United States District Court, W.D. Pennsylvania
MEMORANDUM ORDER ON PRETRIAL MOTIONS
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
“Defendants”), and their respective
Responses. 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
• 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.
Defendants' motion in limine to exclude the contents of
an illegal audio recording (Doc. 91) is denied.
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.
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.
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.
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.
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.
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
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))).
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
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
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. The substance of Pennsylvania's law
would be muddled by such procedure.
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
Defendants' motion in limine to preclude
“admission” testimony of Anthony DiGuilio (Doc.
93) is granted.
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.
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.
Defendants' motion in limine to exclude Plaintiff's
proposed expert, ...