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Howard v. Salvage

United States District Court, D. Maine

February 1, 2019




         With trial looming, the Plaintiff in this personal injury case filed a motion in limine to obtain pretrial rulings on three evidentiary issues: (1) evidence about the Plaintiff's background, such as her estrangement from her parents, her uncertain relationship with her daughter, and encounters with the authorities over the years, (2) evidence about her forensic psychiatrist's divorce and malpractice history, and (3) evidence or argument that Cianbro Corporation is responsible for this accident. Pl.'s Mot. in Limine (ECF No. 44) (Pl.'s Mot.). The Defendant responded, arguing that all the disputed evidence is admissible, but did not respond to the Plaintiff's argument concerning her forensic psychiatrist's divorce. Def.'s Opp'n to Pl.'s Mot. in Limine (ECF No. 47) (Def.'s Opp'n). Subject to evidentiary developments at trial and some restrictions, the Court rules that evidence of the Plaintiff's prior background and Cianbro Corporation's involvement are admissible. The Court dismisses the Plaintiff's motion regarding the malpractice claim now pending against the Plaintiff's expert, subject to further factual development at trial, but orders counsel not to refer to the malpractice claim until admissibility is resolved.

         I. BACKGROUND

         Melanie Howard, a Cianbro employee, alleges that on February 1, 2016, she sustained a grievous injury primarily to her right leg when a 3000-pound slab of cement fell through a hole in the floor, struck a machine directly below, bounced off the machine, and striking her. Pl.'s Pre-Trial Mem. at 1-2 (ECF No. 36) (Pl.'s Pretrial). Ms. Howard says that she has undergone several hospitalizations and surgeries and has an intractable case of post-traumatic stress disorder (PTSD). Id.


         A. The Parties' Positions

         Ms. Howard's first motion seeks to exclude her prior background. Pl.'s Mot. at 1. She explains:

At deposition, defense counsel delved very deeply into Plaintiff's background, including her estrangement from her parents approximately 25 years ago, her uncertain relationship with her daughter and various involvements she has had with the authorities over the years. They included a conviction for DWI, an accusation of child endangerment many years ago which was made by a boyfriend during an argument and which was never prosecuted and a simple assault which was not prosecuted.

Id. She says that Dr. Lubic, her forensic psychiatrist expert, “testified unequivocally that the only trigger for Plaintiff's PTSD was the accident of February 1, 2016 which is the subject of this case.” Id. Thus, in Ms. Howard's view, “none of these areas of questioning is probative of any of the facts at issue in this matter.” Id.

         Demo Salvage disagrees. Def.'s Opp'n at 1.[1] It says that Ms. Howard “put her [PTSD] front and center in the prosecution of her claim.” Id. It argues that her claim of current and future inability to work “is grounded in her mental health obstacles, not her physical injuries sustained in her personal injury.” Id. (emphasis in original). It maintains that “evidence of past traumatic life events should be admitted into evidence as probative of the Plaintiff's mental health issues and claim of no current or future work capacity.” Id.

         B. Discussion

         Under Maine law, if a plaintiff has a preexisting condition that is exacerbated by a personal injury, the Maine Supreme Judicial Court has placed the burden of apportioning between the preexisting injury and the accident-related injury on the defendant. Lovely v. Allstate Ins. Co., 658 A.2d 1091, 1092-93 (Me. 1995). In the words of the Lovely Court, the “single injury rule places any hardship resulting from the difficulty of apportionment on the proven wrongdoer and not on the innocent plaintiff.” Id. at 1093. In 2014, the Maine Supreme Judicial Court held this rule applied to claims of physical and mental injuries in Bratton v. McDonough, 2014 ME 64, 91 A.3d 1050. The Bratton case involved the presence of lead paint in a home the plaintiffs had rented, and they claimed that their children had suffered mental and developmental problems because of lead exposure. Id. ¶¶ 1-27. The defendant in Bratton pointed to the children's father's alcoholism, their mother's depression, and genetics as causes of their injuries. Id. ¶ 20. In Bratton, the Law Court reiterated that Maine law places “the burden of apportioning damages on a defendant who seeks to limit liability on the basis of a preexisting or a subsequent injury.” Id. ¶ 19 (emphasis in original). Furthermore, Maine law also “requires that when a defendant asserts that an independent factor, rather than the defendant's acts, caused the plaintiff's harm, it is the defendant's burden to prove that independent causation by a preponderance of the evidence.” Id. (emphasis in original).

         The subtext of Lovely and Bratton is that evidence of a preexisting condition is likely admissible, if the defendant provides an appropriate foundation for a finding that the plaintiff had some preexisting conditions and that they are potentially apportionable. Even though under Maine law the burden rests on the defendant to prove apportionment and even though the burden may, in some cases, be difficult, the defendant retains the right to attempt to apportion damages where the defendant has established a proper predicate for the argument. Indeed, Bratton concluded that the trial court erred in refusing to give a Lovely instruction if generated by the evidence. Id. ¶ 21; see Donald G. Alexander, Maine Jury Instructions § 7-102 (4th ed. 2012).

         Here, the Court knows little about the contested evidence, but based on the proffers of the parties, the Court will not exclude evidence of Ms. Howard's background so that the jury may, if appropriate, apportion the symptoms occasioned by ...

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