Smith v. Wal-Mart Stores, Inc.

Filing 91

ORDER granting in part and denying in part 57 Motion in Limine; granting 59 Motion in Limine; denying 61 Motion in Limine; denying 63 Motion in Limine. Signed by District Judge Carlton W. Reeves on 7/24/17.(rg)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
WILLIAM SMITH
V.

PLAINTIFF
CAUSE NO. 3:16-CV-00539-CWR-LRA

WAL-MART STORES, INC.

DEFENDANT
ORDER

Four motions in limine are pending in this premises liability case. The motions are
briefed and ready for adjudication.
I.

Defendant’s Motion
Wal-Mart moves to exclude (1) a medical opinion that plaintiff’s injury proximately

caused post-traumatic headaches, post-traumatic stress disorder, and chronic neck pain; (2)
evidence of future medical expenses; (3) emergency calls unaccompanied by incident reports; (4)
emergency calls and incident reports pertaining to non-violent criminal activity; (5) testimony
regarding plaintiff’s communication with a store cashier following his stabbing; and (6) the net
worth of Wal-Mart Stores East, LP. Defendant also asks the Court to bifurcate the issue of
punitive damages. The Court considers each request in turn.
A.

Medical Opinion of Proximate Causation

Defendant seeks to exclude conclusions by plaintiff’s treating physician as to the cause of
plaintiff’s headaches, post-traumatic stress disorder, and chronic neck pain. The Court has
already ruled that Dr. Goel—designated by plaintiff as his treating physician—will be allowed to
testify to facts as they relate to his examination and treatment of plaintiff. Dr. Goel was not
timely designated as an expert. Therefore, he will not be permitted to provide expert testimony.
Rulings on objections to specific portions of Dr. Goel’s testimony are reserved for trial.

B.

Future Medical Expenses

As the Court stated in its previous Order, plaintiff failed to timely produce evidence
establishing with reasonable certainty any future medical expenses he will incur for treatment,
prescriptions, or rehabilitation. Docket No. 56. Plaintiff’s failure to timely designate an expert
opinion regarding future medical expenses precludes him from proposing a specific dollar
amount or estimate representing the cost of such expenses at trial, as doing so would necessarily
rely on speculation. See Wall v. Swilley, 562 So. 2d 1252, 1256 (Miss. 1990) (“Whatever the
measure of damages, they may be recovered only where and to the extent that the evidence
removes their quantum from the realm of speculation . . . into the daylight of reasonable
certainty.”). To the extent that it pertains to future medical expenses, defendant’s motion is
granted.
C.

Emergency Calls Lacking Incident Reports

Defendant seeks to exclude all emergency calls that are unaccompanied by a police
incident report.
As defendant’s own cases show, the presence or absence of a corroborating incident
report certainly impacts the weight assigned to an emergency call for service at trial, but it does
not preclude its introduction into evidence. Kroger Co. v. Knox, 98 So. 3d 441, 444 (Miss. 2012);
Tillman v. Wendy’s Int’l, Inc., 252 F.3d 434 (5th Cir. 2001); see also Bennett v. Highland Park
Apartments, LLC, 170 So. 3d 522, 528 (Miss. Ct. App. 2014) (considering expert testimony on
the number of calls for emergency service—with no reference to corroborating police reports—
to determine that defendant had constructive knowledge there existed an atmosphere of violence
on its premises). The trier of fact retains the duty of assigning or discounting the importance of
calls for service.

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D.

Emergency Calls and Reports Relating to Non-Violent Criminal Activity

The calls for service and incident reports produced in this case related to a variety of
suspected criminal activity, some of which was non-violent. Wal-Mart objects to these calls and
reports as more prejudicial than probative or otherwise irrelevant. The Court reserves ruling on
specific objections for trial.
E.

Communication with Store Cashier

Defendant asks to exclude as irrelevant evidence that, while bleeding, plaintiff spoke to a
store cashier and asked for bandages. Wal-Mart’s policy of addressing violence on its premises is
in issue, and the cashier’s action or inaction in response to plaintiff seeking medical supplies
following a stabbing is probative. Defendant’s motion is denied.
F.

Defendant’s Net Worth

Defendant seeks to preclude the introduction of any evidence offered to show its net
worth. “Generally, evidence of a defendant’s worth or income is admissible in determining the
proper level of punitive damages.” Graef v. Chem. Leaman Corp., 106 F.3d 112, 119 (5th Cir.
1997); see also Miss. Code Ann. § 11-1-65(e) (“In all cases involving an award of punitive
damages, the fact finder, in determining the amount of punitive damages, shall consider . . . the
defendant’s financial condition and net worth . . . .”); Hunter v. Williams, 92 So. 2d 367, 369
(Miss. 1957) (“We have repeatedly held that in a suit for punitive damages it is proper to show
the financial condition of the defendant.”). Evidence of defendant’s net worth is relevant to the
issue of punitive damages, and it will be admitted at a hearing on the subject if one is held. Any
such testimony is not appropriate during the liability portion of the trial.

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G.

Bifurcation of Punitive Damages

To that end, defendant also requests bifurcation of the trial, to separate the issue of
punitive damages from the rest of the proceeding. Defendant’s motion is granted. See Miss. Code
Ann. § 11-1-65(b)-(c).
II.

Plaintiff’s Motions
Plaintiff seeks to exclude: (1) evidence that plaintiff’s medical expenses were paid by

private health insurance; and (2) defenses that were not properly pled or pursued.
A.

Private Health Insurance Payments

Plaintiff wishes to preclude defendant from introducing evidence that plaintiff received
money from private health insurance to cover in part or in whole his medical expenses following
the stabbing. Defendant is unopposed. The law is settled on this point. “Compensation or
indemnity for the loss received by plaintiff from a collateral source, wholly independent of the
wrongdoer, as from insurance, cannot be set up by the defendant in mitigation or reduction of
damages.” Burr v. Miss. Baptist Med. Ctr., 909 So. 2d 721, 728 (Miss. 2005). Plaintiff’s first
motion in limine is granted.
B.

Defenses Not Properly Pled

Plaintiff’s remaining motions in limine wish to preclude Wal-Mart from presenting
evidence in support of the following defenses: contributory fault, comparative fault, superseding
cause, open and obvious risk, plaintiff’s failure to exercise reasonable care, lack of notice,
assumption of risk, and unavoidable accident. To the extent that Wal-Mart included these
defenses in its answer, plaintiff’s motion is denied. Specific objections may be raised at trial.

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III.

Conclusion
Defendant’s motion in limine is granted in part and denied in part. Plaintiff’s first motion

in limine is granted. Plaintiff’s second motion in limine is denied. Plaintiff’s third motion in
limine is denied.
SO ORDERED, this the 24th day of July, 2017.

s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

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