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Botey v. Green

United States District Court, M.D. Pennsylvania

June 9, 2017

JONATHAN BOTEY, Plaintiff
v.
ROBERT GREEN, et al., Defendants

          MEMORANDUM OPINION

          Robert D. Mariani United States District Judge

         Presently before the Court is the Motion in Limine of Defendants "to preclude prejudicial remarks relating to punitive damages or mentioning punitive damages until Plaintiff has made a prima facie case has been made." (Doc. 162).

         More specifically, the Defendants request that this Court:

• preclude the Plaintiff from referring to punitive damages in their opening statement;
• preclude the Plaintiff from referencing punitive damages or intentional, outrageous, reckless or willful conduct until the close of evidence[;]
• preclude the Plaintiff from claiming any specific amount of punitive damages before the jury; and
• preclude the Plaintiff from asking the jury to "send a message" or to act as "the conscience of the community" or engage in other similar appeals to economic or sectional biases and prejudices, or other improper factors that go beyond applying the law to the facts of the case.

(Id. at ¶11).

         Defendants have filed a brief in support of their Motion in Limine. (Doc. 163). On review of the Brief, it must be observed that the brief is written as if to support a post-trial motion, i.e., it challenges the Plaintiffs entitlement to punitive damages on the basis that the evidence does not support such an award. This, along with other flaws, requires that the motion be denied in the main.

         First, Defendants, citing Burke v. Maassen, 904 F.2d 178, 181 (3d Cir. 1990), and Martin v. Johns-Manville Corp., 494 A.2d 1088 (Pa. 1985), argue "there has been no evidence that Mr. Green's, FFE's, or Conwell's behavior was even comparable to that of Maassen, as against whom the court failed to allow a punitive damages claim to proceed." (Doc. 163, at 5-6). Maassen, however, is a decision of the Court of Appeals issued after the District Court had entered judgment on a jury award of compensatory and punitive damages and the driver and employer thereafter sought judgment as a matter of law and a new trial. The decision for that reason is singularly unhelpful in addressing a pre-trial motion in limine, and the reference in Defendants' Brief to the Court failing to "allow a punitive damages claim to proceed" (id. at 5) is extremely misleading. Likewise, the decision in Martin was also issued post-trial, following a jury verdict.

         Defendants then proceed to argue that the facts in this case cannot support an award of punitive damages and that, therefore, Plaintiffs counsel should not be allowed to "prejudice the jury in its determination of causation and compensatory damage issues by inflaming the jury with respect to requests for punitive damages, or to present any evidence which relates solely to the claims of alleged punitive damages." (Id. at 7). Defendant argues, without citation to authority, that "Plaintiff should not be allowed to refer to punitive damages in an opening statement or argument on causation or compensatory damage issues and should not be permitted to claim or suggest any particular amount of punitive damages before the jury." (Id.). Instead, Defendants cite to Pioneer Commercial Funding Corp. v. American Financial Mortgage Corp., 797 A.2d 269 (Pa. Super. 2002) [Pioneer f). Once again, this decision addressed the remarks of counsel throughout a trial after which a jury returned an award of punitive damages which was subsequently reversed by the Superior Court. However, the decision in Pioneer was reversed and remanded by the Pennsylvania Supreme Court in Pioneer Commercial Funding Corp. v. American Financial Mortgage Corp., 855 A.2d 818 (2004) (Pioneer II), with instructions for entry of judgment for the appellee bank. This invalidation of the Superior Court's decision aside, the fact remains that the discussion of what the Superior Court termed to be the inappropriate remarks of counsel during the trial regarding the conduct of the Defendant in connection with the Plaintiffs claim for punitive damages focused on a record obviously already made in which Plaintiffs counsel "made allegations of criminal conduct, alleged cover-up and made other inflammatory statements." Pioneer 1, 797 A.2d at 291.

         In sum, Defendants ask this Court to make a determination prior to trial that no basis for the award of punitive damages exists and that, consequently, no reference by Plaintiffs counsel in his opening statement may be made to punitive damages. This the Court will not do. While the Court will address any unprofessional, inflammatory and prejudicial characterizations by Plaintiff's counsel, there is nothing before this Court at this time to suggest that Plaintiff's counsel will engage in such behavior or to warrant an order prohibiting Plaintiff's counsel from making such statements where there is no indication that he will do so.

         Next, Defendants assert "punitive damages are not recoverable for negligent conduct, " citing Hutchinson v. Luddy, 870 A.2d 766 (Pa. 2005). Accordingly, Defendants argue that "the Plaintiff must be precluded from offering any evidence or making any statement referencing a claim for punitive damages." (Doc. 163, at 8). From this statement, Defendants assert "[b]ased on the foregoing, the Plaintiff must be precluded from offering any evidence or making any statement referencing a claim for punitive damages." (id. at 9).

         Defendants' description of the ruling in Hutchison is true, as far as it goes, but it does not go far enough. The Third Circuit in Brand Marketing Group, LLC v. Intertek TestingServices, N.A., inc.,801 F.3d 347 (3d Cir. 2015), provided a full ...


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