Herbst v . L.B.O. Holding, Inc. CV-09-233-JL 5/2/11 P UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Edward Herbst
v. Civil N o . 09-cv-233-JL Opinion N o . 2011 DNH 072 L.B.O. Holding, Inc., d/b/a Attitash Bear Peak Resort
MEMORANDUM ORDER
This case arises from injuries, including a broken ankle,
that plaintiff Edward Herbst suffered after falling off an alpine
slide at Attitash Bear Peak Resort, a ski area in Bartlett, New
Hampshire that offers the slide as a summer recreational
activity. Herbst brought suit against the resort’s owner, L.B.O.
Holding, Inc. (“Attitash”), asserting claims for strict products
liability and negligence. Specifically, he alleges that the
slide is unreasonably dangerous to its riders, that Attitash was
negligent in operating i t , and that Attitash failed to adequately
instruct and warn Herbst on its proper use. Attitash denies
those allegations and asserts that Herbst’s own negligence caused
the accident. This court has subject-matter jurisdiction under
28 U.S.C. § 1332(a)(1) (diversity).
Both parties have moved in limine to admit or exclude
various types of evidence at the upcoming jury trial, currently
scheduled for May 2011. See L.R. 16.2(b)(3). Specifically,
Attitash has moved to admit evidence of Herbst’s prior conviction
for mail fraud, to exclude evidence of the face amount of Herbst’s medical bills, and to preclude Herbst’s expert witness
from testifying about the adequacy of the slide’s warnings.
Herbst, in turn, has moved to admit evidence of prior and
subsequent accidents on Attitash’s alpine slide. Following oral
argument, this court rules on the limine motions as set forth
below.
I. Attitash’s motion to admit prior conviction1
Attitash has moved to admit evidence that Herbst was
convicted of felony mail fraud, see 18 U.S.C. § 1341, in a New
York federal court on July 3 0 , 1999, when he was 46 years old.
See United States v . Herbst, N o . 98-cr-771-001 (S.D.N.Y. July 2 7 ,
1999). Specifically, Herbst pled guilty to using the mails in
connection with bribing an employee of the New York City
Department of Finance to reduce or eliminate his overdue property
taxes and interest. He served a three-month prison sentence,
ending on or before January 1 , 2000, and then remained on
supervised release for a period of three years.
As a general rule, “evidence that any witness has been
convicted of a crime shall be admitted” for impeachment purposes
“if it readily can be determined that establishing the elements
of the crime required proof or admission of an act of dishonesty
1 Document n o . 1 9 .
2 or false statement by the witness.” Fed. R. Evid. 609(a)(2).
Herbst concedes that his mail fraud conviction involved
dishonesty or false statement and therefore falls within that
rule. See, e.g., United States v . Orlando-Figueroa, 229 F.3d 3 3 ,
46 (1st Cir. 2000).
But evidence of such a conviction “is not admissible if a
period of more than ten years has elapsed since the date of the
conviction or of the release of the witness from the confinement
imposed for that conviction, whichever is later, unless the court
determines, in the interests of justice, that the probative value
of the conviction supported by specific facts and circumstances
substantially outweighs its prejudicial effect.” Fed. R. Evid. 609(b). 2
More than ten years have passed since Herbst was released
from the confinement imposed for his mail fraud conviction.
Attitash argues that Herbst is to blame for that fact, because he
waited nearly three years after his 2006 accident to bring this
action, and then requested a trial continuance in 2010. But
Attitash has not shown that Herbst acted improperly in either
regard, or that he “manipulated either the calendar or the
scheduling process in order to postpone the trial and allow the
2 Rule 609(b) also requires “sufficient advance written notice to provide the adverse party with a fair opportunity to contest the use” of the prior conviction, which Herbst concedes he has received.
3 clock to run on [his] conviction.”3 United States v . Nguyen, 542
F.3d 275, 280 (1st Cir. 2008) (rejecting a similar argument that
“had [the] trial started a few months earlier--as did the trial
of [certain] codefendants--the ten-year window would have
remained open”). So there is no reason not to apply Rule 609(b)
here. Id. at 281.
“Given the tenor of Rule 609(b), common sense suggests that
felony convictions more than ten years old should be admitted
only sparingly and in especially compelling circumstances,” based
on a “particularized showing” that their probative value
substantially outweighs their prejudicial effect. Id. at 278
(citing 4 Jack B . Weinstein & Margaret A . Berger, Weinstein’s
Federal Evidence § 609.06[1] (2d ed. 2007)). Factors to consider
in making that determination “may include (i) the impeachment
value of the particular convictions, (ii) their immediacy or
remoteness . . . ; (iii) the degree of potential prejudice that
they portend; (iv) the importance of the defendant’s testimony;
and (v) the salience of the credibility issue in the
circumstances of the particular case.” United States v . Brito,
427 F.3d 5 3 , 64 (1st Cir. 2005).
3 Indeed, personal injury actions are routinely brought near the end of the limitations period, so as to allow the nature of the injury to become fully understood.
4 Here, Herbst’s mail fraud conviction has a direct bearing on
his credibility and veracity, and thus a high degree of
impeachment value. He demonstrated a willingness to defraud
others to improve his own financial situation. Because Herbst is
the primary, and in some respects only, witness to his accident
and the ride(s) leading up to it (which allegedly affected his
state of mind, making him feel the need to slide faster), and
because Attitash contends that Herbst himself was at fault for
the accident, his testimony is likely to be of great importance
at trial, and his credibility is likely to be a particularly
salient issue for the jury.
“Of course, the mere fact that [a witness’s] credibility is
in issue . . . cannot, by itself, justify admission of evidence
of convictions over ten years old,” because that “would make the
ten year limit in Rule 609(b) meaningless.” United States v .
Brown, 603 F.2d 1022, 1028 (1st Cir. 1979). But the case for
admitting evidence of Herbst’s mail fraud conviction is
especially compelling here, given the fraudulent nature of his
crime, the likely importance of his testimony and credibility
with regard to events that only he (and, in some respects, his
daughter) witnessed, and that his conviction, which occurred when
he was 46 years old, is barely older than ten years.4
4 In fact, as noted supra, had this action been filed earlier, or trial not been continued, impeachment would have been permitted under Rule 609(a).
5 While the admission of a prior felony conviction always
carries some risk of prejudice, that risk is much lower here than
it would b e , for example, in a criminal case brought against
Herbst. See, e.g., Orlando-Figueroa, 229 F.3d at 46 (noting that
“Rule 609 is primarily concerned with potential unfairness to a
[criminal] defendant when his prior convictions are offered” and
concluding that, even under the particular circumstances of that
criminal case, the court could have admitted evidence of a
witness’s mail fraud conviction under Rule 609(b), over the
defendant’s objection).
The risk of prejudice is further reduced because Herbst
suffered objectively verifiable injuries in the accident
(including a broken ankle) and is not the only person who has
done so in recent years. See Part IV, infra. Given that
evidence, the jury is unlikely to regard the accident itself, or
Herbst’s decision to bring this lawsuit, as fraudulent, or to
reject his claims merely because he has a criminal history.
Rather, it is likely to consider Herbst’s conviction for the
limited, and proper, purpose of determining whether to believe
his specific testimony regarding his conduct on the slide, the
reasons for it (including his state of mind), and the pain and
suffering it caused him.
Having considered the specific facts and circumstances of
this case, the court concludes that the probative value of
6 Herbst’s mail fraud conviction substantially outweighs its
prejudicial effect, and that it is in the interests of justice to
admit it into evidence. Attitash’s motion to admit that evidence
is therefore granted. To further reduce any risk of prejudice,
Herbst may request a limiting instruction to the jury, both when
the evidence is admitted and in the final jury charge. See,
e.g., United States v . Tracy, 36 F.3d 1 8 7 , 194 (1st Cir. 1994).
II. Attitash’s motion to exclude medical bills5
Attitash has moved to preclude Herbst from introducing
evidence of the face amounts of his medical bills, arguing that
the reasonable value of medical services is the amount actually
paid for them (here, by Medicaid), not the higher amount billed.
This court has repeatedly refused, however, “‘to exclude evidence
of the billed cost of medical services’ in favor of ‘the amounts
actually paid’ in satisfaction of those costs by the plaintiff’s
health insurers.” Reed v . Nat’l Council of Boy Scouts of Am.,
Inc., 706 F. Supp. 2d 1 8 0 , 190 (D.N.H. 2010) (quoting Aumand v .
Dartmouth Hitchcock Med. Ctr., 611 F. Supp. 2d 7 8 , 91 (D.N.H.
2009)); see also Bartlett v . Mut. Pharm. Co., 2010 DNH 125, 2010
WL 3156555, at * 2 ; Williamson v . Odyssey House, Inc., 2000 DNH
238, 2000 WL 1745101, at *1 (DiClerico, D . J . ) .
5 Document n o . 2 0 .
7 As explained more fully in those decisions, Medicaid write-
offs fall within the scope of New Hampshire’s collateral source
rule, which “provides that ‘if a plaintiff is compensated in
whole or part for his damages by some source independent of the
tort-feasor, he is still permitted to make full recovery against
the tort-feasor.’” Reed, 706 F. Supp. 2d at 190 (quoting Moulton
v . Groveton Papers Co., 114 N.H. 505, 509 (1974)). Accordingly,
this court has not only permitted plaintiffs to present evidence
of the amounts billed, but has prohibited defendants from
presenting evidence of the amounts actually paid, deeming such
evidence unfairly prejudicial. See, e.g., Bartlett, 2010 WL
3156555, at *2 (citing Fed. R. Evid. 4 0 3 ) .
Attitash notes that a number of New Hampshire Superior Court
judges have reached the opposite conclusion. But this court
considered much, if not all, of that case law in Reed, which
noted that there is Superior Court precedent in both directions
and announced that “unless and until this state’s version of the
collateral source rule is changed by the New Hampshire
legislature or New Hampshire Supreme Court, this court will
continue to apply it to billed amounts ‘written off’ by a
plaintiff’s providers, in accordance with existing law here and
8 in the vast majority of other jurisdictions.” 706 F. Supp. 2d at 190, 194. 6
Attitash’s motion in limine is therefore denied. It is
important to note, however, that Attitash may still challenge
whether the billed amounts reflect the reasonable value of
Herbst’s medical services, provided it does not use evidence of
the Medicaid write-offs to do s o , and otherwise complies with the
rules of evidence. See Bartlett, 2010 WL 3156555, at *2 (citing
Reed, 706 F. Supp. 2d at 1 9 4 ) .
III. Attitash’s motion to exclude expert testimony on warnings7
Attitash has also moved to preclude Herbst’s expert witness,
engineer John Mroszczyk, from testifying that the slide’s
warnings were inadequate, arguing that no such opinion was
disclosed in his expert report. See Fed. R. Civ. P. 26(a)(2)(B)
(expert “report must contain . . . a complete statement of all
opinions the witness will express and the basis and reasons for
6 This is not to say, however, that the court finds the contrary Superior Court decisions wholly unpersuasive, at least as a policy matter, particularly in the context of private health insurance (as opposed to Medicaid or other public health insurance). But it is this state’s legislature--or, with respect to common-law rules, its Supreme Court--which decides such matters, not this court. 7 Document n o . 3 4 . The court discussed this issue with the parties at oral argument (before Attitash’s motion had been filed) and then gave both parties an opportunity to brief it before trial.
9 them”) and 37(c)(1) (where “a party fails to provide information
. . . as required by Rule 26(a),” it “is not allowed to use that
information . . . at a trial, unless the failure was
substantially justified or is harmless”). The only warning-
related opinion expressly set forth in Mroszczyk’s report was
that the slide had “a number of instruction and warning signs at
the slide loading area” (photos of which he attached to the
report), but “no speed limit signs posted along the slide.”
Herbst concedes “that it would certainly have been
preferable to ensure that Mroszczyk clearly expressed his
opinion” about the warnings in his expert report, see document
n o . 3 3 , at 4 , but nevertheless argues that it is a reasonable
inference from the report that he considers the warnings
inadequate, and that he should therefore be allowed to offer that
opinion at trial. See, e.g., Metavante Corp. v . Emigrant Sav.
Bank, 619 F.3d 7 4 8 , 762 (7th Cir. 2010) (expert report need not
“replicate every word that the expert might say on the stand,” as
long as it sufficiently “convey[s] the substance of the expert’s
opinion . . . so that the opponent will be ready to rebut, to
cross-examine, and to offer a competing expert, if necessary”)
(quotation omitted).
Herbst has submitted an affidavit from Mroszczyk clarifying
that he “do[es] not believe that any warning in a sign regarding
the particular problems” that Herbst encountered on the alpine
10 slide “would be adequate to make this ride safe,” i.e., he
“do[es] not believe that this condition in the slide could be
made safe by warnings.” Document n o . 33-1, at 2 . This court
agrees that such an opinion can be reasonably inferred from his
report, which, after noting the existing signs and the lack of
speed limits, states that riders have no ability to gauge their
speed anyway and that, even “at a reasonable speed,” they could
still “leave the track.” The strong implication is that no
warning would be adequate.
The problem with that opinion, at least for Herbst, is that
it means that Attitash’s alleged failure to warn did not cause
his accident and injuries, because, according to Mroszczyk, no
warning would have been adequate to protect Herbst from the
particular problems he encountered. See, e.g., Trull v .
Volkswagen of Am., Inc., 145 N.H. 259, 264 (2000) (“failure to
warn must be [a] proximate cause of plaintiff’s injuries”);
LeBlanc v . Am. Honda Motor Co., 141 N.H. 579, 586 (1997) (“[t]he
issue in [a] failure to warn claim . . . is whether the danger
. . . was or could have been made reasonable by the issuance of
adequate warnings”). In other words, the opinion supports
Herbst’s unreasonable dangerousness theory, but at the expense of
his failure-to-warn theory.
Nevertheless, if Herbst wishes to offer Mroszczyk’s opinion
at trial that the slide’s warnings were inadequate because no
11 warning regarding the particular problems that Herbst encountered
would have made the ride safe, this court will allow him to do
so. While not expressly disclosed in Mroszczyk’s report, that
opinion can be reasonably inferred from the substance of the
report, and Attitash has received sufficient notice to “be ready
to rebut [ i t ] , to cross-examine, and to offer a competing expert,
if necessary.” Metavante, 619 F.3d at 762. Attitash’s motion to
exclude such testimony is denied.8
IV. Herbst’s motion to admit evidence of other accidents9
Herbst, in turn, has moved to admit evidence of various
other accidents on Attitash’s alpine slide, including 21 that
occurred between 2004 and 2006 (either prior to or just after his
accident), and also one that his expert witness, Mroszczyk,
happened to observe in 2010 while conducting a site visit for
purposes of inspecting the slide and preparing his expert report
in this case.10 Attitash objects that those accidents were not
8 Mroszczyk should be careful, however, not to venture beyond the limited opinion set forth above, or to suggest (contrary to that opinion) that some other warning by Attitash would have been adequate to prevent Herbst’s accident. 9 Document n o . 1 5 . 10 Herbst initially sought to admit evidence of even more accidents, including some involving collisions between two riders. At oral argument and in his subsequent briefing, however, he narrowed his request to those accidents that he considers most similar to his own.
12 substantially similar to Herbst’s accident and that, in any
event, evidence of other accidents--particularly the one
Mroszczyk witnessed in 2010--would be unfairly prejudicial, would
confuse the jury, and would unduly delay the trial. See Fed. R.
Evid. 403.
“Evidence of prior accidents is admissible . . . only if the
proponent of the evidence shows that the accidents occurred under
circumstances substantially similar to those at issue in the case
at bar.” Moulton v . Rival Co., 116 F.3d 2 2 , 26-27 (1st Cir.
1997) (quoting McKinnon v . Skil Corp., 638 F.2d 2 7 0 , 277 (1st
Cir. 1981)). Both parties agree that the same requirement
applies to subsequent accidents, as other courts have held. See,
e.g., Reddin v . Robinson Prop. Group, L P , 239 F.3d 756, 760 (5th
Cir. 2001). “At bottom, the ‘substantially similar’ requirement
is a more particularized approach to the requirement that
evidence be probative.” Trull v . Volkswagen of Am., Inc., 187
F.3d 8 8 , 98 n.9 (1st Cir. 1999).
“‘Substantial similarity’ is a function of the theory of the
case.” Moulton, 116 F.3d at 2 7 . Here, Herbst’s theory
(supported by expert testimony) is that Attitash’s alpine slide
causes riders to move side-to-side within the slide and sometimes
to lose control, particularly through curves; and that if a rider
reaches the end of a curve embankment in that state, there is a
risk of falling off the slide, as allegedly happened in his
13 accident. According to Herbst’s expert, many curves in the slide
pose that risk. In light of that theory, this court construes
“substantially similar” to mean, for purposes of this case, that
the rider in the other accident must have lost control around a
curve and fallen off the slide.
A. 2004-2006 accidents
Herbst has made evidentiary proffers regarding each of the
accidents at issue. For the 21 accidents occurring between 2004
and 2006, he has submitted accident reports (6 from the New
Hampshire Department of Safety and 15 from Attitash itself). The
reports, however, provide very little detail. Most of them
indicate that the rider fell off the slide, but not how or where
it happened. Mroszczyk believes that each accident “probably”
involved loss of control and ejection around a curve, because
riders ordinarily would not fall off the slide on a straightaway.
But at least two of the accidents were described as occurring on
a straightaway, and some had other causes (e.g., a squirrel in
the track). So that assumption seems flawed.
This court has closely reviewed each of the accident reports
and finds that Herbst has met his burden of showing substantial
similarity only as to four accidents:
• the accident on July 1 2 , 2005 (where the rider “came through [the] dip, came to next set of banks, came out of track”);
14 • the accident on July 2 3 , 2005 (where the “sled came off track” near a bank);
• the accident on August 3 , 2005 (where the rider “hit the curve, jumped the track”); and
• the accident on July 1 6 , 2006 (where the rider “came from a right turn into a left turn and his cart flew off”).
All of the other accidents involved materially different
circumstances, or at least were not sufficiently described for
this court to deem them substantially similar. See, e.g., Downey
v . Bob’s Disc. Furniture Holdings, Inc., 633 F.3d 1 , 9 (1st Cir.
2011) (affirming the exclusion of such evidence where plaintiffs
proffered only a “bare bones” printout containing a “cryptic
description” of prior incidents, with “no details,” and
“conducted no investigation into the underlying facts”). 11
Attitash argues that evidence of even the substantially
similar accidents should be excluded as unfairly prejudicial,
confusing to the jury, and likely to unduly delay the trial. See
Fed. R. Evid. 403. But this court sees little to no risk in any
of those respects. Because the accident reports provide so
11 Herbst argues that Attitash admitted, in an interrogatory, that all 15 of the accident reports it produced involved “accidents similar to the plaintiff’s: where an operator left the track and was injured.” But, for purposes of discovery, “a flexible treatment of relevance is required and the making of discovery . . . is not a concession or determination of relevance for purposes of trial,” or admissibility. Fed. R. Civ. P. 26(b)(1), advisory committee notes (1970). Attitash’s interrogatory answer was not an admission of substantial similarity within the meaning of Moulton.
15 little detail, and appear to be the only available evidence of
what happened, the use of such evidence will necessarily be
limited in scope. Its main purpose is simply to show that riders
occasionally lose control and fall off the track around a curve,
as Herbst did, and that Attitash had notice of that risk. That
is a proper and probative purpose, which outweighs any of the
countervailing concerns listed in Rule 403.
This court therefore grants Herbst’s request to admit
evidence of the four accidents noted above, but denies his
request to admit evidence of the other accidents between 2004 and
2006. If Herbst believes that this court has overlooked any
accident(s) with circumstances comparably similar to those four
accidents, or has additional evidence of substantial similarity
beyond that proffered to date, he may raise that issue and/or
make a further evidentiary proffer at trial, outside the presence
of the jury.
B. 2010 accident
For the accident in 2010, Herbst has submitted an affidavit
from Mroszczyk explaining what he observed. According to
Mroszczyk, that accident, like Herbst’s, involved a rider’s loss
of control, side-to-side movement within the slide, and then
ejection from the slide around a curve (albeit a different curve,
16 more than 100 feet down the slide from where Herbst fell).
Mroszczyk claims that sequence of events “is precisely what I
believe occurred to M r . Herbst.” Based on that proffer, this
court finds that Herbst has sufficiently shown that the 2010
accident was substantially similar to his own, clearing that hurdle for admissibility.12
Attitash argues that evidence of the 2010 accident should
nevertheless be excluded as unfairly prejudicial, confusing to
the jury, and likely to unduly delay the trial. See Fed. R.
Evid. 403. It is true that such evidence may pose some risk of
prejudice and juror confusion, since the accident happened,
incidentally, on the day when Herbst’s expert was inspecting the
slide, which might suggest to the jury that accidents happen on
the alpine slide with greater frequency than they actually d o .
Attitash, though, has the ability to present evidence of how
12 Attitash argues that the 2010 accident resulted from the rider going airborne over a slide feature called “the dip” (not from being ejected around a curve), but that strikes the court as implausible, given the considerable distance between the dip and the place where the rider landed. Attitash has not proffered any evidence to support that version of events. In any event, if Attitash wishes to challenge Mroszczyk’s testimony regarding how that accident happened, it may do so at trial. An adjuster from Attitash’s insurance company also witnessed the accident and could be called as a witness.
17 often accidents actually happen.13 The jury should not have any
trouble understanding or accepting that the timing was just a
coincidence.
Conversely, evidence of the 2010 accident has very high
probative value. Mroszczyk’s direct observation of an accident
substantially similar to the one that Herbst suffered has the
ability to inform, and even corroborate, his expert opinions
about what happened to Herbst, and the reason(s) for i t . That
firsthand experience could make his testimony much more
persuasive and helpful to the jury, whereas preventing him from
discussing the accident could leave the jury with an incomplete,
and potentially inaccurate, understanding of the basis for and
reliability of his opinions.
On balance, this court concludes that the probative value of
the 2010 accident outweighs the risk of prejudice and juror
confusion, and therefore grants Herbst’s motion to admit evidence
of that accident. As to Attitash’s argument that such evidence
will cause undue delay, this court doubts that will happen, but
will keep that concern in mind during trial and will be open to
any proposals that Attitash may have (short of outright
exclusion) for reasonably limiting the amount of such evidence,
13 The standard for defendants to introduce evidence of prior accidents is more lenient than for plaintiffs. See Trull, 187 F.3d at 98 n.9.
18 and the manner in which it is presented, so as to avoid undue
delay and reduce the risk of prejudice.
V. Conclusion
For the reasons set forth above, Attitash’s motion to admit
evidence of Herbst’s prior conviction14 is GRANTED, Attitash’s
motion to exclude evidence of Herbst’s medical bills15 is DENIED,
Attitash’s motion to preclude Mroszczyk from testifying about the
slide’s warnings16 is DENIED, and Herbst’s motion to admit
evidence of prior and subsequent accidents17 is GRANTED in part
and DENIED in part.
SO ORDERED.
J o / p h N . Laplante Urs ited States District Judge
Dated: May 2 , 2011
cc: R. Peter Taylor, Esq. Thomas Quarles, Jr., Esq.
14 Document n o . 1 9 . 15 Document n o . 2 0 . 16 Document n o . 3 4 . 17 Document n o . 1 5 .