Harris v. Midas

          MEMORANDUM ORDER ON PRETRIAL MOTIONS

          CATHY BISSOON JUDGE

         Pending before the Court are several pretrial motions filed by Plaintiff Hannah Harris (“Harris”) and Defendants 413 Lower Burrell Auto Center, Ltd.; Auto Systems Center, Ltd.; Trent Kight; Max Auto Supply Company; Midas Auto & Tire Experts; Midas Auto Service Experts; and Ken Shick^[1] (collectively “Defendants”^[2]), and their respective Responses.^[3] For the reasons below, the Court resolves these motions as follows:

• Defendants' Motion in Limine to Exclude the Contents of an Illegal Audio Recording (Doc. 91) is DENIED.

• Defendants' Motion in Limine to Preclude “Admission” Testimony of Anthony DiGuilio (Doc. 93) is GRANTED.

• Defendants' Motion in Limine to Exclude Plaintiff's Proposed Expert, Susan Strauss (Doc. 95) is GRANTED.

• Defendants' Motion in Limine to Bifurcate Trial Pursuant to F.R.C.P. 42(b) (Doc. 97) is DENIED.

• Defendants' Motion in Limine to Preclude Tort Claims (Doc. 99) is DENIED.

• Plaintiff's Motion in Limine to Exclude Irrelevant and Unfairly Prejudicial Evidence Pursuant to Federal Rules of Evidence 401, 402, 403, and 404 (Doc. 101) is GRANTED in part and DENIED in part.

• Plaintiff's Motion in Limine to Exclude the Testimony of Michael E. Thase, M.D. (Doc. 103) is GRANTED in part and DENIED in part.

         ANALYSIS

         1. Defendants' motion in limine to exclude the contents of an illegal audio recording (Doc. 91) is denied.

         Defendants move to exclude an audio recording made by Plaintiff of an interaction she had with Defendant Ken Shick on the afternoon of July 9, 2016. It is not in dispute that the recording was made without Mr. Shick's consent. In support of their motion, Defendants first argue that Plaintiff violated the Pennsylvania Wiretapping and Electronic Surveillance Control Act (“Wiretap Act”) by making the recording, and because it is “an illegal audio recording” it cannot be admitted in this federal action.

         In her Response, Plaintiff argues that “Defendants' lengthy analysis of the Pennsylvania Wiretap Act is irrelevant” because federal law controls the admissibility of evidence in this case. Irrespective of whether the Plaintiff violated Pennsylvania law in making the recording, under the Federal Rules of Evidence, Plaintiff contends the tape is admissible. Furthermore, Plaintiff avers that no violation of the Wiretap Act occurred, as Mr. Shick has no reasonable expectation of privacy in the recorded conversation and she had a reasonable expectation that Mr. Shick was about to commit a crime of violence.

         Defendants filed a Reply, which switches gears and argues the Supreme Court's analysis in Erie Railroad Co. v. Tompkins controls the audio recording's admissibility. 304 U.S. 64, 79 (1938). Under Erie and its progeny, when a district court exercises diversity or supplemental jurisdiction, it must apply federal procedural law and state substantive law to those claims. Chin v. Chrysler LLC, 538 F.3d 272, 278 (3d Cir. 2008). Defendants argue that the Wiretap Act is state substantive law that must control the admissibility of the audio recording, and therefore, it must be excluded. Defendants dedicate the remainder of their Reply to distinguishing the authority cited by Plaintiff that would allow admission of the recording, arguing that Mr. Shick had an expectation of privacy that entitled him to protections of the Wiretap Act, and restating their position that the recording is not admissible for any purpose, including impeachment.

         The Court has given careful consideration to all the briefing on this issue, and finds that the Defendants' motion to exclude must be denied. The limited authority on this issue in the civil cases, admission of illegal recordings in the criminal context, and federalism concerns compel this result. Each of these points will be addressed in turn.

         First, the federal authorities provided by the parties and located independently by the Court favor admitting the audio recording. In their initial briefing, Defendants offered Pennsylvania state cases discussing the Wiretap Act, but only a single federal case in support of their position that the tape is inadmissible, Martinez v. City of Reading Property Management Division. 2018 WL 1290087 (E.D. Pa. Mar. 13, 2018). In Martinez, the district court declined to admit recordings obtained without consent of persons who were not parties because “this evidence constitutes inadmissible hearsay in this case.” Id. at *12. Here, Mr. Shick is a named Defendant, and thus his statements on the tape are not hearsay. Rule 801(d)(2)(A). Martinez is inapposite.

         In contrast, Plaintiff cites to federal cases in support of her contention that the audio recording is admissible, even if it would be barred in a state court. See Collins v. Jones, 2015 WL 790055, at *2 n.6 (E.D. Pa. Feb. 24, 2015); Wilson v. N. Am. Reinsurance Corp., 1988 WL 48561, at *2 (E.D. Pa. May 13, 1988). In both cases, a party objected to the admission of an audio recording because it was made in a state where two-party consent was required. In each case, the federal court found that the Federal Rules of Evidence-not state law-governed admissibility, and the recordings were admitted. Federal courts in this Circuit have found the same when exercising diversity jurisdiction. See, e.g., Montone v. Radio Shack, 698 F.Supp. 92, 95-96 (E.D. Pa. 1988); Tarnoff v. Wellington Fin. Corp., 696 F.Supp. 151, 152-53 (E.D. Pa. 1988). While this authority is not binding, the Court nonetheless finds the reasoning in these cases to be persuasive, particularly given the absence of any federal authority to the contrary.

         Second, there is substantial and controlling authority that would compel admission of the audio recording in a federal criminal trial. For example, in United States v. Williams, the Court of Appeals for the Third Circuit analyzed whether “the suppression remedy provided by state law is directly applicable . . . in a federal case.” 124 F.3d 411, 426 (3d Cir. 1997) (Alito, J.). There, the defendants argued that evidence consisting of audio recordings obtained and played for a grand jury in violation of the Wiretap Act were illegally obtained and must be suppressed. Id. at 425. The Third Circuit rejected defendants' argument because generally the Federal Rules of Evidence govern such questions and the relevant Pennsylvania statutory provision requiring exclusion “does not purport to govern federal cases.” Id. at 428; see also United States v. Charles, 213 F.3d 10, 19 (1st Cir. 2000) (admitting audio recordings in federal prosecution instituted after suppression of the same recordings in an earlier state proceeding due to violation of state wiretap act because evidence “‘obtained in violation of neither the Constitution nor federal law is admissible in federal court proceedings without regard to state law.'” (quoting United States v. Sutherland, 929 F.2d 765, 769 (1st Cir. 1991))).

         Third, Defendants' Erie-based objections suffers from several defects. Defendants argue that because there are state-law claims over which this Court is exercising supplemental jurisdiction, the Wiretap Act is substantive law that must be applied to preclude the tape in all respects. The audio recording, however, is relevant evidence to all of Plaintiff's claims-not just her state-law claims-and certainly the Federal Rules of Evidence govern the admissibility of evidence when a federal district court is hearing claims over which it has federal question jurisdiction. See Collins, 2015 WL 790055, at *2 n.6 (federal law governs the admissibility in federal question cases).

         More to the point, it is not clear that the Erie doctrine applies to the Federal Rules of Evidence at all. Sims v. Great Am. Life Ins. Co., 469 F.3d 870, 878-79 (10th Cir. 2006). In Sims, the district court had excluded evidence showing the plaintiff was not wearing his seat belt while in a fatal car crash in light of a state law precluding the introduction of such evidence in a state court proceeding. Id. at 877. The district court reasoned, because it was sitting in diversity, that it had to apply the Erie doctrine and bar the evidence. Id. at 884. The Court of Appeals for the Tenth Circuit reversed, holding that “the Federal Rules of Evidence are not governed by the Erie doctrine.” Id. at 886. However, it did not hold that federalism principles play no role in considering the relationship between state law and the admission of evidence. Rather, the Sims court counseled courts to look to the purpose of the state law and examine whether the law was designed to apply to the type of facts in the federal case. See id. at 884-85.

         Applying Sims, Plaintiff's recording is admissible. First, just as in Sims where the exclusion applied to a different type of action than the one before the court, the exclusionary principle at issue here does not purport to apply to in the federal courts. 18 Pa. C.S. § 5721.1 (prohibiting disclosure in “any court. . . of this Commonwealth”); see also Williams, 124 F.3d at 428. Second, and more importantly, Pennsylvania has made its own judgment that the remedy for this transgression should be had through the criminal law-not the exclusion of evidence. See 18 Pa. C.S. § 5703 (codifying that is a felony to intercept communications without consent). Pennsylvania remains free to pursue such a prosecution if it wishes to do so, and the Court's decision on whether to admit Plaintiff's audio recording has no bearing on that decision. That no such prosecution, let alone a conviction, occurred here strengthens the Court's conclusion that it cannot be Pennsylvania's intent to require this Court to hold a trial on whether or not Plaintiff violated the Wiretap Act in order to rule on the admissibility of the recording.^[4] The substance of Pennsylvania's law would be muddled by such procedure.

         Other district courts in this Circuit have come to the same conclusion regarding Pennsylvania's policy concerns. See Montone, 698 F.Supp. at 93 n.1 (“I am not persuaded that the failure to observe the Pennsylvania wiretap statute's exclusionary provisions in a federal diversity proceeding will undermine the substantive policy underlying the statute, particularly in light of the remedies the statute itself provides for victims or unlawful wiretaps.”); Tarnoff, 696 F.Supp. at 152 (“The policy underlying the Pennsylvania anti-wiretapping statute can be vindicated by a criminal prosecution, if appropriate.”). Because the substantive concerns of Pennsylvania's Wiretap Act are not infringed upon by the admission of Plaintiff's recording under the Federal Rules of Evidence, Defendants' motion to exclude is denied.

         2. Defendants' motion in limine to preclude “admission” testimony of Anthony DiGuilio (Doc. 93) is granted.

         Defendants argue that a statement Plaintiff's co-worker, Anthony DiGuilio, (“Mr. DiGuilio”), made during his deposition that a “manager” told him Mr. Shick had grabbed Plaintiff by the neck is inadmissible hearsay. Defendants contend that there is no applicable exception to the rule again hearsay, and in particular, that Federal Rule of Evidence (“Rule”) 801(d)(2)(D) cannot apply because Plaintiff cannot identify the declarant.

         Plaintiff responds that because the “role” of the declarant is known, there is no need to identify the specific manager for admission under Rule 801(d)(2)(D). Further, because the time period can be narrowed and a small number of persons could have been that “manager, ” the declarant “should easily be identifiable.” Plaintiff can't have it both ways. If discerning the identity of the declarant is relatively simple, then Plaintiff should have identified the declarant during discovery. Without the identity of the declarant, there is ample support for Defendants' position that, it is not possible to discern whether the statement made was “on a matter within the scope of that [employee's] relationship and while it existed” as required by Rule 801(d)(2)(D). Carden v. Westinghouse Elec. Corp., 850 F.2d 996, 1002-04 (3d Cir. 1988) (statement made by unidentified “they” in the workplace does not meet evidentiary requirements for admission under Rule 801(d)(2)(D)); United States v. Cruz, 910 F.2d 1072, 1081 n.10 (3d Cir. 1990) (explaining that in Carden, without identity of declarant, indicia of reliability embodied in Rule 801(d)(2)(D) were absent and “statement had to be excluded.”); see also Zaken v. Boerer, 964 F.2d 1319, 1323-24 (2d Cir. 1992) (“Without identification of declarant, the statement . . . did not have a sufficient evidentiary foundation” for admission under Rule 801(d)(2)(D).”). Thus, Mr. DiGuilio may not testify that a “manager” told him Ken Shick grabbed Plaintiff by the neck. If the manager is identified, the Court will allow Plaintiff to revisit this issue.

         3. Defendants' motion in limine to exclude Plaintiff's proposed expert, ...