NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 21-2912 _____________

DARUS LEON HUNTER; KENYA JUANITA SHUJAA, Appellants

v.

CITY OF PHILADELPHIA; ROBERT SCHUTTE; MICHAEL NAVEDO; MICHAEL MELVIN ______________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 2-17-cv-00889) District Court Judge: Honorable Timothy R. Rice ______________

Argued December 13, 2022 ______________

Before: RESTREPO, McKEE, and SMITH, Circuit Judges

(Opinion filed: September 21, 2023)

David Costigan [ARGUED] John P. McClam [ARGUED] Monica Gorny Dechert 2929 Arch St 18th Floor, Cira Centre Philadelphia, PA 19104

Jennifer MacNaughton [ARGUED] City of Philadelphia Law Department 1515 Arch St Philadelphia, PA 19102 Counsel for Appellees

______________

OPINION * ______________

McKEE, Circuit Judge.

In the late-night hours of September 13 into September 14, 2015, two police

officers arrived at the Philadelphia home of Darus Hunter and Kenya Shujaa in response

to a custody-related complaint made by the mother of one of Hunter’s children. Disturbed

by the police officers’ presence, Hunter and Shujaa called 911 to report them. This set off

a series of events wherein the officers visited the home more than once. On the second

visit, Hunter and Shujaa allege that one of the officers forcibly entered their home,

striking Shujaa in the belly in the process. She was pregnant. Three days later, Shujaa

was rushed to the hospital where she suffered a miscarriage. Hunter and Shujaa thereafter

filed this suit against the officers. Their complaint alleged retaliation for the 911 call, an

unreasonable search, and trespass. The jury returned a verdict in favor of the officers on

all three claims.

On appeal, Hunter and Shujaa challenge the District Court’s pretrial evidentiary

ruling that (1) excluded Shujaa’s medical records about her miscarriage and (2) admitted

evidence and allowed argument regarding Shujaa’s marijuana use. For the following

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

2 reasons, we will reverse the District Court’s pretrial order, vacate the District Court’s

judgment, and remand the case for a new trial. 1

I.

Hunter and Shujaa claim that the District Court erred in admitting evidence and

the subsequent argument about Shujaa’s marijuana use. They argue that the defendants

insinuated that Shujaa’s marijuana use caused the miscarriage, which was highly

prejudicial considering societal stigma around pregnant women’s marijuana use. 2 The

officers counter that they had the right to present Shujaa’s marijuana use as an alternative

theory of causation for the miscarriage. 3 We review the District Court’s decision to admit

evidence of Shujaa’s marijuana use for abuse of discretion. 4 Also, we will not disturb the

District Court’s conclusion unless it is arbitrary or irrational. 5

1 The United States District Court for the Eastern District of Pennsylvania had jurisdiction over this matter pursuant to

and 1367. We have jurisdiction pursuant to

. 2 Hunter and Shujaa also assert that the District Court “injected the issue” into the defense expert’s cross examination. Appellant Br. at 35. Indeed, during the defense expert’s testimony, the District Court—quizzically—raised this matter with the expert sua sponte. The District Court specifically asked the defense expert to comment on the impact (if any) of Shujaa’s marijuana use in the case. 3 Moreover, the officers claim that the District Court’s decision should be upheld because Hunter and Shujaa failed to request a “limiting or curative” instruction at trial. Appellee Br. at 37. We are unpersuaded. It is true that a limiting instruction may have either cured or minimized the risk of unfair prejudice to the plaintiffs. See Ansell v. Green Acres Contracting Co.,

(3d Cir. 2003). Here, however, the District Court had already considered Hunter and Shujaa’s arguments regarding the prejudicial effect of allowing evidence of the marijuana use at trial. It nevertheless decided that the evidence was admissible. As such, seeking a limiting instruction would likely have been futile. 4 United States v. Starnes,

, 213–14 (3d Cir. 2009) (citations omitted). 5 Abrams v. Lightolier Inc.,

(3d Cir. 1995) (citation omitted).

3 The District Court’s decision was indeed arbitrary. Although the District Court

determined that evidence of the marijuana use was probative to “test the basis of the

expert opinion,” 6 the parties’ experts never disputed whether marijuana use caused

Shujaa’s miscarriage. In their respective reports, Dr. Cohen (plaintiffs’ expert) explicitly

stated that he did not believe that marijuana caused the miscarriage, while Dr. Holden

(defense expert) did not discuss marijuana at all. Accordingly, evidence and argument

regarding marijuana use had no probative value. Yet, it carried a great risk of causing

unfair prejudice. 7 Given that marijuana use during pregnancy is stigmatized and remains

a contentious issue, 8 it is conceivable that the jury found the officers were not liable in

large part due to negative or misplaced reactions about Shujaa’s marijuana use.

6 JA 003–004 (citations omitted). 7 Additionally, in the officers’ response to the plaintiffs’ motion in limine to exclude evidence of Shujaa’s marijuana use, they referenced an article from the National Institute of Child Health and Development (NICHD) stating that marijuana use is a risk factor for pregnancy and can result in stillbirths. However, the NICHD itself notes that the term “stillbirth” refers to “the death of a fetus at or after the 20th week of pregnancy.” https://www.nichd.nih.gov/health/topics/stillbirth. Shujaa’s medical records definitively establish that she was 18 weeks into her pregnancy when she miscarried. Thus, even if the experts disputed the import of Shujaa’s marijuana use in this case, this article would not be dispositive. 8 See generally Centers for Disease Control and Prevention, Pregnancy: What You Need to Know about Marijuana Use and Pregnancy, https://perma.cc/BD2T-ZUAV (last visited Sept. 3, 2023); Melinda Wenner Moyer, Cannabis Use in Pregnancy May Lead to a More Anxious, Aggressive Child, N.Y. TIMES (Nov. 19, 2021), https://perma.cc/AK5J- PB69 (last visited Sept. 3, 2023); Janet Burns, Using Cannabis While Pregnant Does Not Impair Children’s Cognition, Decades Of Studies Suggest, FORBES (May 29, 2020), https://perma.cc/J2VE-M9BF (last visited Sept. 3, 2023).

4 Therefore, the District Court abused its discretion in admitting this evidence, and this

abuse of discretion was not harmless error. 9

II.

For the above reasons, we will reverse the District Court’s pretrial order, vacate

the District Court’s judgment, and remand the case for a new trial. 10

9 See United States v. Stadtmauer,

, 265–66 (3d Cir. 2010) (quoting United States v. Helbling,

(3d Cir. 2000) (“A non-constitutional error at trial does not warrant reversal where ‘it is highly probable that the error did not contribute to the judgment.’”). 10 Given that we are remanding this case for a new trial because of the District Court’s error in admitting evidence/argument on Shujaa’s marijuana use, we need not address whether the District Court erred in excluding Shujaa’s medical records. However, we note that if, on remand, either party seeks to admit the medical records, they should specify which portion of the records they deem relevant under Fed. R. Evid. 401. Furthermore, we urge the District Court to consider any such request under Fed. R. Evid. 403 and “explain its reasoning on the record.” United States v. Heatherly,

, 265 (3d Cir. 2021) (citing United States v. Finley,

(3d Cir. 2013)).

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