ANDERSON v. QDOBA RESTAURANT CORPORATION

Filing 107

PRETRIAL ORDER ON MOTIONS IN LIMINE AND RELATED ISSUES - Ms. Anderson's motion in limine is GRANTED in part and DENIED in part. Dkt. 63 . Qdoba's motion in limine is also GRANTED in part and DENIED in part. Dkt. 74 . Ms. Anderson� 39;s motion to use Bryan Rappolt's deposition testimony at trial, dkt. 59 , is GRANTED. Consequently, Qdoba's motion for a pre-trial ruling on the admissibility of Mr. Rappolt's testimony, dkt. 76 , is GRANTED in part to the extent that the Court OVERRULES its objections (SEE PRETRIAL ORDER FOR ADDITIONAL INFORMATION). Signed by Judge James Patrick Hanlon on 7/15/2021. (DWH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
AMY ANDERSON,
Plaintiff,
v.
QDOBA RESTAURANT CORPORATION,
Defendant.

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No. 1:18-cv-03578-JPH-MJD

PRETRIAL ORDER ON MOTIONS IN LIMINE AND RELATED ISSUES
Amy Anderson has sued Qdoba Restaurant Corporation for negligence,
alleging that "a large Qdoba table umbrella . . . struck [her] in the back of the
head with force" on a windy day in May 2017. Dkt. 1-1 at 4–5 ¶ 5. Both
parties have filed motions in limine. Dkt. [63]; dkt. [74]. 1 Ms. Anderson has
also moved to admit the deposition of expert witness Bryan K. Rappolt, dkt.
[59], and Qdoba has objected, dkt. [76].
Motions in limine are designed to "streamline trials and settle evidentiary
disputes in advance, so that trials are not interrupted mid-course for the
consideration of lengthy and complex evidentiary issues." United States v.
Tokash, 282 F.3d 962, 968 (7th Cir. 2002). Courts "have broad discretion in
ruling on evidentiary questions . . . on motions in limine." Jenkins v. Chrysler
Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002).

At the Final Pretrial Conference, the parties agreed that no ruling is necessary for 15
evidentiary categories identified in Ms. Anderson's motion and for 5 categories in Qdoba's
motion. See dkt. 96 at 4. As a result, this order considers only the remaining contested
evidentiary categories from the motions in limine.
1

1

I.
Ms. Anderson's Motion in Limine
A. 2018 car accident and related medical records
Ms. Anderson was involved in a car accident in 2018, about a year after
she was allegedly struck by the umbrella. She seeks to exclude evidence of
injuries she sustained in that car accident and the corresponding medical
treatment she received. Dkt. 63 at 3–4 ¶¶ 2, 4.
1. Similar or dissimilar injuries
Ms. Anderson contends that evidence about the car accident and her
resulting injuries have "no probative value[,] . . . would be calculated to mislead
and confuse the jury, and work to . . . prejudice [her]." Id. at 3 ¶ 2. Qdoba
argues that "relevancy will be established by both [Ms. Anderson's] treating
physicians and [by its] expert, who will be able to provide the competent proof
necessary to connect Ms. Anderson's injuries with her prior and subsequent
events." Dkt. 87 at 1–2 ¶ 2.
"Evidence concerning prior similar injuries may be admissible for both
substantive and impeachment purposes." Couch v. Wal-Mart Stores, Inc., 191
F.3d 455 (7th Cir. 1999) (unpublished table decision) (citing O'Shea v. Jewel
Tea Co., 233 F.2d 530, 532 (7th Cir. 1956)). In negligence actions, Indiana
courts have held that "testimony as to a prior accident is relevant where there
is competent proof from which it could be inferred that the injury complained
of is attributable to the prior or subsequent event." Flores v. Gutierrez, 951
N.E.2d 632, 640 (Ind. Ct. App. 2011).

2

Ms. Anderson appears to concede admissibility if Qdoba offers
"competent medical testimony" showing "a connection between this line of
questioning and [her] . . . injuries." Dkt. 63 at 3 ¶ 2. Because Qdoba claims
that its medical expert will connect Ms. Anderson's car-accident injuries to the
damages at issue in this case, dkt. 87 at 1–2 ¶ 2, the Court DENIES Ms.
Anderson's motion to exclude all evidence of similar and dissimilar injuries.
2. Healthcare treatment "unrelated" to conditions in issue
At the October 29, 2020 hearing, Qdoba's counsel stated that they plan
to introduce medical records from ATI Physical Therapy indicating that the
2018 car accident caused "pain in [Ms. Anderson's] hips and legs, . . . swelling
in [her] ankles, [a] fracture in her back, [and] bruising and bleeding." Qdoba
contends that these records show that the accident was "severe" and that
physical therapy would help "get her pain under control."
a. Relevance
Ms. Anderson contends that this evidence is not relevant to the shoulder
injury that she claims to have sustained when she was struck by the umbrella.
See, e.g., dkt. 63 at 4. Qdoba responds that the evidence is relevant for two
reasons. First, its "expert will opine on [Ms. Anderson's] medical history that is
causally and historically related to the issues in this case." Dkt. 87 at 2 ¶ 4.
Second, Ms. Anderson previously claimed that the umbrella accident hurt both
her shoulder and her hip.
Evidence is relevant if it has "any tendency to make a fact" of
consequence "more or less probable than . . . without the evidence." Fed. R.
3

Evid. 401. Here, the medical records related to Ms. Anderson's car-accident
may affect the jury's assessment of the source of her claimed injuries. For
example, the jury may determine that a portion of Ms. Anderson's injuries were
caused by the car accident, not from being struck by the umbrella. Or it may
not. Either way, the evidence is relevant.
Ms. Anderson also makes the generic argument that the probative value
of any evidence about the car accident is substantially outweighed by a danger
of unfair prejudice and confusion of the issues. Dkt. 63 at 3 ¶ 2; see Fed. R.
Evid. 403. But Ms. Anderson has not explained how these specific medical
records give rise to dangers of undue emotionalism or juror misuse. See dkt.
63. The Court DENIES Ms. Anderson's motion to exclude these medical
records on this ground.
b. Privilege
Ms. Anderson claims that the ATI records relating to the 2018 car
accident "remain[] privileged" under Indiana law because she "did not waive,
nor . . . consent to, an invasion of her privacy with respect to medical/mental
health records completely unrelated to conditions at issue in this lawsuit."
Dkt. 63 at 4 ¶ 4. Qdoba responds that these records are not protected by the
privilege because Ms. Anderson's "medical history is relevant to the condition
at issue." Dkt. 87 at 2 ¶ 4.
Under Indiana law, a patient-physician privilege protects "matters
communicated" to physicians by patients in their professional relationship.

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See Ind. Code § 34-46-3-1(2). 2 However, "when a patient who is a party to a
lawsuit places his mental or physical condition in issue, . . . he has impliedly
waived the privilege to that extent." Doherty v. Purdue Properties I, LLC, 153
N.E.3d 228, 238 (Ind. Ct. App. 2020) (quoting Canfield v. Sandock, 563 N.E.2d
526, 529 (Ind. 1990)). There is an exception to the implied waiver that may
apply in "rare cases" when the "party seeking to assert the privilege" specifically
identifies documents that are "irrelevant to the condition in issue" and are "of a
highly intimate or embarrassing nature." Owen v. Owen, 563 N.E.2d 605, 608
(Ind. 1990). Upon such a showing, the information "remains privileged and
therefore protected from discovery." Canfield, 563 N.E.2d at 530.
Here, Ms. Anderson has placed her physical condition at issue in this
lawsuit by alleging that she was injured and that Qdoba's negligence was the
cause of her injury. See dkt. 1-1 at 5 ¶ 7 (Ms. Anderson alleging "severe and
permanent injuries to numerous parts of her body" as a "direct and proximate
result" of Qdoba's conduct). Thus, Ms. Anderson has waived the patientphysician privilege to that extent. See Doherty, 153 N.E.3d at 238. And Ms.
Anderson has not designated any documents as irrelevant and highly intimate,
or explained why certain specific documents should qualify for the exception to
the implied waiver and be protected from discovery. See Owen, 563 N.E.2d at
608.

"[S]tate law governs privilege regarding a claim or defense for which state law supplies the
rule of decision" in civil cases. Fed. R. Evid. 501; see Nw. Mem'l Hosp. v. Ashcroft, 362 F.3d
923, 925 (7th Cir. 2004) (indicating that state law may allow "more stringent medical-records
privilege[s] . . . in suits in federal court . . . in which state law supplies the rule of decision.").
2

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Because these treatment records relating to her car accident are relevant
and not privileged, the Court DENIES Ms. Anderson's motion to exclude them.
B. Medical bills and payments
Ms. Anderson also seeks to exclude "[a]ny testimony or evidence of [her]
medical bills and payments, adjustments and write offs by collateral sources or
any evidence . . . concerning the amount of medical expenses she has incurred
or paid." Dkt. 63 at 9 ¶ 17. She argues that she has "withdrawn all claims . . .
for past medical expenses" and "will not offer any evidence as to the amount of
the medical expenses." Id. Because she seeks only "general damages," Ms.
Anderson contends that any admission of her medical expenses is irrelevant,
prejudicial, confusing to the jury, unnecessarily cumulative, and protected by
Indiana's "collateral source" doctrine. Id. at 9–14 ¶ 17.
Qdoba argues that the medical bills are "relevant and admissible to aid
the jury in assessing the extent of [Ms. Anderson's] injuries." Dkt. 87 at 5.
Qdoba also contends that Ms. Anderson has not withdrawn her claims for past
medical expenses because she has not filed an amended complaint and that
she has a Medicare lien against any recovery from this action. Id. at 4–5; see
dkt. 94 at 2.
Federal Rule 403 allows a district court to "exclude relevant evidence if
its probative value is substantially outweighed by a danger of . . . unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence."

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Here, the probative value of the medical bills is limited because Ms.
Anderson does not seek reimbursement for medical expenses, see dkt. 63 at 9
¶ 17, and Qdoba has not shown a correlation between the financial information
on the medical bills and the nature or degree of Ms. Anderson's claimed
damages. Moreover, evidence of medical bills may confuse a jury and cause
undue delay. The bills' descriptions of medical services could require
testimony of witnesses from medical offices about the office's labeling
procedures and the treatments listed on each bill. And more probative
evidence on this point is available, such as Ms. Anderson's testimony and the
testimony of her treating physicians, see dkt. 58 (listing witnesses), which
would make the medical bills needlessly cumulative. To the extent that the
medical bills reflect reimbursements from insurance providers, this could
violate Indiana's collateral source rule which disallows evidence about certain
insurance benefits in personal injury suits. See Ind. Code § 34-44-1-2; In re
Air Crash Disaster Near Chicago, Ill., On May 25, 1979, 803 F.2d 304, 308 (7th
Cir. 1986) (stating that "a federal court sitting in diversity must apply the
collateral source rule of the state whose law governs the case").
Finally, Ms. Anderson was not obligated to amend her complaint to
narrow the scope of relief she seeks. See CMFG Life Ins. Co. v. RBS Sec., Inc.,
799 F.3d 729, 743–44 (7th Cir. 2015). The risks of unfair prejudice, jury
confusion, undue delay, and unnecessarily cumulative evidence substantially
outweigh the limited probative value of the medical bills. See Fed. R. Evid.

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403. The Court GRANTS Ms. Anderson's motion to exclude medical bills. 3 Of
course, like all motions in limine, this ruling is provisional and subject to
change should Ms. Anderson open the door to such evidence during trial.
II.
Qdoba's Motions
A. Unidentified person yelling "No, No, No"
At her deposition, Ms. Anderson testified that she heard an unidentified
person yell, "No, No, No," before the umbrella allegedly struck her. Dkt. 75 at 6
¶ 7. Qdoba seeks to exclude this evidence from trial as inadmissible hearsay.
Id. At the October 2020 hearing, Ms. Anderson's counsel contended that this
falls under the hearsay exception for excited utterances.
Rule 803(2) provides a hearsay exception for a "statement relating to a
startling event or condition, made while the declarant was under the stress of
excitement that it caused." This places the burden on "the party seeking to
admit the statement" to establish that: "(1) a startling event occurred; (2) the
declarant ma[de] the statement while under the stress of excitement caused by
the startling event; and (3) the declarant's statement relates to the startling
event." United States v. Vargas, 689 F.3d 867, 876–77 (7th Cir. 2012). Qdoba
disputes the last two elements because no evidence shows that "the
unidentified declarant personally observed" the startling event (the umbrella
allegedly hurling through the wind towards Ms. Anderson). Dkt. 75 at 8 ¶ 7.

3

Accordingly, the Court DENIES Qdoba's motion to admit medical bills. See dkt. 74 at 3 ¶ 5.

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A hearsay declarant must have "firsthand knowledge" of the matters in
her testimony. Fed. R. Evid. 803, Advisory Committee's Note to 1972 Proposed
Rules. Rule 803(2) is thus consistent with "cases [that] indicate hesitancy in
upholding [a] statement alone as sufficient" when the "declarant is an
unidentified bystander." Id.
Here, Ms. Anderson has not shown that the declarant made the
statement under stress or excitement relating to the startling event. See
Vargas, 689 F.3d at 876–77. Given the accident's location near Meridian and
Washington in the middle of downtown Indianapolis, see dkt. 1-1 at 4 ¶ 4, the
declarant's statement could have referred to any number of events, see dkt. 75
at 8 (citing examples of a "child running loose, dropping papers, [and] receiving
bad news on a phone call"). Without more, the declarant's alleged awareness of
the startling event in question is pure speculation. Because Ms. Anderson has
not established sufficient indicia of reliability for the declarant's statement,
Qdoba's motion to exclude the statement is GRANTED.
B. Employee deposition and accident reports
Qdoba seeks to exclude as inadmissible hearsay created in anticipation
of litigation two internal reports concerning the accident, as well as deposition
testimony from one of its former employees, Gonzalo Hernandez Venegas,
about these reports. Dkt. 75 at 8–11 ¶¶ 8–9.
1. Former testimony hearsay exception
Ms. Anderson argues that Mr. Hernandez Venegas' deposition is
admissible under the former-testimony hearsay exception. Dkt. 91 at 2 ¶ 8
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(citing Fed. R. Evid. 804(b)(1)). Qdoba does not dispute that Mr. Hernandez
Venegas is now "unavailable" under Fed. R. Evid. 804(a). 4 And because Mr.
Hernandez Venegas gave testimony "as a witness at a . . . lawful deposition"
subject to cross-examination, Ms. Anderson is free to offer the deposition,
absent specific objections, against Qdoba. See Fed. R. Evid. 804(b)(1). So to
the extent that Qdoba seeks to categorically exclude Mr. Hernandez Venegas'
deposition testimony as hearsay, that motion is DENIED.
2. Loss reports as inadmissible hearsay
Qdoba claims the loss reports are inadmissible hearsay not covered by
the "business record exception" under Fed. R. Evid. 803(6). See dkt. 75 at 9.
To qualify as a business record, the record must be of a type made and kept as
a "regular practice of" a "regularly conducted activity of a business." Fed. R.
Evid. 803((6). Absent contrary evidence, "[l]itigation generally is not a regularly
conducted business activity." Jordan v. Binns, 712 F.3d 1123, 1135 (7th Cir.
2013). Because Ms. Anderson has not shown that making loss reports was a
regularly conducted activity for Qdoba, the loss reports are not within the
scope of the business-records exception. The Court therefore GRANTS Qdoba's
motion in limine.

At the October 2020 hearing, Qdoba's counsel admitted that Mr. Hernandez Venegas left
employment of Qdoba and is now out of state. See dkt. 92-2 at 2. He is thus "absent from the
trial," and Qdoba has not disputed Ms. Anderson's assertion that she "has not been able, by
process or other reasonable means, to procure . . . [his] attendance," Fed. R. Evid. 804(a)(5)(A).
Thus, the Court considers Mr. Hernandez Venegas "unavailable" under Rule 804.

4

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C. Bryan Rappolt's deposition
Qdoba also seeks to exclude "expert Bryan K. Rappolt's opinions in their
entirety." Dkt. 76 at 1. Qdoba contends that Ms. Anderson did not
supplement her response to its November 2018 discovery request "until the
morning of Mr. Rappolt's deposition, October 1, 2020," which "unfairly
prejudiced Qdoba by withholding potential evidence" and could result in "trial
by ambush." Id. at 2 ¶¶ 3–4. Alternatively, Qdoba seeks to exclude certain
portions of Mr. Rappolt's deposition, alleging that exhibits referenced in his
testimony were "modified" from those in his expert report. Id. at 2 ¶ 5.
1. Rule 26 initial disclosures
Rule 26(a)(2)(B) requires an initial disclosure of an expert report
containing, among other things, "the facts or data considered by the witness in
forming" her opinions. "If a party fails to provide information . . . as required
by Rule 26(a) . . . , the party is not allowed to use that information or witness
to supply evidence . . . , unless the failure was substantially justified or
harmless." Fed. R. Civ. P. 37(c)(1). "The purpose of Rule 26(a)(2) is to provide
notice to opposing counsel—before the deposition—as to what the expert
witness will testify." Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 642 (7th Cir.
2008).
Ms. Anderson alleges that she "served her expert disclosures . . . in
accordance" with Fed. R. Civ. P. 26(a)(2) by including Mr. Rappolt's CV, his
expert report, a "list of cases in which [Mr.] Rappolt has testified as an expert,"
and "a statement of [his] compensation." Dkt. 92 at 1–2 ¶ 3; see dkt. 92-1
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(listing disclosures). At the October 2020 hearing, Ms. Anderson's counsel also
contended that Mr. Rappolt's deposition testimony was all within the scope of
what was disclosed in the expert report. Mr. Rappolt's report itself states that
he "relied on" eight sources of "data and information" in his "meteorological
analysis." Dkt. 92-1 at 7. 5 His report also includes tables, photographs, maps,
and conclusions. See id. Qdoba has not pointed to any specific "facts or data
considered by" Mr. Rappolt that his expert report failed to mention. Fed. R.
Civ. P. 26(a)(2)(B); see dkt. 76. Moreover, Qdoba has not established any
unfair surprise because it had at least 13 months between Ms. Anderson's
disclosure of Mr. Rappolt as an expert witness and his deposition. See dkt. 921 at 5 (service of disclosure on August 29, 2019); dkt. 92 at 2 ¶ 4 (deposition
on October 1, 2020); see also Heller v. D.C., 801 F.3d 264, 270 (D.C. Cir. 2015)
("Admitting a report with an omission that does not cause 'unfair surprise'
[was] harmless."). And Qdoba has not explained, other than the conclusory

5

Specifically, these eight sources of data and information are:
1. United States Department of Commerce surface weather observations (ASOS),
Indianapolis International Airport (KIND).
2. Citizen Weather Observer Program (CWOP) surface weather observations:
IN028, IN031 and E3369.
3. National Weather Service (NWS) Indianapolis, IN (KIND) WSR 88-D Level II
Super Resolution Dual Polarization Doppler radar data.
4. NWS KIND WSR 88-D Level Ill High Resolution Dual Polarization Doppler
radar data.
5. Federal Aviation Administration (FAA) Indianapolis, IN (TIDS) Terminal
Doppler Radar (TDWR).
6. National Weather Service Forecast Office Indianapolis, IN (NWSFO-KIND)
issued products.
7. Legal complaint filed by plaintiff counsel.
8. Ambulance triage report of the incident.

Dkt. 92-1 at 7.

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assertion of "trial by ambush," dkt. 76 at 2 ¶¶ 3–4, how an alleged omission
harms it, see Gicla v. United States, 572 F.3d 407, 411–13 (7th Cir. 2009)
(upholding admission of untimely-disclosed expert testimony because the
failure was harmless).
2. Rule 26(e) duty to supplement
Qdoba also argues that Ms. Anderson failed to supplement Mr. Rappolt's
expert report in a timely manner in response to its request in November 2018
for "[a]ll reports, records, or other documentation prepared or reviewed by any
person who may be called to testify as an expert or skilled witness at the trial
of this matter, . . . and copies of all authoritative materials upon which he or
she relied or to which he or she referred to form any and all opinions regarding
this matter." See dkt. 76 at 2 ¶¶ 3–4. Ms. Anderson responded to this
discovery request in January 2019. Id. Qdoba did not ask Ms. Anderson to
supplement that response until the afternoon before the deposition—on
September 30, 2020, see dkt. 92-2 (email at 3:41 PM). At that time, Qdoba
asked for copies of the eight items listed on Mr. Rappolt's expert report. Id. In
response to the request, Qdoba's counsel received a link to an electronic file
containing over 15,000 documents, the "vast majority" of which could not be
opened.
At the hearing, Ms. Anderson's counsel argued that all the information
that Mr. Rappolt relied upon is in the expert report, which was timely
disclosed, and that the electronic file with the 15,000 documents probably
represents Mr. Rappolt's entire working file. Ms. Anderson also contends that
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the 13-month period between disclosure and Qdoba's request prevents any
"trial by ambush." Dkt. 92 at 2 ¶ 7.
Rule 26(e)(2) imposes a duty on the party using an expert witness "to
supplement . . . information included in the report and . . . information given
during the expert's deposition." The duty to supplement "in a timely manner"
arises if (a) "the party learns that in some material respect the disclosure or
response is incomplete or incorrect" and (b) "the additional or corrective
information has not otherwise been made known to the parties during the
discovery process or in writing." Fed. R. Civ. P. 26(e)(1). If a party fails to
comply with Rule 26(e), "the party is not allowed to use that information or
witness to supply evidence . . . , unless the failure was substantially justified or
harmless." Fed. R. Civ. P. 37(c)(1).
Here, Qdoba did not raise the issue of disclosure deficiencies until the
afternoon of September 30, 2020—the day before Mr. Rappolt's deposition and
almost 10 months after discovery closed, see dkt. 13 at 8 (discovery closed on
December 6, 2019). Even then, Qdoba has not established that the initial
disclosures were incomplete or incorrect "in some material respect." See Fed.
R. Civ. P. 26(e)(1). The expert report appears thorough and states the specific
information relied upon, which should have given Qdoba ample notice of the
information in Mr. Rappolt's testimony. See dkt. 92-1. Qdoba also had ample
time to seek supplemental information earlier and has not shown how it has
been prejudiced.

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3. Specific objections to expert report
Finally, Qdoba objects to Mr. Rappolt's testimony about three National
Weather Service reports, dkt. 76 at 3 ¶ 5, because the exhibits shown to Mr.
Rappolt "look[ed] like [they] ha[d] been altered from the document[s] . . . in [the]
expert report," dkt. 95 at 13, 14, 17 (Rappolt Dep. 12:10–12, 13:18–20, 16:12–
14). Ms. Anderson responds that "[t]he only changes made to [the exhibits]
offered at [Mr.] Rappolt's deposition from the exhibits to his expert report were
the removal of highlights to the text," which was done "so the record for the
deposition would remain clear." Dkt. 92 at 3 ¶ 9. According to Ms. Anderson,
this "did not change or alter any of the text contained in the exhibits." Id. Her
counsel also contends that "this is the type of data relied upon by an expert[,]
and it is an official publication by a public authority." Dkt. 95 at 13, 14, 17
(Rappolt Dep. 12:13–15, 13:21–24, 16:15–17). Qdoba does not explain how
removing highlighting marks could affect the substance of these exhibits.
In summary, Qdoba has not shown a compelling reason to limit in whole
or in part the admissibility of Mr. Rappolt's testimony, so its objections are
OVERRULED.
III.
Conclusion
Ms. Anderson's motion in limine is GRANTED in part and DENIED in
part. Dkt. [63]. Qdoba's motion in limine is also GRANTED in part and
DENIED in part. Dkt. [74].
Ms. Anderson's motion to use Bryan Rappolt's deposition testimony at
trial, dkt. [59], is GRANTED. Consequently, Qdoba's motion for a pre-trial
15

ruling on the admissibility of Mr. Rappolt's testimony, dkt. [76], is GRANTED
in part to the extent that the Court OVERRULES its objections.
SO ORDERED.
Date: 7/15/2021

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Distribution:
Jeanne M. Hamilton
HENNESSEY & ROACH
[e-mail]
Shannon Bogard Mize
SHARTZER LAW FIRM, LLC
[e-mail]
Hayleigh Jo Neumann
HENNESSY & ROACH, P.C.
[e-mail]
Jason A. Shartzer
SHARTZER LAW FIRM LLC
[e-mail]

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