Robinson v. Walmart Stores E., LP

• Decision Date: 17 August 2015
• Docket Number: No. 14-6006-CV-SJ-FJG,14-6006-CV-SJ-FJG
• Parties: George Robinson, Plaintiff, v. Walmart Stores East, LP, Defendant.
• Court: U.S. District Court — Western District of Missouri

George Robinson, Plaintiff,
v.
Walmart Stores East, LP, Defendant.

No. 14-6006-CV-SJ-FJG

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI ST. JOSEPH DIVISION

August 17, 2015

ORDER

Pending before the Court are (1) Defendant's Motion in Limine (Doc. No. 85); and (2) Plaintiff's Motions in Limine (Doc. No. 88). The Court rules as follows:

I. DEFENDANT'S MOTION IN LIMINE (DOC. No. 85)

Defendant seeks an Order in limine prohibiting plaintiff, his witnesses, or his counsel from mentioning or presenting in testimony or statements in the presence of the jury, evidence of the following, pursuant to F.R.E. 401 (relevance) and 403 (probative value substantially outweighed by danger of unfair prejudice or unfair and harmful surprise, as well as confusion of issues, misleading the jury, undue delay, or presentation of cumulative evidence):

A. Walmart's financial condition, financial history, size or general corporate structure

Defendant states its financial condition is not relevant, as plaintiff does not have a claim for punitive damages (only for negligence), and the sole purpose for injecting such information would be to prejudice Walmart (making the evidence inadmissible under FRE 403).

Plaintiff does not oppose, as long as prohibition is applied to both parties.

Ruling: SUSTAINED.

B. Walmart's liability insurance

Defendant notes that under Missouri law, reference to liability insurance is inadmissible, Noel v. Roberts, 449 S.W.2d 572, 574 (Mo. 1978), and therefore should be excluded.

Plaintiff indicates he does not intend to make reference to Walmart having liability insurance; similarly, plaintiff states Walmart should not introduce evidence or make reference to workers compensation insurance.

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Ruling: SUSTAINED.

C. Evidence and witnesses not revealed during discovery

Defendant indicates that evidence or witnesses not revealed in discovery should not be allowed, as such evidence would constitute unfair surprise and would result in prejudice. Defendant notes that plaintiff's proposed exhibits 41, 42, 43, 45, 46, 47, and 48 on its original Exhibit List (Doc. No. 67) were not disclosed during discovery.

Plaintiff does not oppose, as long as prohibition applies to both parties. Plaintiff withdraws proposed exhibits 41, 42, 43, 46, 47, and 48.

Ruling: SUSTAINED. If the parties wish to use any material not disclosed during discovery (including plaintiff's exhibit 45, listed above but not withdrawn), they must make a showing prior to trial.

D. Experts and Experts' Testimony not properly identified pursuant to Rule 26

Defendant indicates that under the Federal Rules, expert reports are required to contain a complete statement of all opinions to be expressed and the factual basis therefore (FRCP 26(a)(2)(B)), and failure to comply with those requirements can result in the Court precluding the use of that witness at trial. FRCP 37(c). Further, under 8^th Circuit precedent, an expert is not allowed to opine on matters not specifically contained in his or her report. See Dairy Farmers of America, Inc. v. Travelers Ins. Co., 391 F.3d 936, 943-44 (8^th Cir. 2004).

Plaintiff does not oppose, as long as prohibition is applied to both parties.

Ruling: SUSTAINED.

E. Any medical record/billing not properly disclosed during discovery

Defendant argues that plaintiff must have properly disclosed his medical records and bills during discovery for them to be admissible.

Plaintiff does not oppose, as long as prohibition is applied to both parties.

Ruling: SUSTAINED.

F. Evidence of Walmart's policies, procedures, and training

Walmart indicates that plaintiff obtained documents in discovery related to Walmart's policies and procedures; Walmart indicates it anticipates that plaintiff will attempt to introduce store policies or documents to show that Walmart did not follow its procedures. Walmart says these documents are not relevant to plaintiff's claim, and

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should be excluded (arguing that the law, rather than Walmart's policies, should set the negligence standard). Additionally, Walmart argues that these documents risk confusing and misleading the jury, as well as wasting the Court's time and creating undue prejudice n this matter.

In response, plaintiff states that he does not intend to introduce policies or procedures to prove that a Walmart employee closing an overhead door on plaintiff's head constitutes negligence; instead, plaintiff indicates that there is evidence that Walmart had a video camera recording the area outside the door used by plaintiff, and Walmart had a policy to retain video footage from all the videos of the accident scene. Plaintiff states he repeatedly requested that Walmart produce the footage from this video, but Walmart claims it does not exist. Plaintiff states that defendant's failure to follow its policies regarding investigating and retaining evidence following plaintiff's injury goes directly to the reliability of that evidence and the credibility and accuracy of testimony by Walmart employees.

Ruling: PROVISIONALLY SUSTAINED. If plaintiff can explain the delay in filing this lawsuit and seeking video evidence, plaintiff may be allowed to submit evidence of Walmart's policies. From the filings made to-date, the Court cannot determine the specifics of Walmart's retention policy.

G. References to other claims or lawsuits involving Walmart

Defendant argues that evidence of other lawsuit is not relevant or probative of any fact or legal issue in this case, and it is improper to admit evidence of prior lawsuits against Walmart absent evidence that the facts of the prior litigation are relevant. See Overfield v. Sharp, 668 S.W.2d 220, 223 (Mo. App. 1984). See also Pierce v. Platte-Clay Elec. Co-Op, Inc., 769 S.W.2d 769, 774 (Mo. banc 1989) (finding evidence of other lawsuits inadmissible unless plaintiff shows they involve facts and occurrences substantially similar to those in the instant case). Defendant also argues such evidence is inadmissible hearsay. See Johnson v. Ford Motor Co., 988 F.2d 573, 579 (5^th Cir. 1993). Defendant also indicates such evidence could "raise extraneous controversial points, lead to a confusion of issues, and present undue prejudice disproportionate to its usefulness." Drabik v. Stanley-Bostitch, Inc., 997 F.2d 496, 503, 508 (8^th Cir. 1993).

Plaintiff does not intend to introduce evidence of other claims, incidents or lawsuits against Walmart involving persons being struck by an overhead door unless Walmart attempts to introduce testimony that no other persons have been struck by a closing DSD-type door.

Ruling: SUSTAINED.

H. Prior settlement negotiations with Walmart or Claims Management, Inc.

Defendant indicates it is well settled that settlement offers are not admissible at subsequent trial. Harmon v. Hamilton, 903 S.W.2d 610, 615 (Mo. App. 1995).

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Plaintiff does not oppose, as long as prohibition is applied to both parties.

Ruling: SUSTAINED.

II. PLAINTIFF'S MOTIONS IN LIMINE (Doc. No. 88)

Plaintiff seeks an order prohibiting opposing counsel, as well as all witnesses called on behalf of defendants, from mentioning the following matters in the presence of the jury, whether at trial or voir dire, directly or indirectly:

A. Asking questions of soliciting comments regarding the character of any potential witness from any member of the jury panel during voir dire.

Plaintiff notes that in a past case involving the same defendant, witness Lawrence Scheffe also appeared as a witness. See Rodrick V. Wal-Mart Stores East, L.P., 666 F.3d 1093 (2012). During voir dire in Rodrick, a potential juror spoke of Mr. Scheffe's good character, and counsel for Wal-Mart then made reference to these statements during closing arguments. Plaintiff in Rodrick objected, and the District Court was required to give a curative instruction. The Eighth Circuit affirmed on appeal, noting that the comment was improper, but finding that the curative instruction removed prejudice. See id., 666 F.3d at 1099.

Defendant does not oppose, as long as prohibition is applied to both parties, and so long as plaintiff is not suggesting that defendant should not inquire at voir dire of the potential jury panel's knowledge or familiarity with certain witnesses.

Ruling: SUSTAINED.

B. Plaintiff's marital status at the time of his injury.

Plaintiff states that due to "misunderstanding", there is some question as to whether plaintiff's divorce from his first wife had been finalized when plaintiff married his current wife. Plaintiff argues that this issue has no relevance or probative value in this matter, but carries a high risk of unfair prejudice toward plaintiff. FRE 403.

Defendant first argues that plaintiff has failed to assert any prejudice from offering this evidence, and this alone compels the conclusion that the evidence be allowed before the jury, particularly where it has any tendency to make a fact of...