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R.D. v. Shohola, Inc.

United States District Court, M.D. Pennsylvania

November 20, 2019

R.D., Plaintiff,
SHOHOLA, INC., Defendant.


          Martin C. Carlson United States Magistrate Judge.

         I. Factual Background

         This case involves allegations of negligence by the defendant, Shohola, Inc., during a July 2007 Cape Cod camping excursion conducted by the defendant. In the course of this excursion, four minors-N.S., R.D., G.M., and E.J.[1]-were placed together in a tent allegedly without any immediate, direct adult supervision. What transpired in that tent twelve years ago lies at the heart of this lawsuit. The plaintiff, R.D., alleges that he was sexually assaulted in the tent by an older boy, N.S., and asserts that Shohola's negligence in failing to oversee the campers caused his injuries. R.D. has described this assault as an act of forced anal sex committed by N.S. in the course of a highly sexualized game of “Truth or Dare” instigated by N.S. As trial approaches, the parties have filed some 30 motions in limine, including two motions filed by the plaintiff, (Doc. 301, 347), and 28 motions submitted by the defendant. (Docs. 302-327, 360).

         We now turn to consideration of two of these motions. In the course of this litigation an investigator hired by the plaintiff located and conducted a videotaped interview with E.J., one of the other boys who was in the tent the evening R.D. alleges that he was anally raped by N.S. For his part, in this initial interview E.J. described this assault in terms which closely paralleled R.D.'s account, alleging that N.S. instigated this game of “Truth or Dare” and then attempted to engage in anal intercourse with E.J., halting only when E.J. cried out for him to stop. Thus, E.J. provided a recorded statement which was a highly relevant and corroborative account of what transpired in the tent during this excursion.

         While E.J. initially provided this account to the plaintiff's investigator, he was later contacted by a defense investigator. What took place during that contact is the subject of dispute and other motions pending before this court, but suffice to say that following this contact, when the plaintiff endeavored to depose E.J. to confirm his account of the sexual assaults which took place on the Camp Shohola excursion, E.J., who had now retained counsel, asserted his Fifth Amendment right to remain silent. The assertion of this Constitutional right has now made E.J. effectively unavailable as a witness, causing the plaintiff to turn to the videotaped interview in which E.J. corroborated that N.S. committed sexual assaults upon the younger boys in the tent that night to support R.D.'s claims.

         The defense has now filed motion in limine Number 26 which seeks to exclude from evidence E.J.'s initial recorded statement describing this sexual assault. (Doc. 328). Shohola has also filed a closely related motion in limine, Number 25, which would also seek to preclude the plaintiff from making any reference to E.J.'s subsequent assertion of his Fifth Amendment privilege during the deposition conducted in this case. (Doc. 327). These motions are fully briefed and argued and are, therefore, ripe for resolution.

         For the reasons set forth below, the motion to preclude reference to E.J.'s assertion of the Fifth Amendment is deferred pending consideration of those other outstanding motions which relate to the propriety of the contacts between E.J. and a defense investigator. (Doc. 327). However, the defense motion to exclude E.J.'s prior statement describing this assault, (Doc. 328), is denied, the court finding that E.J.'s statement is now admissible under the exceptions to the hearsay rule embodied in Rules 804 and 807 of the Federal Rules of Evidence.

         II. Discussion

         These motions in limine call upon us to consider the relevance of the invocation of the Fifth Amendment in a civil lawsuit, as well as the intersection between the assertion of this constitutional right and the rules of evidence governing hearsay. The Fifth Amendment to the United States Constitution provides, in part, that no person: “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. By its terms, the Fifth Amendment privilege against self-incrimination only protects individuals from being witnesses against themselves in criminal cases. Therefore, while a person may invoke the Fifth Amendment privilege against self-incrimination in civil litigation in order to avoid criminal self-incrimination, the consequences which flow from that decision may differ in the civil and criminal setting. As the court of appeals has explained:

The privilege against self-incrimination may be raised in civil as well as in criminal proceedings and applies not only at trial, but during the discovery process as well. Unlike the rule in criminal cases, however, reliance on the Fifth Amendment in civil cases may give rise to an adverse inference against the party claiming its benefits. Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1558, 47 L.Ed.2d 810, 821 (1976).

S.E.C. v. Graystone Nash, Inc., 25 F.3d 187, 190 (3d Cir. 1994). Thus, if E.J. was a party in this litigation, there would be little doubt that his assertion of this privilege could be introduced into evidence and some adverse inference could be drawn in the civil litigation from that assertion of the privilege.

         But E.J. is not a party. He is a non-party witness, and courts are reluctant to automatically extend an adverse inference in this setting to a party based upon the assertion of the privilege by a non-party witness. See generally Rad Services, Inc. v. Aetna Cas. and Sur. Co., 808 F.2d 271, 272 (3d Cir. 1986); Certain Underwriters at Lloyd's of London v. Alesi, 843 F.Supp.2d 517, 526 (D.N.J. 2011). Instead, in making this determination regarding the extent to which a such an inference may be drawn from a non-party's invocation of the privilege:

[T]he admissibility of a nonparty's invocation of the Fifth Amendment privilege against self-incrimination and the concomitant drawing of adverse inferences should be considered “on a case-by-case basis” [and] . . . the “overarching concern” that should guide the admissibility inquiry “is fundamentally whether the adverse inference is trustworthy under all of the circumstances and will advance the search for the truth.” [On this score, courts have] identified four non-exclusive factors for courts to consider: (1) “the nature of the relevant relationships”; (2) “the degree of control of the party over the nonparty witness”; (3) “the compatibility of the interests of the party and non-party”; and (4) “the role of the non-party witness in the litigation.”

Coquina Investments v. TD Bank, N.A., 760 F.3d 1300, 1310-11 (11th Cir. 2014) (quoting LiButti v. United States, 107 F.3d 110, 123 (2d Cir. 1997)); Cerro Gordo Charity v. Fireman's Fund Am. Life Ins. Co., 819 F.2d 1471, 1481 (8th Cir. 1987); RAD Servs., Inc. v. ...

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