Cote v. NH College, et al. CV-95-308-M 06/20/97 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Marc Cote, Plaintiff
v. Civil No. 95-308-M
New Hampshire College and Phi Delta Theta Fraternity, Defendants
O R D E R
Several motions in limine are currently pending. They are
resolved as follows.
1. Defendant's Motion to Exclude Testimony of Neil J. Dougherty (Document No. 67)
Defendant objects to the anticipated testimony of
plaintiff's expert witness, Neil J. Dougherty, Ed.D., who is
expected to testify concerning the appropriate standard of care
for supervision of an oozeball tournament. Specifically,
defendant contends that Mr. Dougherty's opinion that all
"horseplay" during college events will lead to dangerous activity
and should be prohibited as inadmissible under Federal Rule of
Evidence 7 02 and Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993). In response, plaintiff argues both that Mr.
Dougherty is gualified to provide his opinion on the appropriate standard of care in supervising an oozeball event and that his
opinion is well-accepted in his field.
Rule 702 provides: "If scientific, technical, or other
specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness gualified
as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or
otherwise." For an expert opinion to be admissible, the expert
witness must be gualified to give the opinion; the opinion must
concern specialized knowledge; and the opinion must be helpful to
the jury. See United States v. Shav, 57 F.3d 126, 132 (1st Cir.
1995). When an expert's opinion involves scientific knowledge
(in contrast to technical or specialized knowledge). Rule 702
reguires consideration of whether the opinion is based on
scientifically valid reasoning or methodology. Daubert, 509 U.S.
at 591-93. As Mr. Daugherty's opinion is apparently based on his
knowledge and experience in the area of supervision of college
events rather than scientific knowledge or methodology, the
Daubert standard does not control its admissibility. See,e .q .,
United States v. Jones, 107 F.3d 1147, 1158 (6th Cir. 1997);
United States v. Kavne, 90 F.3d 7, 11-12 (1st Cir. 1996), cert.
denied, 117 S.Ct. 681 (1997); Compton v. Subaru of America, Inc.,
82 F.3d 1513, 1518-19 (10th Cir. 1996), cert, denied, 117 S.Ct.
2 611 (1997); Thornton v. Caterpillar, Inc., 951 F. Supp. 575, 577-
78 (D.S.C. 1997).
Defendant contends that Mr. Dougherty's opinion is
inadmissible because it is extreme and not based upon a well-
accepted theory, although defendant does not challenge his
gualification to give the opinion or argue that a standard for
supervising college events is not a proper subject of expert
opinion testimony in this case. Accordingly, defendant's
objections to Mr. Dougherty's opinion about supervision of
college events would be more appropriately addressed by cross
examination. See Kavne, 90 F.3d at 12.
Defendant also argues that Mr. Dougherty should not be
allowed to give an opinion as to causation--that the students'
"horseplay" caused plaintiff's injuries. Plaintiff does not
directly address defendant's concern, but states that Mr.
Dougherty will testify "that the defendant College and the
Director of Student Activities overseeing the event should not
have allowed the horseplay (in the form of jumping, diving and
throwing other participants into the mud) or any violation of the
alcohol policy." Mr. Dougherty's opinion, according to
plaintiff, is that defendant breached the standard of care to
supervise the event. As Mr. Dougherty's testimony is apparently
not being offered on the causation issue, further limitation at
3 this time is unnecessary, although the question may arise again
at trial.
Defendant's First Motion to Exclude (document no. 57) is
denied, but without prejudice to interposing an objection at
trial.
2. Plaintiff's Motion in Limine Regarding Defendant's Liability Expert (Document No. 48)
Plaintiff challenges part of the expected testimony of
defendant's expert witness, Joseph Schmerler, on grounds that he
lacks expertise as to particular subject matter included in his
opinion. Defendant intends to elicit testimony from Joseph
Schmerler concerning the relationship between colleges and their
students, including his opinion that the in loco parentis
position of colleges has declined, about the risks and need for
supervision and warnings in an oozeball tournament, and other
related issues. Plaintiff argues that Mr. Schmerler lacks
expertise concerning college organization and the relationship
between colleges and their students, and so should not be allowed
to testify on factual issues that are not within his expertise or
firsthand knowledge.
In response, defendant identifies Mr. Schmerler as holding a
bachelor of mechanical engineering degree from New York
University and having "extensive knowledge in the area of aquatic
4 environments and injuries that can result from activities therein
including diving activities." Mr. Schmerler, according to
defendant, has publications and experience in the area of school
activities involving pools and water sports. Plaintiff
summarizes and guotes Mr. Schmerler's curriculum vitae as stating
that Mr. Schmerler had experience with "'aguatic facilities and
related activities'" and "activities 'related to swimming pools
and bathing places'" and that he had consulted on "technical
issues, business and product development, litigation and
arbitration in matters relating to swimming pool design,
eguipment and construction as well as injuries sustained in and
around aguatic environments." Neither party submitted supporting
materials concerning Mr. Schmerler's gualification to give an
expert opinion about the challenged subjects.
Based on the information presented in the parties'
pleadings, Mr. Schmerler seems to lack any experience in or
expertise concerning the organization of colleges or their
relationships with their students and student groups. Therefore,
he is not gualified under Rule 702 to present expert opinion on
those subjects.
Plaintiff also objects to Mr. Schmerler's expected opinion
that the danger of an injury such as that suffered by plaintiff
was "exceptionally remote" based on responses to inguiries sent
5 by defendant's counsel to other colleges concerning their
experiences with oozeball tournaments. It is unclear what
expertise Mr. Schmerler would use to arrive at his conclusion
that would assist the jury in understanding the evidence.
Although it is likely that such an opinion is outside the scope
of Rule 702, that evidentiary decision should be made with the
benefit of both a presentation of Mr. Schmerler's gualifications
and the trial context in which the testimony is offered.
Plaintiff's motion regarding defendant's liability expert
(document no. 48) is granted in part and denied in part without
prejudice to renewal of the objection at trial.
3. Plaintiff's Motion in Limine Concerning Letters (Document No. 47)
Defendant included as exhibit "M" in support of its motion
for summary judgment (document no. 27) copies of six letters
received from other colleges concerning their experiences with
mud volleyball events on their campuses. Apparently the letters
were sent in response to inguiries made by defendant's counsel on
May 21, 1996, reguesting information. Each of the six responding
colleges states that it had no significant injuries related to
mud volleyball events.
Plaintiff moves to exclude the letters and any reference to
them on grounds that plaintiff lacks particular information about
6 the letters and that the letters are hearsay and unfairly
prejudicial. Defendant contends that the letters are relevant to
the foreseeability of plaintiff's injury, are not hearsay, and
also could be used to impeach plaintiff's witnesses on the issue
of whether oozeball is dangerous.
Plaintiff's concerns about background information related to
the letters should have been (and perhaps have been) satisfied
through discovery. If, as it appears from the parties'
pleadings, neither the letters nor these colleges' experiences
with oozeball were known to defendant in 1994 when plaintiff was
injured, they are not relevant to defendant's understanding of
the risks associated with an oozeball event. Further, if the
letters were offered for the truth of the statements therein
(concerning those six colleges experience with oozeball events),
they are likely to be inadmissible hearsay unless defendant can
show that an exception would apply. Fed. R. Civ. P. 801(c) and
802. Thus, whether the letters will be admissible depends upon
the context at trial in which they are actually offered, and the
issue must be deferred until then. See, e.g.. Gill v. Thomas, 83
F.3d 537, 540-41 (1st Cir. 1996) (discussing review of
evidentiary issues denied in limine).
7 Plaintiff's motion regarding results of survey (document no.
47) is denied without prejudice to challenge the admissibility of
the letters if they are introduced at trial.
4. Plaintiff's Motion in Limine Regarding Separate Existence of CAPE (Document No. 49)
Plaintiff seeks a ruling to preclude defendant from arguing
that the student organization known as CAPE was, at the time in
guestion, a separate entity from the college and that the college
had no duty to supervise CAPE's activities. After filing his
motion, plaintiff amended his complaint to include claims that
focus on issues concerning defendant's relationship with and
responsibility for CAPE. CAPE's status and relationship with the
college remains a primary issue in this case that cannot be
resolved upon plaintiff's inadeguately supported motion.
Accordingly, plaintiff's motion in limine regarding the separate
existence of CAPE (document no. 49) is denied.
5. Defendant's Motions in Limine Concerning Alcohol _____ (Documents Nos. 53 and 54)
Defendant seeks rulings precluding any reference to alcohol
as a factor in this case and any reference to the name of
plaintiff's oozeball team, "The Drunks." In supportof its
motion, defendant argues that there is only minimal evidence that alcohol was consumed at the oozeball event, no evidence that the
college was aware of alcohol consumption, and plaintiff does not
allege that alcohol consumption contributed to his injuries.
Under those circumstances, defendant argues, evidence of alcohol
consumption is not relevant, or at least that references to
alcohol consumption should be excluded as more unfairly
prejudicial than probative. Fed. R. Civ. P. 402 and 403.
Defendant is correct that plaintiff's claims are not
explicitly based on allegations that alcohol consumption was a
factor in causing the accident.1 If plaintiff's claims were
interpreted broadly, however, alcohol consumption at the event
could be relevant to the college's performance of any duty it may
have owed to supervise, and such references would likely be
relevant.
Plaintiff states that witnesses will testify that the
"horseplay" that led to his injury began with members of a
fraternity, who were congregating and getting drinks from a
vehicle parked near the field rather than from CAPE-supplied
nonalcoholic refreshments. Plaintiff also asserts that witnesses
1The only references to alcohol in plaintiff's Amended Consolidated Complaint are in counts that are no longer claims in the case: Count IV (delegation of responsibility for an ultrahazardous activity) dismissed by summary judgment in favor of defendant, and Count V (negligence--Phi Delta Theta fraternity)judgment entered in favor of the fraternity on the parties' stipulation of dismissal. saw fraternity members and others drinking from "stadium" cups
rather than from the cans of soda provided by CAPE, and that
plaintiff was offered, but refused, an alcoholic drink. In
addition, plaintiff states that the oozeball event had a history
of problems with alcohol. Plaintiff contends that the college
knew or should have known that alcohol would be and was being
consumed in violation of college rules and failed to intervene to
enforce the no-alcohol reguirement as a part of its failure to
properly supervise the event.2
Plaintiff's proffer relies on inferences rather than direct
evidence of alcohol consumption. Both sides seem to agree that
neither plaintiff, nor his friends who were involved in throwing
him in the mud, had consumed alcohol at the event or were under
the influence of alcohol. If mere suggestions of alcohol
consumption were allowed at trial, the jury might make
assumptions based on inferences that would be either unfounded or
unrelated to plaintiff's claim: i.e. that plaintiff and/or his
friends were drunk when the accident occurred or that the college
and/or CAPE allowed unrestrained drinking and drunken behavior in
21he parties both devote part of their pleadings to complaints about the other's conduct during discovery. Since the parties do not reguest relief, the discovery issues are not addressed.
10 violation of college rules which behavior was proximately related
to the injuries sustained.
In these circumstances, suggestions or references to alcohol
consumption, absent more reliable evidence that alcohol was a
factor which contributed to plaintiff's accident, are likely to
be more unfairly prejudicial to defendant than probative relative
to any element of plaintiff's case. See Fed. R. Civ. P. 403.
Ordinarily, an evidentiary ruling depends on the evidence to be
presented at trial. Because this is a close guestion, the
evidentiary ruling should be made at trial, when the extent of
plaintiff's evidence and the relevance of alcohol consumption
will be clear. Accordingly, defendant's motions (document nos.
53 and 58), are denied without prejudice.
6. Defendant's Motion to Exclude Particular Testimony of Dr. Robert Menter (Document No. 56)
Dr. Robert Menter was plaintiff's treating physician at
Craig Hospital in Colorado. During his videotaped deposition,
defense counsel asked Dr. Menter whether he had ever treated a
patient for a spinal cord injury that occurred in a mud
volleyball game and he said that he had not. In response,
plaintiff's counsel asked Dr. Menter whether he had ever treated
or heard of a patient who had received a serious spinal cord
injury from sliding into mud. Dr. Menter recalled a patient who
11 had suffered an injury similar to plaintiff's during a baseball
team hazing incident that reguired sliding into a mud hole.
Defendant seeks to exclude Dr. Menter's description of the
baseball player's injury on grounds that the incident is
irrelevant to plaintiff's case. Plaintiff seeks to exclude Dr.
Mentor's earlier statement, elicited by defense counsel, that he
was not aware of a patient having been injured in a mud
volleyball game, and agrees that the baseball incident is only
relevant to provide a proper context for the earlier statement.
Plaintiff contends that Dr. Mentor's lack of experience with
patients injured during mud volleyball games is irrelevant to
plaintiff's claim, which is not that mud volleyball is dangerous
but that it was made dangerous by a lack of supervision of this
particular event which, plaintiff contends, is more similar to
the baseball player's injury in the mud during unsupervised
hazing. In addition, plaintiff was not injured as a participant
during a mud volleyball game; he was an observer between games.
Given the context provided by the parties, neither of the
challenged statements seems likely "to make the existence of any
fact that is of conseguence to the determination of the action
more probable than it would be without the evidence." Fed. R.
Civ. P. 401. Since the statements are part of a videotape
deposition which will be presented at trial, the context of the
12 statements is fixed. In that context, the statements are not
relevant to the case and are likely to confuse the jury by
suggesting, improperly, either that the college was sufficiently
careful because mud volleyball events do not result in spinal
injuries or, conversely, that it was careless because mud sliding
events tend to be dangerous. Because the statements as presented
are irrelevant, and to avoid confusion and unfair prejudice, both
statements shall be excluded. See Fed. R. Civ. P. 401 and 403.
Defendant's motion (document no. 56) is granted. The lines
marked in yellow in plaintiff's transcript excerpt of Dr.
Mentor's videotaped deposition shall be excluded from evidence at
7. Defendant's Motion to Exclude Testimony of Dr. William Burke(Document No. 58)
Defendant objects to the expert opinion of Dr. William
Burke, who did a rehabilitation evaluation of plaintiff,
concerning plaintiff's future work ability. Seizing on Dr.
Burke's statement in his deposition that he had not done a
vocational evaluation of plaintiff, defendant contends that Dr.
Burke's opinion is unreliable and inadmissible under Federal Rule
of Civil Procedure 702 and the Daubert standard.
As was discussed in paragraph one of this order, the Daubert
standard is not applicable in evaluating technical or specialized
13 knowledge that may be provided by expert opinion. Dr. Burke
holds a Ph.D. in rehabilitation services and is a certified
rehabilitation counselor. His opinion is based on his experience
and specialized knowledge in "the analysis, treatment, planning,
and case management of individuals with brain and spinal cord
injury and other neurologic disorders." William Burke's
Curriculum Vitae, attached to plaintiff's objection (document no.
71). Accordingly, the Daubert scientific methodology issues are
not a part of a Rule 702 evaluation of Dr. Burke's opinion.
Defendant fails to explain the significance of a vocational
evaluation in the context of Dr. Burke's opinion, or to provide
any authority that the lack of a vocational evaluation undermines
the reliability of the opinion.
In addition. Defendant overstates Dr. Burke's opinion to be
"regarding the plaintiff's inability to work for the remainder of
his life." Defendant's memorandum with his motion (document no.
58) Instead, Dr. Burke's actual opinion, based on his
occupational analysis of plaintiff's "realistic access to the
labor market," is stated in the excerpt of Dr. Burke's report
attached to defendant's motion as exhibit B:
Considering these restrictions [physical limitations] in addition to the variables noted above [not included in defendant's excerpt] the results of this analysis indicate that Marc has virtually lost all
14 access to the labor market in the future. This analysis was not able to consider the intangible variables in Marc's case such as his motivation, determination, and future social and professional networks. However, it is clear both from the spinal cord injury research and this analysis that the likelihood that Marc will maintain competitive employment in the future is extremely low.
As plaintiff explains in his objection, "competitive employment"
is not necessarily equivalent to any kind of employment, work, or
activity for limited periods of time. To the extent that Dr.
Burke's opinion may conflict with that of Dr. Menter, that will
be an appropriate subject for cross examination.
Defendant's Motion to Exclude (document no. 58) is denied.
8. Defendant's Motion Regarding Personnel Evaluation
Defendant moves to exclude any evidence of the safety
standards section of the college's professional performance
review form pertaining to Deborah Hubbard on grounds that it is
unfairly prejudicial. Plaintiff argues that the rating is
relevant to the college's supervision of the oozeball event
because Hubbard was the school official with authority to oversee
student activities. Plaintiff interprets the evaluation,
incorporating part of its language, as: "the criticism of Hubbard
is that she failed to 'take corrective action when needed' which
15 is the very claim made by the plaintiff in this case." In
response, defendant represents that a college official will
explain that Hubbard's appraisal score was lower than it should
have been because safety was not an integral part of Hubbard's
position.
The evaluation form (defendant has submitted Hubbard's forms
covering the years from 1990 through 1993) explains that each
appraisal score includes both a rating and a weight value.
Ratings range from 1 (unacceptable) through 3 (expected level of
performance) to 5 (highly superior). Each standard
characteristic is also evaluated for its importance to job
performance with assigned weight values of 1 through 3 (less
important, standard, more important). The appraisal score for
each standard characteristic is then computed by multiplying the
rating and the weight.
The form provides the following safety standard
characteristic: "Displays constant concern & takes corrective
action when needed to enhance the safety of the work
environment." For Hubbard's job, the safety standard was
assigned a weight of 2--standard importance to the job--for the
years 1990 through 1992. In the evaluation for 1993, dated
January 1994, the weight value was dropped to 1. She was
evaluated at a 3 rating--"Expected level of performance. A
16 competent employee who performs the requirements of the position"
for all years of evaluation. Thus, Hubbard's overall safety
standard score for the years 1990 through 1992 was 6 and for 1993
it was 3. The change in score from 6 to 3, as defendant
explains, was due to the change in the weight value not a change
in Hubbard's performance. Accordingly, plaintiff's negative
interpretation of Hubbard's safety evaluation appears to be
unsupported by the information in the form.
Whether the forms or individual appraisal scores pertaining
to Hubbard's performance will be admissible at trial depends upon
the context. Plaintiff is cautioned, however, that its negative
interpretation of the information appears to be unsupported.
Defendant's motion (document no. 55) to exclude the evidence
is denied without prejudice to its renewal at trial.
9. Defendant's Obnection to Two Videotapes (Document No. 80.2)
Plaintiff intends to use two videotapes at trial, one of
which is a "day in the life" video and the other is of
plaintiff's last rehabilitation therapy session on June 14, 1995.
Defendant objects to both videos on grounds that they are
prejudicial, designed to inflame the passion of the jury, and
cumulative of other evidence.
17 Plaintiff represents that the segment of the "day in the
life" video that he intends to use at trial is thirty-six minutes
long and was edited from film of his actual morning routine
during a two to three hour period. He states that the film shows
his activities with his mother that are necessary to getting up,
dressed, and into his wheelchair. Defendant contends that the
"day in the life" video is "amateurish" and "overly prejudicial."
Other courts have allowed "day in the life" videotapes of a
plaintiff's activities and treatment to show the effect of
plaintiff's injury when the videos presented accurate, relevant,
and not unfairly prejudicial evidence of plaintiff's injury or
condition. See, e.g., DeBiasio v. Illinois Cent. Railroad, 52
F.3d 678, 687 (7th Cir. 1995), cert, denied, 117 S.Ct. 611
(1996); Bannister v. Town of Noble, Okla., 812 F.2d 1265, 1270
(10th Cir. 1987); Walls v. Armour Pharmaceutical Co., 832 F.
Supp. 1505, 1508-09 (M.D.Fla. 1993), aff'd, 53 F.3d 1184 (1995);
Strach v. St. John Hospital Corp., 408 N.W.2d 441, 453 (Mich.Ct.
A p p . 1987); Ocasio v. Amtrak, 690 A.2d 682, 685 (N.J. Super.
Ct.App.Div. 1997); Arnold v. Burlington Northern R.R., 748 P.2d
174, 176 (Or.Ct. App. 1988).
In this case, defendant contends that plaintiff's videos are
both "overly prejudicial" and cumulative. As the evidentiary
18 context for showing the videos can only be determined at trial,
no ruling can be made on whether they are cumulative until then.
As to the prejudicial effect of the videos. Rule 403 aims at
evidence that presents a "danger of unfair prejudice." (Emphasis
added.) "It is, of course, axiomatic that '[a]11 evidence is
meant to be prejudicial; elsewise, the proponent would be
unlikely to offer it.'" Esoeaignnette v. Gene Tierney Co., Inc.,
43 F.3d 1, 7 (1st Cir. 1994) (guoting Daigle v. Maine Medical
Ctr., Inc., 14 F.3d 684, 690 (1st Cir. 1994)). Thus "overly
prejudicial" evidence, although damaging to one side or the
other, is not proscribed by the rule.
Defendant does not explain why the "amateurish" guality of
the video should preclude its admissibility or what in particular
about the video is unfairly prejudicial. Without more specific
objections by defendant, the court, at present, declines to view
the "day in the life" video provided by the plaintiff for
admissibility.
Defendant's motion (document 80.2) is denied without
prejudice to its renewal at trial.
19 SO ORDERED.
Steven J. McAuliffe United States District Judge
June 20, 1997
cc : Andrew D. Dunn, Esq. Kenneth G. Bouchard, Esq.