IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SALISBURY REAL HOLDINGS II, LLC, : CIVIL ACTION

Plaintiff :

:

v. :

:

NORTH COVENTRY TOWNSHIP, et al : No. 05-CV-04781

Defendants :

MEMORANDUM AND ORDER

TIMOTHY R. RICE June 1, 2006

U.S. MAGISTRATE JUDGE

This case involves a dispute over the use of property in North Coventry Township,

Chester County, Pennsylvania as a group home for mentally disabled individuals. Plaintiff,

Salisbury Real Holdings, II, LLC (“Salisbury”), is the owner of the property. The defendants

(“North Coventry”) include North Coventry Township, the members of the North Coventry

Township Zoning Board, and several officials responsible for zoning issues within the township.

Salisbury alleges North Coventry violated the Fair Housing Amendments Act, 42 U.S.C.

§ 3601 et seq., Americans with Disabilities Act, 42 U.S.C. § 12132, and Section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 794, when it denied an application to begin work on the

group home, which the Court of Common Pleas for Chester County subsequently ruled was

permitted “by right.” 

North Coventry seeks to preclude the testimony of Jerry Herskovitz as improper opinion

testimony under Fed. R. Evid. 701 & 702. Salisbury contends Herskovitz will testify solely to

the mathematical calculations he performed in computing Salisbury’s monetary damages

(including lost profits), and not opinion testimony.

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For the following reasons, I grant North Coventry’s motion in part, but will allow

Herskovitz to offer strictly limited summary testimony under Fed. R. Evid. 611(a). 

Salisbury concedes Jerry Herskovitz is not an expert under Fed. R. Evid. 702, and it has

not filed the required Fed. R. Civ. Pro. 26(a)(2) notice. Accordingly, Herskovitz may not testify

as an expert.

Similarly, Herskovitz’s testimony is not a lay opinion under Rule 701 because it is not

“rationally based on the perception of the witness.” Fed. R. Evid. 701. Herskovitz has no firsthand knowledge of the underlying issues or of Salisbury’s damages. Compare Lightning Lube,

Inc. v. Witco Corp., 4 F.3d 1153, 1174-75 (3d Cir. 1993) (lay opinion concerning lost profits

admitted based on witness’ particularized knowledge and witness’ position in business); In re

Merritt Logan, Inc., 901 F.2d 349, 360 (3d Cir. 1990) (lay opinion of principal shareholder

admitted concerning lost profits); Joy Manufacturing Co. v. Sola Basic Industries, Inc., 697 F.2d

104 (3d Cir. 1982) (lay opinion admitted where witness had “extensive personal knowledge” of

the manufacturing plants at issue); see also DIJO, Inc. v. Hilton Hotels Corp., 351 F.3d 679, 685-

86 (5th Cir. 2003) (district court abused its discretion by permitting lay opinion testimony

concerning lost profits from a witness with no first-hand, personal knowledge of the business’

operation). 

Lay opinion testimony is permitted only where the “personal knowledge, rational basis,

and helpfulness standards of Rule 701 are met,” Asplundh Manufacturing Division v. Benton

Harbor Engineering, 57 F.3d 1190, 1198 (3d Cir. 1995), and the testimony does not concern

scientific, technical, or specialized knowledge reserved for expert witnesses. Fed. R. Evid. 701. 

For example, in Teen-Ed, Inc. v. Kimball Int’l, Inc., 620 F.2d 399 (3d Cir. 1980), the court

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allowed lay testimony on lost profits from Teen-Ed’s accountant, finding the personal knowledge

gained from handling Teen-Ed’s balance sheets sufficient to meet the requirements of Rule 701. 

Teen-Ed, 620 F.2d at 403. As the court noted in Asplundh, the accountant’s personal knowledge

in Teen-Ed was “very particular” and based on his extensive prior experience. Asplundh, 57

F.3d at 1202-03. Teen-Ed does not support Salisbury’s proffer of Herskovitz’s testimony

because Herskovitz’s relationship with Salisbury is limited to testimony in this case. Herskovitz

does not possess the requisite personal knowledge to offer a lay opinion. “The further removed a

layman is from a company’s day-to-day operations, the less likely it is that his opinion will be

admissible under Rule 701.” DIJO, Inc., 351 F.3d at 686. 

The only basis for Herskovitz’s testimony is as a summary witness to compile and total

the admissible evidence on damages. A summary witness is permitted where the testimony is

limited by a cautionary instruction. United States v. Sabino, 274 F.3d 1053, 1066-68 (6th Cir.

2001). Under Fed. R. Evid. 611(a), I have discretion to allow such evidence to save time and

make the presentation of evidence effective for ascertaining the truth. Although it is a close

question, Herskovitz may testify only to summarize facts already in evidence from other

witnesses or documents. Herskovitz may not offer opinions, and may not rely on assumptions or

inadmissible evidence. United States v. Pelullo, 964 F.2d 193, 204-05 (3d. Cir. 1992). 

Herskovitz may offer only a pedagogical summary, which is not evidence, but merely an aid to

the fact-finder. United States v. Buck, 324 F.3d 786, 791 (5th Cir. 2003); United States v. Winn,

948 F.2d 145, 159 (5th Cir. 1991); cf. Fed. R. Evid. 1006 (admitting summaries of voluminous

evidence as substantive evidence). 

Case 2:05-cv-04781-TR Document 47 Filed 06/01/06 Page 3 of 4
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SALISBURY REAL HOLDINGS II, LLC, : CIVIL ACTION

Plaintiff :

:

v. :

:

NORTH COVENTRY TOWNSHIP, et al : No. 05-CV-04781

Defendants :

ORDER

TIMOTHY R. RICE

U.S. MAGISTRATE JUDGE

AND NOW, this 1st day of June, 2006, upon consideration of Defendants’ Motion in

Limine to Preclude Testimony of Jerry Herskovitz and Plaintiff’s Response, it is hereby

ORDERED that the Defendants’ Motion is GRANTED in part. Herskovitz shall be permitted to

testify only as a summary witness and may not offer opinion evidence under Fed. R. Evid. 701 or

Fed. R. Evid. 702. 

BY THE COURT:

\s\ TIMOTHY R. RICE 

TIMOTHY R. RICE

U.S. MAGISTRATE JUDGE

Case 2:05-cv-04781-TR Document 47 Filed 06/01/06 Page 4 of 4