Sanderson v. Wal-Mart Stores East

Filing 40

OPINION & ORDER signed by Senior Judge Thomas B. Russell on 9/26/2018. Granting 34 Motion in Limine. cc: Counsel(KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH
CIVIL ACTION NO. 5:17-CV-00148-TBR
RONNIE SANDERSON

Plaintiff

v.
WAL-MART STORES EAST, L.P.

Defendant

OPINION AND ORDER
This matter is before the Court upon Defendant Wal-Mart Stores East L.P.’s Motion in
Limine. (R. 34). Plaintiff, Ronnie Sanderson, has responded. (R. 36). This matter is now ripe for
adjudication. For the following reasons, Defendant’s motion is GRANTED.
Background
In November of 2016, Ronnie Sanderson slipped and fell at a Wal-Mart in McCracken
County, Kentucky. (R. 1). With the trial date approaching, Wal-Mart now files the instant motion
in limine. (R. 24).
Legal Standard
Motions in limine provided in advance of trial are appropriate if they eliminate evidence
that has no legitimate use at trial for any purpose. Jonasson v. Lutheran Child & Family Servs.,
115 F.3d 436, 440 (7th Cir.1997); Bouchard v. Am. Home Products Corp., 213 F.Supp.2d 802,
810 (N.D.Ohio 2002) (“The court has the power to exclude evidence in limine only when
evidence is clearly inadmissible on all potential grounds.” (citing Luce v. United States, 469 U.S.
38, 41 n. 4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984))). Only where the evidence satisfies this high
bar should the court exclude it; if not, “rulings [on evidence] should be deferred until trial so that
questions of foundation, relevancy and potential prejudice may be resolved in proper context.”
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Gresh v. Waste Servs. of Am., Inc., 738 F. Supp. 2d 702, 706 (E.D.Ky.2010) (quoting Ind. Ins.
Co. v. GE, 326 F. Supp. 2d 844, 846 (N.D.Ohio 2004)). Even if a motion in limine is denied, the
court may revisit the decision at trial when the parties have more thoroughly presented the
disputed evidence. See id. (“Denial of a motion in limine does not guarantee that the evidence
will be admitted at trial, and the court will hear objections to such evidence as they arise at
trial.”).
Discussion
With its Motion in Limine Wal-Mart “moves the [C]ourt for an order that the [P]laintiff
may introduce no evidence of future medical expenses because there is no expert testimony in the
record that any future medical expenses are probable of being incurred.” (R.34). Sanderson
responds simply that he is competent to testify as to future medical expenses. (R.36). The Court
disagrees.
“To determine what evidence is required for future medical costs, the Court looks to
Kentucky substantive law.” Highley v. 21st Century Ins. Co., Civil Action No. 5:17-cv-213-CHB,
2018 U.S. Dist. LEXIS 133192, at *7 (E.D. Ky. Aug. 8, 2018) (citing Erie R. Co. v. Tompkins,
304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938)). Under Kentucky law, future medical expenses
must be proven by more than speculation—they must be proven by “positive and satisfactory
evidence.” Id. (citing Howard v. Barr, 114 F.Supp. 48 (W.D. Ky. 1953)). The Plaintiff’s own
testimony that his injuries will require future medical expenses is not positive and satisfactory
evidence. Howard, 114 F. Supp. at 50. (denying damages for future medical costs because
plaintiff’s testimony alone was not positive and satisfactory evidence).
The Court finds Boland-Maloney Lumber Co. v. Burnett instructive on the matter. 302
S.W.3d 680, (Ky. Ct. App. 2009). In Boland the trial court granted Boland-Maloney’s motion in

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limine to exclude any evidence concerning future medical expenses because such evidence was
not supported by an expert. Id. at 691. The Kentucky Court of Appeals overturned the trial court’s
decision, but only to the extent that Burnett had an expert testify as to Burnett’s need for future
medications. Id. at 691-2. Notably, the appellate court only reversed on the future medication
expenses—which Burnett supported with expert testimony—not all future medical expenses. See
Curtis v. Grigsby, No. 2013-CA-000676-MR, 2014 Ky. App. Unpub. LEXIS 196, at *6-7 (Ct.
App. Mar. 7, 2014).
Here, and unlike Burnett, Sanderson has no expert witness to support any claims of future
medical costs, and his own testimony is not positive and satisfactory evidence of future medical
costs. As such, any recovery for future medical expenses would be improper. Thus, because it is
unsupported by an expert, any evidence presented by Sanderson regarding future medical costs
cannot rise to the level of positive and satisfactory as required by Kentucky law. Therefore, it is
excluded as irrelevant.
Conclusion
For the reasons stated herein, Wal-Mart’s Motion in Limine (R. 34) is hereby
GRANTED.
This matter remains set for trial Oct. 1, 2018. Counsel shall appear in chambers at 8:30
AM.

September 26, 2018

cc: Counsel

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