United States District Court, W.D. Pennsylvania
Cynthia Reed Eddy Chief United States Magistrate Judge
NOW, this 7th day of November, 2019, presently for
consideration before the Court are the following:
parties' cross-motions in limine to exclude each
other's expert witnesses (ECF Nos. 173 and 184);
Plaintiff's motion in limine to exclude mental health
records (ECF No. 175);
Plaintiff's motion in limine to exclude evidence of other
crimes, wrongs, or other acts (ECF No. 178);
Plaintiff's motion in limine to exclude undisclosed
expert testimony (ECF No. 180);
Plaintiff's motion in limine to exclude evidence
regarding Plaintiff's other lawsuits and complaints (ECF
Defendants' motion in limine to preclude award of
compensatory damages (ECF No. 169);
Defendants' motion in limine to preclude any evidence of
the Disability Rights Network Settlement Agreement and the
Testimony of Angus Love and Alexandra Morgan-Kurtz (ECF No.
Defendants' motion in limine to preclude testimony of
Department of Corrections Secretary John Wetzel (ECF No.
Defendants' motion in limine to allow testimony and
evidence of Plaintiff's misconducts (ECF No. 172);
Defendants' motion to preclude testimony of Major Curtis
Grice and Lt. Matthew Luciano (ECF No. 177);
Defendants' motion in limine to preclude punitive damages
(ECF No. 186); and (12) Defendants' motion in limine to
preclude any evidence of the Department of Justice
Investigation (ECF No. 190).
motions are fully briefed and ripe for disposition. Each
motion will be address in seriatim.
Plaintiff's motion in limine to exclude purported
expert opinions of Jason Roof, M.D. (ECF No. 173) and
Defendants' motion in limine to preclude the trial
testimony of Plaintiff's expert Harry Krop, Ph.D. (ECF
parties have filed cross-motions in limine to exclude each
other's expert witnesses. Under Federal Rule of Evidence
702, courts must allow expert testimony when “(1) the
testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods
reliably to the facts of the case.” These requirements
are often referred to in shorthand as “qualification,
reliability, and fit.” See, e.g., In re Unisys Sav.
Plan Litig., 173 F.3d 145, 156 (3d Cir.1999). Under the
rule announced in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469
(1993) and expanded in Kumho Tire Co. v. Carmichael,
526 U.S. 137 (1999), district courts must ensure that
experts-scientific and otherwise-will offer testimony that is
methodologically sound and relevant to the facts of
the case before admitting their expert testimony.
Daubert, 509 U.S. at 590-91; Kumho, 526
U.S. at 149.
reviewing the expert reports and the arguments of counsel,
the Court finds that it is clear from the reports that the
testimony of the proposed experts are not relevant and,
therefore, will not be helpful to resolving this case.
seek to preclude the testimony of Plaintiff's expert,
Harry Krop, Ph.D., who opines “regarding the
differential diagnosis of Plaintiff's mental health
conditions, ” ECF No. 199 at 2, and as to what
Plaintiff's mental health diagnosis should have been in
2015, based on an evaluation of Plaintiff conducted on May
17, 2019. The Court agrees with Defendants that such an
opinion is not relevant, is speculative and confuses the
issue involved in the case. The only issue for the jury to
consider is whether or not Defendants retaliated against
Plaintiff by adjusting his stability code after Plaintiff
filed a grievance. There is no allegation that Defendants in
this case incorrectly diagnosed Plaintiff or failed to
provide Plaintiff with proper treatment. Allowing Dr. Krop to
opine as to Plaintiff's diagnosis runs the danger of
misleading the jury, confusing the issues, and undue delay
pursuant to Fed.R.Evid. 403.
Plaintiff seeks to preclude the testimony of Defendants'
expert, Jason Roof, M.D., who opines based on his review of
Plaintiff's medical records that Plaintiff did not suffer
from a mental illness as defined by the DOC Mental Health
Policy and thus did not met the criteria for D-Code inmates.
However, as the Court of Appeals for the Third Circuit has
recently stated, “[w]hat is good for the goose is good
for the gander.” Shifflett v. Korszniak, 934
F.3d 356, 367 (3d Cir. 2019). Again, this case does not
involve a question of whether or not Plaintiff was
misdiagnosed or whether or not Plaintiff received appropriate
mental health care. This only issue for the jury is whether
or not Defendants retaliated against Plaintiff by adjusting
his stability code after he filed a grievance. Dr. Roof's
proffered testimony suffers from the same infirmities as that
of Dr. Krop's proffered testimony. To allow Dr. Roof to
opine as to whether or not Plaintiff warranted a D Stability
Code runs the danger of misleading the jury, confusing the
issues and undue delay pursuant to Fed.R.Evid. 403.
these reasons, the parties' cross-motions in limine to
exclude each other's expert witnesses are
Plaintiff's motion in limine to exclude mental health
records (ECF No. 175).
requests that the Court exclude all of Plaintiff's mental
health records pre-dating May 13, 2015 as being irrelevant
and unduly prejudicial and all his mental health records
post-dated May 13, 2015 as being irrelevant. Plaintiff also
argues that his mental health records are subject to the
psychotherapist-patient privilege. Finally, ...