Watkins v. KFC U.S. Properties, Inc.
Filing
87
OPINION and ORDER GRANTING IN PART AND DENYING IN PART 61 Motion for Placement on Trial Calendar and for Adoption of the Pretrial Order; DENYING 64 plaintiff's Motion for Sanctions for defendant's Spoliation of Evidence; GRANTING 76 p laintiff's Motion to Exclude defendant's Expert Witness, Dr. Peter Michael Bernot; GRANTING 80 plaintiff's Motion for Leave of Court to Supplement Her Motion for Sanctions for defendants Spoliation of Evidence. Signed by Judge Julie E. Carnes on 8/31/11. (ekb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CHRISTIAN WATKINS,
Plaintiff,
CIVIL ACTION NO.
v.
1:09-CV-1007-JEC
KFC U.S. PROPERTIES, INC.,
Defendant.
ORDER AND OPINION
This case is before the Court on the following motions:
plaintiff’s Motion for Placement on Trial Calendar and for Adoption
of the Pretrial Order [61]; plaintiff’s Motion for Sanctions for
defendant’s Spoliation of Evidence [64]; plaintiff’s Motion to
Exclude defendant’s Expert Witness, Dr. Peter Michael Bernot [76];
and plaintiff’s Motion for Leave of Court to Supplement Her Motion
for Sanctions for defendant’s Spoliation of Evidence [80].
I.
PLAINTIFF’S MOTION FOR SANCTIONS BASED ON DEFENDANT’S ALLEGED
SPOLIATION OF EVIDENCE [64]
A.
Background
Plaintiff has sought sanctions against defendant KFC for its
alleged spoliation of evidence.
Specifically, plaintiff suffered
a bad fall while in the bathroom of defendant’s KFC restaurant in
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Lithonia, Georgia on March 16, 2007.
She claims that she slipped
on some water in the bathroom floor.
Defendant claims, however,
that three of its employees checked the bathroom after the fall and
saw no water on the floor.
An ambulance was called to attend to the plaintiff. Seven days
after the incident, defendant received a letter of representation
from an attorney representing the plaintiff.
Almost two years
later, plaintiff filed suit.
At the beginning of this litigation, plaintiff sought discovery
of any video surveillance that defendant had made of the restaurant
on the date of the incident. The defendant responded that there was
an operational video surveillance system in place that captured the
cash register and lobby entrance of the restaurant on the date of
the incident, but that this footage no longer existed because, in
the normal course of business, the Lithonia store had recorded over
the video footage, as it does with all footage, within 72 hours.
Plaintiff acknowledges that the video surveillance did not
cover the bathroom and therefore would not have shown the condition
of the bathroom or the plaintiff’s fall.
Plaintiff contends,
however, that the surveillance footage might have been helpful in
revealing whether or not the employee working at the front counter,
Shanekia Marshall, had actually left her station to inspect the
bathroom approximately 15 minutes before the incident, as Ms.
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Marshall testified that she had done. An inspection of the bathroom
within
this
time
period
by
the
defendant’s
employee
would
demonstrate that the defendant had exercised due care and would
offer it a defense in this case.1
Plaintiff believes that the surveillance footage would have
captured Ms. Marshall, had she left her station, because the camera
is aimed at the door into the restaurant, which is directly in front
of the cash registers.
The camera would have shown an employee in
Ms. Marshall’s position leaving the cash register area, walking
around the counter, and walking past the lobby door in the direction
of the bathrooms.
If there was no depiction on the surveillance
tape of Ms. Marshall leaving her station at the described time,
plaintiff
argues,
then
that
fact
would
contradict
Marshall’s
testimony that she had inspected the bathroom prior to the fall.
Morever, plaintiff contends that the defendant should have been
aware at the time of the incident that litigation was contemplated
and should have ensured that the video tape was not recorded over.
Plaintiff asks that the Court sanction the defendant, either by
entering a default judgment or striking the defendant’s answer.
1
As noted, defendant’s primary defense appears to be its
position that three employees checked the bathroom after the
plaintiff’s fall and saw no water. Plaintiff does not contend that
surveillance footage would be relevant toward deciding that dispute.
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B.
Legal Standards
Spoliation is defined as the destruction of, or failure to
preserve, evidence that is necessary to contemplated or pending
litigation.
Craig v. Bailey Bros. Realty, Inc., 304 Ga. App. 794,
796 (2010).
To prevail on a spoliation argument, a plaintiff must
show that the
putative defendant had been put on notice that
litigation
contemplated
evidence.
was
Id.
prior
to
the
destruction
of
the
The mere fact that someone has been injured in an
accident, without more, does not constitute notice that the injured
party is contemplating litigation.
Id. at 796-97.
The Eleventh Circuit has held that, for diversity actions
litigated in federal court, federal law governs the determination
whether to impose sanctions for the alleged spoliation of evidence.
Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005).
This is so because a decision as to whether spoliation occurred, and
whether to impose sanctions for it, if it did, amounts to an
evidentiary decision that should be governed by federal law.
Id.
That said, the Flury panel looked to Georgia law for guidance, as
federal law in the circuit had not, at that time, set forth specific
guidelines.
Further, the panel found Georgia law on spoliation to
be consistent with federal spoliation principles.
Id.
Flury involved an egregious example of spoliation as the
plaintiff, who had been injured in a car accident and who intended
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to sue the automobile manufacturer for an alleged air bag defect,
sold
the
car
before
filing
suit
and
before
the
defendant
manufacturer had inspected it, thereby rendering it impossible for
the defendant to effectively provide a defense that the air bag
system was not defective.
The Eleventh Circuit reversed the
district court, which had permitted the plaintiff to proceed with
litigation following this conduct, and directed that the case should
have been dismissed.
In doing so, the Circuit noted the existence of three possible
sanctions against a spoliating plaintiff: (1) dismissal of the case;
(2) exclusion of expert testimony; or (3) a jury instruction that
raises a presumption against the spoliator. In determining whether
dismissal is warranted, a district court should consider: (1)
whether the defendant was prejudiced as a result of the destruction
of evidence; (2) whether the prejudice could be cured; (3) the
practical importance of the evidence; (4) whether the plaintiff
acted in good or bad faith; and (5) the potential for abuse if
expert testimony about the evidence was not excluded.
Id. at 945.
Although the Flury opinion focuses on whether to dismiss the
case of a plaintiff who has destroyed evidence, courts within the
Eleventh Circuit have applied its standards when deciding whether
to sanction a defendant who has failed to preserve evidence.
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As
noted, plaintiff here seeks either the entry of a default judgment
against the defendant or the striking of its answer.
Notwithstanding Flury’s listing of bad faith as one of several
factors, it is important to note that both Eleventh Circuit and
district court opinions within the circuit have emphasized the
requirement that a party seeking sanctions demonstrate the existence
of bad faith by the party that destroyed the evidence; merely
showing negligence by the alleged spoliator will not do the trick.
See, e.g., Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1310 (11th Cir.
2009), citing Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir.
1997)(an adverse inference may be drawn from a party’s failure to
preserve evidence only when that conduct is predicated on bad faith;
while
malice
is
not
required,
mere
negligence
in
losing
or
destroying evidence is insufficient); Woodard v. Wal-Mart Stores E.,
LP, --- F. Supp. 2d ---, 2011 WL 2711203 at **6-7 (M.D. Ga. July 13,
2011) (Royal, J.); Point Blank Solutions, Inc. v. Toyobo Am., Inc.,
2011 WL 1456029 at *8-10 (S.D. Fla. April 5, 2011)(Goodman, Mag.J.)
(collecting cases that discuss requirement of bad faith); Heath v.
Walmart Stores E., LP, 697 F. Supp. 2d 1373, 1378-79 (N.D. Ga.
2010)(Forrester, J.).
C.
Application of Law to This Case
Defendant’s strongest arguments against imposition of sanctions
are twofold: first, defendant had not been put on notice that the
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plaintiff contemplated litigation when the video tape, in the normal
course of business, was taped over within 72 hours of the incident
and second, that the plaintiff has failed to demonstrate that the
defendant acted in bad faith.2
As to whether the defendant was on notice of contemplated
litigation when the video tape was recorded over within three days
of the incident, neither party has cited to any Eleventh Circuit
law, and the Court will assume that there is none. The parties have
cited Georgia appellate case law on this point, but these decisions
are very fact-specific and not altogether consistent with each
other, making it difficult for the Court to divine a central
principle for applying this standard.
Because the Court has
concluded, infra, that the plaintiff has failed to provide evidence
of bad faith, it need not answer this question.
D.
Bad Faith
At present, the plaintiff has not provided sufficient evidence
to indicate that the destruction of the videotape footage of the
time period at issue was done in bad faith by defendant.
As noted,
following the plaintiff’s fall, she was clearly in distress and an
2
In her Reply [78], plaintiff correctly notes that
defendant’s response to this motion was filed 14 days late and
without a motion requesting permission to file an untimely response.
Nevertheless, in the interests of justice, the Court has considered
the defendant’s response.
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ambulance
was
called
for
her.
According
to
the
defendant,
plaintiff’s sister, who was with her at the time of the fall, made
a comment to an employee indicating that the plaintiff had suffered
other falls (“This happens to her all the time.”).
Plaintiff
indicated to the employees that she had slipped on some water.
According to defendant, three employees inspected the bathroom floor
and saw no water.3
Also following the incident, the restaurant’s general manager,
Shawnya Frank, telephoned the KFC Accident Hotline, which is part
of the Customer Claims Unit.
KFC employees are required to report
all customer accidents to this hotline.
The hotline responder4
asked Frank standard questions that are required to be asked when
an accident is reported, such as whether the customer was seeking
medical treatment, whether there was a video camera system, and
whether the claimant was represented by an attorney.
According to
the print-out recording Frank’s responses, she answered “yes” as to
3
Defendant does not cite to an affidavit or to deposition
testimony to support its assertion here or its assertion regarding
the statement of plaintiff’s sister.
It is the Court’s
understanding that the defendant’s employees at the restaurant were
deposed by plaintiff and plaintiff does not dispute that these
witnesses would testify as defendant has described.
4
The Court is uncertain whether the responder was a live
person or an automated responder. The print-out of the call shows
no follow-up on any question and therefore the undersigned assumes
the responder was automated.
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the first question and “unknown” as to the third question, as the
incident had just occurred.
As to the second question--whether the
location utilized a video camera system--Frank answered “yes.” The
print-out does not reveal any further colloquy on the topic of a
camera system.
From the above facts, plaintiff contends that the defendant
should have been on notice that plaintiff contemplated litigation
and that the video footage of the cashier’s counter might have
provided pertinent evidence for that litigation.
Armed with that
knowledge, plaintiff argues, defendant’s Hotline staff should have
told Frank to deviate from the defendant’s normal policy of taping
over video tapes every 72-hours and instead to maintain the video
tape in use during the time period of this incident.
At the outset, the Court notes its agreement that whenever a
serious fall occurs in circumstances such as this, it would be
prudent for a company to preserve any video footage that might bear
on the incident.
faith is.
Prudence, however, is not the standard here; bad
Presumably, courts have imposed a bad faith standard out
of a recognition that mistakes or misjudgments can occur innocently
and that it would undermine the truth-seeking function of a trial
to robotically require the entry of a verdict, or a negative
inference, against a party whose failure to preserve evidence was
not
done
out
of
some
calculation,
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intent,
or
awareness
that
preservation of the evidence could be important in a later lawsuit.
Examining the question of bad faith here, plaintiff has only
two possible targets for its accusation:
Ms. Frank, the manager of
the Lithonia KFC or KFC, itself, for maintaining a policy that does
not call for preservation of video tapes whenever an accident has
occurred. As to Ms. Frank, the plaintiff has not provided the Court
with evidence, as opposed to speculation, that Ms. Frank acted in
bad faith by failing to make a unilateral decision to override her
company’s policy of reusing the same video tape to record the area
near the lobby door and cash register. The Court does not know what
Frank’s thinking may have been at the time, as neither party has
cited to any testimony by her on this matter.
As the fall occurred
in the bathroom, however, and as there was no video surveillance in
the bathroom, one can understand how Ms. Frank might have been
unaware that video footage of the door and cash register area could
later prove relevant.
While lawyers steeped in slip and fall law
are presumably aware that a timely pre-accident inspection can
create a defense for a premises owner, there is no evidence to
indicate that Ms. Frank would have been focused on the potential
significance of video footage confirming whether or not Ms. Marshall
had actually left her station prior to the incident.
As to KFC’s policy concerning the preservation of video footage
in these circumstances and as to any further interaction between
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Frank and the Hotline response team, the parties have offered no
information.
Indeed, it appears that plaintiff did not take any
discovery concerning KFC’s policy.
Accordingly, the Court is in no
position to gauge whether KFC’s policy or the directions provided
by the hotline responder give rise to an inference of bad faith on
KFC’s part. Given the absence of evidence on this important matter,
plaintiff cannot succeed on her motion.
Certainly, if plaintiff
offers at trial some evidentiary support for her allegations, the
Court can revisit this matter.
For now, however, plaintiff has
failed to prove that sanctions against defendant are appropriate in
this situation.
For that reason, the Court DENIES plaintiff’s
Motion for Sanctions for defendant’s Spoliation of Evidence [64].5
II.
PLAINTIFF’S MOTION TO EXCLUDE DEFENDANT’S EXPERT WITNESS [76]
Plaintiff has also moved to exclude defendant’s expert witness,
Dr.
Peter
Michael
Bernot
disclosure of that expert.
[76],
based
on
defendant’s
untimely
According to the Summary of Expert
Opinion [79-2] provided by defendant, Dr. Bernot would testify that
plaintiff’s fall did not give rise to the injury for which she later
received surgery and that she suffered no long-term impairment. Dr.
5
The Court also GRANTS plaintiff’s Motion for Leave of Court
to Supplement Her Motion for Sanctions for defendant’s Spoliation
of Evidence [80].
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Bernot would also testify regarding the reasonableness of the
charges for plaintiff’s medical services.
The Court agrees with plaintiff that defendant’s disclosure is
untimely and is also inadequate.
Local Rule 26.2(C) provides that
“any party who desires to use the testimony of an expert witness
shall designate the expert sufficiently early in the discovery
period to permit the opposing party the opportunity to depose the
expert....”
LR 26.2(C), NDGa.
In short, at the least, a party is
expected to disclose his expert witness at some point during the
discovery period.
Defendant came nowhere near close to meeting this deadline.
That is, defendant did not disclose its expert within the discovery
period, which ended on November 19, 2009.
Instead, defendant made
its disclosure on November 18, 2010, which was one year after
discovery had ended.
Defendant made this disclosure in its portion
of the pretrial order, which was likewise untimely, having been
provided 10 months after the Order was due and after plaintiff had
timely filed its own portion
of the Order.
Presumably, both the
disclosure and defendant’s portion of the Order were submitted only
because plaintiff had shortly before moved the Court to adopt
plaintiff’s
iteration
of
the
pretrial
order
as
the
operative
version, given defendant’s continuing failure to provide its own
portion of the order.
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When a party does not timely disclose its expert, the local
rule further provides that the party “shall not be permitted to
offer the testimony of [that] expert, unless expressly authorized
by court order based upon a showing that the failure to comply was
justified.”
LR
26.2(C),
NDGa.
In
attempting
to
offer
a
justification for its extremely tardy notification, defendant has
offered a litany of excuses as to why it took a long time to get an
expert in place.
None of these excuses are persuasive.
Moreover,
defendant never notified the Court or the plaintiff that defendant
was operating on a private discovery track that continued well
beyond the period when the Court had indicated that discovery would
be concluded.
Thus, while defendant characterizes its efforts to
name an expert witness as being diligent, the Court concludes that
defendant’s performance was anything but.
In addition, defendant offers a novel argument in opposition
to exclusion of its expert.
Defendant notes that in most cases
where expert testimony has been excluded, the party offering the
expert has been the plaintiff, not the defendant.
From this,
defendant infers that “expert disclosure requirements are more
stringently enforced against plaintiffs because the plaintiff is in
control of his/her case from the outset and should know what
evidence, including expert testimony, will be necessary.” (Def.’s
Resp. [79] at 6.) Defendant is correct that a plaintiff will almost
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always be the party to go first in disclosing an expert, as it is
plaintiff’s responsibility to prove her case.
That sequencing
reality, however, does not mean that a defendant is subject to no
deadline in announcing its own expert. If the timing of plaintiff’s
disclosure of an expert necessitated an extension of discovery for
the defendant to secure its own expert, the defendant should have
spoken up and said so.
Even now, however, the defendant does not
actually argue that the timing of the plaintiff’s disclosure caused
defendant to be late in its own disclosure.
Instead, defendant
blames the non-responsiveness of medical providers for the delay.
In short, the Court concludes that the defendant has not offered a
persuasive justification for its extraordinary delay.
In addition to the untimeliness of the disclosure, plaintiff
also
correctly
conclusory
as
notes
to
the
that
defendant’s
basis
of
the
summary,
expert’s
itself,
opinion
and
was
was
insufficient to constitute an expert report, as set out in FED. R.
CIV. P. 26(a).
Specifically, Rule 26(a)(2)(B) provides that expert
disclosures “must be accompanied by a written report-prepared and
signed by the witness.”
The report must contain, among other
things:
(i)
A complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii) The facts or data considered by the witness in forming
them;
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(iii)Any exhibits that will be used to summarize or support
them;
Id.
As plaintiff correctly notes, the defendant’s summary was
lacking as to the above requirements and was also not signed by the
defendant’s expert.
If the Court were to permit the defendant to utilize this
witness, it would then have to direct the defendant to provide a
report that complies with Rule 26.6 After that report was received,
discovery would then have to be reopened for the plaintiff to depose
the expert.
All of this would create delay and unnecessarily
prejudice the plaintiff, who has timely performed her obligations
under the local rules.
Accordingly, because the defendant did not timely disclose its
expert witness and has not shown a justification for this lapse, the
Court GRANTS plaintiff’s motion to exclude defendant’s expert [76].7
6
As plaintiff correctly notes in its Reply [81], the
defendant has still not provided an expert report that corrects the
shortcomings of defendant’s “summary.”
7
One final motion is pending: plaintiff’s Motion for
Placement on Trial Calendar and Motion for Adoption of the Pretrial
Order [61]. After a long period of time when the defendant had not
provided its portion of the pretrial order, plaintiff filed a motion
asking that the Court not delay placement of the case on a trial
calendar awaiting the defendant’s own portion of the Order and that
instead the Court adopt plaintiff’s part of the Order [61]. That
motion prompted the defendant to file its own portion of the
pretrial order. Albeit all pretrial orders are required to be joint
orders between the parties, unless one of the parties is a pro se
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III. CONCLUSION
The Court GRANTS IN PART AND DENIES IN PART plaintiff’s Motion
for Placement on Trial Calendar and for Adoption of the Pretrial
Order [61]; DENIES plaintiff’s Motion for Sanctions for defendant’s
Spoliation of Evidence [64]; GRANTS plaintiff’s Motion to Exclude
defendant’s Expert Witness, Dr. Peter Michael Bernot [76]; and
GRANTS plaintiff’s Motion for Leave of Court to Supplement Her
Motion for Sanctions for defendant’s Spoliation of Evidence [80].
SO ORDERED, this 31st day of August, 2011.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
litigant, the Court will utilize defendant’s portion of the pretrial
order and DENIES that part of plaintiff’s motion. As to placement
on a trial calendar, the Court GRANTS that motion and will place
this case on the Court’s next civil trial calendar.
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