United States District Court, M.D. Pennsylvania
TRACI BERARDELLI and JOSEPH BERARDELLI, on behalf of their daughter M.B., a minor, and individually on their own behalf, Plaintiffs
ALLIED SERVICES INSTITUTE OF REHABILITATION MEDICINE, Defendant
MALACHY E. MANNION United States District Judge.
before the court are a number of motions in limine
filed by the parties ahead of the trial scheduled in this
matter for January 30, 2017. The court will consider each
motion as it appears on the docket.
the plaintiffs have filed a motion to preclude the testimony
of the defendant's expert, Corey J. Andres. (Doc. 54).
The plaintiffs argue that the testimony must be excluded in
its entirety because it consists solely of legal opinions.
Moreover, to the extent that the defendant intends to offer
Mr. Andres's testimony in support of the affirmative
defenses of fundamental alteration or direct threat, the
plaintiffs argue that the opinions should be excluded because
Mr. Andres has no factual basis to opine as to either
considering the plaintiffs' initial motion in
limine, the court has already ruled in its memorandum
addressing the defendant's motion for summary judgment
that Mr. Andres may not render any opinions tied to any legal
conclusions. The court indicated, however, that Mr. Andres
may render opinions as to how the conduct of the dePaul
School met the requirements of the Rehabilitation Act.
Moreover, to the extent that the plaintiffs disagree with Mr.
Andres's opinions, the plaintiffs can cross-examine him.
The weight of such evidence is then for the jury. For these
reasons, the plaintiffs' motion to preclude the testimony
of Corey J. Andres will be denied.
plaintiffs have next filed a motion in limine to
preclude any evidence about re-training the minor
plaintiff's service dog, “Buddy”, to wear a
dander t-shirt. (Doc. 55). Here, the plaintiffs argue that
such evidence is not relevant and that, even if relevant, its
probative value is substantially outweighed by a danger of
confusing the issues or misleading the jury.
review, the court finds that the testimony with respect to
retraining Buddy to wear a dander t-shirt is relevant to
determine whether the minor plaintiff was offered appropriate
and reasonable accommodations. The record demonstrates that
it was the plaintiffs, those most familiar with Buddy's
training, who proposed that Buddy wear a dander t-shirt. The
plaintiffs' own expert, Amy Bennett, has provided
deposition testimony indicating that Buddy could have been
trained to wear a dander t-shirt and that requesting Buddy to
do so would be a reasonable way to accommodate Buddy's
presence at the dePaul School where other children with
allergies attended. The court finds that the evidence is
relevant as to whether the minor plaintiff was offered
reasonable accommodations and as to whether the dePaul School
acted with deliberate indifference toward the minor
plaintiff. Further, in light of the fact that the
plaintiffs' own expert has testified that training for
Buddy was available and reasonable, this testimony would also
go to the plaintiffs' mitigation of damages. As such, the
court will deny the plaintiffs' motion in limine
to preclude evidence of re-training Buddy to wear a dander
their third motion in limine, the plaintiffs seek to
preclude any evidence that another child at the dePaul
School, “M.H.”, had severe allergies to dogs.
(Doc. 57). Again, the plaintiffs argue that any such
testimony has no probative value and, even if it did, any
such value would be substantially outweighed by the risks of
confusing the issues, misleading the jury and wasting time.
The plaintiffs also argue that such testimony cannot be
introduced because the defendant has no expert to present
the testimony relating to M.H.'s allergies, the court
finds that such evidence is relevant, in that it goes to
whether the defendant acted with deliberate indifference to
the minor plaintiff. Further, whether the school acted
reasonably under all of the circumstances at the time is
relevant to the plaintiffs' negligence claim. Finally, as
to this testimony, while the defendant's lay witness,
Suzanne Rickard, cannot testify to matters which require
scientific, technical, or other specialized knowledge, she
may certainly testify as to her knowledge of M.H.'s
allergies, her perceptions and what she witnessed or
experienced. Therefore, the court will also deny the
plaintiffs' motion in limine to preclude
evidence of M.H.'s allergies at trial.
relating to the plaintiffs' motions in limine,
the plaintiffs have requested that the court preclude any
evidence of accommodations made for the minor plaintiff other
than the use of Buddy. (Doc. 59). Here, the plaintiffs argue
that the defendants may attempt to introduce evidence
relating to other accommodations it provided to the minor
plaintiff over the two years she attended the dePaul School.
The plaintiffs argue that such evidence of other
accommodations is not relevant and, even if it were, its
probative value is substantially outweighed by a danger of
confusing the issues and misleading the jury.
court finds that evidence relating to other accommodations
provided by the defendant to the minor plaintiff is relevant
to whether or not the defendant was deliberately indifferent
to the minor plaintiff and to whether the defendant acted
negligently. Moreover, in light of the fact that the
plaintiffs are seeking punitive damages, the jury is entitled
to consider the entire picture of the relationship between
the defendant and the minor plaintiff in determining damages.
Therefore, the plaintiffs' motion in limine
seeking to exclude evidence of other accommodations will be
defendant has submitted one motion in limine, in
which it seeks to preclude and/or limit the expert testimony
of Ann Cook, LSW. (Doc. 56). In doing so, the defendant
argues that, although the plaintiffs produced an impact
statement prepared by Ms. Cook, a therapist who treats the
minor plaintiff, they did not identify any witnesses in their
Rule 26(a)(2) disclosures who would testify on the issue of
damages. The defendant argues that Ms. Cook testified that
the minor plaintiff suffers from anxiety and depression, but
she admitted that she could not say that those conditions
were related to any actions or inactions by the dePaul School
within a reasonable degree of medical certainty. The
defendants argue that, since Ms. Cook cannot testify within
the requisite certainty required for admissibility, her
testimony should be precluded. Even if the testimony is
allowed, however, the defendant argues that her testimony
should be limited to her treatment of the plaintiff up to May
18, 2015, as the plaintiffs have not produced any treatment
records after that date.
respect to the defendant's motion, this court has already
ruled in relation to the defendant's motion for summary
judgment that the plaintiffs have presented sufficient
evidence, by way of Ms. Cook, that the minor plaintiff
suffered damages as a result of the defendant's failure
to allow Buddy to attend school with her. Moreover, the court
finds that the plaintiffs had no duty to ...