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Dawn M. Rafferty v. Roy P. Erhard

July 3, 2012


The opinion of the court was delivered by: Hon. Hugh B. Scott

Decision & Order

Before the Court are the following motions: the plaintiff's motion to exclude evidence of a bankruptcy filing (Docket Nos. 71 & 77), the plaintiff's motion to exclude surveillance evidence (Docket No. 83 & 86), the plaintiff's motion to exclude the defendants' experts (Docket Nos. 88, 90, & 91) and the defendants motion to limit the testimony of the plaintiff's medical witnesses (Docket Nos. 70 & 94).


The plaintiff, Dawn M. Rafferty ("Rafferty"), commenced this action in New York State court alleging that she was injured as a result of an automobile accident on July 2, 2008 in the Town of Ellicott, New York. The plaintiff alleges that the accident was caused by defendant Roy P. Erhard, Jr. ("Erhard"), who was operating a truck owned by defendant Herman R. Ewell Inc. ("Ewell"). (Docket No. 1-4 at ¶¶ 4-7). The plaintiff claims that she was stopped, attempting to make a left hand turn, when the vehicle she was driving was rear-ended by a tractor-trailer operated by Erhard. The state court action was removed to this court based upon diversity jurisdiction (the plaintiff is a New York resident; while both defendants are Pennsylvania residents). (Docket No. 1 at ¶¶ 3-5).

The defendant Erhard has admitted that he was negligent and that his negligence was the sole proximate cause of the accident. (Docket No. 54 at ¶2). It appears that this stipulation leaves only the issues of the nature, cause, extent of the plaintiff's injuries and the amount of damages to be determined by a jury. (Docket No. 73 at ¶ 5). A jury trial is set to commence on July 9, 2012.

Motion to Exclude Bankruptcy Filing

The plaintiff seeks to preclude introduction of evidence relating to the fact that she filed for relief under the United States Bankruptcy code. (Docket No. 73 at ¶ 2). The plaintiff argues that evidence relating to any bankruptcy is not relevant to any of the remaining issues in this case. (Docket No. 77 at ¶ 3). Thus, the plaintiff contends that such evidence should be excluded under Rule 401 of the Federal Rules of Evidence. (Docket No. 92 at page 2).

The defendant has not responded to the plaintiff's motion relating to the exclusion of evidence relating to the bankruptcy filing.

The motion to exclude reference of the plaintiff's bankruptcy filing is granted.

Motion to Exclude Surveillance Evidence

The plaintiff also seeks to preclude introduction of any surveillance video, or other evidence deriving from clandestine surveillance of the plaintiff. (Docket No. 84 at ¶ 3). During discovery in this case, the defendants have produced two written reports and a compact disc containing a video generated as a result of surveillance of the plaintiff. (Docket No. 84 at ¶ 7). The discovery reflects that there was a total of 80 hours of surveillance conducted by two investigators. (Docket No. 84 at ¶ 9). An August 30, 2011 report suggest that the plaintiff was observed "engaging in physical activity," "conducting yard work" and "walking dogs." The August 30, 2011 report concludes that the plaintiff "bent at the waist numerous times, squatted to the ground, turned her neck in difference directions and moved in a free and unrestricted manner [and] did not appear to wear any braces or utilize any orthopedic devices." (Docket No. 84-1 at page 3). On August 17, 2011, the plaintiff was observed using an electric push mower to cut the grass at her residence, as well as using a edge trimmer and a blower on the front lawn. (Docket No. 84-1 at pages 3, 8). In a report dated October 28, 2011, the plaintiff was allegedly observed on September 23, 2011 picking up two recycling bins and a trash can from in front of her home and bring them to the rear of the home. (Docket No. 84-2 at page 3). Photographs appear to reflect that the recycle bins and trash can were empty at that time. (Docket No. 84-2 at page 5). On several occasions, Rafferty was allegedly observed walking dogs and moving about without the assistance of medical devices or orthopedic braces. (Docket No. 84-1 pages 3-8; 84-2 pages 2-11).

The plaintiff contends that the surveillance evidence is not relevant to the issues in this case (Docket No. 84 at ¶ 11) and should be excluded under Rule 401. The plaintiff argues that the observed activity by the plaintiff is not in conflict with the admitted abilities of the plaintiff, and thus, are irrelevant. (Docket No. 85 at page 2). The plaintiff asserts that the fact that her physicians certify her as disabled does not mean "she cannot perform physical tasks for a short period of time, or on her good days. Neither do they claim she cannot perform the activities shown on the video or documented in the reports." (Docket No. 85 at page 3). The plaintiff relies upon Soron v. Liberty Life Assurance Company of Boson, 2005 WL 1173076 (N.D.N.Y. 2005). In Soron, the plaintiff sought to obtain disability benefits based upon a long-term disability policy. The defendants contested the plaintiff's claim to being permanently disabled, relying in part, on surveillance evidence suggesting that the plaintiff could perform certain activities. In ruling of the parties' respective motions for summary judgment, the Court held that the surveillance "cannot be relied on to contradict this reporting because it shows her performing isolated activities for brief periods of time with no revelation of the consequences." Soron, 2005 WL 1173076 at *11.

In the instant case, the issues include not whether the plaintiff meets the definition of "disabled" under an insurance policy, but the extent to which the plaintiff's injuries resulting from the underlying accident impact the plaintiff's ability to perform daily functions and her overall quality of life. The plaintiff claims that the injuries she has suffered as a result of the accident resulted in cervical and lumbar disc herniations and have left her "in constant daily pain" and "severe depression." (Docket No. 105 at page 2). The plaintiff had described her injuries as including: surgery consisting of a complete C-5-6 disectomy, insertion of a bone cage device and bone graft; cervicalgia; cervical radiculopathy; loss of range of motion in her cervical spine; myofascial pain; an injury to her left wrist resulting in carpel tunnel syndrome requiring surgery; an injury to her right wrist resulting in left cubital tunnel syndrome requiring surgery; an injury to her right wrist resulting in carpel tunnel syndrome requiring surgery in the future; bilateral median neuropathy; ulnar neuropathy; disc herniation at L5-S1; posterior disc bulges at L2-3 and L3-4; lumbar radiculopathy; loss of range of motion in her lumbar spine; general weakness throughout her body; right lateral rib pain; concussive headache syndrome; numbness in her lower extremities; confusion and memory loss; sleep disturbances; chronic headaches; major depressive syndrome; post traumatic stress syndrome; vertigo; anxiety attacks; and severe back pain. (Docket No. 91 at pages 2-5). In response to the instant motion, the plaintiff asserts that at her deposition she admitted to being able to perform the physical activity depicted on the surveillance tape (i.e. walking dogs, picking up empty recycling and trash bins, using yard equipment), but that "any attempt to do so carried with it excruciating pain." (Docket No. 104 at page 4). Whether performing these daily tasks causes the plaintiff "excruciating pain" is an issue to be determined by the trier of fact in this case. The surveillance evidence is relevant and material to that issue. Bachir v. Transoceanic Cable Ship Co., 1998 WL 901735, 1 (S.D.N.Y.,1998)(In a personal injury case, surveillance of the plaintiff can be a very important aspect of the defendant's case, if the surveillance tends to discredit the plaintiff's description of the extent and effects of his injuries.). The Court also finds that the probative value of this evidence outweighs any prejudice to the plaintiff. The plaintiff has not established any unfairness in allowing the surveillance evidence other than the fact that it is contradicted by the plaintiff's medical evidence. This is insufficient to conclude that the surveillance evidence is unduly prejudicial. See Costantino v. David M. Herzog, M.D., 203 F.3d 164, 174 (2nd Cir. 2000)(Because virtually all evidence is prejudicial to one party or another, to justify exclusion under Rule 403 the prejudice must be unfair. ... The unfairness contemplated involves some adverse effect beyond tending to prove a fact or issue that justifies admission.).

The motion to exclude the surveillance evidence is denied. The admission of any such evidence, however, shall be determined upon the ...

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