United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge
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.
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).
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.
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.
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
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.
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).
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 ...