McConnell v. Wal-Mart Stores, Inc.

• Decision Date: 05 February 2014
• Docket Number: No. 2:12–CV–01601–RCJ–PAL.,2:12–CV–01601–RCJ–PAL.
• Citation: 995 F.Supp.2d 1164
• Court: U.S. District Court — District of Nevada
• Parties: Urban McCONNELL, Plaintiff, v. WAL–MART STORES, INC., Defendant.

995 F.Supp.2d 1164

Urban McCONNELL, Plaintiff,

v.WAL–MART STORES, INC., Defendant.

No. 2:12–CV–01601–RCJ–PAL.

United States District Court, D. Nevada.

Feb. 5, 2014.

Kevin M. Hanratty, Hanratty Roberts Law Group, Dennis M. Prince, Prince & Keating, LLP, Las Vegas, NV, for Plaintiff.

Brenda H. Entzminger, Marjan Hajimirzaee, Phillips Spallas & Angstadt LLC, Las Vegas, NV, for Defendant.

ORDER

ROBERT C. JONES, District Judge.

This is a slip-and-fall case. Pending before the Court are two Motions in Limine (ECF Nos. 47, 48). For the reasons given herein, the Court grants the motions in part and denies them in part.

I. FACTS AND PROCEDURAL HISTORY

On or about December 10, 2010, Plaintiff Urban McConnell slipped, fell, and injured himself at the Wal–Mart store at 8060 W. Tropical Pkwy., Las Vegas, Nevada after an employee mopped the floor and left water thereupon without blocking access to the area or warning customers. (Compl. ¶¶ 5–9, Aug. 7, 2012, ECF No. 1–2). Defendant removed and moved for summary judgment as against the claim for punitive damages. Plaintiff stipulated to dismiss the prayer for punitive damages, and the Court therefore denied the motion as moot, noting that it would have been inclined to grant it. A jury trial is set for February 18, 2014 in Las Vegas. Defendant has now filed two motions in limine.

II. LEGAL STANDARDS

A motion in limine is a procedural device to obtain an early and preliminary ruling on the admissibility of evidence. Black's Law Dictionary defines it as “[a] pretrial request that certain inadmissible evidence not be referred to or offered at trial. Typically, a party makes this motion when it believes that mere mention of the evidence during trial would be highly prejudicial and could not be remedied by an instruction to disregard.” Black's Law Dictionary 1109 (9th ed. 2009). Although the Federal Rules of Evidence do not explicitly authorize a motion in limine, the Supreme Court has held that trial judges are authorized to rule on motions in limine pursuant to their authority to manage trials. See Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984) (citing Fed.R.Evid. 103(c) (providing that trial should be conducted so as to “prevent inadmissible evidence from being suggested to the jury by any means”)).

Judges have broad discretion when ruling on motions in limine. See Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir.2002). However, a motion in limine should not be used to resolve factual disputes or weigh evidence. See C & E Servs., Inc. v. Ashland, Inc., 539 F.Supp.2d 316, 323 (D.D.C.2008). To exclude evidence on a motion in limine “the evidence must be inadmissible on all potential grounds.” E.g.,Ind. Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 846 (N.D.Ohio 2004). “Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context.”Hawthorne Partners v. AT & T Tech., Inc., 831 F.Supp. 1398, 1400 (N.D.Ill.1993). This is because although rulings on motions in limine may save “time, costs, effort and preparation, a court is almost always better situated during the actual trial to assess the value and utility of evidence.” Wilkins v. Kmart Corp., 487 F.Supp.2d 1216, 1219 (D.Kan.2007).

In limine rulings are preliminary and therefore “are not binding on the trial judge [who] may always change his mind during the course of a trial.” Ohler v. United States, 529 U.S. 753, 758 n. 3, 120 S.Ct. 1851, 146 L.Ed.2d 826 (2000); accord Luce, 469 U.S. at 41, 105 S.Ct. 460 (noting that in limine rulings are always subject to change, especially if the evidence unfolds in an unanticipated manner). “Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted to trial. Denial merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded.” Ind. Ins. Co., 326 F.Supp.2d at 846.

III. ANALYSISA. Motion No. 47

Defendant seeks to exclude Plaintiff's proffered expert, John Peterson, because he is not qualified as an expert and because his testimony will be irrelevant. Mr. Peterson is offered as an expert in the area of the standard of care. Mr. Peterson's curriculum vitae indicates that his area of expertise is better described as loss (theft) prevention. In response, Plaintiff argues that Mr. Peterson is an expert in the area of retail safety and that his proffered testimony satisfies Rule 702 under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) because it is based upon his personal knowledge and experience. Plaintiff admits that Mr. Peterson has no formal education in the area of safety but argues that his experience qualifies him as an expert under Rule 702. As a rebuttal to Defendant's argument that Mr. Peterson has previously been rejected as an expert in the present context in Nevada state court, Plaintiff adduces as Exhibits 1 and 2 copies of orders: (1) denying a motion in limine to exclude Mr. Peterson as an expert in Arizona state court; and (2) accepting Mr. Peterson as an expert in retail safety in a case in this District. Plaintiff also adduces as Exhibit 3 Mr. Peterson's report itself, which includes a list of his qualifications. The fact that Mr. Peterson has been accepted as an expert by some judges and rejected by others indicates that the question of his expertise in the present context is a close one, and the Court also notes that copies of orders denying the preliminary exclusion of Mr. Peterson's proffered expert testimony are no evidence of his ultimate admission as an expert at trial. Although Plaintiff argues that Mr. Peterson received some safety-related training at Wal–Mart and even provided the training to other employees, it is not clear whether this kind of training was a significant portion of Mr. Peterson's duties at Wal–Mart, or if it was simply incidental to his employment, i.e., such as anti-discrimination or first-aid training all employees at a company might receive from their employer. Plaintiff does not appear to claim that Mr. Peterson ever held a title such as “Safety Officer,” but does appear to claim that as a loss prevention officer, part of his formal duties included customer safety. It is simply not clear at this time whether Mr. Peterson's experience in the retail industry includes significant or only incidental knowledge of safety procedures. The Court would therefore normally not exclude an expert whose qualifications were simply doubtful at this stage, but would require the relevantparty to show that he is qualified as an expert at trial.

However, in the present case, even assuming Mr. Peterson were qualified as an expert, his testimony would largely be more confusing than helpful to the jury. The Court will of course instruct the jury on the standard of care, and it is for the jury to consider whether Defendant acted reasonably. Only if the case concerned a heightened, particularized standard of care, such as in a professional malpractice case, would expert testimony as to the standard of care be more helpful than confusing to the jury. Only in such cases does a jury require expert testimony as to what constitutes reasonable behavior. A layman may evaluate reasonable behavior in the context of everyday events, such as mopping a floor in a retail store, without resort to expert assistance. Finally, whether Defendant adhered to its own policies—apparently another area in which Mr. Peterson would testify—is simply not relevant to whether it was negligent in this case. Adherence to insufficient policies will not exculpate a negligent defendant any more than nonadherence to sufficient policies will inculpate him. Whether a defendant's actions in a particular instance are negligent does not at all depend upon his habits or personal guidelines for his own behavior. Mr. Peterson may testify as to industry standards if the Court finds him qualified as an expert in this area at trial, but testimony concerning the general standard of care would be more confusing than helpful to the jury, and testimony concerning Wal–Mart's own policies and whether Defendant's employees adhered to them in this case would be irrelevant.

B. Motion No. 481. The Collateral Source Rule and “Write–Downs”

Defendant asks the Court to exclude evidence of medical bills that have been partially or totally forgiven by Plaintiff's providers, i.e., “write-downs.” Defendant argues that the collateral source rule does not apply to write-downs, because they do not represent money that anybody has paid. The Court denies the motion in this regard.

The Nevada Supreme Court does not permit the admission of evidence of collateral sources of payment for any purpose whatsoever. Proctor v. Castelletti, 112 Nev. 88, 911 P.2d 853, 854 (1996) (“We now adopt a per se rule barring the admission of a collateral source of payment for an injury into evidence for any purpose.” (emphases added)). The collateral source rule makes the tortfeasor liable for the full extent of the damages caused, no matter how much the victim actually pays. That a medical provider ultimately accepts less than a billed amount, whether from an insurance company or from the victim directly, is not relevant to whether the tortfeasor is liable for the full value of the harm he has caused. The collateral source rule is an equitable rule specifically designed to ensure that the victim, and not the tortfeasor, benefits from any “windfall” resulting from a difference between the value of the harm caused and the amount actually paid to remedy it. If a victim can remedy his harm at a “bargain” rate, the “windfall” represented by the difference belongs to the victim, not to the tortfeasor.

As controversial as the collateral source rule is, whether the rule should apply to “write–downs”...