DAVID PALMER,
PLAINTIFF,
v.
SAMUEL NASSAN, THE PENNSYLVANIA STATE POLICE, TERRENCE DONNELLY, SHEILA LADNER, AND CITY OF PITTSBURGH, DEFENDANTS.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

MEMORANDUM ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTIONS IN LIMINE (DOC. NO. 68)

1. Motion to Preclude Evidence Relating to Plaintiff's Depressive Disorder

Plaintiff filed a Motion in Limine seeking leave to preclude any evidence of Plaintiff‟s depressive disorder, including but not limited to his use of anti-depressant medications. The witness list in Plaintiff‟s pretrial statement does not list any mental health expert. See doc. no. 60.

Defendants Donnelly, Ladner, and the City of Pittsburgh, have responded to this motion by arguing that Plaintiff stated he had not taken his anti-depressant medication on the day in question. These Defendants argue that they should be able to cross-examine Plaintiff‟s blood-alcohol content (BAC) expert with respect to the combined effect of Plaintiff‟s ingestion of alcohol and his failure to take his anti-depressant medication.

Defendant Nassan has responded to this motion by noting that Plaintiff seeks damages for embarrassment and humiliation as a result of the incident in question. Defendant Nassan also notes that Plaintiff testified during his deposition that he sought medical treatment from his therapist or psychiatrist due to his depressive feelings about the incident.

Under F.R.E. 402, relevant evidence means evidence that tends to make the existence of any fact that is of consequence to the determination of an action more probably than not. Because Plaintiff testified that he failed to take his anti-depressant medication on the day in question. Plaintiff‟s failure to take his anti-depressant medication is not relevant to the BAC topic the toxicology expert will discuss. Therefore, the testimony of his toxicology expert should be limited solely to the effect of the alcohol on Plaintiff on the day in question. Cross-examination on this topic should likewise be so limited.

Turning to Defendant Nassan‟s arguments, Plaintiff has made a claim for damages based, in part, on the humiliation and embarrassment he suffered on the night in question. Thus, Plaintiff‟s mental state -- i.e. his depressive disorder -- is relevant under F.R.E. 402. However, this Court finds that the probative value of evidence of Plaintiff‟s depressive disorder is substantially outweighed by the danger of unfair prejudice under F.R.E. 403.

Therefore, the Plaintiff‟s Motion to Preclude Evidence about his Depressive Disorder shall be GRANTED subject to Plaintiff "opening the door" at trial.

2. Motion to Present Evidence of Defendant Nassan's Continuing Conduct on the Night in Question

Plaintiff contends that on the same night as the subject incident Defendant Nassan used excessive force on another individual, Christopher Strothers ("Strothers"), approximately one hour before encountering Plaintiff. Plaintiff wishes to proffer evidence of this "other act" under 404(b) arguing that this other act is similar and close enough in time to be admitted under F.R.E. 404(b). In support of this argument, Plaintiff relies on a Pennsylvania criminal statute defining the phrase "course of conduct" and upon comments found in the United States Sentencing Guidelines related to the phrase "course of conduct."

In response Defendant Nassan (who filed a Motion in Limine to preclude evidence relating to the facts of the Strothers‟ incident, as well as evidence from several other, unrelated, civil lawsuits brought against Defendant Nassan) contends that the evidence is not relevant under F.R.E. 401, or in the alternative, highly prejudicial under F.R.E. 403.

This Court finds that the all prior incidents -- the Strothers‟ incident as well as all other incidents that resulted in civil lawsuits -- constitute "other acts" under 404(b) which are not admissible to prove the character of the person (specifically, Defendant Nassan) in order to show that he acted in conformity when arresting Plaintiff on the night in question. The Court also agrees that the probative value of this evidence as proffered by Plaintiff is greatly outweighed by the danger of unfair prejudice it will have in on the jury.

Finally, as Defendant Nassan notes, since he has denied all allegations in the Strothers‟ and other civil matter, the evidence proffered by Plaintiff is merely conjecture and opinion advanced by other plaintiffs. To allow evidence of this nature to be admitted would create "litigation within ...


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