Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-3-2005

Rosario v. Union Cty Pol Dept
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2832




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                                                          NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT


                         Nos. 03-2832 & 03-2962




STEPHEN ROSARIO, Administrator of the ESTATE OF ESTEBAN ROSARIO;
   STEPHEN ROSARIO, Individually; ESTEBAN ROSARIO, JR., a legally
  adjudicated mental incompetent, by his legal guardian; JO ANN ROSARIO;
                           WILLIAM ROSARIO

                                     v.

           CITY OF UNION CITY POLICE DEPARTMENT;
        NORMAN BAREIS, Chief of Union City Police Department;
                         CITY OF UNION CITY;
         GLENN GASTON, Detective; JUAN LOACES, Detective;
       JOSE PEREZ, Police Officer; JUAN MENDEZ, Police Officer;
      JOHN DOES 1-10, the names being fictitious, the persons intended
             being the police officers involved in this incident

                            Detective Glenn Gaston,
                            Detective Juan Loaces,
                            Police Officer Jose Perez,
                            Police Officer Juan Mendez,
                                   Appellants at No. 03-2832

                            Stephen Rosario, Administrator of the Estate of
                            Esteban Rosario; Stephen Rosario, Individually;
                            Esteban Rosario, Jr., a legally adjudicated mental
                            incompetent, by his legal guardian; Jo Ann Rosario;
                            William Rosario,
                                    Appellants at No. 03-2962
                    On Appeal from the United States District Court
                           for the District of New Jersey
                         D.C. Civil Action No. 00-cv-03702
                           (Honorable William H. Walls)


                               Argued January 25, 2005

        Before: SCIRICA, Chief Judge, RENDELL and FISHER, Circuit Judges

                                  (Filed: May 3, 2005)

ANDREW L. INDECK, ESQUIRE (ARGUED)
Scarinci & Hollenbeck
1100 Valley Brook Avenue
P.O. Box 790
Lyndhurst, New Jersey 07071
      Attorney for Appellants/Cross-Appellees,
      Detective Glenn Gaston, Detective Juan Loaces,
      Police Officer Jose Perez, Police Officer Juan Mendez


VICTOR S. VALENTI, ESQUIRE (ARGUED)
GEOFFREY N. FIEGER, ESQUIRE
Fieger, Fieger, Kenney & Johnson
19390 West Ten Mile Road
Southfield, Michigan 48075

JEFFREY E. PHILLIPS, ESQUIRE
Phillips, Krantz & Levi
204 West 84th Street
New York, New York 10024
       Attorneys for Appellees/Cross-Appellants,
       Stephen Rosario, Administrator of the Estate of Esteban Rosario;
       Stephen Rosario, Individually; Esteban Rosario, Jr., a legally adjudicated
       mental incompetent, by his legal guardian Jo Ann Rosario; William Rosario




                                           2
                               OPINION OF THE COURT


SCIRICA, Chief Judge.

       Plaintiffs claim that Defendants, all police officers with the City of Union City

Police Department, failed to provide adequate medical treatment to their father, Esteban

Rosario, after he was placed under arrest on October 27, 1999. Esteban Rosario died of

an asthma attack soon after being arrested. Following a five-week trial in the District of

New Jersey, the jury returned a verdict of $2.5 million to Esteban Rosario’s estate for his

pain and suffering, and awarded $3 million to the plaintiffs on their wrongful death claim.

The District Court vacated the $3 million award upon defendants’ motion for j.n.o.v., and

both parties now appeal. We will affirm the judgment of the District Court.

                                             I.

       Because we write only for parties who are familiar with the facts, we do not restate

them in great detail.

       In the course of executing an arrest warrant for Osvaldo Garcia on narcotics-

related charges, defendants in this case– City of Union detectives Jose Perez, Juan

Mendez, Glenn Gaston, and Juan Loaces– entered the home of Esteban Rosario. Rosario

was arrested for hindering/obstructing the arrest of Osvaldo Garcia, his step-son, and for

allegedly assaulting Detective Loaces. Following his arrest, he suffered an asthma attack.




                                             3
Although he was eventually given oxygen and an ambulance was called, he died before

arriving at the hospital.

       Esteban Rosario’s four children– plaintiffs Stephen Rosario, William Rosario,

Esteban Rosario, Jr., and Joanne Rosario– brought a wrongful death action against Union

City, its police department, the police chief, and four individual detectives, stating the

following claims: (1) illegal entry, illegal arrest, excessive force, and failure to administer

medical attention, under color of law; (2) municipal liability under § 1983 for violation of

Rosario’s constitutional rights; (3) negligent hiring, supervision, and retention; (4)

assault and excessive force against the individual detectives; and (5) respondeat superior

claims for failure to administer medical care, negligent medical care, and intentional

refusal to give medicine.

       The District Court granted summary judgment for the police department and its

chief on all municipal liability claims under § 1983, with the exception of the claim

relating to negligent retention. Following trial, the jury found that Detective Loaces was

liable for false arrest; that all four defendant detectives were negligent in providing

medical care; and that Esteban Rosario’s estate was entitled to $2,500,000 in

compensation for decedent’s pain and suffering. The jury also awarded $3,000,000 in

compensation for the loss of support and guidance suffered by plaintiffs. With respect to

all other claims submitted to the jury, defendants were found not liable. On defendants’




                                               4
motion for j.n.o.v., the District Court struck the $3 million jury award as outside the scope

of New Jersey’s wrongful death statute based upon the evidence presented at trial.

       On appeal, defendants make five claims. First, they argue the District Court erred

as a matter of law when it declined to grant good faith immunity to defendants under

N.J.S.A. 59:3-3. Second, defendants claim the District Court erred in excluding from

evidence the officers’ arrest warrant for Garcia and testimony from the chief of police

regarding the ongoing narcotics investigation in Rosario’s neighborhood. Third,

defendants claim that evidence of prior bad acts by Gaston and Loaces should have been

excluded as unduly prejudicial. Fourth, they claim the District Court erred in admitting

the police department’s internal affairs report. And finally, defendants argue the District

Court should have excluded portions of an allegedly unauthenticated videotape that was

shown to the jury. On cross appeal, plaintiffs make two assignments of error. First, they

argue the District Court erred in vacating the $3 million jury verdict. Second, plaintiff

Joanne Rosario argues that the District Court erred in holding she had only sued in her

capacity as the legal guardian of Esteban Rosario, Jr., and not also in her individual

capacity.

                                             II.

       The District Court had jurisdiction over plaintiffs’ § 1983 claims pursuant to 28

U.S.C. §§ 1331 and 1343, and had supplemental jurisdiction over the state law claims

under 28 U.S.C. § 1367. We have jurisdiction under 28 U.S.C. § 1291.



                                             5
       We exercise de novo review over the District Court’s legal conclusions and review

its evidentiary decisions for abuse of discretion. Robinson v. City of Pittsburgh, 

, 1293 (3d Cir. 1997).

                                            III.

A.     Immunity

       The jury found defendants were negligent in their provision of medical care to

Esteban Rosario. Each of the four defendants– Perez, Mendez, Gaston, and Loaces– was

found liable on the claim for negligent provision of medical services, while only

Detective Loaces was found liable for false arrest. The evidence at trial established that

detectives Loaces and Perez confronted Garcia initially, requested identification, followed

him into decedent’s apartment, and arrested Garcia. Once inside the dwelling, Loaces

called outside to Mendez and Gaston for assistance in arresting Rosario. At that time,

Mendez and Gaston entered Rosario’s home.

       All four defendant detectives were present at the scene when Rosario was arrested,

led to the patrol car, and suffered an asthma attack and collapse. With respect to the

administration of medical care, eyewitness testimony presented at trial offered competing

views of defendants’ response. Detective Gaston testified that he administered an inhaler

to Rosario, while other witnesses testified that the inhaler was never administered.

Detectives Perez and Gaston testified that they checked his pulse. Several officers

testified that they administered oxygen from the patrol car as soon as possible, but other



                                             6
eyewitnesses testified that the officers stood by and waited several minutes before looking

for oxygen.

       Furthermore, other eyewitnesses testified that the detectives appeared to enjoy

watching Rosario experience pain, suggested to one another that they “let him die,” and

took no steps to provide meaningful assistance. Defendants testified to the contrary,

stating that they called the ambulance as soon as possible, removed Rosario’s handcuffs,

checked his pulse, and administered the inhaler and oxygen. The jury heard this

conflicting testimony and found defendants negligent. Defendants argue that despite this

jury finding, police officers are immunized from negligence liability by the New Jersey

Tort Claims Act.1

       The New Jersey Tort Claims Act was designed to reestablish the immunity of

public entities while relieving some of the harsh results of the doctrine of sovereign

immunity. See N.J.S.A. 59:1-2. Consistent with this purpose, the Act provides for

immunity as the general rule, with liability the exception. Collins v. Union County Jail,

, 628 (N.J. 1997). The Act’s “good faith” immunity, codified in N.J.S.A.

59:3-3, provides:




   1
    The jury charge included state claim 3, negligent provision of medical care. The
District Judge did not give an instruction on good faith immunity, however, reasoning that
defendants’ reliance on N.J.S.A. 59:3-3 was foreclosed by Del Tufo v. Township of Old
Bridge, 

(N.J. Super. 1995) aff’d on other grounds 

(N.J.
1996).

                                             7
       A public employee is not liable if he acts in good faith in the execution or
       enforcement of any law. Nothing in this section exonerates a public
       employee from liability for false arrest or false imprisonment.

       The threshold inquiry under N.J.S.A. 59:3-3 is whether defendants were executing

or enforcing the law at the time at issue. Generally, public officials engaged in enforcing

the law will be immunized for negligent actions undertaken in good faith. See, e.g.,

Canico v. Hurtado, 

, 1085 (N.J. 1996) (holding that police officer was

“enforcing the law” by responding to a radio call directing him to the scene of the crime

and that the officer, therefore, was immunized from liability for injuries caused to

plaintiff by negligent driving on his way to the crime scene).

       Depending on the facts, however, whether public officials were enforcing the law

is not necessarily determinative in finding immunity. The detectives here were engaged

in enforcing the law. But under New Jersey law, immunity from liability for good faith

actions undertaken during law enforcement does not relieve a police officer from the duty

to administer emergency medical assistance to an arrestee. See Del Tufo v. Township of

Old Bridge, 

(N.J. Super. 1995) aff’d on other grounds 

(N.J. 1996). In Del Tufo, decedent’s estate brought a wrongful death action against police

officers, alleging their failure to administer proper medical care during the course of

decedent’s arrest was the proximate cause of his death. The officers had observed

decedent’s abnormal movements, lacerations, and seizures, yet waited almost an hour to

summon an ambulance. By the time an ambulance was called and decedent was rushed to



                                             8
the hospital, he had died of cardiac failure caused by ingestion of large amounts of

cocaine.

       Noting that “when the police arrest someone, they have a duty to provide necessary

medical treatment,” the court specifically found that N.J.S.A. 59:3-3 was inapplicable to

the Del Tufo defendants:

       The plaintiff in the present case is not complaining that the defendants
       should not have executed or enforced the law. Their duty to execute or
       enforce the law did not preclude them from providing emergency medical
       assistance to their arrestee. The immunity for enforcing and executing the
       law does not protect defendants.

Del 

. We see little to distinguish the facts in Del Tufo from the

facts in this case.

       Officers are under a duty to render emergency medical assistance to those in their

custody. See Del 

; Praet v. Sayreville, 

, 488 (N.J.

Super. App. Div. 1987). In this case, the jury found that defendant detectives were

negligent in carrying out that duty. Although New Jersey’s good faith immunity offers

protection to public employees from negligence while enforcing the law, Del Tufo

forecloses defendants’ reliance on section 59:3-3 in this case.2 The officers’ entry into


   2
    We note some tension in the New Jersey cases under the New Jersey Tort Claims Act.
       A police officer engaged in enforcing the law is afforded immunity under N.J.S.A.
59:3-3 for negligent actions undertaken in good faith. Where his actions rise to the level
of “willful misconduct”– which falls “somewhere on the continuum between simple
negligence and the intentional infliction of harm”– good faith immunity can be defeated.
Alston v. City of Camden, 

, 702 (N.J. 2001). This is the general standard for
                                                                             (continued...)

                                             9
Rosario’s home and their execution of Garcia’s arrest warrant constituted law

enforcement under section 59:3-3. Negligence arising from their failure to respond to

Rosario’s asthma attack and subsequent collapse, however, is not immunized by N.J.S.A.

59:3-3.

       We recognize that New Jersey courts generally interpret immunity broadly. As the

New Jersey Supreme Court has emphasized, “the approach of the Act is to broadly limit

public entity liability,” 

, and “to provide broad immunity to police

officers acting in the scope of their duties.” 

. “As between the

public policy favoring the compensation of injured parties and that favoring vigorous law

enforcement, the Legislature has chosen enforcement of the law.” 

preference, however– as articulated by both the legislature and the courts– does not

relieve police officers of pre-existing duties. As in Del Tufo, the officers’ failure to


   2
    (...continued)
acts undertaken during enforcement of the law. Where the acts giving rise to plaintiffs’
negligence claim concern provision of emergency medical assistance, however, public
employees will be held liable upon a showing of negligence, rather than willful
misconduct. In this case, the jury found defendants negligent.
        Del Tufo, therefore, appears to have created a medical assistance exception to the
good faith immunity statute In effect, Del Tufo holds that police officers will be held to
higher standards of conduct where enforcing the law includes managing a medical
emergency. As noted, however, the facts of Del Tufo are virtually indistinguishable from
those presented here, and Del Tufo makes clear that good faith immunity is not available
to police officers accused of negligent provision of emergency medical assistance.
       But application of Del Tufo here does not foreclose the Supreme Court of New
Jersey from clarifying the applicability of immunity where there is significant overlap of
the competing interests in the execution or the enforcement of the law and rendering
medical assistance to subject of that law enforcement.

                                              10
comply with their duty to provide emergency medical assistance during an arrest, as

found by the jury here, is not negated by the law. N.J.S.A. 59:3-3.

       The New Jersey courts’ application of the Good Samaritan statute provides a

useful analogy. In Praet v. Borough of Sayreville, the executrix of a deceased motorist’s

estate brought an action against police officers, alleging negligent failure to extricate

decedent from the vehicle following his accident. 

(1987). The officers

invoked the New Jersey Tort Claims Act’s “good samaritan” immunity provision, arguing

they could not be held liable for negligence in volunteering emergency assistance. 

The court in Praet, however, found good samaritan immunity inapplicable and

emphasized that police officers are not immunized from negligence in the performance of

pre-existing duties:

       [The Good Samaritan Act] does not and never was intended to confer an
       immunity on one, who, whether a public employee or a private person, has a
       preexisting duty under the controlling circumstances to render emergency
       assistance. Thus, since the officers here, as defendants concede, were under
       a duty by virtue of their employment to render emergency assistance to
       victims of automobile accidents, they are as much liable for their negligence
       in so doing as they would be for the negligent performance of any other
       administrative or ministerial duty imposed upon them by their 

. If police officers are not entitled to good samaritan immunity for

negligence in providing emergency medical assistance that they are obligated to

administer, we question whether they are entitled to good faith immunity for the same

actions– or inaction.




                                              11
       Defendants urge the court to make a distinction between a complete failure to

summon medical assistance, on the one hand, and negligence in the administration of

partial medical assistance, on the other. In support of this distinction, they rely heavily

upon the New Jersey Superior Court’s opinion in Aversano v. Palisades Interstate

Parkway Commission, 

(N.J. Super. App. Div. 2003) aff’d 

(N.J. 2004).3 Specifically, they argue that the Superior Court’s Aversano opinion compels

a departure from Del Tufo.

       As a preliminary matter, we note that the good faith immunity statute was not

invoked in Aversano– rather, the officers in that case claimed absolute immunity under

N.J.S.A. 59:4-8 (unimproved public property) and the Landowners’ Liability Act,

N.J.S.A. 2A:42A-3, and discretionary immunity under N.J.S.A. 59:3-2a and 59:2-3a.

Considering the application of discretionary immunity to plaintiffs’ claims of negligence

in addressing a medical emergency, the court stated:

       There is precedent for finding police liable for negligent performance of
       rescue duties. On several occasions, we have found that police officers who
       negligently render rescue assistance are subject to liability under the TCA. .
       . . [T]he analogy to this case is clear. Had the Parkway police been out on
       other calls and unable to respond more quickly, immunity would apply. If
       the police had no means of obtaining medical treatment by someone trained
       to reach Andrew, immunity would apply. And if the police had concluded


   3
    In Aversano, a teenage boy fell off a cliff. The police responding to the call
determined that he was dead, and commenced a “recovery” effort. It was later
determined that the boy was still alive. Although he eventually died, his parents claimed
that had the police undertaken a “rescue” effort, rather than a “recovery” effort, he could
have been saved.

                                              12
       that the danger to medical rescue personnel was too great to risk rappelling
       down the cliff to Andrew’s aid, immunity would apply to that discretionary
       decision. But none of those scenarios fit the facts here. The police had the
       ability (and the responsibility) to call the Closter Rescue Squad.
       *       *      *
       Calling the rescue squad in a case like this, as the officers eventually did
       three hours later, is not a discretionary act that requires a high degree of
       judgment. In our view, it falls well within the bounds of a ministerial act. . .
       . As we noted above, immunity would apply to a police officer’s judgment
       undertaken in the course of a rescue effort, irrespective of whether that
       judgment was negligent. But here, the supervising officer’s alleged
       negligence was the very act of deciding not to rescue.

(emphasis added). Defendants argue this statement is

determinative in the case before us. The distinction between discretionary immunity and

good faith immunity in this instance is clear, however, and defendants’ reliance upon

Aversano is misplaced.

       Discretionary decisions made during the course of a rescue effort are immunized

under New Jersey law. N.J.S.A. 59:3-2. Defendants in this case do not claim they made

a particular medical decision that was within their discretion to make. This is not a case

in which police officers, faced with two emergencies and limited resources, exercised the

judgment vested in them to determine that one situation presents a more compelling need

than another. Rather, this is a case in which police officers, confronted with a medical

emergency of the arrestee, stood by rather than providing oxygen or other assistance.

Plaintiffs did not allege that the detectives made a decision which could be considered

“discretionary”– rather, they allege that the detectives were willfully negligent in their

provision of medical attention to Esteban Rosario.

                                             13
         In sum, defendants here are not entitled to good faith immunity for claims arising

from their negligent provision of emergency medical services. The jury found them

negligent. Because the statute’s good faith immunity does not protect them from liability

for negligent administration of emergency medical assistance, the jury’s finding of

negligence must stand.4

B.       Evidentiary Rulings

         At trial, defendants attempted to introduce the arrest warrant of Osvaldo Garcia

into evidence. The District Court excluded the warrant despite defendants’ argument that

it was relevant to their position that they were legitimately in Rosario’s house.

Defendants also attempted to introduce the testimony of Captain Blaeteler, which they

argue would have provided an independent corroboration of the detectives’ testimony

regarding the reasons for their presence on 7th Street on the night in question. The

District Court excluded this testimony.

         We review the District Court’s exclusion of evidence for abuse of discretion.

United States v. Tyler, 

, 98 (3d Cir. 2002). We believe the evidence should

have been admitted, but that such error was harmless. Discretionary evidentiary rulings

will give rise to reversible error only where “a substantial right of the party is affected.”


     4
    Because we find defendants are not entitled to qualified immunity, we need not
address their argument that “the false arrest claim against Loaces must be retried since it
is impossible to ascertain what portion of the damages the jury attributed to the false
arrest verdict as opposed to the more significant claims associated with the rendering of
medical care.”

                                              14
Becker v. ARCO Chem. Co., 

, 180 (3d Cir. 2000) (citation omitted). Put

differently, we will affirm a District Court’s evidentiary ruling, even if it is erroneous, so

long as it is “highly probable” that the error did not contribute to the verdict. McQueeney

v. Wilmington Trust Co., 

, 927-28 (3d Cir. 1985) (citing Gov’t of the Virgin

Islands v. Toto, 

(3d Cir. 1976)).

         As the District Court repeatedly emphasized at trial, the legitimacy of the

detectives’ presence on 7th Street was never contested. Nor did plaintiffs contest that

defendants had a valid arrest warrant for Osvaldo Garcia. Defendants’ proffered

evidence, therefore, may have been cumulative. Furthermore, because this evidence was

offered to prove an undisputed fact, it is “highly probable” that its exclusion did not

contribute to the verdict. Thus, any error was harmless.

C.       Prior Bad Acts

         As part of their claim against the City for negligent retention, plaintiffs presented

evidence of prior misconduct on the part of detectives Loaces and Gaston in the form of

disciplinary records. Plaintiffs intended these disciplinary records to prove that the City

knew or should have known of the detectives’ professional shortcomings. The District

Court admitted these records over defendants’ objection that they were unduly prejudicial,

and gave cautionary instructions to the jury.5


     5
   The District Court cautioned the jury twice. First, during examination of defendant
Loaces, the jury was informed as follows:
                                                                            (continued...)

                                               15
       Plaintiffs’ primary mode of proving that the City knew or should have known of

the detectives’ alleged professional shortcomings was through these disciplinary records.

This evidence was relevant, and we see no basis for finding an abuse of discretion for

refusing to exclude this evidence under Federal Rule of Evidence 403. See United States

v. Lopez, 

, 482 (3d Cir. 2001). As noted, District Judge gave a cautionary

instruction during cross-examination of Loaces and also during final jury instructions.

Although defendants contend the negligent retention claim was merely a back-door means

of calling their character and credibility into question by presenting otherwise prohibited

evidence of prior bad acts, we see no basis for deciding that the jury did not understand or




   5
    (...continued)
        I want to advise you that yesterday when we heard reference made by
        counsel to one of the witnesses about that witness’ previous disciplinary
        problems with the police department such as, among other things, shooting
        paint pellets at pedestrians or civilian pedestrians, you heard that only for
        the reason that you may wish to evaluate that with regard to the claim by the
        plaintiffs that the City of Union City was negligent in retaining such a
        person as a police officer because of what the plaintiff claims are his earlier
        demonstration of dangerous characteristics such as, the plaintiffs will argue,
        insensitivity to injuring civilians. So you are to consider that in that
        context. Do you understand? This is unlike the circumstance where you
        would use a criminal conviction. This is all up to your discretion to impugn
        somebody’s believability as a witness.
At the close of trial, the District Court again cautioned the jury with respect to use of the
internal affairs report:
        You may only consider the earlier acts of defendants Loaces and Gaston in
        determining whether the municipal defendant negligently retained them.
        We are talking now about the earlier acts that were evidenced before you as
        to circumstances involving these 2 defendants Loaces and Gaston. Any
        questions?

                                              16
would not adhere to the District Court’s limiting instructions. Rinehimer v. Cemcolift,

Inc., 

, 383 (3d Cir. 2002).

D.       The Internal Affairs Report

         At trial, plaintiffs introduced an Internal Affairs Report prepared by police Captain

Pecora which set forth the findings and assessments of the police department’s

investigation into Rosario’s death. The Report criticized certain decisions made by

defendants during their execution of the arrest warrant. According to defendants, it also

included hearsay recitals of witness statements obtained during the department’s

investigation.6 The Internal Affairs Report was admitted over defendants’ objections.

         Defendants argue the report is irrelevant, after-the-fact, and should have been

excluded as unduly prejudicial and potentially confusing.7 We believe the report was

     6
    The Internal Affairs Report states: “[i]t appears that Dets. Perez and Loaces erred in
allowing a subject who they reasonably believed had an active arrest warrant to walk into
a building where they could exert less control over his movements.” At trial, plaintiffs’
expert Francis Murphy testified that he agreed with the conclusion of the Report that
defendants erred by not taking Garcia into custody before he entered the house. Police
Chief Bareis also testified at trial that he agreed defendants committed a “tactical error”
by permitting Garcia to enter the house.
     7
    Defendants argue the substance of the report could have confused the jury because
although the department’s conclusion about “error” stemmed from a concern for the
officers’ safety, they believe the jury may have improperly extrapolated from the report
that the “error” by the officers compelled a false arrest verdict. But the report is clear, as
was the testimony of Chief Bareis, that the defendants’ “error” referenced by the report
and the testimony stemmed from the possibility that the officers permitted Garcia to leave
their presence rather than arrest him immediately upon having identified him. Nowhere
does the report suggest the officers erred in entering the home for any other reason than
subjecting themselves to a greater risk of Garcia evading arrest and the report likely did
                                                                                (continued...)

                                              17
relevant to plaintiff’s false arrest claim and properly admitted by the District Court.

Moreover, even if its admission was erroneous, it is harmless. Admission of the report

did not affect defendants’ substantial rights, see 

, as we do

not believe that– in light of the eyewitness testimony and other evidence concerning

defendants’ conduct– it had a significant impact upon the jury’s false arrest verdict. Even

without the report, there was substantial evidence to support the verdict.8

E.       Videotape Evidence

         In their final assignment of error, defendants challenge the District Court’s

admission of a videotape depicting the scene on October 27, 1999. Defendants argue that

the tape was poor quality, depicted only part of the scene, was not taken in real time, and

was never properly authenticated. The District Court admitted the tape, reasoning that “it

serves a purpose in our quest for truth in this matter” and it would not be “unfairly

prejudicial” to defendants. The District Court also stated that it found the tape to be

authenticated based upon identification of the individuals, location, and commentary

presented by the film. In response to defendants’ hearsay arguments, the District Court

held that because the tape was admitted to prove ambiance, rather than for truth of the



     7
    (...continued)
not confuse the jury. Accordingly, we do not find the report to have been unduly
prejudicial.
     8
     It is unclear whether defendants properly raised a Rule 403 objection to the report at
trial. But in any event, we conclude that admission of the report does not constitute
reversible error in this case.

                                               18
statements contained on the tape, there was no hearsay problem. Finally, the District

Court– having viewed the tape twice– found it to be sufficiently audible and viewable. At

trial, testimony established that the events depicted by the videotape represented the scene

on October 27, 1999, at decedent’s home.

       The District Court found the tape was not unfairly prejudicial. The District Court

did not abuse its discretion in admitting the tape into evidence. Substantial evidence was

presented to support the authenticity of the tape and its content was relevant. Even if

admission of the tape were erroneous, it is harmless. The tape was not introduced to

prove the truth of any statements or the identity of any individuals, it was intended to

establish the “ambiance” and set the “scene.” Accordingly, the admission of the tape did

not affect the substantial rights of the parties.

F.     Pecuniary Loss Award

       Following trial, defendants moved to set aside the jury’s cumulative award of $3

million in damages under the New Jersey Wrongful Death Act. The District Court

granted their motion. We exercise plenary review. Goodman v. Pa. Turnpike Comm’n,

, 664-65 (3d Cir. 2002) (citation omitted).

       The New Jersey Wrongful Death Act provides as follows:

       In every action brought under the provisions of this chapter the jury may
       give such damages as they shall deem fair and just with reference to the
       pecuniary injuries resulting from such death, together with the hospital,
       medical and funeral expenses incurred for the deceased, to the persons
       entitled to any intestate personal property of the decedent.



                                               19
N.J.S.A. 2A:31-5. Damages under this statute are limited to the pecuniary value of

plaintiffs’ loss, and recovery for emotional loss is not permitted. Green v. Bittner, 

, 215 (N.J. 1980). Furthermore, the loss of guidance, advice, counsel, and

companionship must be assessed by reference to the marketplace value of such services.9

“[t]he type of advice and companionship compensable under the

Act is the kind which may be purchased.” Gangemi v. Nat’l Health Labs., Inc., 

, 1167 (N.J. Super. App. Div. 1996).

       While expert testimony is not required to place a value on such services, New

Jersey courts have found expert testimony helpful in providing the jury with guidance and

in avoiding the potential for undue speculation. Brown v. Kennedy Mem’l Hosp.-Univ.

Med. Ctr., 

, 1377 (N.J. Super. App. Div. 1998). “[D]etailed information

concerning family circumstances” will also be useful in establishing the pecuniary value

of lost services. 

.

       As the District Court noted, plaintiffs did not provide the jury with expert

testimony concerning the value of their loss. Nor did plaintiff provide the jury guidance

as to the life expectancy of the decedent. Plaintiffs testified as to the nature of their

relationship with their father, their appreciation for his companionship and loving nature,


   9
    We note that plaintiffs are not required to present specific evidence of companionship
in order to establish that advice and guidance were exchanged among parents and
children; the parent-child relationship itself suffices to establish that valuable services
were in fact rendered by decedent. Rodriguez v. United States, 

, 749 (3d Cir.
1987) (citing 

).

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and the pain they suffered as a result of their loss. They did not, however, present

detailed evidence as to the pecuniary value of the guidance and advice of which they were

deprived due to their father’s death. As the New Jersey Supreme Court explicitly stated,

“[t]he loss of guidance, advice and counsel is . . . to be confined to its pecuniary element.”

       Some damage awards in New Jersey have been upheld despite the absence of

specific quantitative evidence. See, e.g., 

. In Rodriguez,

however, the jury was presented with detailed evidence concerning the services rendered

by decedents in addition to expert testimony regarding their life expectancy. In this case,

by contrast, the jury was presented with no evidence enabling it to calculate rationally the

value of plaintiffs’ loss.

       We find the District Court’s extensive legal analysis on this issue sound. In light

of the evidence presented to the jury, the $3 million award could have been based upon

nothing more than pure speculation. We will affirm the judgment of the District Court

vacating this award.

G.     Amendment of the Complaint

       Joanne Rosario claims the District Court erred by refusing to allow amendment of

the caption so that she could be named as an individual plaintiff. We review a ruling

granting or denying leave to amend a complaint for abuse of discretion, its factual




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conclusions for clear error, and its interpretation of the Federal Rules of Civil Procedure

de novo. Singletary v. Pa. Dept. of Corrs., 

, 193 (3d Cir. 2001).

       Joanne Rosario was originally named solely in her capacity as legal guardian to

Esteban Rosario, Jr. She then sought to amend the complaint so that she could pursue an

individual claim as well. The District Court stated as follows:

               In the third year of the life of this complaint and in the fourth week
       of the actual trial, plaintiff seeks to amend pleadings which had never
       indicated that, not in the caption but in the body, that Joanne Rosario would
       seek to bring a claim on her own behalf as she had every right to do
       individually. She was always represented in the pleadings as Joanne
       Rosario, the legal guardian of a mental incompetent Estaban Rosario, Jr.
       She maintained that status even to and during discovery period. Particularly
       when she was deposed and when asked what status Joanne Rosario was, her
       attorney at the time of discovery indicated and replied that she was there
       only as a legal guardian of Esteban Rosario, Jr.
               Consequently, defendants did not seek to depose her with regard to
       anything she might have said by way of being an individual claimant. Her
       deposition was limited only to that of her guardian status. Thereafter years
       went by, and I believe that deposition was in 2001, but we are now in the
       trial and the fourth week of trial and suddenly there is an attempt by the
       plaintiffs to assert that Joanne Rosario should be able to pursue what I
       consider the liberty claim that has recently been adopted by several circuits
       with regard to the 1983 claims.
               I concluded, based upon those cases and the fact of this case, that she
       comes too late to do so and I have given the reasons which I, by way of
       conclusion, I repeat again, that they are basically unfair to the interests of
       defendants who also have rights in this case. Defendants are prejudiced by
       not being able to depose her, being told just the opposite more than a year
       ago, that there has been no reason advanced by anyone as to why she was
       not pled as an individual plaintiff. But throughout the amended complaints,
       including first and second amended complaints, particularly in paragraph
       44, she is continually listed and constantly listed as legal guardian.
               I think the interest of justice therefore demands in the interest of the
       court, the economy of the court, fairness to a jury that’s being bombarded
       by a case now that has gone well beyond the representations of counsel and

                                             22
      the Court to wit in the interest of basic fairness that she will not be allowed
      to pursue, in effect, this stale claim.

[JA 871-72]. We find no abuse of discretion in the District Court’s ruling.

                                            IV.

      For the foregoing reasons, we will affirm the judgment of the District Court.




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