                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-27-2007

Allen v. Parkland Sch Dist
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1560




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT



                                     No. 06-1560


                         JAMES ALLEN, AN INDIVIDUAL;
                       ELIZABETH ALLEN, INDIVIDUALLY;
                        WILLIAM ALLEN, INDIVIDUALLY

                                           v.

        PARKLAND SCHOOL DISTRICT, A PUBLIC SCHOOL DISTRICT;
           CHRISTOPHER BLEAM; JOHN TOGGAS; KURT PRYOR

                                                JAMES ALLEN,
                                                    Appellant



                     Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                          (D.C. Civil Action No. 02-cv-01679)
                     District Judge: Honorable Arnold C. Rapoport


                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 23, 2007

                     Before: McKEE and AMBRO, Circuit Judges
                             ACKERMAN,* District Judge

                            (Opinion filed: April 27, 2007 )




   *
    Honorable Harold A. Ackerman, Senior United States District Judge for the District
of New Jersey, sitting by designation.
                                        OPINION

AMBRO, Circuit Judge

       James Allen appeals a jury verdict in favor of the Parkland School District and

John Toggas in Allen’s suit against them. Allen’s appeal asserts that the magistrate judge

who presided over the case abused his discretion (1) by failing to recuse himself

following a motion for recusal by Allen, and (2) by refusing to allow certain doctors to

offer expert testimony. For the reasons that follow, we affirm.

I.     Factual and Procedural History

       As we write for the parties, only a brief summary of pertinent facts is necessary.

This case stems from an incident that occurred on October 8, 1998, at Parkland High

School in Lehigh County, Pennsylvania, where Allen was a student and a member of the

wrestling team. On that date, Kurt Pryor, a fellow student and also a member of the

wrestling team, encountered Allen in the hallway and put him in wrestling hold that Allen

alleges “choked” him. Pryor had learned that Allen had been seen smoking, which was

grounds for removal from the wrestling team during the wrestling season. Although the

wrestling season had not yet begun, Pryor decided to confront Allen about his behavior

before the season started.

       Allen filed a pro se complaint against the Parkland School District and John

Toggas, Allen’s former wrestling coach, in March 2002. Thereafter, Allen retained

counsel and filed a Second Amended Complaint in January 2004. His complaint alleges a

violation of 42 U.S.C. § 1983 based on a policy, practice, or custom of permitting

                                             2
wrestling team leaders or captains to use physical means to redress the misbehavior or

perceived misbehavior of fellow teammates. The complaint further alleges that this

policy, practice, or custom resulted in the incident with Pryor, which caused Allen

physical and emotional injuries. A jury trial was held before the Honorable Arnold C.

Rapoport, Magistrate Judge, beginning on January 9, 2006. Judge Rapoport bifurcated

the trial, and the jury returned a verdict of no liability for the defendants. Thus, the issue

of damages was never submitted to the jury.

       In this appeal, Allen challenges several pretrial rulings of the District Court. He

first challenges the District Court’s denial of a recusal motion. In November 2005, Allen

filed a motion seeking Judge Rapoport’s recusal because of his behavior in an off-the-

record settlement discussion that occurred following a June 2005 hearing. According to

Allen’s affidavit submitted with the motion, Judge Rapoport used an improper tone and

attitude with Allen when questioning him about his desire to work and future plans for

employment, and Judge Rapoport had an ex parte contact with an attorney for the

Parkland School District when the judge greeted him by name and had a short

conversation with him in the courtroom. The recusal motion also sought limited

discovery to depose individuals, including Judge Rapoport, regarding the events that took

place during the settlement discussion. Judge Rapoport denied the motion for recusal and

further discovery in December 2005.

       Allen also challenges rulings by the District Court that limited the scope of the

testimony of certain doctors, in particular Dr. Stuart Jones. The District Court ordered

                                              3
Allen to identify expert witnesses and to provide expert reports and curriculum vitae by

June 16, 2004. On March 7, 2005, Allen listed seven “treating physicians,” including Dr.

Jones, as witnesses who would be called to testify at trial.

       Defendants immediately filed a motion in limine to prevent Allen from eliciting

expert opinions as to causation from these witnesses because Allen had never designated

them as experts, let alone done so by the deadline set by the District Court. Judge

Rapoport issued orders on June 2, 2005, that allowed Dr. Jones and the other doctors to

testify as treating physicians but not as experts. With the District Court’s permission, the

defendants deposed Dr. Jones.

       Following the deposition and fifteen months after the deadline to submit expert

reports, Allen produced an expert report by Dr. Jones relating to his medical opinion as to

causation based on his own treatment as well as medical records he had not seen during

his treatment. In the face of the expert report from Dr. Jones, the defendants again filed a

motion in limine to prevent Allen from eliciting expert opinion testimony from Dr. Jones

that was outside the scope of his treatment of Allen. Relying on the order setting expert

report deadlines and his earlier rulings on motions in limine, Judge Rapoport issued an

order on September 29, 2005, granting defendants’ motion and concluding that Dr.

Jones’s report was inadmissable at trial. The order stated that Dr. Jones would be allowed

to testify concerning “his diagnosis of the Plaintiff as contained in the reports of

Plaintiff’s cerebral perfusion imaging studies and as to how that diagnosis was reached at

the time those reports were authored.” The order added that “[t]o rule otherwise would

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circumvent the prior Orders of this Court and Rule 26(a)(2)(B) of the Federal Rules of

Civil Procedure.”

II.       Discussion

          We review a district court’s action on a recusal motion for an abuse of discretion.

Jones v. Pittsburgh Nat’l Corp., 899 F.2d 1350, 1356 (3d Cir. 1990). We also review a

district court’s rulings regarding the exclusion of evidence and the scope of witness

testimony for an abuse of discretion. Konstantopoulos v. Westvaco Corp., 112 F.3d 710,

719 (3d Cir. 1997).1 We conclude that the District Court did not abuse its discretion in

this case.

          A.     Allen’s Recusal Motion

          Allen sought the recusal of Judge Rapoport under both 28 U.S.C. § 144 and 28

U.S.C. § 455(a). Recusal motions pursuant to § 144 “must be timely filed, contain a good

faith certificate of counsel, and include an affidavit stating material facts with

particularity which, if true, would lead a reasonable person to the conclusion that the

district judge harbored a special bias or prejudice” toward the moving party. United

States v. Rosenberg, 806 F.2d 1169, 1173 (3d Cir. 1986). While the facts in timely

affidavits are accepted as true, “conclusory statements and opinions . . . need not be

credited.” United States v. Vespe, 868 F.2d 1328, 1340 (3d Cir. 1989). “For the purpose

of this statute, the alleged bias or prejudice must stem from an extrajudicial source rather

      1
    The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction
under 28 U.S.C. § 1291. We do not conclude, as urged by defendants, that we lack
jurisdiction over the appeal as it relates to Defendant Toggas.
                                                5
than from facts which the judge learned from his participation in the case.” Rosenberg,

806 F.2d at 1173.

       Judge Rapoport concluded that the motion under § 144 was untimely and that the

allegations in the affidavit were insufficient to establish bias or prejudice against Allen.

We agree. Although the incident allegedly requiring the recusal of Judge Rapoport took

place in June 2005, Allen did not file his recusal motion until November 2005—following

at least one additional adverse ruling by Judge Rapoport: the September 29, 2005 order

granting defendants’ motion in limine. “[W]hen a party’s attorney is aware of the

grounds supporting recusal, but fails to act until the judge issues an adverse ruling, the

recusal [typically] is not timely.” In re Kensington Int’l Ltd., 368 F.2d 289, 314–315 (3d

Cir. 2004). In these circumstances, it was not an abuse of discretion for Judge Rapoport

to conclude that Allen’s motion was untimely.

       Similarly, the allegations in Allen’s affidavit,2 even if accepted as true, do not

support the conclusion that Judge Rapoport was possessed of “a bent mind that may

prevent or impede impartiality of judgment.” Vespe, 868 F.2d at 1340 (quoting United

States v. Townsend, 478 F.2d 1072, 1073–74 (3d Cir. 1973)). The allegations regarding

Judge Rapoport’s behavior during the off-the-record settlement discussions show only

that Allen himself felt intimidated by and uncomfortable with the Judge’s questioning.

And to the extent that Judge Rapoport gained unfavorable views of Allen during this

   2
    We do not address whether Allen’s amended affidavit qualifies as a second affidavit
under § 144, which limits a party to filing “only one such affidavit in any case.” As the
District Court noted in its recusal ruling, the two affidavits were essentially the same.
                                              6
discussion, these views did not derive from any extrajudicial source. As the Supreme

Court has recognized:

       [O]pinions formed by the judge on the basis of facts introduced or events
       occurring in the course of the current proceedings, or of prior proceedings,
       do not constitute a basis for bias or partiality motion unless they display a
       deep-seated favoritism or antagonism that would make fair judgment
       impossible. Thus, judicial remarks during the course of a trial that are
       critical or disapproving of, or even hostile to, counsel, the parties or their
       cases, ordinarily do not support a bias or partiality challenge.

Liteky v. United States, 510 U.S. 540, 555 (1994). There is no evidence of any “deep-

seated favoritism or antagonism that would make fair judgment impossible.” Id.

Regardless whether Judge Rapoport’s discussion hindered the prospects for settlement, as

Allen alleges, the Judge’s recusal was not required based on his alleged conduct during

the discussion.

       The so-called ex parte contact between Judge Rapoport and an attorney for

defendants also does not support Judge Rapoport’s recusal. According to Allen’s

affidavit, the Judge had a conversation with one of the attorneys for the Parkland School

District within earshot of others in the courtroom. Allen did not hear the substance of the

conversation, but he alleges that Judge Rapoport greeted the attorney in a friendly

manner. There is no evidence that Judge Rapoport discussed anything about the case

with the attorney or anything else improper, and given the fact that the alleged

conversation took place in plain view of everyone in the courtroom and within earshot of

Allen, it is questionable whether this conversation could even be considered ex parte. In

any event, Allen’s allegations of bias amount to no more than speculation, thus hardly

                                              7
providing grounds for Judge Rapoport’s recusal under § 144.

       We also conclude that the District Court did not abuse its discretion in denying the

motion for recusal under § 455(a). “The test for recusal under § 455(a) is whether a

reasonable person, with knowledge of all the facts, would conclude that the judge’s

impartiality might reasonably be questioned.” In re Kensington, 353 F.3d 211, 220 (3d

Cir. 2003). For the reasons discussed above, a reasonable person with knowledge of the

facts would not conclude that Judge Rapoport’s impartiality could reasonably be

questioned. His exhibition of some skepticism of Allen’s claims based on the off-the-

record settlement discussion, and the Judge’s friendly greeting of opposing counsel, are

not facts that would lead a reasonable person to question his impartiality. See United

States v. Martorano, 866 F.2d 62, 68 (3d Cir. 1989) (“Motions to recuse under 28 U.S.C.

§ 455(a) must rest on the kind of objective facts that a reasonable person would use to

evaluate whether an appearance of impropriety had been created, not on ‘possibilities’

and unsubstantiated allegations.”).

       In a request related to his recusal motion, Allen also sought to depose Judge

Rapoport and others regarding the off-the-record events at the June 2005 hearing. It was

not an abuse of discretion for the District Court to deny this request. There is no

indication that Judge Rapoport’s testimony was required to resolve the recusal motion,

and because he in fact did not make himself a witness, he was not required to recuse

himself for the reason that he was both witness and jurist. Even if true, the allegations in

Allen’s affidavit did not constitute grounds for Judge Rapoport’s recusal, and there was

                                             8
therefore no need for further testimony. In sum, the District Court’s denial of Allen’s

request for further discovery was a proper exercise of its discretion.

       B.     Exclusion of Expert Opinion Testimony

       Allen contends also that the District Court abused its discretion in limiting the

testimony of Dr. Jones and other “treating physicians.” Because Allen failed to designate

these witnesses as experts or supply expert reports for these witnesses by the court-

ordered deadline, the District Court ruled that their testimony would be limited to facts

gained in their treatment of Allen. “This court has upheld the exclusion of expert

witnesses as an appropriate sanction for a party’s violation of a discovery order or some

other pre-trial order.” United States v. 68.94 Acres of Land, 918 F.2d 389, 396 (3d Cir.

1990). In evaluating whether a district court abused its discretion in excluding testimony

because of the failure of counsel to adhere to a pretrial order we consider—

       (1) the prejudice or surprise in fact of the party against whom the excluded
       witnesses would have testified, (2) the ability of that party to cure the
       prejudice, (3) the extent to which waiver of the rule against calling unlisted
       witnesses would disrupt the orderly and efficient trial of the case or other
       cases in the court, and (4) bad faith or wilfulness in failing to comply with
       the district court’s order.

Konstantopoulos, 112 F.3d at 719 (quoting Meyers v. Pennypack Woods Home

Ownership Ass’n, 559 F.2d 894, 904–905 (3d Cir.1977)). We also consider the

importance of the excluded testimony. Id. “[T]he exclusion of critical evidence is an

‘extreme’ sanction, not normally to be imposed absent a showing of willful deception or

‘flagrant disregard’ of a court order by the proponent of the evidence.” Meyers, 559 F.2d


                                              9
at 905 (quoting Dudley v. South Jersey Metal, Inc., 555 F.2d 96, 99 (3d Cir.1977)).

       Considering these factors, we conclude the District Court did not abuse its

discretion in preventing Dr. Jones and the other physicians from presenting expert

opinion testimony. While Allen characterizes Dr. Jones’s testimony as essential to his

case, it should be noted that the District Court did not exclude all of Dr. Jones’s

testimony. To repeat, the Court held that Dr. Jones could testify concerning “his

diagnosis of the Plaintiff as contained in the reports of Plaintiff’s cerebral perfusion

imaging studies and as to how that diagnosis was reached at the time those reports were

authored.” It merely prevented Dr. Jones from putting forward expert causation

testimony based on facts that went beyond his treatment of Allen. This was not too harsh

a sanction given Allen’s flagrant disregard of the District Court’s order requiring experts

to be designated, and expert reports to be submitted, by June 16, 2004. Nine months after

this deadline, Allen for the first time made clear his intention to call Dr. Jones and the

other physicians. After another six months had passed and following the District Court’s

ruling that these witnesses could not testify as experts, Allen produced an expert report by

Dr. Jones. This required the defendants to seek another in limine ruling on the scope of

Dr. Jones’s testimony. Allen’s repeated attempts to introduce expert opinion testimony

by Dr. Jones beyond that acquired in his treatment of Allen disregards flagrantly the

District Court’s orders.

       Furthermore, allowing Dr. Jones to introduce an expert opinion beyond the scope

of his treatment would have prejudiced the defendants and delayed the proceedings.


                                              10
While the defendants did have an opportunity to depose Dr. Jones, this deposition took

place under the belief that he was testifying as a treating physician and before his expert

report had even been submitted. In order not to prejudice the defendants, the District

Court would have had to allow them again to depose Dr. Jones, which would have

resulted in more expense and delay. Following the production of Dr. Jones’s report, the

defendants were forced to seek an order to enforce the already-existing court order

limiting Dr. Jones’s testimony. Under these circumstances, the Court did not abuse its

discretion in preventing Allen from eliciting expert opinion testimony from Dr. Jones and

the other treating physicians beyond the scope of their treatment of Allen.

                                      *   *   *    *   *

       The judgment of the District Court is affirmed.




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