Garvey v. Kmart Corporation

Filing 182

OMNIBUS ORDER ON MOTIONS IN LIMINE FOR PRETRIAL CONFERENCE. Signed by Judge Alsup on November 6, 2012. (whalc1, COURT STAFF) (Filed on 11/6/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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LISA GARVEY, individually and on
behalf of others similarly situated,

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Plaintiff,

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No. C 11-02575 WHA

OMNIBUS ORDER ON
MOTIONS IN LIMINE FOR
PRETRIAL CONFERENCE

v.
KMART CORPORATION,
Defendant.
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The pretrial conference in this action was heard on November 6, 2012. In advance of that

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conference, plaintiff submitted one motion in limine and defendants submitted two.

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GARVEY MOTION IN LIMINE NUMBER ONE (TO EXCLUDE
WITNESSES AND EXHIBITS NOT DISCLOSED DURING DISCOVERY).

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Garvey seeks to exclude testimony from two fact witnesses and one expert witness, who

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were first disclosed by Kmart after the discovery cut-off had ended. For the reasons stated

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below, the motion is DENIED WITHOUT PREJUDICE.

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Non-expert discovery ended August 31 with one exception: the parties were allowed to

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take thirteen addition depositions by September 30 (Dkt. No. 103). Initial expert reports were

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due September 7; opposition reports were due September 21; and expert discovery ended on

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October 5 (Dkt. No. 112). Rule 26(e) imposes a duty to supplement or correct the disclosure or

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discovery response to include information later acquired.

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Dr. Joseph Krock.

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Kmart disclosed Dr. Joseph Krock as an opposition expert on damages on October 11

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(after the September 21 deadline for opposition reports). Kmart asks this Court to excuse the

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late disclosure because Dr. Krock was responding to an untimely report by Garvey’s damages

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expert, Mr. Richard Evans (Sommerfeld ¶ 2). Garvey, in turn, admits that her expert report by

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Mr. Evans was late but attributes her untimeliness to Kmart’s late production of data relevant to

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damages. These late disclosures are addressed in a separate order on Kmart’s motion to

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continue trial.

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For the Northern District of California

United States District Court

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As stated at the pretrial conference, Dr. Krock may be allowed to offer rebuttal testimony
only on subjects addressed by Mr. Evans’ in Garvey’s case in chief.
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Messrs. Mark Conway and Jesse Gonzalez.

Kmart disclosed fact witness Mark Conway on October 11 (after the September 30

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discovery cutoff). Kmart asks this Court to excuse the late disclosure because Mr. Conway’s

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testimony will respond to Garvey’s late disclosure of a cash-register “mock-up.” Garvey first

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mentioned the existence of a model of Kmart’s cash register in October, a month after fact

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discovery had closed. Kmart argues that the testimony of Mr. Conway is necessary to respond to

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Garvey’s cash-register model. At the pretrial conference, Garvey agreed to withdraw the mock

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up as demonstrative evidence. Therefore, the motion to exclude Mr. Conway will be held in

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abeyance until after Garvey has presented her case in chief.

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Garvey also seeks to exclude witness Jesse Gonzalez, who was originally identified as a

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Kmart fact witness on September 4. Although this disclosure was made after the original

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discovery deadline, it was made a month before the parties’ stipulated extension to allow for

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more depositions. At the pretrial conference, Garvey conceded that she declined to depose

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Mr. Gonzalez. Therefore, the motion to exclude Mr. Gonzalez is DENIED.

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3.

Exhibits.

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Garvey also accuses Kmart of failing to produce exhibits 7, 143, 144, and 145 in

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response to discovery requests. Kmart responds that these are demonstrative exhibits that were

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only finished after discovery cutoff. Kmart also contends, without attaching the exhibits, that
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these exhibits are responsive to the untimely-disclosed cash-register model. Without viewing

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these exhibits, this order cannot properly decide whether these exhibits are admissible.

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Therefore, Garvey may re-raise its objections at trial when each exhibit is used.

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KMART MOTION IN LIMINE NUMBER ONE (TO EXCLUDE EVIDENCE REGARDING
ATTRIBUTES OF KMART STORES OTHER THAN THE TULARE, CALIFORNIA KMART
STORE).

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Pursuant to FRE 402 and 403, Kmart broadly seeks to exclude evidence regarding

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attributes of Kmart stores other than the Tulare store. More specifically, Kmart seeks to exclude

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testimony by Mr. Mark Richardson and Ms. Tenesha Blake, managers of Kmart’s Bay Area

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stores. For the reasons stated below, the motion is HELD IN ABEYANCE.
Kmart is correct that Mr. Richardson and Ms. Blake do not have firsthand knowledge of

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For the Northern District of California

United States District Court

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how Kmart cashiers at the Tulare store performed their duties. Neither Mr. Richardson nor

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Ms. Blake has been to the Tulare store. Nonetheless, their testimony about the operation of

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Kmart stores in general could be relevant to how the Tulare store operates. Whether their

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testimony is cumulative and unnecessary will be determined based on other evidence presented

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at trial. Testimony about how Kmart operates generally may be helpful if evidence specific to

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the Tulare store is not illuminating. Because this will be a bench trial, the undersigned will place

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the appropriate weight on the testimony of non-percipient witnesses, and therefore there is

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unlikely to be unfair prejudice from receiving their testimony. For the same reasons, it is

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inappropriate to exclude, at this time, all evidence not specific to the Tulare store. Kmart may

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raise objections at trial on a case-by-case basis.

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Moreover, at the pretrial conference, Garvey stated that Mr. Richardson and Ms. Blake

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would only be used as rebuttal witnesses. Therefore, Kmart’s motion to exclude these witnesses

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will be held in abeyance until after Kmart’s affirmative case.

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KMART MOTION IN LIMINE NUMBER TWO (TO EXCLUDE EVIDENCE
REGARDING AIMEE GRABAU’S SEATING REQUEST DIRECTIVE).

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Pursuant to FRE 407, Kmart moves to exclude evidence of Aimee Grabau’s directive to
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provide seats to cashiers upon request. For the reasons stated below, the motion to exclude
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under FRE 407 is DENIED.
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During her deposition, Ms. Grabau, Kmart’s director of human resources in California,

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testified that “she the store manager[s] in the State of California [in February 2010] to allow

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associates running checkout registers that they could use a stool or a seat if they asked for one”

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(Grabau Dep. at 128). She implemented this directive “to mitigate our exposure to the

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vagueness of the law regarding the seats” (Grabau Dep. at 129). There is no evidence that this

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policy directive was told to the employees at the Tulare store (Dkt. No. 92 at 5).

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For the Northern District of California

United States District Court

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The rule for subsequent remedial measures provides:
When measures are taken that would have made an earlier injury
or harm less likely to occur, evidence of the subsequent measures
is not admissible to prove: negligence; culpable conduct; a defect
in a product or its design; or a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as
impeachment or — if disputed — proving ownership, control, or
the feasibility of precautionary measures.
FRE 407 (emphasis added).

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This evidence will not be excluded under FRE 407. First, this is not a subsequent

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remedial measure. Garvey is seeking damages for violations during and after April 2010.

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Kmart’s policy was implemented in February 2010, two months prior to the accused culpable

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conduct. Kmart’s policy directive is therefore not a subsequent remedial measure under

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Rule 407 because “the rule applies only to changes made after the occurrence that produced the

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damages giving rise to the action.” FED. R. EVID. 407 Advisory Committee Notes; see also City

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of Richmond, Va. v. Madison Management Group, Inc., 918 F.2d 438, 459 (4th Cir. 1990).

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Moreover, evidence about this policy directive is relevant to the feasibility of providing

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seats to Kmart cashiers. Importantly, Kmart disputes that whether the nature of a Kmart

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cashier’s work “reasonably permitted the use of a seat” (Joint Proposed Pretrial Order at 4–5).

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Kmart argues that seats cannot be reasonably permitted because a seat would “increase health

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risks for the cashiers[;] . . . decrease customer service[;] . . . not allow sufficient room for the

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cashier to safely and efficiently perform the work[;] . . . [and] require the elimination of job

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requirements” (ibid). A statewide directive to provide a seat to a cashier upon request is relevant

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to the issue of whether Kmart could feasibly comply with Wage Order 7-2001, a disputed fact.

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Moreover, Kmart used this very policy directive as evidence of non-liability in its motion

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for summary judgment. Having lost that motion, Kmart now wants to have it both ways by

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excluding evidence of this policy directive at trial. This is improper.

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CONCLUSION
Two caveats: Any denial above does not mean that the evidence at issue in the motion is

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admitted into evidence — it must still be moved into evidence, subject to other possible

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objections, at trial. And, a grant of a motion in limine does not exclude the evidence under any

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and all circumstances; the beneficiary of a grant may open the door to the disputed evidence, for

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example.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: November 6, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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