Grant v. Target Corporation

Filing 33

ORDER granting in part and denying in part 25 Motion in Limine; granting in part and denying in part 28 Motion in Limine. Signed by Magistrate Judge G. R. Smith on 10/8/15. (bcw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
CHARITY GRANT,
Plaintiff,
V.

Case No. CV414-132
TARGET CORPORATION, a foreign
corporation,
Defendant.

In this slip-and-fall case,' defendant Target Corporation moves to
exclude nine general categories of evidence (doc. 25), and for
admissibility rulings on three specific pieces. Doc. 28. Grant opposes,
arguing against premature rulings made absent the trial context within
which evidence ultimately will be introduced. See, e.g., doc. 31 at 2.

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Plaintiff Charity Grant alleges that prior to a 2007 visit to Target's Abercorn St.
location, rain leaked through the roof of the store and "accumulated on the floor and
in the aisles." Doc. 1-1 at 8. The wet areas, she contends, lacked warning signs. Id.
Grant slipped while holding her child's hand and to prevent the child from falling,
twisted and contorted "in an unnatural manner" that allegedly caused "injuries to
her ankle and lower back." Id.

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I. THE GENERAL CATEGORIES MOTION
Seven of nine requests in Target's first motion in limine (doe. 25)
seek to exclude broad categories of evidence without reference to specific
items Grant wishes admitted. Target wants barred (1) evidence or
argument regarding its liability insurance coverage; (2) evidence of
unpied special damages; (3) evidence of payments from outside sources;
(4) evidence of the general character of the parties; (5) any improper
bolstering of witnesses; (6) demonstrative evidence, "unless it depicts
only matters already admitted into evidence;" and (7) witnesses
providing "legal conclusions or opinions regarding the law." Doe. 25 at
1-3.
All of those requests are "abstract and[/or] in anticipation of some
hypothetical circumstance that may not develop at trial."

Hendrix v.

Raybestos-Manhattan, Inc., 776 F.2d 1492, 1504 (11th Cir. 1985) (quoting
Collins v. Wayne Corp., 621 F.2d 777, 784 (5th Cir. 1980)). They ask for
broad rulings that may or may not have any applicability in this case
depending on what evidence Grant presents and how she presents it.
See, e.g., Doe. 25 at 2 ("[Target] requests that plaintiff not be permitted
to present irrelevant evidence of the general character of the parties to

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this action."); id. ("[Target] request[s] that plaintiff not be permitted to
present evidence to bolster or sustain a witness's general credibility.").
And, because those requests "seek[] 'to exclude anticipated prejudicial
evidence before the evidence is actually offered," Pena v. Handy Wash,
Inc., 2015 WL 4264614 at * 4 (S.D. Fla. July 13, 2015) (quoting Luce v.
United States, 469 U.S. 38, 40 n. 2 (1984)), "an order ruling on [them
would] basically [constitute] an advisory opinion" and "[would] not
determine the sufficiency of the evidence or merits of an issue."

Sales v.

State Farm Fire and Gas. Co., 632 F. Supp. 435, 436 (N.D. Ga. 1986).
Given (1) the requests' uncertain applicability and abstractness, and (2)
the Court's limited power to exclude evidence in limine, see Mehta v.
Foskey, 2013 WL 1966152 at * 2 (S.D. Ga. May 10, 2013) (courts have
"the power to exclude evidence in limine only when evidence is clearly
inadmissible on all potential grounds") (emphasis added), Target's
motion as to requests 2-6 and request 8 is DENIED without prejudice to
renew it at trial.
A. News Articles (Request No. 7)
Target wants the Court to bar mention of any "[ni ews articles
covering [the] condition of [the] roof of Savannah Mall before and after

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the incident," that plaintiff listed in her initial disclosures. Doc. 25 at 2.
Such articles, it contends, are hearsay and "in almost all circumstances
inadmissible." Id. at 3 (citing United States v. Michtavi, 155 F. App'x
433, 435 (11th Cir. 2005)). Grant, on the hand, contends that articles,
while inadmissible to prove the truth of their contents, may be used to
"show notice, control, etc." Doc. 27 at 3. And, she argues, any
admissibility ruling would be premature without the benefit of trial
presentation context. Id.
Newspaper articles indeed are inadmissible "in almost all
circumstances." Michtavi, 155 F. App'x at 435 (quoting Dallas Cnty. v.
Commercial Union Assur. Co., 286 F.2d 388, 392 (5th Cir. 1961)).
"Almost all," however, means that some circumstances allow for
admission of articles. See Michtavi, 155 F. App'x at 435 (admission of
newspaper articles allowed where government offered them to show that
articles about a particular event existed, not that the event itself
occurred). As Grant astutely points out, "[ajbsent the context [within
which] the articles may be presented at trial," the Court cannot decide
this issue. Target's motion on this issue is DENIED without prejudice
to renew it at trial. Doc. 25 at 3.

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B. Initial Disclosures (Request No. 9)
Finally, Target asks the Court to bar the testimony of any
witnesses and the introduction of any documentary evidence that Grant
failed to identify in her discovery responses or initial disclosures. Doc. 25
at 4. Grant says she's already disclosed "all known witnesses" at this
time, whether in disclosures or responses. Doc. 27 at 4. She effectively
consents to Target's requested relief, but asks in return that the Court
also prohibit Target from calling witnesses not previously disclosed. Id.
That's only fair. The Court accordingly GRANTS Target's request, but
Target too is bound by its initial disclosures and discovery responses.
II. THE SPECIFIC EVIDENCE MOTION
A. The Unidentified Target Employee
Target "anticipates that plaintiff will seek to introduce evidence
that an unidentified Target employee said the roof was leaking and
nothing was done about it." Doc. 28 at 1. Target wants that evidence,
which it contends plaintiff will introduce via hearsay, excluded. Id. at 12. Grant responds that "a cursory review of the deposition testimony
and incident report reveal[s]" the employee's identify (her name is Sarah
Kaduk). Doc. 31 at 1. Even if Kaduk is unavailable for trial, says Grant,

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hearsay exceptions may allow introduction of her alleged post-incident
leaky roof statement. Id. at 2.
As with the majority of Target's general requests, this category
"seeks 'to exclude anticipated prejudicial evidence before the evidence is
actually offered."

Pena, 2015 WL 4264614 at * 4 (S.D. Fla. July 13,

2015) (quoting Luce, 469 U.S. at 40 n. 2). Regardless, argues Target, any

testimony about what Kaduk said that comes from someone other than
Kaduk will be un-excepted hearsay. Doc. 28 at 3. But the Court can't
make that determination until it actually hears the evidence plaintiff
offers. Maybe Target is right. Maybe not. Either way, that
determination must be made in the context of trial, not before. Hence,
the Court DENIES Target's request to exclude such testimony without
prejudice to renew it at trial.
B. Plaintiff's Pre-Incident Mental Health
In a bit of a turnabout, Target next seeks a ruling preemptively
allowing introduction of evidence related to Grant's mental health. Doc.
28 at 4. It says that her "claim for damages for mental and psychological

suffering" make any evidence of her pre-incident mental state relevant
and thus admissible. Id. at 3-4. Grant agrees that such evidence may be

relevant in an abstract sense. Doe. 31 at 3. But she objects to "a blanket
ruling on this issue" since any attempt by Target "to introduce evidence
of a mental condition. . . which goes beyond any relevance to the claimed
damages" may warrant exclusion. Id.
Both parties are correct. Because Grant claims that the incident
affected her mental state and claims emotional distress damages,
evidence of her mental condition pre-incident is unquestionably relevant.
But so too is it the case that some such evidence may be inadmissible on
other grounds (for example, Fed. R. Evid. 403 may exclude evidence
whose prejudicial impact exceeds its probative value). At bottom, the
Court cannot conclusively rule on the admissibility of all mental health
evidence in all situations, as Target requests. It accordingly DENIES
Target's motion without prejudice to renew it at trial.
C. Photos and Videos Produced at the Grant Depostions
As in so many slip-and-fall cases, plaintiff primarily complains of
debilitating back injuries. To counter those allegations, Target wants to
introduce evidence, produced at depositions of plaintiff's ex-husband and
his current wife pursuant to a subpoena from Target, allegedly showing
that plaintiff picks up children, rides horses, runs, and engages in other

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activities "inconsistent with her claimed injuries." Doc. 28 at 4.
Unsurprisingly, plaintiff wants that evidence excluded, arguing that its
prejudicial impact exceeds its probative value. Doc. 31 at 3-4. (citing Fed.
R. Evid. 403).
As with so much of what Target seeks admitted or excluded, a
ruling on this evidence at this juncture is unavoidably fraught with
potential error. The Court has none of the supposedly damning evidence
in front of it, so it cannot properly evaluate its probative value or
prejudicial impact, which itself is informed by how trial proceeds.
Nevertheless, pictures and videos depicting plaintiff engaging in
activities she claims are beyond her abilities due to the incident at Target
are relevant and likely admissible. The Court thus GRANTS Target's
motion without prejudice to plaintiffs ability to object at trial.
III. CONCLUSION
For the preceding reasons, the Court GRANTS IN PART and
DENIES IN PART Target's two motions in limine. Docs. 25 & 28.
SO ORDERED, this rday of October, 2015.
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA