Michelle Winters is the principal plaintiff and injured party in this case. The 1

second plaintiff, Robert Winters, Michelle’s husband, pled a loss of consortium claim in the

complaint. However, this claim was withdrawn at the close of trial, prior to closing arguments. 

N.T. 8/7/07. Thus, I will refer throughout this opinion to Plaintiff Michelle Winters in the

singular.

Page 1 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MICHELLE WINTERS, et al. : CIVIL ACTION

:

 v. :

 :

MARINA DISTRICT :

DEVELOPMENT CO., LLC : NO. 05-5937

MEMORANDUM AND ORDER

M. FAITH ANGELL April 16, 2008

UNITED STATES MAGISTRATE JUDGE

Presently before this Court are Plaintiff’s motion for a new trial and Defendant’s response

in opposition. For the reasons stated below, Plaintiff’s motion for a new trial is denied.1

I. BACKGROUND

Michelle Winters (“Plaintiff”) alleges that on August 27, 2004, she fell while attempting

to sit on a chair in front of a slot machine on the premises of the Borgata Hotel Casino and Spa

(“Defendant” or “Borgata”). Plaintiff claims that she slipped and fell on a clear liquid substance. 

Defendant contends that it had no actual or constructive notice of the liquid, which it will assume

existed. As a result of the accident, Plaintiff asserts she suffered severe and permanent injuries. 

There were no witnesses to the fall other than Plaintiff’s mother. 

Case 2:05-cv-05937-MFA Document 69 Filed 04/16/08 Page 1 of 10
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Prior to trial, Plaintiff filed a motion in limine to exclude evidence of unrelated medical

conditions, which I denied. When I presented my ruling at a final pretrial conference, Plaintiff’s

counsel sought clarification as to Plaintiff’s seizures. At that time, I determined that the seizure

evidence was relevant and admissible at trial. N.T. 8/02/07 at p. 6. 

Moments before the trial began, Plaintiff’s counsel renewed his argument that Plaintiff’s

seizure evidence should not be admitted at trial. He argued that the seizure evidence was not

relevant because Borgata was not going to assert a seizure caused Plaintiff to fall and this

evidence was prejudicial. N.T. 8/6/07 at pp. 4-5. After hearing additional argument, I again

ruled that evidence of Plaintiff’s seizures was relevant and admissible. Id. at p. 6. 

Both Plaintiff and Defendant introduced seizure evidence at trial. During its closing

argument, Defendant told the jury that it was not contending a seizure caused Plaintiff’s 

accident. N.T. 8/08/07 at p. 36. Instead, Borgata argued, assuming there was some accumulation

of clear liquid, Plaintiff had not established liability because she did not establish that Borgata

had actual or constructive notice of the existence of this condition. Borgata argued that it had “a

very reasonable maintenance plan which was preventative and responsive,” and that Plaintiff’s

fall was “a simple incident that was completely and totally not the fault of the Borgata.” Id. at

pp. 17, 25, 40-41. 

On August 8, 2007, the jury returned a verdict for Defendant, determining that Plaintiff

had not proved by a preponderance of the evidence that Borgata was negligent. Id. at p. 82. 

Case 2:05-cv-05937-MFA Document 69 Filed 04/16/08 Page 2 of 10
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Plaintiff now requests this Court to set aside the jury verdict and grant a new trial

pursuant to Rule 59 of the Federal Rules of Civil Procedure, alleging that the Court erred in

denying her motion in limine as relates to seizures because the seizure evidence was not relevant 

and its probative value was substantially outweighed by the danger of unfair prejudice, confusion

of issues or misleading the jury. Plaintiff’s Motion for A New Trial [Docket Entry No. 63]:

Memorandum of Law In Support at p. 4. 

II. STANDARD FOR A MOTION FOR A NEW TRIAL

To grant a movant’s request for a new trial based on alleged trial error, a court must

conclude that “an error was made in the course of the trial” and that the “error was so prejudicial

that refusal to grant a new trial would be inconsistent with substantial justice.” Coney v. NPR,

Inc., No. 03-1324, 2007 WL 2571452, at *7 (E.D. Pa. Aug. 31, 2007) (quoting Brown v. Old

Castle Precast E., Inc., No. 00-2549, 2003 U.S. Dist. LEXIS 1314, at *6 (E.D. Pa. Jan. 15,

2003)). When a party alleges that “a new trial is based on the admissibility of evidence, the trial

court has great discretion . . . which will not be disturbed . . . absent a finding of abuse.” Id. 

(quoting Brown, 2003 U.S. Dist. LEXIS 1314, at *6). A new trial will not be granted for an error

that “does not affect the substantial rights of the parties” because such error is harmless. Id.

(quoting Fed. R. Civ. P. 61; Fed. R. Evid. 103(a)). A court determines whether error is harmless

by considering the centrality of the evidence and whether including or excluding the evidence

was prejudicial. Id. The party contending that the inclusion or exclusion of evidence was in

error has the burden of showing that the court ruling affected the result of the trial. Id. at *8. 

Case 2:05-cv-05937-MFA Document 69 Filed 04/16/08 Page 3 of 10
It is unclear what Plaintiff means when she refers to the “other seizures,” as no 2

explanation is provided. It is possible Plaintiff meant to distinguish between the seizures that

occurred at the Borgata and all other seizures, but that seems unlikely given that if the former

were relevant, the latter would also be relevant. As a result, I will treat “the other seizures” as

referring to all of Plaintiff’s seizures. 

In addition, Plaintiff’s latter claim – that the jury was left to speculate – appears to

be a Federal Rules of Evidence 403 argument, as Plaintiff seems to contend that the potential for

extensive speculation essentially misled the jury. See Fed. R. Evid. 403 (stating that relevant

evidence “may be excluded if its probative value is substantially outweighed by the danger of . . .

misleading the jury”). In her memorandum, Plaintiff has not cited to any case law or statute

indicating that the relevance of evidence is contingent on the degree of possible speculation

among the jury members that results from the introduction of that evidence. Plaintiff later reuses

the same argument in her claim that the seizure evidence was unfairly prejudicial. Accordingly, I

will address this argument when discussing the claim of unfair prejudice, infra. 

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III. DISCUSSION

Under the Federal Rules of Evidence, “relevant evidence is evidence having any tendency

to make the existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Fed. R. Evid. 401. A trial

judge has “broad discretion” in determining the relevance of evidence. Mulholland v. Hoffer,

No. 04-5981, 2007 WL 1276915, at *17 (E.D. Pa. May 1, 2007)(court concluding that it did not

abuse its discretion in admitting evidence of the plaintiff’s health and physical condition before

her accident). 

Plaintiff claims that the seizure evidence was not relevant because it had “no probative

value whatsoever to the injuries” from the accident, and because “the jury was left to speculate as 

to the relevancy of the other seizures and how they fit into the picture.” Plaintiff’s Motion for A

New Trial [Docket Entry No. 63]:Memorandum of Law In Support at pp. 3, 4 (emphasis added).2

The seizure evidence was relevant in this case because Plaintiff had a history of seizures

both before and after the incident. Plaintiff began suffering from seizures about two months

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before she fell at the Borgata. N.T. 8/06/07 at pp. 113-14. She suffered about twenty seizures

prior to this incident. Id. at pp. 114-15. While having a seizure, Plaintiff would experience some

visual changes. Id. at p. 116. Fifteen days before the incident, Plaintiff was admitted to

Pennsylvania Hospital after complaining of chest pain. Id. at pp. 54-55, 117. During her

hospitalization, and while getting out of the shower, Plaintiff felt that her vision was closing in

on her and that she was going to fall backwards. Id. at p. 116. After being discharged from the

hospital and returning home, and before the incident at the Borgata, Plaintiff felt her vision

closing in, lost consciousness, and fell down the last two steps of a stairway. Id. at pp. 55, 57,

116. 

During opening argument, Plaintiff’s counsel described these episodes as “psychogenic

seizures” provoked by anxiety and accompanied by chest pain and blacking out, and noted that

they caused Plaintiff to fall on one occasion before the Borgata incident. N.T. 8/6/07 at pp. 23-

24. 

Prior to the incident at the Borgata, the episodes were severe enough for: (I) Plaintiff to

be hospitalized at Pennsylvania Hospital for five days for evaluation, id. at p. 116; (ii) Plaintiff to

be wearing a halter monitor to check for irregular heartbeats at the time of the incident, id. at p.

121; (iii) Plaintiff’s mother to remain with Plaintiff at her home prior to the incident in case

Plaintiff suffered a seizure, N.T. 8/7/07 at p. 63; and (iv) Plaintiff to have her mother drive them

to the 

Borgata on the night of the incident, N.T. 8/6/07 at p.122. Within one week before the Borgata

incident, Plaintiff was taking the following medications: Effexor, Percocet, ASA, and Ibuprofen. 

N.T. 8/7/07 at p. 45. 

Case 2:05-cv-05937-MFA Document 69 Filed 04/16/08 Page 5 of 10
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Plaintiff also suffered seizures after the incident at the Borgata. In fact, Plaintiff experienced a

seizure immediately after the incident when Borgata personnel placed her in a wheelchair. N.T.

8/6/07 at pp. 52-53, 59, 125. When Borgata personnel asked for her medical history, Plaintiff

told them about her seizures. N.T. 8/7/07 at pp. 119-20. Plaintiff also had a seizure at the

Borgata’s Medical Unit, N.T. 8/6/07 at p. 59, and at the Atlantic City Medical Center, id. at p. 60. 

About two weeks after the incident, Plaintiff was evaluated by two neurologists for seizures at

Thomas Jefferson University Hospital on September 9, 2004. N.T. 8/7/07 at p. 26. About a

month after the incident, Plaintiff was hospitalized in the epilepsy ward at the same hospital from

September 28, 2004 through October 4, 2004 for evaluation of her seizures. N.T. 8/6/07 at pp.

56, 117-18.; N.T. 8/7/07 at pp. 27-28. 

Plaintiff’s seizure history, immediately before and after the Borgata incident, was clearly

relevant. It was relevant as one potential cause of Plaintiff’s accident. During closing argument,

Defense Counsel argued that he was not suggesting the evidence clearly established that Plaintiff

had a seizure at the time of the incident and that was what caused her to fall. He did argue,

however, that the seizure evidence was relevant because Plaintiff “was on various medications at

the time of this incident, which might affect [her] perception.” N.T. 8/8/07 at pp. 36-37. 

The seizure evidence was also relevant in the context of the scope of Plaintiff’s purported

injuries. Plaintiff claimed that, as a result of the fall, she suffered a lower back injury and

sustained lumbar radiculopathy. N.T. 8/6/07 at pp. 17, 26. Plaintiff stated she was taken to the

Atlantic City Medical Center after the incident because her back hurt and she was “in a lot of

pain.” N.T. 8/6/07 at p. 60. During cross-examination, however, Defense Counsel showed

Plaintiff an Atlantic City Medical Center emergency room record which listed the reason for her

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visit as “convulsions,” not back pain. Id. at p. 126. Cross-examination of Plaintiff further

revealed that, while being evaluated for seizures at Thomas Jefferson University Hospital about

two weeks after and then about a month after the incident and asked about her medical history,

Plaintiff did not mention her fall at the Borgata nor any injuries to her back or any back

problems. N.T. 8/7/07 at pp. 26-28, 29. 

Evidence of Plaintiff’s seizure history was thus relevant to Plaintiff’s claim of lumbar

radiculopathy as a result of her fall at the Borgata and, therefore, to her credibility. It was

Defendant’s position, during closing argument, that Plaintiff was not seriously hurt as a result of

her fall at the Borgata. In support of this position, Defendant pointed to inconsistencies between

Plaintiff’s trial testimony and, inter alia, the Atlantic City Medical Center emergency room

records and the Thomas Jefferson University Hospital medical records which did not make any

reference to any back pain or problems. N.T. 8/8/07 at pp. 37-38. 

The seizure evidence was not, as Plaintiff argues, “unfairly prejudicial as it had an undue

tendency to suggest a decision on an improper basis based on speculation, conjecture, innuendo

and reliance on whispered unfair stereotypes of seizures.” Plaintiff’s Motion for A New Trial at

p. 3. 

Relevant evidence “may be excluded if its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Fed. R. Evid.403. 

In her memorandum, Plaintiff claims that the introduction of seizure evidence was

unfairly prejudicial, confused the issues, and misled the jury because (I) the jury was “left to

speculate as to how Plaintiff’s seizure conditions are related to the accident,” and (ii) it “caused

the jury to speculate that the injuries alleged were caused by Plaintiff’s seizures,” despite the fact

Case 2:05-cv-05937-MFA Document 69 Filed 04/16/08 Page 7 of 10
If Defendant’s sole purpose for introducing the seizures had been to show that 3

Plaintiff attended post-accident medical appointments for reasons other than injuries related to

the accident, reference to Plaintiff’s seizures at trial might have been prejudicial. However, as

discussed in the text above, the seizure evidence was relevant for other reasons. 

Page 8 of 9

that there was “no evidence whatsoever” linking the seizure to the accident. Id.: Memorandum

of Law In Support at p. 5. Plaintiff also argues that (iii) the seizure evidence was unfairly

prejudicial because, if the purpose of introducing the seizures was to show that a subsequent

hospital visit was for a medical condition other than one related to the accident at the Borgata,

Defendant did not need to reference the seizures. Id. at 4-5.

The first two claims essentially argue that because Defendant told the jury it was not

arguing that a seizure caused the accident, the jury was left to speculate about the relevance of

the seizures, and that speculation might lead to the conclusion that the seizure caused the

accident. Evidence cannot be deemed unfairly prejudicial merely because the jury has room for

some speculation as to the evidence’s exact relevance to the accident in question. If anything,

Defendant’s statement that he was not arguing that a seizure caused the accident would have

eliminated or severely diminished any chance that the jury would have speculated that a seizure

was in fact the cause. Nor was the seizure evidence itself speculative, but rather was based on 

medical records and Plaintiff’s own testimony. Its probative value was not substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. 

3

I conclude that the jury was properly permitted to consider the seizure evidence in

deciding both liability and damage issues. Accordingly, Plaintiff’s motion for a new trial must

be denied. 

Case 2:05-cv-05937-MFA Document 69 Filed 04/16/08 Page 8 of 10
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AND NOW, this 16 day of April, 2008, for the reasons stated in the foregoing th

memorandum, IT IS ORDERED that Plaintiff’s Motion for a New Trial [Docket Entry No. 63]

is DENIED. 

BY THE COURT:

S/M. FAITH ANGELL 

M. FAITH ANGELL

UNITED STATES MAGISTRATE JUDGE

Case 2:05-cv-05937-MFA Document 69 Filed 04/16/08 Page 9 of 10
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

Robert N.C. Nix Federal Building

900 Market Street, Suite 211

Philadelphia, PA 19107

 Chambers of

M. FAITH ANGELL P: (215) 597-6079

 United States Magistrate Judge F: (215) 580-2165

FAX / MAIL COVER SHEET

CASE NO. 05-5937

TODAY’S DATE: April 16, 2008 LAW CLERK’S INITIALS: JJK

VIA FAX: 

NAME FAX NUMBER

1. Gregory J. Kowalski, Esq./Michael O. Pansini, Esq. 215-732-7872

2. Mitchell S. Berger, Esq. 215-564-1301

Case 2:05-cv-05937-MFA Document 69 Filed 04/16/08 Page 10 of 10