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.,

(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,

(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,

. 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,

(6th Cir. 1997);

United States v. Kavne,

(1st Cir. 1996), cert.

denied,

(1997); Compton v. Subaru of America, Inc.,

(10th Cir. 1996), cert, denied,

2 611 (1997); Thornton v. Caterpillar, Inc.,

, 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,

.

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,

(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

trial.

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,

(7th Cir. 1995), cert, denied,

(1996); Bannister v. Town of Noble, Okla.,

(10th Cir. 1987); Walls v. Armour Pharmaceutical Co.,

(M.D.Fla. 1993), aff'd,

(1995);

Strach v. St. John Hospital Corp.,

(Mich.Ct.

A p p . 1987); Ocasio v. Amtrak,

(N.J. Super.

Ct.App.Div. 1997); Arnold v. Burlington Northern R.R.,

(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.,

(1st Cir. 1994) (guoting Daigle v. Maine Medical

Ctr., Inc.,

(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.

20