Twigg et al v. BSN Sports, Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
COREY TWIGG, et al.,
Plaintiffs,
v.
VARSITY BRANDS HOLDING CO.,
INC. et al.,
Defendants.
No. 4:23-CV-00067
(Chief Judge Brann)
MEMORANDUM OPINION
J ANUARY 28, 2026
After nearly five years of litigation, this case is scheduled for trial beginning
on March 2, 2026.1 One of the final hurdles the Court faces before the Court takes
the bench for the final disposition of this case are deciding the parties’ motions in
limine to aid the parties in their preparation for March 2 nd. Six such motions are
now before the Court. Each has been fully briefed and are now ripe for disposition.
All six will be addressed in this opinion, with the Court beginning by analyzing the
two joint motions filed by various defendants and then moving to a review of the
Plaintiffs’ four motions.
1 	Doc. 129.
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I. 	DEFENDANTS’ JOINT MOTIONS IN LIMINE
Defendants Varsity Brands Holding Co., Inc. (“Varsity Brands”), BSN Sports
Inc. (“BSN”), Sport Supply Group, Inc. (“Sport Supply”), and Garware Technical
Fibers LTD (“Garware”) filed two joint motions in limine. 2 The first seeks to limit
what medical expenses Plaintiff may seek to admit at trial.3 The second motion
attempts to limit the Plaintiffs ability to use the “reptile theory” or the “golden rule”
in front of the jury at trial. 4 Each issue will be addressed in turn.
A. 	Medical Expenses
In the first joint motion in limine, Defendants seek “to restrict Plaintiffs in the
submission at trial of only such medical expenses as were paid and accepted as
payment in full.”5 Surprisingly, Plaintiffs agree with the controlling precedent
offered by Defendants, as they say it provides that “evidence of the difference
between the amount billed and the amount accepted as payment in full (the
negotiated rate) is inadmissible to prove the reasonable value of medical services for
the purpose of economic damages.” 6 They also acknowledge that “that the economic
damages component of their medical expenses will ultimately be limited to the
2 	See Docs. 131, 133. These Defendants encompass four of the five total defendants in this case.
The fifth, Spartan Athletic Company, did not play a part in the filing of these motions in limine
or arguing against the Plaintiffs’ motions in limine. Despite this, for the sake of conciseness, I
will refer to the four Defendants who filed the joint motions in limine and defended against the
Plaintiffs’ motions in limine as “Defendants.”
3 	See Doc. 131.
4 	See Doc. 133.
5 	Doc. 132.
6 	Doc. 152 (citing Moorehead v. Crozer Chester Medical Center, 765 A.2d 786 (Pa. 2001)).
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amounts paid and accepted as satisfaction in full.”7 But this is where the parties
agreement ends. While Defendants believe that their agreement on the recoverable
expenses renders any further evidence on the subject inadmissible, Plaintiffs assert
that such evidence would be “relevant to the jury’s consideration of the nature,
extent, and severity of the injury and the resulting non-economic damages.” 8 They
would have this be addressed as a jury instruction or a molding of the verdict. 9
The parties are correct in noting that “damages for past medical expenses,
although recoverable to the fullest extent of the injury sustained, are nonetheless
limited to those expenses that ‘have been actually paid, or such as, in the judgment
of the jury, are reasonably necessary to be incurred.’”10 While there may be some
limited probative value of providing the entire medical bills to advance an
understanding of the extent and the severity of Mr. Twigg’s injuries and potential
non-economic damages, there is a higher “risk of misleading the jury into thinking
it could award damages based on those medical bills.”11 Additionally, there seems
to be a plethora of other avenues that the Plaintiffs can pursue to show the extent and
severity of the injuries. 12 Therefore, the Court will grant the Defendants first joint
7 	Id. at 1-2.
8 	See Docs. 132, 152.
9 	See Doc. 152 at 2.
10 	Watts v. Hollock, No. 3:10CV92, 2011 WL 6026998, at *10 (M.D. Pa. Dec. 5, 2011) (quoting
Moorhead v. Crozer Chester Med. Ctr., 765 A.2d 786, 789 (Pa.2001)).
11 	Surman v. Payne, No. CV 3:19-216, 2023 WL 2716224, at *4 (W.D. Pa. Mar. 30, 2023).
12 	One potential avenue would simply be describing the injuries and how they have affected Mr.
Twigg’s day-to-day life.
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motion and bar the admission of medical bills and expenses beyond what was
actually paid and accepted as payment under Federal Rule of Evidence 403. 13
B. 	The Reptile Theory
The first part of Defendants second joint motion in limine asks the Court to
bar the Plaintiffs use of the “reptile theory” in any aspect of the trial.14 The Reptile
Theory “is a method of persuading jurors to find in a plaintiff's favor by invoking
the primal (or reptilian) part of jurors’ minds, which drives them to act to protect
themselves or their community.” 15 While the Defendants spend a great deal of time
addressing the ills of arguments based on the Reptile Theory, their motion is
premature. 16 “Without proper context and having heard the specific question and/or
testimony at issue, the Court is unable to determine whether that question and/or
testimony is objectionable.” Therefore, the aspect of the second joint motion related
to arguments utilizing the reptile theory will be denied without prejudice. However,
Defendants retain the ability “to raise this issue by timely and specific objection on
13 	See FED. R. EVID. 403 (“The Court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.”). As a final note, the granting of this motion only relates to the
admissibility of past medical bills. Plaintiffs are free to make any arguments on, and submit
any evidence of, potential future medical expenses, as courts have “uniformly rejected the
application of Moorehead” in that arena. See Surman, 2023 WL 2716224, at *4 n.3.
14 	See Doc. 133.
15 	Aurigemma v. Costo Wholesale Corp., No. 3:18-CV-1719, 2023 WL 197044, at *7 (D. Conn.
Jan. 17, 2023) (citing Baxter v. Anderson, 277 F. Supp. 3d 860, 861 (M.D. La. 2017)).
16 	See, e.g., id; Botey v. Green, No. 3:12-CV-1520, 2017 WL 2485231, at *2 (M.D. Pa. June 8,
2017).
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each 	occasion 	where 	they 	believe 	that 	testimony 	is 	being 	offered 	for 	an
[objectionable or] improper purpose.” 17
C. 	The Golden Rule
In their second joint motion in limine, Defendants also request that the Court
bar the solicitation of testimony based on the Golden Rule. 18 That rule is a trial
strategy, “which asks a juror to put themselves in a party's position.”19 The United
States Court of Appeals for the Third Circuit has discussed the Golden Rule and
stated that its “propriety… is doubtful because it ‘encourages the jury to depart from
neutrality and to decide the case on the basis of personal interest and bias rather than
on the evidence.’” 20 It also noted that all uses of “the argument [are] improper.”21
Plaintiffs agree that use of the Golden Rule at trial would constitute a
“prohibited tactic.”22 Despite this, they argue that the rule “does not bar arguments
about community safety or the importance of a verdict in holding corporations
17 	Boley, 2017 WL 2485231, at *2. The Defendants should be on notice that the Court does not
agree with their assessment of safety evidence as “irrelevant.” See Doc. 133 ¶ 34. Rather,
“evidence regarding safety rules and practices may be relevant to the questions of negligence.”
R.D. v. Shohola, Inc., No. 3:16-CV-01056, 2019 WL 6134726, at *4 (M.D. Pa. Nov. 19, 2019)
(citing Kube v. Bethlehem Steel Corp., 390 F.2d 506, 507 (3d Cir. 1968)). Additionally, only
questions that “inappropriately incite a jury to make a determination on an improper basis”
should be objected to for this reason—and it is unclear whether Reptilian style questions would
do so. See Aurigemma, 2023 WL 197044, at *7.
18 	See Doc. 133.
19 	Aurigemma, 2023 WL 197044, at *7 (citing Barrella v. Vill. of Freeport, 714 F. App'x 78, 80
(2d Cir. 2018)).
20 	Edwards v. City of Philadelphia, 860 F.2d 568, 574 (3d Cir. 1988) (quoting Spray–Rite Service
Corp. v. Monsanto Co., 684 F.2d 1226,1246 (7th Cir.1982)).
21 	Id. at 574 n.6.
22 	Doc. 149, at 3.
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accountable.” 23 The Court believes that Plaintiffs have read this prong of the
Defendants motion too broadly. All Defendants seek is to prohibit “arguments or
[solicited] testimony based on the Golden Rule.” 24 They do not seek to generally bar
questions about safety or holding corporations accountable—or at least their motion
does not clearly articulate such a request. 25Because Defendants only seek to bar the
usage of the Golden Rule at trial and the parties appear to be in agreement regarding
the impropriety of this usage, the Court will grant that aspect of the motion.26
II. 	PLAINTIFFS’ MOTIONS IN LIMINE
Plaintiffs raise four arguments, in four separate motions in limine, seeking to
prohibit the introduction of specific evidence: (1) conduct evidence of Mr. Twigg—
particularly evidence that he may have been at fault for his injuries, (2) prior
accidents involving similar L-Screen products, (3) the lack of industry standards
relating to the L-Screens, and (4) spoilation evidence related to the L-Screen
involved in Mr. Twigg’s injuries. 27 Again, each issue that is raised will be addressed
in turn.
23 	Id.
24 	Doc. 133 ¶ 38.
25 	In the event that the Defendants are seeking such broad relief, the Court would deny their
efforts to preclude all mentions of these topics. This would amount to them “seek[ing] to
preclude many hypothetical scenarios in which the plaintiffs’ counsel could make improper
arguments or statements to the jury. Such requests are premature, as we cannot know what
counsel intends to argue until the time of trial.” Doe v. Schuylkill Cnty. Courthouse, No. 3:21-
CV-477, 2025 WL 389499, at *2 (M.D. Pa. Feb. 4, 2025).
26 	See id.
27 	See Docs. 135-38.
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A. 	Conduct Evidence
Plaintiffs’ first motion in limine requests that the Court “preclude[e] the
Defendant from introducing any evidence or making any arguments at trial
concerning the Plaintiff's conduct as a cause of the accident.” 28 They argue that such
evidence should be barred for three reasons: (1) because it is irrelevant, (2) because
Pennsylvania law precludes the admission in strict liability cases, and (3) because it
would be unduly prejudicial. 29 Each argument is severely underdeveloped and,
ultimately, unconvincing.
While Plaintiffs make a compelling argument for why this evidence is
irrelevant to their strict liability claim, they ignore the fact that their complaint
included a negligence claim. 30 That claim remains alive in this litigation, and this
Court “decline[d] to deem this claim abandoned” at the motion to dismiss stage.31
Given that Pennsylvania is a modified comparative negligence system, evidence of
Plaintiffs conduct would certainly be relevant to the negligence claim here. 32
Plaintiffs also allege in conclusory fashion, and with no citation to relevant
case law, that Pennsylvania law bars the admission of such evidence in a strict
28 	Doc. 135, at 3.
29 	Id.
30 	See Doc. 1, at 10.
31 	Doc. 117, at 45.
32 	See 42 PA. CONS . STAT . § 7102; Marks v. Redner's Warehouse Mkts., 136 A.3d 984, 988-89
(Pa. Super. Ct. 2016) (citing Terwilliger v. Kitchen, 781 A.2d 1201, 1209 (Pa. Super. Ct.
2001)); Knight v. Avco Corp., No. 4:21-CV-00702, 2025 WL 2677533, at *4 (M.D. Pa. Sept.
18, 2025).
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liability case. 33 That assertion must be flatly denied, as there are several reasons that
a Plaintiff’s negligent conduct can be admissible in a strict liability case. 34 Of note,
such evidence can be extremely relevant to a proximate cause analysis—a required
element of a strict liability claim in Pennsylvania. 35 Additionally, the Third Circuit
has said that “that a jury may consider a plaintiff’s actions first to decide if a
plaintiff’s conduct was not reasonably foreseeable or were otherwise extraordinary,
and, if so, then to consider whether the conduct or the defect was the substantial
factor in causing the plaintiff's harm.” 36 Such an argument is the precise reason that
Defendants seek to admit evidence of Mr. Twigg’s conduct. 37 As a result, this
evidence is not barred from being entered in the trial of this case.
Plaintiffs’ final argument that such conduct evidence would be unduly
prejudicial is also undeveloped and unconvincing. The Third Circuit has explicitly
stated that “pretrial Rule 403 exclusions should rarely be granted.” 38 “Excluding
evidence as being more prejudicial than probative at the pretrial stage is an extreme
measure that is rarely necessary, because no harm is done by admitting it at that
stage.” 39 The Court agrees with this logic.
33 	See Doc. 135, at 3.
34 	See Sweitzer v. Oxmaster, Inc., No. CIV.A. 09-5606, 2010 WL 5257226, at *7 (E.D. Pa. Dec.
23, 2010).
35 	See id. at *6.
36 	Id. at *7 (quoting Parks v. AlliedSignal, Inc., 113 F.3d 1327, 1336 (3d Cir.1997)) (internal
quotation marks omitted).
37 	See Doc. 147, at 8.
38 	In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 859 (3d Cir. 1990).
39 	Id.
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This is not a case where the Court has before it “a record complete enough on
the point at issue to be considered a virtual surrogate for a trial record.” 40 That is the
sole requirement “to exclude evidence under Rule 403 at the pretrial stage,” and it is
clear that it is not met in this case. As a result, an objection to this evidence under
Rule 403 Federal Rule of Evidence is premature. However, the Plaintiffs may raise
this objection when such evidence is raised at trial.
Because all of Plaintiffs’ arguments regarding the inadmissibility of evidence
of Mr. Twigg’s conduct are unpersuasive, Plaintiffs’ first motion in limine is denied
without prejudice.
B. 	Prior Accidents
Plaintiffs also argue that Defendants should not be allowed to submit “any
evidence or mak[e] any arguments at trial of [the lack of] prior similar accidents
involving the L-Screen Net at issue.”41 First it is necessary to make a determination
that is essential to an analysis of this motion: whether state or federal law applies.
Both parties ignore this crucial question, but the Third Circuit has conclusively
stated that “the question presented is governed by federal rather than state law.” 42
“Testimony concerning an alleged absence of prior accidents will usually
satisfy the relevance threshold established by Rule 402. Such testimony, however,
40 	Id.
41 	Doc. 136, at 1.
42 	Forrest v. Beloit Corp., 424 F.3d 344, 354 (3d Cir. 2005).
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by its very nature, raises significant concerns regarding unfair prejudice to the
plaintiff, and these concerns are heightened in product liability cases arising under
Pennsylvania law.” 43 Therefore, an analysis under Rule 403 of the Federal Rules of
Evidence is essential when prior accidents evidence is at issue. 44 When conducting
such an inquiry, “courts … 	have recognized that the probative value of such
evidence is determined in large measure by the foundation laid by the offering
party.”45 Generally, 	there 	are 	three 	elements 	to 	an 	adequate 	foundation:
“(a) similarity—the defendant must show that the proffered testimony relates to
substantially identical products used in similar circumstances; (b) breadth—the
defendant must provide the court with information concerning the number of prior
units sold and the extent of prior use; and (c) awareness—the defendant must show
that it would likely have known of prior accidents had they occurred.” 46
Despite Plaintiffs claims, evidence of previous injuries with similar or
identical L-Screen products “has a 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, and is relevant.”47 But this evidence must still
survive a Rule 403 analysis. What will ultimately determine the admissibility, under
43 	Id. at 358.
44 	Id. at 356.
45 	Id. at 355.
46 	Id. at 358.
47 	Facciponte v. Briggs & Stratton Corp., No. 3:09CV1584, 2011 WL 3841640, at *2 (M.D. Pa.
Aug. 29, 2011) (quoting F ED. R. EVID. 402) (internal quotations omitted).
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Rule 403, of this evidence is the adequacy of the foundation that the Defendants set
forth when they seek to proffer the evidence. 48 At the current state of the litigation
— with no idea what hypothetical foundation could be laid for such evidence — the
Court cannot undertake a proper Rule 403 inquiry. Therefore, the Court will deny
Plaintiffs’ second motion in limine without prejudice. 49
C. 	Specification Standards
Plaintiffs next seek to preclude “any evidence or argument at trial that the
subject product, the L-Screen, was not required to adhere to any industry or
manufacturing specifications, standards, or regulation.” 50 Prior to 2014, this kind of
evidence would appear to have been relevant to the Plaintiffs negligence claim, but
would have been conclusively barred for the strict liability claim. 51 However, that
year, the Pennsylvania Supreme Court overturned a previous precedent and left up
in the air the state of the rule that prohibited evidence of industry standards in strict
liability cases.52 While that inconclusive determination left many issues unresolved
in this area, what it did make clear was that courts applying Pennsylvania law
48 	See id.; Forrest, 424 F.3d at 355.
49 	Plaintiffs may reassert this argument at trial after a foundation is attempted to be given. At that
point, the Court will be in a better position to ascertain that foundation’s adequacy and conduct
the proper Rule 403 analysis. See Facciponte, 2011 WL 3841640, at *2.
50 	Doc. 137.
51 	See Sweitzer v. Oxmaster, Inc., No. CIV.A. 09-5606, 2010 WL 5257226, at *11 (E.D. Pa. Dec.
23, 2010) (“Under Pennsylvania law, a jury may not consider evidence of industry standards
or regulations to show the alleged reasonableness of a manufacturer's conduct in its design
choice or the alleged absence of a product defect. Lewis v. Coffing Hoist Div., 515 Pa. 334,
528 A.2d 590, 594 (Pa.1987)”).
52 	See Tincher v. Omega Flex, Inc., 628 Pa. 296, 104 A.3d 328 (2014).
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“should 	not 	draw 	a 	bright 	line 	between negligence theories
and strict liability theories regarding evidence of industry standards.” 53 Other courts
in this district have held that such evidence is relevant to both negligence and strict
liability claims and this Court agrees. 54 Therefore, the evidence will be deemed
admissible and Plaintiffs’ Third Motion in limine is denied. 55
D. 	Spoilation
Finally, 	Plaintiffs 	seek 	the 	prohibition 	of 	any 	evidence 	or 	argument
“concerning any alleged spoliation of the L-Screen Safety Net.” 56 “Since the early
17th century, courts have admitted evidence tending to show that a party destroyed
evidence relevant to the dispute being litigated. Such evidence permit[s] an
inference, the ‘spoliation inference,’ that the destroyed evidence would have been
53 	Cloud v. Electrolux Home Prods., Inc., No. CV 15-00571, 2017 WL 3835602, at *2 (E.D. Pa.
Jan. 26, 2017). The case of Sullivan v. Werner Co., 306 A.3d 846 (Pa. 2023), does not impact
the Court’s analysis. While this evidence is “inadmissible in design defect cases to show a
product is not defective under the risk-utility theory,” Sullivan did not address the admissibility
of such evidence under the consumer expectation theory—a theory advanced in this case.
Sullivan, 306 A.3d at 861. It appears that the reason the Defendants would proffer such
evidence is to advance a claim under this theory. See Doc. 156, at 11. While this evidence may
only be marginally probative of a claim under the consumer expectation theory, it appears to
the Court that it satisfies the relevance standards of the Federal Rules of Evidence, and,
therefore, is admissible.
54 	See, e.g., Cloud, 2017 WL 3835602, at *2.; Lehmann v. Louisville Ladder Inc., 610 F. Supp.
3d 667, 689 (E.D. Pa. 2022).
55 	Plaintiffs also argue that such evidence would be unduly prejudicial. Doc. 137, at 1. For the
same reasons as provided in the analysis of Plaintiff’s first motion in limine, this argument is
premature. See In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 859 (3d Cir. 1990). The
Plaintiffs may reiterate this argument at trial where appropriate, but granting such an “extreme
measure” will not be done at this stage. Id.
56 	Doc 138, at 1.
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unfavorable to the position of the offending party”57 However, for the spoilation
doctrine to apply, the party must have been in control of the evidence and there must
have been “an actual suppression or withholding of the evidence. No unfavorable
inference arises when the circumstances indicate that the document or article in
question has been lost or accidentally destroyed, or where the failure to produce it is
otherwise properly accounted for.”58
Here, Defendants have proffered no evidence that Mr. Twigg was either in
control of the evidence or actually suppressed it. Their only statement on the matter
is: “the director, coach, and other staff members of Montoursville High School all
touched the L-screen net after the date of loss. In addition, this L-screen net was
stored in a garage with another L-screen net and the school merely made a distinction
between the two nets based off of what a school employee said was the subject net.” 59
Such a week showing of evidence is insufficient to make out control or suppression
by Mr. Twigg. Without that showing of control and bad faith, no “sanctionable
spoliation” has occurred.60
With no evidence that spoliation has actually occurred, the Court will not
allow the jury to hear evidence of spoliation in this case. 61 Such evidence would
57 	Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78 (3d Cir. 1994) (citations omitted).
58 	Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir. 1995).
59 	Doc. 155, at 8.
60 	Bull v. United Parcel Serv., Inc., 665 F.3d 68, 79 (3d Cir. 2012).
61 	If Defendants have evidence that the Plaintiffs had control of the L-Screen and actually
suppressed or withheld it, they may raise it at trial. See Brewer, 72 F.3d at 334. But in the
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violate Rule 403 of the Federal Rules of Evidence; it would not be relevant, since it
would concern individuals and entities who are not parties to this case, and it would
be highly prejudicial to the Plaintiffs. Therefore, Plaintiffs’ Fourth Motion in Limine
is granted.
III. 	CONCLUSION
For the foregoing reasons, Defendants’ Joint Motion in Limine to Exclude
Medical Evidence and Plaintiffs’ Fourth Motion in Limine are granted. Defendants’
Joint Motion in Limine to Preclude Arguments is granted in part and denied in part.
Finally, Plaintiffs’ Third Motion in Limine is Denied, while their First and Second
Motions in Limine will be denied without prejudice.
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge
absence of that evidence, the Court will not allow evidence of the general unavailability of the
L-Screen.
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