Marks v. Marina District Development Co.

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
1-10-2007
Marks v. Marina Dist Dev Co
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3619
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-3619
____________
DAVID MARKS; MARYANN MARKS,
Appellants,
v.
MARINA DISTRICT DEVELOPMENT CO., LLC.
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 04-cv-05319)
District Judge: Hon. Timothy J. Savage
Submitted Under Third Circuit LAR 34.1(a)
December 14, 2006
Before: FISHER, CHAGARES, and GREENBERG, Circuit Judges.
____________
(Filed: January 10, 2007)
OPINION OF THE COURT
CHAGARES, Circuit Judge.
Appellants David and Mary Ann Marks (“the Marks”) appeal six evidentiary
rulings the District Court made during the course of trial against defendant/appellee
Marina District Development Company (doing business as the Borgata Casino (“Borgata”
or “Borgata Casino”)) and argue that the District court should have declared a mistrial as
a result of a purportedly material misstatement made during defendant/appellee’s opening
statement. A review of the record makes clear that each of these challenges is meritless,
and we will therefore affirm.
I.
As we write only for the parties, our summary of the facts is brief. This case arises
out of an incident of vandalism in a men’s restroom at the Borgata Casino in Atlantic
City, New Jersey in the early morning hours of July 6, 2004. In the presence of Alfredo
Ortiz, a restroom attendant at the Borgata, appellant David Marks (“Marks” or “David
Marks”) ripped a urinal divider out of the restroom wall. Marks then returned to the
casino floor. Ortiz informed Roberto Alvarez, a Borgata security guard, what he had
witnessed and identified Marks to him. Thereafter, Alvarez instructed Ortiz to return to
the restroom where the incident occurred while Alvarez radioed his supervisor about the
incident. In response to Alvarez’s request for a security supervisor, Angel Ramos came
to the restroom where Ortiz and Alvarez were waiting. Shortly after Ramos arrived,
Marks returned to the restroom. In Ramos’ opinion, Marks appeared to be severely
intoxicated, as he was walking unsteadily and slurring his words. Concerned that Marks
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might injure himself or others, Ramos decided to detain Marks. At that point, Ramos
handcuffed Marks and, along with Alvarez, escorted Marks to a holding cell at the
Borgata, where he remained for approximately ten or fifteen minutes. Having learned
about the incident involving her husband, appellant Mary Ann Marks arrived at the
holding cell. Borgata officials informed Mary Ann Marks that they would pursue
criminal charges against her husband unless she was willing to make restitution on his
behalf for the damage to the restroom. She did so, and the couple left the Borgata
immediately thereafter.
Approximately one month later, on August 3, 2004, the Marks filed a complaint in
the Philadelphia Court of Common Pleas against the Borgata for injuries David Marks
allegedly suffered while being escorted from the restroom to the holding cell by Ramos
and Alvarez. Based on this incident, the Marks sued the Borgata for assault and battery,
false imprisonment, intentional infliction of emotional distress, negligence, and loss of
consortium. The Borgata subsequently removed the case to federal court. After a four-
day trial, the jury returned a verdict for the Borgata on all claims, and the District Court
entered judgment for the Borgata. This appeal ensued.
II.
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We review the District Court’s decision to admit evidence for abuse of discretion.
United States v. Johnson, 388 F.3d 96, 100 (3d Cir. 2004). This standard applies both to
lay and expert testimony. Montgomery County v. Microvote Corp., 320 F.3d 440, 445
(3d Cir. 2003) (applying abuse of discretion standard to review District Court’s decision
to admit or exclude expert testimony).
III.
The Marks’ first assignment of error is that the District Court wrongly prohibited
their expert witness, Ira Somerson, from testifying about the Borgata’s video surveillance
policies. According to the Marks, the gravamen of Somerson’s testimony would have
been that the Borgata failed to comply with its own internal policies regarding the storage
and retention of video surveillance footage.
At trial, the Marks called Somerson to testify regarding security services at the
Borgata. However, neither party asked Somerson any questions about the Borgata’s
practices or policies with respect to retention of video surveillance footage on direct or
cross examination. Thus, when the Marks’ counsel attempted to elicit this information on
redirect examination, counsel for the Borgata objected.
We have made clear that “[t]he tradition in the federal courts has been to limit the
scope of redirect examination to the subject matter brought out on cross-examination.”
United States v. Riggi, 951 F.2d 1368, 1375 (3d Cir. 1991). Moreover, “the admissibility
of evidence and the scope of redirect examination are within the discretion of the district
court.” Government of the Virgin Islands v. Martinez, 847 F.2d 125, 130 (3d Cir. 1988).
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Because this line of inquiry called for testimony that was beyond the scope of either
direct or cross examination, the District Court’s decision to exclude such testimony was
consistent with the sound exercise of discretion.
In any event, there are two reasons to believe that the Marks were not prejudiced
by this exclusion. First, the Borgata’s Director of Surveillance admitted at trial that the
Borgata failed to retain videotapes of the incident in question in contravention of its own
policies. Second, the District Court instructed the jury that it could draw a negative
inference from the Borgata’s failure to produce these videotapes. Thus, even assuming
the District Court erred by excluding Somerson’s testimony (which it did not), this error
was harmless.
The Marks’ second assignment of error is that the District Court improperly
allowed Borgata’s counsel to cross examine him regarding whether he was impaired due
to the fact he had ingested alcohol and Wellbutrin, a prescription-only antidepressant, on
the night in question. On direct examination, David Marks testified that he had consumed
alcohol on the evening the incident occurred, but that he was “not drunk.” On cross
examination, Marks testified that he was taking Wellbutrin at the time of the incident.
Immediately thereafter, counsel for Borgata asked Marks whether he was aware that one
should not take Wellbutrin and alcohol together because “the effects double.” The
District Court permitted this question over the Marks’ objection that this question was
impermissible given that Marks had not been certified as a medical or pharmacological
expert pursuant to Fed. R. Evid. 701.
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To begin with, Marks never answered the question to which his counsel objected,
because immediately following Marks’ counsel’s objection, the District Court interjected
to clarify to the jury that while witnesses’ answers to questions were evidence, the
questions themselves were not. Accordingly, the Marks cannot point to any prejudice
they suffered, as David Marks never answered the precise question to which his counsel
objected. Equally importantly, it is clear that the Borgata was seeking Marks’ opinion not
as a expert, but rather as a lay witness. Specifically, Borgata’s counsel was inquiring
whether Marks had any reason to believe, based on his personal experience, that
Wellbutrin tended to magnify the effects of alcohol.1 Thus, this question was intended to
elicit an opinion “rationally based on the perception of the witness” (i.e., based on Marks’
own life experience). See Fed. R. Evid. 701. Quite apart from the lack of prejudice, then,
the District Court’s decision to admit this question was consistent with the sound exercise
of discretion.
The Marks’ third objection is that the District Court erred by not allowing Mary
Ann Marks to testify, pursuant to Fed. R. Evid. 406, that her husband habitually destroys
other people’s property when intoxicated. This exclusion, the Marks argue, prevented
them from presenting testimony that David Marks could not have had the mental capacity
at that time to distinguish right from wrong. As an initial matter, it is not obvious why
1
The precise question Borgata’s counsel asked Marks was “[I]s it your testimony
that the effects of alcohol to your knowledge were not magnified while taking
Wellbutrin?” (emphasis added).
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Marks’ mental capacity (or lack thereof) has any relevance whatsoever to the tort claims
he and his wife asserted. Thus, the District Court properly excluded this evidence under
Fed. R. Evid. 402. Moreover, the Advisory Committee Notes to Rule 406 explicitly state
that “evidence of intemperate ‘habits’ is generally excluded when offered as proof of
drunkenness in accident cases. . . .”2 Accordingly, the District Court’s decision to
exclude this aspect of Mary Ann Marks’ testimony was consistent with the sound exercise
of discretion. Even assuming this excluded evidence was somehow relevant, we cannot
fathom, notwithstanding the Marks’ argument to the contrary, that the Marks were
prejudiced in any way by being precluded from offering evidence to show that David
Marks habitually destroyed other’s property while intoxicated. For all of these reasons,
we find this aspect of the Marks’ appeal unpersuasive.
The Marks’ fourth objection is that the District Court improperly allowed expert
Pia DiGirolamo to express her opinion regarding whether David Marks made a prudent
business decision by going on a two week vacation in January 2003, when his business
was in decline. The Marks argue, unsupported by any authority, that DiGirolamo’s
testimony exceeded the scope of her expertise and was therefore improper. DiGirolamo,
who holds a Ph.D. in economics, was certified as an expert in forensic economics, which
she described as “the study of how people in business make and spend money.” Thus,
2
Lest the irony of the Marks’ argument be missed, David Marks adamantly denied
at trial that he was intoxicated on the evening in question, yet argues that the District
Court erred in not allowing them offer evidence to show that he habitually destroyed
other’s property while intoxicated.
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DiGirolamo was clearly qualified to express her opinion about whether, from a financial
standpoint, a small business owner like Marks should be concerned about taking a two
week vacation at a time when his gross revenues were dwindling. For these reasons, the
District Court’s decision permitting DiGirolamo to express her opinion in this regard was
consistent with the sound exercise of discretion.
The Marks’ fifth objection is that the District Court erred in allowing Police
Officer Scott Rehman to respond to a question about the contents of a dispatch call
pertaining to the incident at the Borgata. The Marks argue that the District Court
improperly allowed Officer Rehman to testify to hearsay evidence over an objection by
their counsel. A review of the trial transcript makes clear that Officer Rehman’s
testimony about the dispatch call was not being offered for the truth of the contents of the
call, but to demonstrate their effect on the listener -- Officer Rehman. Accordingly, the
District Court properly determined that Officer Rehman’s testimony was not barred by
the prohibition against hearsay evidence. See Fed. R. Evid. 801 (excluding statements
not offered for truth of matter asserted from the definition of hearsay). Further, it is clear
that the District Court advised the jury immediately following Marks’ counsel’s objection
that this aspect of Officer Rehman’s testimony was only admissible for a limited purpose.
Given this limiting instruction, the Marks have a substantial burden to carry to show that
the District Court abused its discretion by admitting this evidence. This is so because we
“presume that a jury will follow an instruction to disregard inadmissible evidence
inadvertently presented to it, unless there is an overwhelming probability that the jury will
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be unable to follow the court’s instruction, and a strong likelihood that the effect of the
evidence would be devastating to the defendant.” United States v. Hill, 976 F.2d 132,
144 (3d Cir. 1992) (internal citations and quotations omitted). The Marks offer no
evidence to show that the District Court’s limiting instruction was somehow insufficient.
For these reasons, the District Court’s decision to permit Officer Rehman to testify to the
contents of the dispatch call was consistent with the sound exercise of discretion.
The Marks’ sixth assignment of error is that the District Court improperly
permitted the Borgata’s Director of Security, Gregory Schaef, to testify about the contents
of a report he received regarding the incident in question. The Marks argue that the
District Court wrongly allowed Schaef to testify to hearsay evidence over an objection by
Marks’ counsel. The District Court noted that this report was not being offered for its
truth, and gave an appropriate limiting instruction to the jury. Here again, the Marks offer
no evidence to show that the District Court’s limiting instruction was somehow
insufficient. Thus, for the reasons stated previously with respect to Officer Rehman’s
testimony, the District Court’s decision to admit this aspect of Schaef’s testimony was
consistent with the sound exercise of discretion.
The Marks’ seventh and final assignment of error is that Borgata’s counsel made a
material misstatement of law during opening statements that necessitates a retrial.
Specifically, the Marks argue that the Borgata’s counsel wrongly stated that New Jersey
law forbids video surveillance cameras in any restroom. Although the Borgata offered
testimony at trial that the New Jersey State Police have directed businesses not to place
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surveillance cameras in their restrooms, there is no New Jersey law that actually forbids
them from doing so. Accordingly, the Marks argue that this misstatement of law is
grounds for a mistrial.
We disagree. To begin with, the Marks did not assert a contemporaneous
objection to the misstatement they now challenge. While it is true that the Marks’
counsel objected to a later remark by Borgata’s counsel during opening statements as
argumentative, the nature and timing of this objection makes clear that this objection was
not directed at the misstatement the Marks now challenge. Accordingly, we review for
plain error. See United States v. Olano, 507 U.S. 725, 731-32 (1993). It is clear that the
District Court’s failure to grant a mistrial was not plain error, as the District Court
specifically instructed the jury that counsel’s statements, including opening and closing
arguments, were not evidence. In light of these instructions, we do not believe that
counsel’s minor misstatement -- confusing “state law” with “State Police”-- necessitates
the dramatic remedy the Marks seek.
IV.
For the foregoing reasons, we will affirm the District Court’s decision in all
respects.
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