Nos: 03-2846/2879 M.B., AMINOR, BY AND THROUGH HER PARENT AND NATURAL GUARDIAN, T.B v. City of Philadelphia

1
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos: 03-2846/2879
M.B., A MINOR, BY AND THROUGH HER
PARENT AND NATURAL GUARDIAN, T.B.
v.
CITY OF PHILADELPHIA;
DEPARTMENT OF HUMAN SERVICE;
WAYNE GREGORY; MAXINE TUCKER;
JOAN REEVES; THOMAS CIESLINSKI;
WOMEN'S CHRISTIAN ALLIANCE;
MARY BARKSDALE; IRVING FORD;
MARVA ROUNTREE; S. ROBINSON;
SANDRA LEWIS; JENLENE JONES;
CONSTANCE SAVAGE; NAOMI BYRD;
LISA KERWIN
Mary Barksdale,
Appellant No. 03-2846
No: 03-2879
M.B., A MINOR, BY AND THROUGH HER
PARENT AND NATURAL GUARDIAN, T.B.
v.
CITY OF PHILADELPHIA;
DEPARTMENT OF HUMAN SERVICE;
WAYNE GREGORY; MAXINE TUCKER;
JOAN REEVES; THOMAS CIESLINSKI;

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J u d g e C h e r to f f h e a r d o r a l a r g u m e n t in th is c a s e b u t r e s ig n e d*
p r io r to th e tim e th e o p in io n w a s f ile d . T h e o p in io n is f ile d b y a
q u o r u m o f th e p a n e l. 2 8 U .S .C . § § 4 6 ( d ) .
2
WOMEN'S CHRISTIAN ALLIANCE;
MARY BARKSDALE; IRVING FORD;
MARVA ROUNTREE; S. ROBINSON;
SANDRA LEWIS; JENLENE JONES;
CONSTANCE SAVAGE; NAOMI BYRD;
LISA KERWIN
Marva Rountree, Sandra Lewis,
Women's Christian Alliance,
Appellants No. 03-2879
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Civ. No. 00-cv-05223)
District Judge: Hon. Berle M. Schiller
Argued: June 21, 2004
Before: NYGAARD, McKEE and CHERTOFF,*
Circuit Judges
(Opinion filed: April 1, 2005)
ROBERT D. BILLET, ESQ. (Argued)
D. RYAN NUSSEY, ESQ.
Billet & Connor
2000 Market Street
Suite 2803
Philadelphia, PA 19103
Attorneys for Appellant, Women’s
Christian Alliance, Sandra Lewis and
Marva Rountree

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3
PHILIP B. SILVERMAN, ESQ.
STEVEN N. CHERRY, ESQ. (Argued)
Mintzer, Sarowitz, Zeris Ledva & Meyers
1528 Walnut Street, 22nd Floor
Philadelphia, PA 19102
Attorneys for Appellant, Mary Barksdale
`
LEONARD V. FODERA, ESQ. (Argued)
JOHN R. TROTMAN, ESQ.
Monheit, Silverman & Fodera, P.C.
1835 Market Street – Suite 2600
Philadelphia, PA 19103
Attorneys for Appellee
OPINION OF THE COURT
McKEE, Circuit Judge.
The defendants appeal a jury verdict in the amount of $2.8 million in favor of
plaintiff on a claim arising out of the foster care placement of her minor child, “M.B.”
For the reasons that follow, we will affirm.
I. FACTS
Mary Barksdale is a 76 year old widow who lives in Philadelphia, Pennsylvania.
The Women’s Christian Alliance (“WCA”) is a social services agency licensed by the
Commonwealth of Pennsylvania and under contract with the City of Philadelphia.
Pursuant to that contract, the WCA assists the City in placing children in foster care
when parental custody has been suspended or terminated. In her capacity as a foster
parent, Barksdale has raised many foster children in cooperation with the City and the
WCA.

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M.B. exhibited difficult behavior patterns on both placements with Barksdale,1
and Barksdale utilized various “wraparound” and “respite” professional services to assist
with M.B.’s care. Between placements with Barksdale, while M.B. was living with T.B.,
M.B. was malnourished, and was thought to have been using illegal drugs.
4
“M.B.” was born in 1992, and lived with her biological mother, “T.B.,” for the
first several months of her life. The Juvenile Court eventually removed M.B. from
T.B.’s custody because of the latter’s mental illness and neglect. Pursuant to its contract
with the Philadelphia Department of Human Services (“DHS”), the WCA accepted M.B.
into foster care and she was placed with Barksdale in September 1993. She remained in
Barksdale’s custody through August 1994, when T.B. regained custody.
Problems with T.B.’s care of M.B. developed again in the summer of 1995, and
M.B. was once again placed with Barksdale in September 1995. M.B. remained in
Barksdale’s foster home until September 1996.1
Irving Ford, an adult male son of one of Barksdale’s neighbors, was “kicked out”
of his father’s home and left with no place to stay at some point prior to M.B.’s second
placement with Barksdale. Barksdale purportedly felt sorry for Ford and let him sleep on
a couch in her basement until he “got on his feet” and found a place to live.
T.B. periodically visited Barksdale during M.B.’s second placement with her.
During those visits, T.B. saw Ford and was aware that he was living in Barksdale’s
basement. In her deposition, T.B. testified that during her visits, M.B. made statements
about Ford being her boyfriend, “freak[ing] her”, and showing her “porn” books. After

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According to the website of the American Social Health Association:2
Human papilloma virus is one of the most common [sexually transmitted
diseases]. An estimated 40 million Americans are infected with HPV, with
1 million new cases each year. HPV is the name of a group containing more
than 80 different types of viruses. Certain types of HPV cause warts on the
hands or feet, while others can cause genital warts on the vulva, vagina,
anus, cervix, penis or scrotum. These may be raised or flat, single or
multiple, small or large. Some cluster together; some can't be seen by the
naked eye (subclinical infection). Often flesh-colored and painless, genital
warts only rarely cause symptoms such as itching, pain or bleeding. HPV
and genital warts are usually spread by direct, skin-to-skin contact during
sex. Warts might appear within several weeks after sex with an infected
person, they might take months to appear or they might never appear. Very
little is known about the transmission of subclinical HPV infection.
http://www.ashastd.org/stdfaqs/glossaryei.html#h_lc.
“Colposcopy is a procedure in which the doctor uses a special microscope3
(colposcope) to look into the vagina and cervix. It is used to find abnormal parts of the
cervix and take a sample to figure out how to treat them.”
(continued...)
5
these visits, T.B. contacted Wayne Gregory, a DHS employee assigned to M.B.’s case,
regarding Ford’s presence and M.B.’s comments. T.B. testified that she also informed
Thomas Cieslinsk, Gregory’s supervisor, of her concerns. D.H.S. employees
subsequently told T.B. that Ford did not live with Barksdale.
At the beginning of May 1996, while bathing M.B., Barksdale noticed that M.B.
appeared to have developed several “bumps” in her genital area. Barksdale informed the
respite worker who was assisting her, and the respite worker sought medical attention for
M.B. Thereafter, M.B. was diagnosed with the Human Papilloma Virus (“HPV”), and2
genital warts, and subsequently underwent a colposcopy. Although M.B. denied having3

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(...continued)3
http://lib-sh.lsumc.edu/fammed/pted/colpopre.html
Rountree testified in her deposition, which was admitted at trial, that she had seen4
Ford at Mrs. Barksdale’s home 7 or 8 times before M.B. was placed there and saw him 2
or 3 times after the placement.
6
been “touched” by anyone, a “CY-47” report of suspected abuse was filed.
DHS conducted two investigations after learning of M.B.’s condition. In the first
investigation, conducted in 1996, Investigator Emory Ellis concluded that the claim of
sexual abuse could not be substantiated. In the second, conducted in 1997, Ellis found
that there was substantial evidence of sexual abuse.
Barksdale claimed that Marva Rountree, a WCA caseworker, knew of Ford’s
presence in her home. According to Barksdale, Rountree saw Ford there and spoke to
him on various visits she had made to Barksdale’s home prior to, and during, M.B.’s stay
there. The WCA admitted that caseworkers had seen Ford in Mrs. Barksdale’s home,4
but denied knowing that Ford lived there. Since Ford was known as a neighbor who was
sometimes paid for doing chores in the neighborhood, the WCA purportedly believed
that he was only occasionally present in Barksdale’s home. Accordingly, the WCA
maintains that it had no knowledge that he was actually living in the Barksdale home
while M.B. was there.
Barksdale denied knowing that Ford was performing any sexual acts upon M.B. or
being involved in any improper touching. Barksdale also denied allowing Ford
unsupervised access to M.B., and she testified that she was unaware that he was smoking

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7
crack cocaine in her home.
However, Ford was ousted in 2001, for rape and related charges. He thereafter
pled guilty to sexual assault, indecent assault and corruption of the morals of a minor
based upon complaints that he had molested M.B. in Barksdale’s home. During the
course of his guilty plea colloquy the following exchange occurred:
ASSISTANT DISTRICT ATTORNEY: Judge, a summary
of the facts that the Commonwealth would present, we would
first call [M.B.]. . . . She would testify that back when she
was four years old she was living in foster care with [Mrs.
Barksdale]. That at the time she was living with Ms.
Barksdale the defendant, who she would identify as Erving
[sic] Ford, . . . had a space down the basement of Ms.
Barksdale’s house. She would testify that during the time
that [M.B] was there the defendant would come upstairs . .
.remove her clothing and touch her body, and he did at some
point in time place his penis inside her vagina. The testimony
would also indicate, Your Honor, that subsequent to that date
back in 1997 the complaining witness was treated at
Children’s Hospital and genital warts were surgically
removed for the child. . . . [I]n . . . 2000 [M.B.] . . .made the
disclosures as to what Mr. Ford had done to her. . . back
when she was between three and four years old . . . . We
would have further presented medical testimony to show that
the genital warts that the child had were contracted through
sexual contact.
THE COURT: Okay. You hear those facts?
FORD: Yes, sir.
THE COURT: Are they substantially correct?
* * *
FORD: Yeah.

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During the change of plea colloquy Ford told the sentencing court that he was5
satisfied with defense counsel.
8
However, when he was subsequently deposed, Ford denied committing the acts he had
admitted during his guilty plea colloquy. Rather, he claimed that he had been pressured
into pleading guilty by his court-appointed attorney who allegedly demanded that Ford
plead guilty despite his protestations of innocence.5
As Barksdale points out, the frequency, location and nature of M.B.’s abuse
remains unclear. No one witnessed Ford’s molestation of M.B., and Barksdale continues
to argue that, if M.B. was sexually abused, it occurred sometime between August 1994
and August 1995, when M.B. was living with her mother.
The WCA echoes Barksdale’s argument and adds that there is no evidence that
Ford has HPV or that he transmitted it to M.B. Ford has never been tested, no medical
records indicate that he has HPV and he denies having the disease. The WCA argues
that, since the incubation of the HPV virus is unknown, and since an infected individual
can remain asymptomatic for years with no sign of infection at all, M.B.’s diagnosis of
HPV in May 1996, only establishes that M.B. was exposed to it at some point. However,
argues the WCA, the exposure could have occurred at any point in her life, or even
during her gestation, and M.B.’s infection therefore cannot be traced to her stay in
Barksdale’s foster care.
II. PROCEDURAL HISTORY

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The § 1983 action was based on the state-created danger theory of liability under6
which liability can be imposed upon a state actor if the state actor plays a role in the
creation of the danger the plaintiff is subjected to. In Kneipp v. Tedder, 95 F.3d 1199,
1208 (3d Cir. 1996), we recognized the state-created danger theory of § 1983 liability,
holding that a plaintiff must prove four elements: (1) the harm ultimately caused was
foreseeable and fairly direct; (2) the state actor acted in willful disregard for the safety of
the plaintiff; (3) there existed some relationship between the state and the plaintiff; and
(4) the state actors used their authority to create an opportunity that otherwise would not
have existed for the injury to occur.
9
T.B. filed the instant action in the Court of Common Pleas as M.B.’s guardian.
She sued the City of Philadelphia, DHS, and certain DHS employees under 42 U.S.C. §
1983. The suit was thereafter removed to federal court and the complaint was amended6
to add various causes of action under state law and intentional state law tort claims
against Irving Ford.
The state law claims against Barksdale, the WCA, and the WCA’s employees
were all based on negligence.
The district court thereafter granted summary judgment in favor of the City
because T.B. had not established municipal liability under Monell v. City of New York
Dep’t of Social Services, 436 U.S. 658 (1978). However, the court ruled that genuine
issues of material fact existed as to WCA’s knowledge of Ford’s presence in the
Barksdale home and his access to, and contact with, M.B. M.B. v. City of Philadelphia,
2002 WL 733879 (E.D. Pa. March 3, 2003).
M.B. thereafter settled all claims except her state law claims against
Ford, Barksdale, the WCA and its employees. The district court exercised supplemental

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The court thereafter molded the verdict against one of WCA’s employees, Melva7
Rountree, into the judgment against the WCA.
10
jurisdiction over those claims pursuant to 28 U.S.C. § 1367(c). After the district court
resolved several in limine motions, the remaining claims proceeded to trial before a jury.
At the conclusion of M.B.’s evidence at trial, Barksdale moved for a directed verdict or
judgment as a matter of law. The court denied that motion and the jury returned a verdict
in favor of M.B. in the amount of $2.8 million. Liability was allocated among the WCA,
Barksdale, Ford and various WCA employees. Barksdale and Ford were each found to
be 25% responsible. Post verdict motions were denied, M.B. v. Women’s Christian7
Alliance, 2003 WL 21384836 (E.D. Pa. June 16, 2003), and these consolidated appeals
followed.
II. DISCUSSION
Barksdale and the WCA make a number of arguments in support of their appeals.
We consider each separately:
A. Admission of Ford’s guilty plea.
Both the WCA and Barksdale challenge the preclusive effect the district court
afforded Ford’s guilty plea during the trial of their state law claims. In their joint motion
in limine, Barksdale and the WCA asked the district court for a ruling that Ford’s guilty
plea “does not have collateral estoppel effect in this case, is not conclusive, and shall be
treated [only] as an admission against interest on the part of Irving Ford.” The court

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The district court gave the following limiting instruction to the jury:8
Now, you have heard during the trial that on October 15, 2001, the
defendant Erving (sic) Ford pled guilty to the criminal charges of statutory
sexual assault, indecent assault and corrupting the morals of a minor.
You may not consider the fact of Mr. Ford’s guilty plea as determinative
on the liability of any of the other defendants in this case.
In other words, even though it is conclusively established the Erving
(sic) Ford committed the act or acts that he admitted, to recover against any
of the other defendants in this matter the plaintiff must still prove each and
all of the required elements of her claims against the other defendants as I
will further instruct you.
You are specifically instructed that you are not permitted to consider Mr.
Ford (sic) guilty plea in determining whether the other defendants were
aware of him performing the acts to which he pled guilty.
The WCA and Mrs. Barksdale did not object to the limiting instruction in the district
court and do not challenge it here in their appeals.
11
denied that motion in an order dated March 4, 2003, in which the court held, inter alia:
b. The fact of Irving Ford’s guilty plea and the guilty plea
colloquy of Irving Ford, dated October 15, 2001, are
admissible in evidence at trial against Defendant Irving Ford
only.
c. The guilty plea and guilty plea colloquy are conclusive
evidence that Defendant Ford committed the acts admitted to
therein. Defendants are precluded from presenting evidence
on the issue of whether these acts were committed.
d. An appropriate limiting instruction will be given to the
jury regarding the non-conclusive effect of the guilty plea
against the other defendants in proving elements of the claims
against them such as knowledge or deliberate indifference.8

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12
In their respective appeals, the WCA and Barksdale make separate but related arguments
that they are entitled to a new trial because of that ruling. We review the district court’s
decision to admit evidence for abuse of discretion. Ansell v. Green Acres Constr. Co.,
347 F.3d 515, 519 (3d Cir. 2003).
The WCA and Barksdale rely in part upon the general presumption against
allowing a guilty plea to collaterally estop related evidence in a subsequent civil action.
In determining the collateral estoppel effect of a prior state court criminal proceeding, we
look to the law of the state where the criminal proceeding took place. Anela v. City of
Wildwood, 790 F.2d 1063, 1068 (3d Cir. 1986). Pennsylvania allows collateral estoppel
if:
(1) the issue decided in the prior case is identical to one
presented in the later case; (2) there was a final judgment on
the merits; (3) the party against whom the plea is asserted was
a party or in privity with a party in the prior case; (4) the party
or person privy to the party against whom the doctrine is
asserted had a full and fair opportunity to litigate the issue in
the prior proceeding; and (5) the determination in the prior
proceeding was essential to the judgment.
Stidham v. Millville Sportsmen’s Club, 618 A.2d 945, 954 (Pa. Super. 1992). Appellants
claim that we have held that a guilty plea should not result in estoppel because it does not
rest on an actual adjudication or determination of any issue. They rely in large part upon
Bower v. O’Hara, 759 F.2d 1117 (3d Cir. 1985); Anela v. City of Wildwood, 790 F.2d
1063 (3d Cir. 1987); and Linnen v. Armainis, 991 F.2d 1102 (3d Cir. 1993).
In Bower v. O’Hara, we held that O’Hara was not estopped from raising a self-

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13
defense claim because that issue had not been “actually litigated” when he previously
pled guilty to assaulting Bower. 759 F.2d at 1126. We reasoned that collateral estoppel
(or issue preclusion) was designed to prevent unnecessary relitigation of issues actually
litigated and determined. Id. at 1125. However, since a guilty plea, has never been the
subject of an “adversary contest leading to a judicial determination,” it should not be
accorded total preclusive effect. Id. We concluded that, although the plea may constitute
evidence against the defendant in later proceedings, the defendant should still have an
opportunity to contest relevant facts. Id. at 1126.
Similarly, in Anela v. City of Wildwood, six young women pled guilty to violating
a resort town’s anti-nose ordinance. Thereafter, they filed a § 1983 suit against the town
and various municipal officials asserting, inter alia, that they were arrested without
probable cause in violation of the Fourth Amendment. Id. at 1068. We held that the
women were not collaterally estopped from raising the Fourth Amendment claim in the §
1983 action because their guilty pleas were “to a non-indictable offense where the Fourth
Amendment issues of fact were never subjected to an adversary contest leading to a
judicial determination.” Id. at 1069.
Finally, in Linnen v. Armainis, Linnen was charged with various violations of a
state’s drug and weapon’s laws. Although he was represented by counsel, he filed a pro
se suppression motion, but he pled guilty to the charges before the motion was decided. It
was undisputed that if he “had been successful in suppressing the evidence . . . he would

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14
have had a complete defense to the possessory offenses charged against him in the state
criminal case.” Id. at 1103.
His conviction and sentence were affirmed, and he thereafter unsuccessfully filed
for relief under the state’s post-conviction relief act. He appealed to the state’s
intermediate appellate court, but while the appeal was pending, he filed a § 1983 action
against the arresting officers. That civil rights action claimed that police violated his
Fourth Amendment rights in seizing the evidence that resulted in his criminal conviction.
The district court held that he was collaterally estopped from bringing the § 1983 action
because he could have litigated the constitutionality of the search in a suppression
hearing, but failed to do so. We reversed because the legality of the search had never
been determined by the state court.
Appellants argue that Ford’s responsibility for any sexual assault M.B. may have
suffered has not been determined because it was never litigated, and his contend guilty
plea should therefore not have preclusive effect in M.B.’s suit against them. However,
their arguments diverge from there.
The WCA argues that since there can be no estoppel, judgment can not be entered
on the basis of Ford’s guilty plea alone. Therefore, argues the WCA, absent evidence to
corroborate the criminal acts Ford conceded during his guilty plea colloquy, neither his
statements there nor his plea can be admitted to establish the WCA’s liability. However,
that argument ignores the totality of evidence that was admitted in the district court.

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15
Morever, under Pennsylvania law, “a conviction from a guilty plea is equivalent to
a conviction from a trial-by-jury,” DiJoseph v. Vuotto, 968 F.Supp. 244, 247 (E.D. Pa.
1997) (citing Commonwealth Dept. of Transportation v. Mitchell, 535 A.2d 581, 585
(Pa. 1987), because a guilty plea constitutes an admission to all facts alleged in the
indictment. Commonwealth Dept. of Transportation v. Mitchell, 535 A.2d at 585. In
Mitchell, the Pennsylvania Supreme Court held that summary judgment may be granted
in a civil proceeding based upon a guilty plea in a criminal case if the operative facts in
the criminal case are identical to those that would be litigated in a civil case.
Furthermore, in Pennsylvania, “criminal convictions are admissible in civil actions
arising from the same operative facts and circumstances [and] these convictions are
conclusive evidence of the criminal acts.” Stidham v. Millvale Sportsmen’s Club, 618
A.2d 945, 952 (Pa. Super. 1993).
The operative facts in Ford’s criminal case mirror the facts that would support the
WCA’s liability to M.B. Ford’s admissions establish not only that he had access to her,
but that he used that access to sexually assault her after the WCA placed her in foster
care. Moreover, the jury could conclude from evidence it heard about WCA employees
seeing Ford in Barksdale’s home that the WCA had reason to suspect that the placement
exposed M.B. to Ford. Yet, the WCA apparently made few if any inquiries into Ford’s
background or circumstances. Whether or not the WCA knew Ford was living there, the
jury clearly could have concluded that WCA employees knew enough to realize he had

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16
access to M.B. The fact that they may not have known the full extent of Ford’s access to
M.B. would not undermine the jury’s determination of liability. Therefore, we are
unconvinced by the WCA’s attempt to require evidence to corroborate the admissions
Ford made during his change of plea colloquy.
Barksdale relies upon a different argument. She concedes that Ford’s guilty plea
was admissible against him. However, she relies upon Bower, Anela and Linnen, to argue
that the district court erred by holding that she was precluded from challenging whether
Ford actually committed the acts he admitted. More specifically, Barksdale argues that
she was collaterally estopped from introducing evidence that Ford had given statements
prior to being criminally charged in which he denied molesting M.B. She also argues that
she was prevented from introducing the denials he made during his deposition as well as
the explanations he offered there stating that he was pressured into pleading guilty to
avoid spending up to twenty years in prison. In other words, Barksdale argues that the
district court erred in not allowing her to introduce evidence that Ford was innocent of the
crimes he admitted during his guilty plea colloquy. We are not persuaded by Barksdale’s
argument.
Initially, we have serious doubts about the applicability of Bower and Anela.
Bower was a Virgin Island’s case, and our analysis was therefore predicated on the
Restatement, see Restatement (Second) of Judgments, § 27, as required by V. I. Code
Ann. tit. 1, § 4. Here, we are not construing the Restatement. Similarly, Anela was

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We also noted in Anela that the state appellate court’s decision in Tanelli was9
consistent with our interpretation of the Restatement (Second) of Judgments in Bower.
790 F.2d at 1068.
Linnen was decided before the Supreme Court adopted the “favorable10
termination rule” in Heck v. Humphrey, 512 U.S. 477 (1994). However, the Court did
recognize that a § 1983 claim for damages because of an unlawful search does not
necessarily impeach the criminal conviction resulting from the search. Id. at 487 n.7.
Linnen’s discussion of the availability of a § 1983 action must be read in light of Heck.
At first glance, Stidham v. Millvale Sportsmen’s Club, 618 A.2d 945 (Pa. Super.11
1993), lends some support to Barksdale’s argument that she should be able to avoid the
preclusive effect of Ford’s guilty plea. There, McLaughlin suffered from alcoholic
(continued...)
17
decided on the basis of New Jersey law as set forth in Matter of Tanelli, 477 A.2d 686
(N.J. Super. Ct. App. Div. 1984). There, the court held that guilty pleas to inconsequential
non-indictable offenses cannot collaterally estop one who pleads guilty from instituting a
civil suit because guilty pleas in such cases are used to informally adjudicate matters that
are not deemed to be very serious. Given the severe nature of the charges against Ford,9
Matter of Tanelli is simply not implicated here.
We agree that Linnen does support Barksdale’s position. However, the collateral10
effect of the guilty plea there was being asserted against the person who actually pled
guilty to the crime. That is not our case. Ford is not arguing that his guilty plea should
not have preclusive effect, Barksdale is. However, she is unable to offer any authority to
support her argument that a civil defendant who did not plead guilty to the crime which is
the foundation of the civil action can demonstrate that her civil co-defendant’s guilty plea
does not have a preclusive effect.11

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(...continued)11
blackouts, when he drank to excess. He would thus have no conscious awareness or
memory of his actions. After drinking in a bar and the sportsmen’s club, he shot and
killed Stidham during a blackout. Ultimately, he pleaded guilty to third degree murder.
At the time he killed Stidham, McLaughlin was insured under a homeowner’s
policy issued by Aetna, which contained a bodily injury limit of liability of $50,000, and
contained the standard exclusion for injuries which are “expected or intended” by the
insured. Id. at 948. Stidham’s administratrix filed a wrongful death and survival action
against the bar and the sporstmen’s club, both of whom, joined McLaughlin as an
additional defendant. When joined, McLaughlin had already pleaded guilty to third
degree murder.
After numerous motions and filings not relevant here, an intermediate appellate
court held that the guilty plea, by itself, was not necessarily conclusive proof of “any
conscious or knowing action by McLaughlin which would bring his actions within
Aetna’s policy exclusion.” Id. at 951. Consequently, it examined the criminal information
detailing the charges brought against McLaughlin to determine “just what he admitted by
virtue of his guilty plea.” Id. It concluded by noting that while the plea did establish that
McLaughlin shot and killed Stidham, it did “nothing to enlighten us regarding his intent
to shoot and kill” Stidham. Id. at 953. Accordingly, the appellate court held that while
McLaughlin’s guilty plea is admissible in the underlying civil action, the plea was “hardly
conclusive evidence of McLaughlin’s intent thereby operating as a bar to recover under
his Aetna’s homeowner’s policy.” Id. Therefore, the appellate court held that “[b]ecause
McLaughlin’s intent remains a material, factual issue, not excluded by Aetna’s evidence,
summary judgment in favor of Aetna was inappropriate.” Id.
The administratrix in Stidham was not collaterally estopped by McLaughlin’s
guilty plea because McLaughlin had assigned all of his rights under the homeowner’s
policy to the administratrix. In other words, the administratrix stood in the shoes of the
person who pleaded guilty. Here, however, Mrs. Barksdale does not stand in Ford’s
shoes.
18
Barksdale’s claim, if accepted, would unravel a well-established principle of
Pennsylvania law. As we have noted above, under Pennsylvania law, a guilty plea
constitutes an admission to all of the facts alleged in the indictment. Mitchell, 535 A.2d
at 585.

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19
Moreover, we think that the entire argument about Ford’s guilty plea is the
proverbial “red-herring.” M.B.’s claims sound in negligence. The district court’s order
specifically permitted Appellants to introduce evidence that they exercised reasonable
care. The court provided: “An appropriate limiting instruction will be given to the jury
regarding the non-conclusive effect of the guilty plea against the other defendants in
proving elements of the claims against them such as knowledge or deliberate
indifference.” As noted, a limiting instruction was given, and no objections were entered.
See n.9, supra. We assume that the jury understood and followed the limiting instruction.
Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 383 (3d Cir. 2002).
The district court’s ruling also allowed defendants to introduce any evidence of
sexual abuse by someone other than Ford or that sexual abuse occurred at a time or place
other than that conceded during Ford’s colloquy. In fact, one of Barksdale’s defenses at
trial was that M.B. was sexually abused while M.B. was living with her mother, T.B.,
between August 1994 and August 1995. The jury heard that argument, and any evidence
that was offered to support it, and rejected it. We see no reason to upset the jury’s
assessment of that defense.
B. Failure to grant judgment as a matter of law
or a new trial to Barksdale.
Barksdale argues that the district court erred in denying her motions for judgment
as a matter of law and for a new trial for reasons not related to the motion in limine.
(1). Judgment as a matter of law.

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20
Judgment as a matter of law can only be granted when there is no legally
sufficient basis for a reasonable jury to find for the nonmoving party. Gomez v.
Allegheny Health Sys., Inc., 71 F.3d 1079, 1083 (3d Cir. 1995). If the record contains
even the minimum quantum of evidence necessary to support a verdict, the verdict must
be sustained. Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 691 (3d Cir.
1993) (citation and internal quotations omitted). Our review of the district court’s order
denying a new trial and refusing judgment as a matter of law is plenary. Wittekamp v.
Gulf & Western, Inc., 991 F.2d 1137, 1141 (3d Cir. 1993).
Barksdale argues that she should have been granted judgment as a matter of law
because a reasonable jury could not have found her liable based upon the evidence. She
claims that M.B. maintains she was negligent in failing to inform the WCA of Ford’s
presence in her home, and in failing to properly supervise M.B. However, according to
Barksdale, M.B. produced no evidence of any such negligence. M.B. did not testify, and
no one witnessed any instances of sexual abuse in Barksdale’s home. She also points to
the absence of any evidence that: 1) she allowed Ford close contact with, or unsupervised
access to, M.B.; 2) that she was ever aware or should have ever been aware, that Ford
was molesting M.B.; or that, 3) she was aware of any proclivity Ford may have had to
molest children. Barksdale concludes that there is therefore no evidence that she
breached a duty to M.B.
Barksdale also contends that there was insufficient evidence of causation because,
even if she was negligent in not informing the WCA, their employees knew Ford was at

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21
least a frequent visitor prior to M.B.’s second placement in Barksdale’s home. Barksdale
points to testimony from the WCA’s own employees that the WCA had a duty to perform
a background check on Ford under those circumstances. Given that evidence, Barksdale
claims that it was not necessary for her to inform the WCA about Ford’s presence,
because the WCA clearly knew.
However, there was evidence from which the jury could conclude that Barksdale
permitted Ford to live in her home in violation of foster care regulations. Moreover, it
appears that Barksdale never bothered to inquire why Ford, an admitted crack addict, was
not allowed to live in his own home. We realize that Barksdale denied knowing that
Ford was a crack addict. However, testimony from Ford’s deposition, if accepted by the
jury, would have established that Barksdale knew of his addiction and that he was using
cocaine while living with Barksdale. The jury also heard testimony from Ford’s
deposition in which he stated that M.B. was permitted to play in Barksdale’s basement
with no supervision “millions of times.” Given such testimony, a reasonable juror could
well conclude that Barksdale was negligent, and that her failure to properly supervise
M.B. presented Ford with an opportunity to molest her.
Furthermore, we reject Barksdale’s claim that the WCA’s knowledge of Ford’s
presence somehow exonerates Barksdale in this tragic affair. One defendant’s
negligence does not necessarily negate another defendant’s negligence. See, e.g.,
Piekarski v. Club Overlook Estates, Inc., 421 A.2d 1198, 1297 (Pa. Super. 1980). We
need not explore the subtleties of tort law to realize that the WCA’s negligence would

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22
not excuse Barksdale’s failure to use reasonable care. She was, after all, the foster parent
responsible for the care and custody of M.B. M.B. was living in Barksdale’s home and,
regardless of any knowledge the WCA may have had, Barksdale clearly knew that Ford
had unsupervised access to her.
(2). Motion for new trial.
A new trial may be granted where “the verdict is contrary to the great weight of
the evidence.” Roebuck v. Drexel Univ., 852 F.2d 715, 735 (3d Cir. 1988). However,
the trial court’s discretion to order a new trial is narrow. Klein v. Hollings, 992 F.2d
1285, 1290 (3d cir. 1993). The district court cannot substitute its view of the facts and
credibility of the witnesses for that of the jury. Fineman v. Armstrong World Indus., Inc.,
980 F.2d 171, 211 (3d Cir. 1992). Thus, a district court should grant a new trial “only
when the record shows that the jury’s verdict resulted in a miscarriage of justice or where
the verdict, on the record, cries out to be overturned or shocks our conscience.”
Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1353 (3d Cir. 1991) (citation
omitted).
Barksdale argues that she is entitled to a new trial because there is no rational
basis for finding her 25% responsible for M.B.’s damages; the same proportion attributed
to Ford. Barksdale claims that charging her with the same level of culpability as Ford
“shocks the conscience” and therefore entitles her to a new trial. We disagree.
Reasonable minds can certainly disagree about whether Barksdale and Ford are
equally responsible for what happened. However, given her role as the foster parent

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23
ultimately responsible for M.B.’s well being and safety, a determination that she was
equally responsible does not “shock the conscience.”
C. Unrelated allegations of sexual abuse.
Appellants argue that M.B’s counsel improperly referred to allegations that
another child who had been placed in Barksdale’s foster care had also been abused and
that unfair prejudice resulted that can only be remedied with a new trial.
The district court granted Appellants’ motion in limine insofar as they requested
that this evidence be excluded. However, on the first day of trial, while questioning a
witness, M.B.’s counsel referred to another child who had alleged been sexually abused
while in Barksdale’s foster care. Sandra Lewis, a case worker supervisor for the WCA
was also a defendant. The following exchange occurred while she was discussing a
“CY-47" form that is filed to report allegations to a child abuse hotline:
[M.B.’s counsel]: Nobody from WCA bothered to call [the child abuse
hotline] throughout the month of May, did they?
[Sandra Lewis]: I can’t remember.
Q: Well, if there was, there would be a CY-47, wouldn’t there?
A: A CY-47 was filed and it was unfounded.
Q: The CY-47 is from April, April 15, 1997.
A: That wasn’t the initial CY-47.
Q: The CY – you’re absolutely right, ma’am and we haven’t introduced
that into evidence because – and I’m not going to testify here. But isn’t it
true that that CY-47 was not for an incident with [M.B.], but for another
child in the foster home?

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24
A: Yes.
Q: Another child who had been –
App. 427 (emphasis added). Both counsel then objected, and the court explained that
“[i]t had nothing to do with this plaintiff.” In denying their motion for a new trial, the
district court explained:
[R]egardless of whether the question was improper, the Court
stopped the line of questioning and further testimony on the
topic and instructed the jury that “it had nothing to do with
this plaintiff.” As the reference was isolated, I cannot
conclude that it was reasonably probable, after three more
days of additional testimony, that this brief reference
influenced the verdict.
M.B. v. Women’s Christian Alliance, 2003 WL 21384836 at *4 (E.D. Pa. June 16, 2003).
We agree.
Appellants argue that this improper reference to another allegation of the sexual
abuse of a child in Barksdale’s care was highly prejudicial and improperly influenced the
jury. They refer to an affidavit submitted by Barksdale’s counsel in which counsel states
that during a discussion with jurors after the trial, one juror “specifically mentioned”
recalling testimony regarding allegations of abuse regarding other children and that she
thought that there were “other things going on” at the house the jury was not hearing.
The district court refused to consider that affidavit in denying a motion for a new trial.
The court explained its reluctance explaining that it “is well-settled that a trial court may
not consider statements, even those that are volunteered, from jurors regarding their
‘decisional processes’ when deciding a motion for a new trial.” 2003 WL 21384836 at

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“A new trial may be granted only where the improper statements made it12
‘reasonably probable’ that the verdict was influenced by prejudicial statements.”
Greenleaf v. Garlock, Inc., 174 F.3d 352, 363-64 (3d Cir. 1999) (citation omitted).
25
*3 n.5.
Although Appellants contend that the affidavit shows that the reference was
prejudicial, they do not argue that the district court erred by not considering it. Similarly,
they do not now argue that we should consider it.
We agree that trial counsel’s reference to these other allegations violated the
district court’s pretrial ruling, and that the reference was improper. However, the district
court has correctly explained why it does not merit the relief Appellants seek, and we can
add little to that explanation.12
D. Evidence of Ford’s drug use.
In her motion in limine, Barksdale argued the court should exclude evidence of
Ford’s drug use in her home and evidence of the price of crack cocaine. The district court
denied that request, and the jury heard testimony from Ford’s deposition wherein he
admitted smoking crack in her basement. On one such occasion, he purportedly
extinguished a lit crack pipe leaving crack smoke lingering in the air immediately before
Barksdale entered the basement. The jury also heard that Barksdale knew that Ford was
on probation for a drug offense and in a rehabilitation program for drug use.
Barksdale argues that evidence of Ford’s drug use in her home is not relevant to
the issue of whether she knew or should have known that Ford was going to or did

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The WCA also argues that evidence of Ford’s drug use in Barksdale’s home13
should have been precluded as irrelevant, or pursuant to the balancing test of Fed.R.Evid.
403. However, that argument consists of one paragraph and it does not explain why the
evidence was irrelevant or why it should have been excluded under Rule 403. We
believe the argument is meritless.
26
sexually abuse M.B. Therefore, she contends the district court’s denial of her motion in13
limine was an abuse of discretion warranting a new trial.
We will certainly assume arguendo that one who smokes crack or is involved in
drug rehab is no more likely to molest a minor child than one who isn’t. Nevertheless,
Barksdale’s argument woefully misses the point. Evidence of Barksdale’s knowledge of
Ford’s drug use is relevant to the quality of supervision and care in Barksdale’s home.
The issue is not whether Barksdale should have known that Ford might molest M.B.
because of he used crack. Rather, the issue is whether a jury could conclude that
Barksdale breached her duty of care to M.B. by allowing Ford to reside in her home with
M.B. under only minimal supervision. As we said in Kleinknecht v. Gettysburgh College,
989 F.2d 1360 (3d Cir. 1993):
The test of negligence is whether the wrongdoer could have
anticipated and foreseen the likelihood of harm to the injured
person resulting from his act. The type of foreseeability that
determines a duty of care, as opposed to proximate cause, is
not dependent upon the foreseeability of a specific event.
Instead, in the context of duty, the concept of foreseeability
means the likelihood of a general type of risk rather than the
likelihood of the occurrence of the precise chain of events
leading to the injury.
Id. at 1369 (citations and internal quotations omitted).

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Pursuant to Fed.R.App.P. 28(i), Mrs. Barksdale adopted by reference the WCA’s14
argument on this point.
27
Ford’s deposition testimony established that he paid $5.00 for a “rock” of cocaine;
the same amount Barksdale paid him for doing odd jobs. Barksdale argues that the price
of crack cocaine was totally irrelevant. In her view, the fact that she paid him $5.00 for
odd jobs and the fact that crack cost Ford $5.00 is merely coincidence.
Although this evidence was certainly tangential to the issues at trial, Barksdale did
testify that she did not know that Ford was using drugs, and that she put him out of her
house because he was “going to” use drugs. The jury could consider that along with her
paying him an amount equal to the cost of drugs in considering the extent of her
knowledge. Moreover, even if we assume that this evidence was irrelevant, Barksdale
would still not be entitled to relief. Given the totality of the evidence that was properly
admitted, it approaches frivolity to argue that she was unduly prejudiced by evidence
about the price Ford paid for crack.
E. References to Rape.
The district court also denied Appellants’ attempt to preclude M.B.’s counsel from
using the word “rape” at trial. Consequently, throughout the trial, and during argument,
M.B.’s counsel characterized Ford’s molestation as “rape.” Appellants now argue that
this unduly prejudiced them and warrants a new trial. The entirety of their argument is14
as follows:
The court’s ruling permitted plaintiff’s counsel to refer to

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28
instances of “rape” despite the fact that the rape charge was
dropped, and Erving (sic) Ford did not plead guilty to rape.
Plaintiff’s counsel’s reference of “rape” unfairly prejudiced
defendants.
To the extent that this argument complies with the requirements of Fed.R.App.P.
28(a)(9), we believe that it is without merit. The jury knew that, during his guilty plea
colloquy, Ford admitted that he did “at some point in time place his penis in her vagina.”
Given M.B.’s age, this clearly constituted statutory rape. Nevertheless, the court told the
jury that Ford only pled guilty to statutory sexual assault, indecent assault and corruption
of the morals of a minor. The district court also explained that counsel’s arguments are
not evidence and they were free to reject counsel’s reference to evidence during
argument to the extent those references differed from their own recollections of the
testimony. Consequently, we reject Appellants’ efforts to manufacture prejudice from
those references.
F. The Sufficiency of the Evidence that Ford Sexually Assaulted M.B.
The WCA also argues that there was insufficient evidence that Ford sexually
assaulted M.B. or that she contracted HPV and genital warts from Ford as a result of that
sexual assault. The argument has two parts.
First, the WCA says that Ford’s guilty plea was insufficient to establish that fact
of sexual abuse. We have already disposed of that claim. Second, the WCA says there is
no evidence that Ford ever had HPV, or that he transmitted it to M.B. Ford was never
tested for HPV and he denies having the disease. The WCA also attacks M.B.’s ob/gyn

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The WCA claims that it challenged Gherman’s report in a Daubert motion in15
limine, but that it was denied. However, M.B. says that the WCA voluntarily withdrew its
Daubert motion before it was ruled upon by the district court. In addition, says M.B., the
WCA did not call its own medical expert, Michael N. Braffman, M.D., at trial to refute
Gherman’s methodology and conclusions.
29
expert, Robert Gherman, M.D. The WCA claims he started by assuming that Ford
molested M.B. and transmitted HPV to her. However, the WCA claims his assumption
was not supported by any facts. This is largely because of the latency period for HPV15
which varies from a few months to several years. It is therefore impossible to determine
when M.B. was infected. Moreover, since HPV may be transmitted perinatally, the WCA
argues that M.B.’s mother may even have transmitted the infection to her.
We are not persuaded. The WCA ignores a report of its own medical expert,
Michael N. Braffman, M.D. Braffman opined that M.B.’s “sexual molestation by Mr.
Irving Ford . . . may be the most apparent cause of M.B.’s [genital wart and HPV]
infection.” That is hardly a remarkable conclusion. It does little more than state the
obvious. However, in his deposition, Braffman went even further. There, he stated that
Ford was the most obvious source of M.B.’s infection.
Perhaps in recognition of what Braffman would say at trial, the WCA decided not
to call him as a witness. Nothing on this record suggests that anyone other than Ford
infected M.B. or that she was infected while in someone else’s custody.
G. Refusal to Allow Defense Witness to Refresh Recollection.
Andrea Bartolo was the WCA’s social services expert. Counsel for the WCA

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30
attempted to refresh her recollection by reading WCA-817. That was a copy of a
document the WCA used to notify DHS of M.B.’s condition. We need not discuss this
contention in any detail. Even if we assume that the court erred in not allowing Bartolo to
refer to the document, another WCA witness, Sandra Lewis, testified about the same
document. Therefore, the jury knew that the WCA had reported M.B.’s condition to
DHS.
H. Expert Testimony on Trauma.
M.B.’s experts included Dr. Laurentine Fromm, a child psychiatrist, and Dr.
Kathryn Gregoire, a social worker with expertise in the area of child protective services.
Dr. Fromm testified that M.B. suffered from post-traumatic stress disorder and attention
deficit hyperactivity disorder (“ADHD”) and that those conditions were consistent with,
or exacerbated by, sexual abuse. She also testified, over the WCA’s objection, that
M.B.’s symptoms were exacerbated by being left in Mrs. Barksdale’s home after being
sexually abused.
Dr. Gregiore opined that the WCA breached its standard of care to M.B. by
leaving her in Barksdale’s home after learning she may have been sexually abused there.
She believed that M.B. was further traumatized by remaining where she had been
sexually abused.
The WCA argues that it was prejudicial error for the district court to allow the
experts to testify regarding the trauma M.B. suffered as a result of remaining in Mrs.
Barksdale’s home after being sexually abused there. They claim that there was no

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31
evidence that M.B. continued to suffer trauma. The WCA also argues that because
neither expert’s report contained any reference to this, their expert could not properly
respond. Therefore, the testimony was prejudicial error warranting a new trial.
It is true that neither expert’s report discussed further trauma as a result of M.B.
remaining in Mrs. Barksdale’s home after the sexual abuse ended. However, we do not
believe that the district court abused its discretion by allowing the experts to testify about
that.
Dr. Fromm testified that she had interviewed M.B. and reviewed her treatment
records. Her expert opinion that continuing trauma resulted from remaining in the home
merely elaborated upon her diagnoses of post-traumatic stress disorder and ADHD. See
Hines v. Consolidated Rail Corp., 926 F.2d 262, 271 (3d Cir. 1991) (“[The expert’s]
intensive and personal investigation of [plaintiff] distinguishes [the expert’s] testimony
from the testimony excluded by courts in a number of cases . . . where there was no
evidence in the record that experts ever examined or tested the plaintiff (or assertions) at
issue.”). The WCA knew from discovery that Dr. Fromm would be testifying about the
trauma M.B. suffered, the symptoms of that trauma and explaining the reasons for her
expert opinion. Moreover, the WCA can not now complain about not having an
opportunity to properly respond because it never called its own expert, Steven Samuel,
Ph.D., to attempt to rebut Dr. Fromm’s testimony.
Similarly, Dr. Gregiore’s testimony about M.B. remaining there was merely an
extension of his testimony about the appropriate standard of care.

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“Our review of a trial court’s jury instructions is plenary. When we assess jury16
instructions we must look at the totality of the charge given to the jury, not merely a
particular paragraph or sentence. We review jury instructions to determine whether, if
taken as a whole, they properly apprised the jury of the issues and the applicable law.
The trial court should be reversed only if the instruction was capable of confusing and
thereby misleading the jury.” Dressler v. Busch Entertainment Corp., 143 F.3d 778, 780
(3d Cir. 1998) (citations and internal quotations omitted).
This superseding cause charge is taken from Ford v. Jeffries, 379 A.2d 111, 11517
(Pa. 1977), and is simply a recitation of Restatement (Second) of Torts, § 448.
32
I. Jury instruction.
Appellants argue that the district court’s jury instruction was misleading and
confusing because it did not adequately explain that Ford’s conduct could be considered
a superceding cause.16
They maintain that the court should have given the following superseding cause
instruction instead:
The act of a third person in committing an intentional tort or
crime is a superseding cause of harm to another resulting
therefrom, although the actor’s negligent conduct created a
situation which afforded an opportunity to the third person to
commit such a tort or crime, unless the actor at the time of his
negligent conduct realized or should have realized the
likelihood that such a situation might be created, and that a
third person might avail himself of the opportunity to commit
such a crime.17
Admittedly, the district court’s instruction did not explicitly inform the jury about
the concept of superseding cause. However, the district court did instruct the jury that
the WCA and Barksdale could not be liable unless their negligence was a substantial
contributing factor of M.B.’s injuries. The court instructed:

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33
It has already been determined that Erving (sic) Ford
committed criminal acts against [M.B.]. In order for the
plaintiff to recover against defendant . . . plaintiff must prove
that . . . Ford’s conduct was a substantial contributing factor
in bringing about [M.B.’s] injury.
Likewise, in order to recover against [the WCA and
Barksdale] the plaintiff must prove that these defendants
were negligent and that their negligent conduct was a
substantial contributing factor in bringing about plaintiff’s
injuries.
That is what the law recognizes as legal cause. A substantial
contributing factor is an actual, real factor although the result
may be unusual or unexpected but it is not an imaginary or
fanciful factor having no connection or only an insignificant
connection with the plaintiff’s injuries.
Accordingly, even if you find that the acts or omissions of
[WCA and Barksdale] were negligent if their conduct was
not a substantial contributing factor in causing [M.B.’s]
injury then your verdict must be in favor of [WCA and
Barksdale]. (emphasis added).
This adequately informed the jury that Ford’s actions might be a superseding
cause.
J. Taxation of costs.
Following the entry of judgment, M.B. filed a Request for Taxation alleging
recoverable costs in the amount of $57,693.50. Barksdale objected to several of the cost
items submitted and asked that the district court adjust the costs taxed. When these
appeals were filed, the district court had not yet ruled on those objections. Nonetheless,
Barksdale now argues in some detail that they should not be allowed. However, since
the district court had not ruled on the costs prior to argument, and since we have not been

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informed of any such ruling thereafter, there is nothing to review.
IV. CONCLUSION
For all of the above reasons, we will affirm the district court.

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