Brama v. Target Corporation
Filing
230
MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 10/25/2019. (ma,)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHRISTINE BRAMA,
Plaintiff,
v.
TARGET CORPORATION,
Defendant.
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No. 14 CV 6098
Magistrate Judge Young B. Kim
October 25, 2019
MEMORANDUM OPINION and ORDER
Plaintiff Christine Brama claims that Defendant Target Corporation
(“Target”) is liable for personal injuries she sustained in August 2012 after she
allegedly slipped and fell on a foreign substance near the entrance of a Target store.
Before the court are Target’s motions in limine Nos. 1-20. Brama opposes all 20
motions. For the following reasons, Target’s Motion Nos. 1, 4-7, 9, 12, 13-17, 19,
and 20 are granted, Motion Nos. 8, 10, and 18 are denied without prejudice, and
Motion Nos. 2, 3, and 11 are denied:
Background
Because Brama is acting pro se, the court finds it appropriate to describe the
procedural history of this case only to provide extra context. In July 2014 Brama,
then represented by attorneys, filed her negligence complaint against Target in
state court. (R. 1.) Target then removed the case to this court based on diversity
jurisdiction, (id.), and shortly thereafter Brama’s attorneys sought and were
granted leave to withdraw their appearances, (R. 13).
Subsequently, the court
stayed the case until April 9, 2015, giving Brama 130 days to find a new attorney.
(R. 13; R. 14.)
After Brama’s new attorneys entered their appearances, the case proceeded
to discovery.
(R. 16; R. 17.)
During that time, the court twice extended the
discovery period—first at Brama’s request and then at Target’s—before discovery
eventually closed in April 2016.
(R. 24; R. 42; R. 151.) Following the close of
discovery, and on the eve of Target filing a motion for summary judgment, Brama’s
second team of attorneys sought and were granted leave to withdraw their
appearances. (R. 48; R. 49; R. 50; R. 54.) For over a year thereafter Brama acted
pro se, opposing Target’s summary judgment motion and filing her own motion for
summary judgment and related motions to strike. (R. 66; R. 78; R. 81; R. 100.) The
court denied the cross-motions for summary judgment in June 2017. (R. 112.)
The following month in July 2017, the court recruited an attorney to
represent Brama in response to her motion for attorney representation. See 28
U.S.C. § 1915(e)(1); (R. 116; R. 118). Thereafter, on August 24, 2017, Brama (then
represented by the court-recruited attorney) and Target consented to this court’s
jurisdiction. See 28 U.S.C. § 636(c); (R. 120). About two months later, Brama’s
court-recruited attorney also sought and was granted leave to withdraw as counsel
of record. (R. 128.) Brama then filed two pro se motions seeking to withdraw her
consent to proceed before this court, which the court denied.
(R. 129; R. 131;
R. 134.) Brama’s subsequent challenges to that denial were also denied. (R. 140;
2
R. 149.) Meanwhile, Brama requested and the court granted Brama two extensions
of time to retain new counsel. (R. 136; R. 142; R. 150.)
On December 4, 2018, Brama reported that she had not yet retained counsel.
(R. 151.) Consequently, the court advised Brama of her right to continue her efforts
to retain counsel and took steps to move this 2014 case forward—namely, by setting
deadlines for the parties to disclose their list of witnesses and exhibits for trial.
(Id.)
In the interim, the court assigned a volunteer attorney to Brama for the
limited purposes of assisting her with settlement discussions with Target. (R. 157.)
When settlement proved unsuccessful, (R. 167), the court ordered each side to file
objections to the opposing side’s witnesses and exhibits by July 15, 2019, (R. 172).
Target timely filed its objections, but Brama did not. (R. 175.) Brama also did not
comply with the court’s orders to: comment on Target’s objections by July 31, 2019,
(R. 175; R. 180); submit proposed jury instructions by August 30, 2019, (R. 176;
R. 180); and identify current Target employees she will call as witnesses at trial by
September 13, 2019, (R. 176; R. 181).
A jury trial is now set to begin on October 29, 2019, and Brama has persisted
in acting pro se. (R. 176.) A pre-trial conference took place on October 2, 2019,
during which, in addition to setting the October 9, 2019 deadline for the parties to
issue their trial subpoenas, the court scheduled dates for the filing of Target’s
motions in limine and Brama’s responses thereto. (R. 181.) On October 3, 2019,
Target filed its motions in limine Nos. 1-20. (R. 182-201, Def.’s Mot. Nos. 1-20.)
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Brama then filed her oppositions to Target’s motions on October 18, 2019. (R. 206225, Pl.’s Resps.)
Legal Standard
Included in the district court’s inherent authority to manage trials is the
broad discretion to rule on motions in limine. Aldridge v. Forest River, Inc., 635
F.3d 870, 874-75 (7th Cir. 2011). The purpose of such motions is to perform a
“gatekeeping function and permit[] the trial judge to eliminate from further
consideration evidentiary submissions that clearly ought not to be presented to the
jury because they clearly would be inadmissible for any purpose.”
Jonasson v.
Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997). The moving
party bears the burden of proving blanket inadmissibility. See Mason v. City of
Chicago, 631 F. Supp. 2d 1052, 1056 (N.D. Ill. 2009).
Absent such a showing,
evidentiary rulings should be deferred until trial, where decisions can be informed
by the context, foundation, and relevance of the contested evidence within the
framework of the trial as a whole. Anglin v. Sears, Roebuck & Co., 139 F. Supp. 2d
914, 917 (N.D. Ill. 2001). “A pre-trial ruling denying a motion in limine does not
automatically mean that all evidence contested in the motion will be admitted at
trial.” Bruce v. City of Chicago, No. 09 CV 4837, 2011 WL 3471074, at *1 (N.D. Ill.
July 29, 2011). Rather, the court is free to revisit evidentiary rulings during trial as
appropriate in the exercise of its discretion. Luce v. United States, 469 U.S. 38, 4142 (1984).
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Analysis
A.
Motion No. 1
Target seeks to bar Brama’s treating physicians Drs. Randon Johnson,
Ziauddin Ahmed, Hong Vo, and Victor Cimino from testifying as expert witnesses at
trial. (R. 182, Def.’s Mot. ¶ 9.) Target asserts that although Brama identified and
the court approved the treating physicians as witnesses, she did not comply with
the Federal Rules of Civil Procedure 26(a)(2)(A) and 26(a)(2)(C), which required
Brama to serve non-retained expert disclosures during discovery.
(Id. ¶¶ 1-4.)
Target thus argues that Brama should be “barred from presenting any expert
testimony of any kind.” (Id. ¶ 9.)
A party’s obligation to identify its expert witnesses is set out in Rule 26(a)(2).
Under Rule 26(a)(2)(A), “a party shall disclose to the other parties the identity of
any person who may be used at trial to present evidence under Rules 702, 703, or
705 of the Federal Rules of Evidence.” In addition, under Rule 26(a)(2)(C), if a
witness is not “retained or specially employed to provide expert testimony” but
nonetheless is expected to give expert testimony, then the party must also disclose
“(i) the subject matter on which the witness is expected to present evidence under
Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and
opinions to which the expert is expected to testify.” Because “[d]isclosing a person
as a witness and disclosing a person as an expert are two distinct acts,” Rule
26(a)(2) requires formal disclosure of all witnesses who are to give testimony under
Rules 702, 703, or 705 irrespective of any prior disclosures of witnesses or the fact
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that the witnesses are “already known . . . through prior discovery.” Musser v.
Gentiva Health Servs., 356 F.3d 751, 757 (7th Cir. 2004).
Target is correct that Brama did not provide any Rule 26(a)(2)(C) disclosure,
or any other formal expert disclosure. Because Brama failed to disclose her treating
physicians as expert witnesses as is required by Rule 26(a)(2), Rule 37(c)(1)
prohibits them from testifying as expert witnesses at trial “unless the failure was
substantially justified or is harmless.” Target argues that Brama’s failure is not
substantially justified because this court reminded Brama of “her obligation to
update discovery responses and make required disclosures under Rule 26(a),”
(R. 182, Def.’s Mot. ¶ 7; R. 151), and Brama “should have known that expert
testimony was crucial to her case, and likely to be contested,” (R. 182, Def.’s Mot.
¶ 7) (internal citations omitted). Target also argues that Brama’s failure is not
harmless because Target “has been unable to depose those treating physicians” and
was “prevented from identifying any rebuttal experts.” (Id. ¶ 8.) Brama responds
that the names of her treating physicians were disclosed by her former attorneys
and in medical records authorization, and Target had an opportunity to depose
them but chose not to do so. (R. 206, Pl.’s Resp. at 1.) Brama adds that “she is Pro
Se and depends on [the] Court to be specific” and “was never ordered by the Court to
supply a Rule 26(a)(2)(C) disclosure.” (Id.)
The court finds that Brama’s failure to properly disclose her treating
physicians as expert witnesses, combined with her failure to provide the required
report or summary under Rule 26(a)(2)(C), is not substantially justified or harmless.
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As Target points out, Brama’s main arguments are foreclosed by the decision in
Musser v. Gentiva Health Services, 356 F.3d 751 (7th Cir. 2004), in which the
Seventh Circuit affirmed the exclusion of expert testimony of the plaintiffs’
witnesses—including treating physicians—first identified less than three months
before trial.
Musser, 356 F.3d at 754, 760.
In that case, as is the case here,
plaintiffs argued that they complied with expert disclosure rules because defendant
was “made aware of the identity and records of all their witnesses” and “had an
opportunity to depose these witnesses as to their opinions.”
Id. at 757.
The
Seventh Circuit rejected this argument, noting that formal disclosure of experts is
essential for a party to properly prepare for trial. Id.
Here discovery has been closed for more than three years, since April 5, 2016,
(R. 42; R. 151), and neither side has moved to have it re-opened. Regardless, the
trial date is set for October 29, 2019, (R. 176), and there is no time to re-open
discovery without causing significant prejudicial delay. During the almost six-year
history of this case, Brama never attempted to disclose any witnesses as experts.
Target should not be made to assume for purposes of its trial preparation that each
treating physician previously disclosed by Brama’s former attorneys or in medical
records authorization could be an expert witness at next week’s trial. Moreover,
Brama’s assertion that Target could have made such assumptions because it had
this information does not provide substantial justification. See Musser, 356 F.3d at
759 (noting the fact “that defendant could have obtained the undisclosed
information through its own efforts does not provide substantial justification”). Nor
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does the fact that Target could have deposed her treating physicians. Id. It was
Brama’s responsibility to make proper Rule 26(a)(2) disclosures and she did not.
Brama’s remark that “she is Pro Se and depends on [the] Court to be
specific,” (R. 206, Pl.’s Resp. at 1), essentially blames the court for her failure to
supply Rule 26(a)(2)(C) disclosures, which is not an acceptable litigation strategy.
In any event, Brama’s pro se status does not provide substantial justification for her
failure to supply Rule 26(a)(2)(C) disclosures (or make any other expert disclosure,
for that matter) because the Seventh Circuit has held that “pro se litigants are not
entitled to a general dispensation from the rules of procedure.” Jones v. Phipps, 39
F.3d 158, 163 (7th Cir. 1994). Moreover, and as discussed infra, Brama has been
intermittently represented by counsel throughout the course of this litigation,
including during discovery when such disclosures should have been made. Indeed,
even when not represented by counsel, Brama has illustrated an understanding of
the federal rules by filing motions and briefs, including two motions seeking to
withdraw her consent to proceed before the court. (R. 129; R. 131.) Also, as noted
by Target, the court has reminded Brama of her disclosure obligations under the
federal rules. (R. 182, Def.’s Mot. ¶ 7; R. 151.) Thus the court concludes that
Brama’s current pro se status does not constitute substantial justification for her
disclosure failures.
In further effort to divert blame away from herself and onto the court for her
failure to properly disclose her treating physicians as expert witnesses, Brama
contends that certain statements made by this court show “a bias” against her and
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favoritism toward Target that makes her “very uncomfortable.” (R. 206, Pl.’s Resp.
at 2.) She also takes issue with the “MICRO-MINI printed” text size of the notices
of case activity mailed to her by the clerk’s office because “[i]t’s an eye strain, brainfreeze and feels disrespectful to receive something that is barely readable.” (Id.)
Apart from the fact that Brama’s complaints are not a basis for substantial
justification, they are without merit. Brama has received numerous extensions of
time to find new counsel, complete and respond to discovery, file and respond to
motions, and submit her list of witnesses and exhibits for trial, all of which have
contributed to the protracted history of this slip-and-fall case.
Thus Brama’s
assertion that the court’s acknowledgement of the fact that this case is indeed a
“very old matter” and needs to be resolved “as soon as possible,” (R. 172), somehow
shows a bias is simply wrong. Further, Brama has been receiving notices of case
activity from the clerk’s office via mail since at least July 2016, (R. 55), and has
never asserted that the text size of the notices that she now insists present her such
a dilemma made her unable to meaningfully participate in this case.
To the
contrary, Brama has consistently and actively engaged in these legal proceedings.
Finally, Brama’s failure to properly disclose her treating physicians as expert
witnesses is not harmless. Although Target was not completely in the dark about
the possibility of Brama’s treating physicians testifying about Brama’s medical
condition, without advance notice that Brama intended to elicit expert opinions,
Target was denied the opportunity to take certain countermeasures. See Musser,
356 F.3d at 758; accord Tribble v. Evangelides, 670 F.3d 753, 760 (7th Cir. 2012).
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Consequently, permitting Brama’s treating physicians to give testimony at next
week’s trial based on scientific, technical, or otherwise specialized knowledge would
cause incurable prejudice to Target. Significantly, Target concedes that Brama’s
treating physicians “may still offer fact or lay opinion testimony, if otherwise
admissible under the Federal Rules of Evidence,” (R. 183, Def.’s Mot. ¶ 2), and the
court finds that allowing Brama to call them as fact witnesses does not cause the
same kind of incurable prejudice to Target. Accordingly, Motion No. 1 is granted to
the extent that Brama’s treating physicians, if called to testify, may not offer expert
opinions. In other words, they are not allowed to testify about information that goes
beyond observations they made during their treatment of Brama.
B.
Motion No. 2
Target seeks to bar Brama’s treating physicians Drs. Randon Johnson,
Ziauddin Ahmed, Hong Vo, and Victor Cimino from offering testimony concerning
their treatment of Brama “long after” August 13, 2012—the date of the alleged slip
and fall. (R. 183, Def.’s Mot. ¶¶ 1, 5.) Target refers the court to the arguments it
advances in Motion No. 1 but states that Brama’s treating physicians “may still
offer fact or lay opinion testimony, if otherwise admissible under the Federal Rules
of Evidence.” (Id. ¶ 2.) Target cites to Williams v. State, 49 Ill. Ct. Cl. 109 (1996),
and Hyatt v. Cox, 57 Ill. App. 2d 293 (1st Dist. 1978), for the proposition that when
the diagnosis of an injury is remote in time from the alleged incident, “expert
testimony is required to show that the incident caused or is connected to the injury,”
(Id. ¶ 6). Target argues that because Brama’s treating physicians cannot render
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expert opinions, Brama lacks proof of causation between the alleged slip and fall in
August 2012 and the medical treatments she received long after the fall. Therefore,
Target argues, testimony concerning “remote treatments” is “irrelevant, confusing,
and prejudicial.” (Id. ¶¶ 8-9.) Brama counters that “[t]here is no such thing as
‘remote in time’” because “most” of her injuries “will never heal” and offers her
recent emergency room visit as an example. (R. 207, Pl.’s Resp. at 1-2.)
Although the court disagrees with Brama’s assertion that there “is no such
thing as ‘remote in time’” injuries, see Williams v. State, 49 Ill. Ct. Cl. 109, 112
(1996) (finding claimant’s alleged back pain remote in time to slip and fall), the
court finds that the evidence Target seeks to exclude may be relevant to Brama’s
negligence claim.
While Brama’s treating physicians may not offer expert
testimony, they may, as Target concedes, testify to observations they made during
their treatment of Brama. To the extent that Target contends that such treatment
is too remote, it can pursue this line of questioning at trial and may argue this point
to the jury. Furthermore, and contrary to Target’s characterization of Illinois case
law, expert testimony is not required to show that the incident caused or is
connected to the injury. As stated in Target’s parenthetical quote to Hyatt and
further supported by Williams, “layman testimony may be insufficient to establish a
prima facie showing of a causal relationship.” Hyatt, 57 Ill. App. 3d at 299. In
other words, the cases cited do not support a blanket prohibition of lay testimony in
this context. For these reasons, Motion No. 2 is denied.
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C.
Motion No. 3
Target seeks to bar any lay person’s opinions and/or testimony regarding the
nature and extent of Brama’s alleged injuries. (R. 184, Def.’s Mot. ¶ 1.) More
specifically, Target seeks to bar “[a]ny testimony regarding the observation” by
Brama’s “family members, friends, and former co-workers,” as well as Brama’s
“description to family members or friends of [her] current disabilities or feelings and
symptoms” as inadmissible hearsay. (Id. ¶ 2.) Target alleges that the admission of
this lay witness testimony is effectively an expert opinion, which is “highly
prejudicial” and “misleading” when unaccompanied by the testimony of a physician.
(Id. ¶ 3.)
Brama contends that testimony regarding her injuries should be
“welcomed” by the court and Target because “now they’ll be able to hear [testimony]
from the doctors that were responsible for” her care. (R. 208, Pl.’s Resp. at 1.)
Brama further asserts that the jury should hear “lay testimony to be aware of the
extensive medical therapy and treatments that were given to her; whether it’s
testimony from a lay person or the treating physician.” (Id.)
Federal Rule of Evidence 701 restricts lay witnesses to providing opinions
which are: (a) rationally based on the perception of the witnesses; (b) helpful to a
clear understanding of the witness’s testimony or the determination of a fact at
issue; and (c) are “not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.” Therefore, Brama’s daughter Arielle Brama may
testify to their own perceptions and observations of Brama’s current condition, but
cannot, as Brama asserts, testify regarding “extensive medical therapy and
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treatments that were given to her.” (R. 208, Pl.’s Resp. at 1.) Relatedly, because
Brama may call her treating physicians as lay witnesses, they too are limited to
testifying to observations made during their treatment of Brama and are precluded
from rendering medical opinions or reviewing materials outside of their own
medical records to support their testimony. Target is free to raise an objection at
trial if any lay witness testimony gets too close to eliciting an expert opinion.
Furthermore, to the extent that Brama’s witnesses seek to testify to
statements Brama made to them concerning medical matters, such as her “current
disabilities or feelings and symptoms,” such statements may constitute hearsay
depending on the purpose for which they are being offered and Target is free to
raise this objection at trial. See Vujovich v. Chicago Transit Auth., 6 Ill. App. 2d
115, 120 (1st Dist. 1995) (finding plaintiff’s “self-serving declaration” to her
employer that her back was bothering her inadmissible hearsay when only issue at
trial was the extent of plaintiff’s injury). For these reasons, Motion No. 3 is denied.
D.
Motion No. 4
Target moves to bar Brama from testifying at trial regarding “statements
made to her” by her treating physicians because, it argues, those statements
constitute inadmissible hearsay under Federal Rule of Evidence 802. (R. 185, Def.’s
Mot. ¶ 3.) Target correctly notes that the court sustained Target’s objections to
Brama’s Exhibit Nos. 39, 41, 42, and 45, (R. 177), which are Brama’s own written
summaries of her treating physicians’ diagnoses, (R. 163), and again highlights
Brama’s failure to produce Rule 26(a)(2)(C) disclosures of her treating physicians,
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(R. 185, Def.’s Mot. ¶ 1). Consequently, Target argues that Brama might “attempt
to present these treating physicians’ statements or diagnoses through her own
testimony.” (Id.) Brama asserts that such testimony “should not be considered
‘hearsay’” because “[i]t’s what [she] has experienced” and “she should be allowed to
present testimony about her physical condition and treating physicians.” (R. 209,
Pl.’s Resp. at 1.)
Hearsay is “a statement that: (1) the declarant does not make while testifying
at the current trial or hearing; and (2) a party offers in evidence to prove the truth
of the matter asserted in the statement.” Fed. R. Evid. 801(c). Thus statements
made to Brama by her treating physicians in the course of evaluating her condition,
which she then describes through her own testimony at trial to prove the truth of
her condition, i.e., her alleged injuries, would be textbook hearsay. Under Federal
Rule of Evidence 802, such hearsay testimony is not admissible. That is not to say
that there are no exceptions, but Brama did not bring any to the court’s attention in
her response. Accordingly, Motion No. 4 is granted.
E.
Motion No. 5
Target seeks to bar testimony concerning the amount of Brama’s medical
bills. (R. 186, Def.’s Mot. ¶ 1.) Target cautions that because Brama has not offered
any medical bills as exhibits and the court sustained Target’s objection to Brama’s
Exhibit 44, (R. 177), which is an “Itemization of Damages” drafted by Brama,
(R. 163), Brama “will attempt to offer the amount of her medical bills through her
own oral testimony or through that of her treating physicians,” (Id. ¶ 2). Target
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asserts that pursuant to Federal Rule of Evidence 1002 (the “Best Evidence Rule”)
and Ruddick v. Regal Health & Rehab Center, Inc., No. 07 CV 7030, 2009 WL
3417474 (N.D. Ill. Oct. 20, 2009), Brama cannot prove her medical bills through oral
testimony without offering the original medical bills into evidence. (R. 186, Def.’s
Mot. ¶ 3.) In any event, Target argues that it would be “severely prejudiced” if
Brama were permitted to testify to this information without the medical bills
themselves being offered into evidence. (Id. ¶ 4.) Brama offers this single-sentence
response: “[a] mention to the jury of the mounting bills from the fall should not be
barred from the jury if the need to reveal the expenses of this fall created arises.”
(R. 210, Pl.’s Resp. at 1.)
The Best Evidence Rule provides that “[a]n original writing . . . is required in
order to prove its content unless these rules or a federal statute provides otherwise.”
Fed. R. Evid. 1002. In Ruddick v. Regal Health & Rehab Center, Inc., No. 07 CV
7030, 2009 WL 3417474, at *3 (N.D. Ill. Oct. 20, 2019), plaintiffs attempted to
establish the contents of a collective bargaining agreement that was allegedly in
place by submitting a self-serving affidavit that set forth the terms of the
agreement. Defendants argued that the Best Evidence Rule prohibits the court
from considering the affidavit to determine the contents of the collective-bargaining
agreement because plaintiffs failed to produce a copy of the executed agreement.
Id. at *3-4. The court agreed with defendants, noting that not only had plaintiffs
not produced a copy of the collective bargaining agreement, but they also did not
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cite any exception to Rule 1002 that could permit the court to consider the affidavit.
Id. at *4.
Though the facts of Ruddick are distinguishable from this case, the court
finds that the principle of the Best Evidence Rule is applicable here. Target points
out that aside from a self-serving “Itemization of Damages” that Brama drafted and
the court later deemed inadmissible, (R. 163; R. 177), Brama has not provided any
underlying documents supporting her assertion that she has “mounting bills” from
the alleged slip and fall. Nor has she cited any exception to Rule 1002 that could
permit the court to consider her testimony regarding the same information.
Therefore, Motion No. 5 is granted.
F.
Motion No. 6
Target seeks to prevent Brama’s daughter Arielle from offering “inadmissible
hearsay and irrelevant testimony” because it anticipates that her testimony will be
“substantially
similar
to
the
content
of
[Arielle’s]
affidavit.”
(R. 187, Def.’s Mot. ¶ 1.) Specifically, Target characterizes as inadmissible hearsay
statements Brama made to Arielle regarding the events of the slip and fall, the
condition of the Target store in July 2013, and the events portrayed in the
surveillance video of the fall.
(Id. ¶¶ 2, 5, 9.)
Target asserts that Arielle’s
observations of the condition of the Target store in July 2013―one year after the
alleged slip and fall―as well as her mother’s physical reaction to the surveillance
footage of the fall as “irrelevant testimony.” (Id. ¶¶ 4, 7.) Target correctly notes
that the court sustained its objection to Brama offering Arielle’s affidavit at trial
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because it amounts to hearsay testimony. (Id. ¶ 1; R. 177.) Brama asserts that
Arielle’s affidavit, which she refers to as a “Witness Statement,” should “be allowed
to be presented” and further states that Arielle’s “testimony should not be
considered ‘irrelevant,’” (R. 211, Pl.’s Resp. at 1), but offers no arguments
supporting her assertions.
With respect to statements made by Brama to Arielle about the August 13,
2012 fall, the condition of the store on that date, and the surveillance video, such
statements clearly constitute inadmissible hearsay.
On the subject of Arielle’s
observations of the condition of the Target store in July 2013, the court agrees with
Target that such testimony is inadmissible to show the condition of the Target store
at the time of Brama’s fall a year before in August 2012.
As to Arielle’s
observations of what she saw in the surveillance video footage and Brama’s physical
reaction to the same, they are not relevant or helpful as the jury will be able to view
the video for themselves and draw their own conclusions.
Therefore, Target’s
Motion No. 6 is granted.
G.
Motion No. 7
Pursuant to Federal Rule of Evidence 408, Target moves to bar Brama from
referencing any settlement negotiations, including writings, memos, letters or other
documents related thereto.
(R. 188, Def.’s Mot. ¶ 1.) Brama asserts that it is
appropriate to mention anything “related to settlement negotiations” to the jury
because, “Why not?” (R. 212, Pl.’s Resp. at 1.) The answer to Brama’s question is
found in the principles of law that apply under Rule 408, which make inadmissible
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evidence of offers, acceptances, conduct, or statements made during settlement
negotiations that are presented to prove a party’s liability for or the invalidity of a
claim or its amount. Therefore, Target’s Motion No. 7 is granted.
H.
Motion No. 8
Target moves to bar testimony or evidence regarding purported statements
made by its former third-party contractor, Stephanie Duley, allegedly offering to
pay Brama’s medical bills and “anything else that was needed” after the fall.
(R. 189, Def.’s Mot. ¶¶ 1, 4.) Target cautions that because Brama expressed her
intent to call Duley as a witness at next week’s trial, it anticipates Brama will elicit
testimony from Duley regarding negotiating a settlement of Brama’s claim. Such
testimony, Target argues, is “inadmissible to prove the validity or amount” of
Brama’s claim under Federal Rules of Evidence 408(a) and 409.
(Id. ¶¶ 3-4.)
Brama makes no substantive response to Target’s Motion No. 8 because Target did
not serve a copy of the motion on her. (R. 213, Pl.’s Resp. at 1.) The court notes
that Motion No. 8 was not included in the court’s courtesy copies, either. Given
these circumstances, Motion No. 8 is denied without prejudice. Target may raise
this concern at trial if Duley is called to testify.
I.
Motion No. 9
Target seeks to bar Brama from presenting evidence regarding or referring to
any remedial measures taken subsequent to Brama’s fall on August 13, 2012.
(R. 190, Def.’s Mot. ¶ 3.) Target correctly argues that, pursuant to Federal Rule of
Evidence 407, evidence of subsequent remedial measures, such as Target’s alleged
18
replacement of the carpet at the entrance to its store sometime after Brama’s fall,
cannot be admitted “to prove negligence, culpable conduct, a defect, or a need for
warning or instruction.” (Id. ¶ 2); Fed. R. Evid. 407. Brama responds that the “jury
has a right to this information and it should be admissible for that purpose.”
(R. 214, Pl.’s Resp. at 1.)
Brama has not offered a legitimate purpose for the
introduction of evidence of Target’s subsequent remedial measures.
Therefore,
Motion No. 9 is granted.
J.
Motion No. 10
Target seeks to bar Brama from presenting evidence through her own
testimony or lay witness testimony regarding her “future mental anguish, future
medical costs and future pain and suffering,” because such testimony is “beyond
common knowledge” and “pure speculation.” (R. 191, Def.’s Mot. ¶ 1.) Target also
cautions that Brama’s lay witnesses may attempt to speculate as to Brama’s past or
present condition and argues that such testimony should be barred for the same
reasons and would prejudice Target. (Id. ¶ 2.) Brama responds that the jury should
be permitted to hear testimony regarding “future spine surgery” and “everyday
pain,” (R. 215, Pl.’s Resp. at 1), though Brama’s response is not clear regarding the
form of evidence she plans to present on these topics. Motion No. 10 is denied
without prejudice.
The court prefers to hear whether Brama will offer this
information, how she offers the information, and in what context before ruling on its
admissibility.
19
K.
Motion No. 11
Target seeks to bar Brama from asking questions that are speculative or call
for a legal conclusion. (R. 192, Def.’s Mot. ¶ 1.) Brama counters that she should be
able to ask questions at trial and if those questions are deemed speculative “then so
be it,” (R. 216, Pl.’s Resp. at 1), and the court agrees. Motion No. 11 is denied.
Target is free to raise an objection at trial if Brama’s questions are speculative
and/or call for a legal conclusion.
L.
Motion No. 12
Target seeks to bar non-party witnesses from the courtroom during trial
apart from the witness actually testifying and those witnesses finally excused after
testifying. (R. 193, Def.’s Mot. ¶ 1.) Target argues that barring the aforementioned
witnesses from the courtroom during trial “would avoid the hazard of prejudice” and
“eliminate the possibility of a mistrial resulting from a reference to improper
material during the trial.”
(Id. ¶ 2.)
Target also asserts that barring these
witnesses would “inform counsel in advance of the trial concerning the proper limits
of admissible evidence” and “serve to clarify and simplify the issues for the jury.”
(Id.) Brama objects to the exclusion sought by Target’s Motion No. 12 but does not
explain the basis for her objection. (R. 217, Pl.’s Resp. at 1.) The exclusion of nonparty witnesses from the courtroom is commonplace and good trial practice. See,
e.g., Perry v. Leeke, 488 U.S. 272, 281 n.4 (1989); Christmas v. City of Chicago, 691
F. Supp. 2d 811, 820 (N.D. Ill. 2010). Therefore, Motion No. 12 is granted.
20
M.
Motion No. 13
Target seeks to bar Brama from “implying, suggesting or inferring” that its
conduct was “reckless, willful or wanton” because Brama’s complaint does not
contain any allegations supporting this type of conduct. (R. 194, Def.’s Mot. ¶¶ 1, 3.)
Target argues that Brama has only alleged that her injuries resulted from Target’s
“ordinary negligence.”
(Id. ¶ 6.)
Target adds that if Brama suggests Target’s
“conduct was intentional, reckless, willful or wanton, or in conscious disregard” of
Brama’s rights, the “specter of wrong” gets elevated “beyond mere negligence” and
could support an award of punitive damages. (Id. ¶ 4.) Brama contends in her
response that Target’s behavior is “very obvious and should not be by-passed” by the
court. (R. 218, Pl.’s Resp. at 1.)
As a threshold matter, Illinois law governs the court’s consideration of the
punitive damages determination in this diversity case. See Republic Tobacco Co. v.
North Atlantic Trading Co., Inc., 381 F.3d 717, 735 (7th Cir. 2004) (“In diversity
proceedings, state law governs whether punitive damages are appropriate.”). In
Illinois, “punitive or exemplary damages may be awarded when torts are committed
with fraud, actual malice, deliberate violence or oppression, or when the defendant
acts willfully, or with such gross negligence as to indicate a wanton disregard of the
rights of others.” Barton v. Chicago & Nw. Transp. Co., 325 Ill. App. 3d 1005, 1030
(1st Dist. 2001) (citing Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 186 (1978)). While
the amount of punitive damages is a question for the jury, the determination as to
21
whether a case justifies the imposition of punitive damages is a matter of law for
the judge. Barton, 325 Ill. App. 3d at 1031.
Here, Brama has not pleaded any allegations of reckless or willful and
wanton conduct by Target. (R. 194, Def.’s Mot. ¶ 3.) Furthermore, in the almost
six-year history of this case Brama has never so much as hinted at the fact that she
is seeking punitive damages—not during discovery, not during the October 2, 2019
pre-trial conference, not even in her response to this motion. At this juncture, then,
baring Brama from arguing, suggesting, or even inferring that Target’s conduct was
willful and wanton is necessary to prevent prejudice to Target.
Cf. King v.
Chapman, No. 09 CV 1184, 2014 WL 7450433, at * (N.D. Ill. Dec. 30, 2014) (denying
the defendant’s motion in limine to bar pro se plaintiff from seeking punitive
damages because the defendant had prior notice of the plaintiff’s demand for
punitive damages). Therefore, Target’s Motion No. 13 is granted.
N.
Motion No. 14
Target seeks to bar “the mention of any insurance company, insurance
administrator, or primary or excessive coverage” as “irrelevant and prejudicial.”
(R. 195, Def.’s Mot. ¶ 1.) Target also requests that the court instruct Brama and her
witnesses to refrain from “making any remarks, inference, innuendo, or testimony
of any nature which may inform the jury or infer to the jury that” Target was
covered by “any type of liability insurance” at the time of Brama’s fall because such
occurrences would be in violation of Federal Rule of Evidence 411. (Id.) Though
Brama declares that she does not plan “to mention insurance,” she argues that she
22
should not be barred from presenting such evidence to the jury. (R. 218, Pl.’s Resp.
at 1.) Rule 411 does not permit evidence of liability insurance for the purpose of
showing negligence or wrongful conduct and here such evidence is both irrelevant
and potentially prejudicial.
introduction of this evidence.
Brama has not proffered another purpose for the
Therefore, Motion No. 14 is granted.
Brama is
prohibited from presenting evidence through her own testimony or lay witness
testimony regarding this topic.
O.
Motion No. 15
Target also seeks to bar Brama from presenting evidence of its net worth.
(R. 196, Def.’s Mot. ¶ 3.) Target argues that its net worth is relevant only where
punitive damage are at issue and that here “there has been no determination that
such evidence is relevant and warranted.” (Id. ¶¶ 2-3.) In support, Target cites to
Pickering v. Owens-Corning Fiberglas Corp., 265 Ill. App. 3d 806 (5th Dist. 1994).
(Id. ¶ 2.) Brama asserts that Target’s net worth “should be allowed to be mentioned
in the context that it’s offered,” but neglects to expand on the potential applicable
context. (R. 220, Pl.’s Resp. at 1.) That is perhaps because, as Brama notes, she has
no plans to mention evidence of Target’s net worth at trial.
(Id.)
asserts, however, that the evidence “just shouldn’t be barred.”
Brama also
(Id.)
Target is
correct that under Illinois law evidence of its net worth is only relevant to the issue
of punitive damages, see Pickering, 265 Ill. App. 3d at 823, and, as discussed infra,
Brama has never requested punitive damages. Therefore, and consistent with the
court’s ruling on Motion No. 13, Motion No. 15 is granted.
23
P.
Motion No. 16
Target seeks to bar Brama from making “send a message” comments during
trial. (R. 197, Def.’s Mot. ¶ 2.) Target argues that “[i]t is improper to exhort jurors
to ‘send a message’” with their verdict and that the effect of these words is to “steer
the jury down the wrong course.” (Id. ¶¶ 1-2.) Brama counters that the facts of this
case show that such “send a message” comments are appropriate, and she asserts,
without any support, that such comments have “been allowed in most lawsuits.”
(R. 221, Pl.’s Resp. at 1.) The court disagrees with Brama’s assertion that “send a
message” comments have “been allowed in most lawsuits” because most implies
nearly or almost all. Rather, arguments that the jury should “send a message” with
its verdict are sometimes permitted where punitive damages are at issue. See, e.g.,
Pickett v. Sheridan Health Care Ctr., 610 F.3d 434, 445 (7th Cir. 2010); Jones v.
Chicago, No. 14 CV 4023, 2017 WL 413613, at *5 (N.D. Ill. Jan. 31, 2017). As
discussed infra, Illinois law allows for punitive damages to be awarded in
negligence cases under certain circumstances, but this case does not present such
circumstances. Therefore, and consistent with the court’s ruling on Motion Nos. 13
and 15, Motion No. 16 is granted.
Q.
Motion No. 17
Target seeks to bar Brama from making “[r]eferences as to what a reasonable
person would pay to avoid an accident” like the one at issue in this case. (R. 198,
Pl.’s Mot. ¶ 1.) Target asserts that such references “suggest an erroneous standard”
that departs from the purpose of compensatory damages, which according to the
24
Illinois cases cited by Target, is “to make the injured party whole.” (Id. ¶ 2.) Target
also argues that the probative value of references to what a reasonable person
would pay is “substantially outweighed” by its prejudicial effects.
(Id. ¶¶ 3-4.)
Brama makes no attempt to substantively respond to the arguments in Target’s
motion, asserting only that she “should be allowed to argue any point to this fact.”
(R. 222, Pl.’s Resp. at 1.) In the absence of any compelling reason for references as
to what a reasonable person would pay to avoid an accident like this, the court finds
that Target has shown that the prejudicial effects of this evidence outweighs any
probative value. Therefore, Motion No. 17 is granted.
R.
Motion No. 18
Target moves to bar testimony discussing, mentioning, alluding, or referring
to the idea that anyone other than Brama has been damaged by the accident on
August 13, 2012. (R. 199, Def.’s Mot. ¶ 1.) Target argues that such testimony is
prejudicial. (Id.) Target cites LeMaster v. Chicago R.I. & P.R. Co., 35 Ill. App. 3d
1001, 1014 (1st Dist. 1976), for the general rule that the type of testimony it seeks
to bar is generally disallowed “in an action for personal injuries where family
support or conjugal rights are not at issue.” (Id. ¶ 1.) Brama asserts that she has “a
right . . . to provide evidence of damages suffered by anyone other than” herself.
(R. 223, Pl.’s Resp. at 1.) Brama does not base this right on any statute, case law, or
other legal authority. While the court declines to declare that Brama has a right to
offer evidence regarding injuries suffered by non-parties in this case, it recognizes
that there are instances in which such evidence is relevant to the issue of damages
25
and thus may be admitted into evidence. The very case Target relies on LeMaster
acknowledges the same. See LeMaster, 35 Ill. App. 3d at 77-78 (reviewing cases
where evidence of plaintiff’s family circumstances was deemed admissible).
As
such, Motion No. 18 is denied without prejudice.
S.
Motion No. 19
Target seeks to bar Brama and her witnesses from analogizing her alleged
injuries to property damage and comparing her alleged injuries to injuries
sustained by other plaintiffs in other cases. (R. 200, Def.’s Mot. ¶ 1.) The case
Target relies on, Goad v. Evans, 191 Ill. App. 3d 283 (4th Dist. 1989), explicitly
supports its argument. See Goad, 191 Ill. App. 3d at 310 (noting the focus of the
jury’s deliberations should be on the losses sustained by plaintiff, not losses
sustained by non-parties or the worth of other property). Brama disagrees and
argues that the court “should allow it.” (R. 224, Pl.’s Resp. at 1.) Her conclusory
assertion is insufficient to overcome Target’s well-supported argument.
Motion
No. 19 is granted.
T.
Motion No. 20
Target seeks to bar Brama from talking to prospective jurors regarding the
facts of this case and/or attempting to illicit a pledge or promise from prospective
jurors to return a substantial monetary verdict in her favor. (R. 201, Def’s Mot.
¶ 2.) Target argues that such questioning during voir dire “indoctrinate[s] or preeducate[s]” and “pre-conditions” the jurors before the trial begins.
(Id. ¶¶ 1-2.)
Target asserts that Brama’s voir dire questioning should be limited to “asking
26
jurors whether they could fairly and reasonably compensate plaintiff under the
evidence even if the compensation was in a substantial amount of money.” (Id. ¶ 2.)
Brama takes issue with Target’s use of the phrase “award excessive damages,” (Id.
¶ 1), because, according to her, “[w]hen there is chronic pain and permanent
injuries involved that makes life hell for someone, excessive damages awards are
really not excessive,” (R. 225, Pl.’s Resp. at 1). Brama also asserts that Target’s
most recent settlement offer was “insulting,” “an insult to injury,” and “stone-coldhearted” and attaches a copy of that settlement offer to her response. (Id. at 1, 3.)
The court has broad discretion regarding the voir dire of potential jurors. See Art
Press v. Western Printing Mach. Co., 791 F.2d 616, 618 (7th Cir. 1986). Here Brama
offers no real objection to Target’s motion and, therefore, Motion. No. 20 is granted.
Conclusion
For the foregoing reasons, Target’s Motion Nos. 1, 4-7, 9, 12, 13-17, 19, and
20 are granted, Target’s Motion Nos. 8, 10, and 18 are denied without prejudice, and
Target’s Motion Nos. 2, 3, and 11 are denied.
ENTER:
____________________________________
Young B. Kim
United States Magistrate Judge
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