Dusheke et al v. Dillion Stores Division, Inc., d/b/a Gerbes Super Markets
Filing
126
ORDER granting 93 , 94 , 95 , 97 , 100 , 101 , 102 , 103 , 104 , 105 , 106 , and 108 defendant's motions in limine; and provisionally denying 96 and 98 defendant's motions in limine. Signed on 10/16/12 by Chief District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
TRICIA DUSHEKE, et. al.,
Plaintiffs,
v.
DILLON STORES DIVISION, INC.,
d/b/a GERBES SUPER MARKETS,
Defendant.
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) Case No. 11-4130-CV-FJG
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ORDER
Defendant’s Motions in Limine
Defendant requests the following evidence be excluded:
A. Documents or things not previously identified in discovery (Doc. No. 93)
Defendant indicates that Plaintiffs should not be permitted to offer documents or
things not previously identified or produced in discovery and should not call any surprise
witness at trial due to the prejudice that would ensue to Defendants (under Fed. R. Civ.
P. 26).
Plaintiffs do not plan to call any such witnesses unless necessary for rebuttal,
and do not dispute doing otherwise would be improper. As to documents and things,
although Plaintiffs do not anticipate presenting any documents or things that have not
previously been disclosed or for which Plaintiffs have not accommodated Defendant’s
ability to obtain, Plaintiffs state Defendant’s request is not proper and should not be
granted without further specificity as to the documents or things Defendant seeks are
rejected. (Doc. No. 109).
Ruling: This Motion is GRANTED.
B. Evidence of liability insurance (Doc. No. 94)
Defendant indicates that allowing evidence in reference to the presence of
Defendant’s commercial liability insurance would be inappropriate (under FRE 411).
Defendant indicates that this case does not meet any exceptions to the insurance
exclusion (under FRE 411).
Plaintiffs do not oppose, but believe that they should be allowed to ask questions
in voir dire which may identify the liability carrier by name so as to assess a juror’s
potential bias or conflict. (Doc. No. 109).
Ruling: This Motion is GRANTED.
C. Testimony, evidence, or argument regarding or referencing any offers of
settlement or compromise made by Defendant (Doc. No. 95)
Defendant indicates that testimony, evidence, or argument regarding or
referencing any offers of settlement or compromise made by Defendant should not be
allowed (under FRE 408). Defendant indicates offers of settlement are inadmissible
because of the public policy favoring the settlement of disputes, and would have the
natural tendency with the jury to denigrate the defense position at trial.
Plaintiffs agree that neither party should be allowed to discuss prior settlement
attempts. (Doc. No. 109).
Ruling: This Motion is GRANTED.
D. Testimony regarding cost of future medical treatment for Plaintiff (Doc.
No. 96)
Defendant asks that any testimony regarding Mrs. Dusheke’s future medical
expenses be barred because there has been no evidence or testimony rendered in this
regard.
Plaintiffs oppose the motion, and indicate that such evidence exists in the form of
Dr. Turnbaugh’s testimony (Plaintiff’s treating physician) that Plaintiff would need future
treatment and as to the cost of such treatment. Specifically, Mrs. Dusheke suffered a
shattered knee cap as a result of slipping on ice at the Gerbes store and falling. Dr.
Turnbaugh surgically inserted several screws to put her knew back together. Shortly
after the surgery, one of the screws began causing problems. Dr. Turnbaugh performed
another surgery on Plaintiff to remove that screw. The other screws remain in Plaintiff’s
knee. Dr. Turnbaugh discussed that those screws may cause problems for Plaintiff in
the future and if they do, they will need to be surgically removed. As such, Plaintiff
indicates that testimony regarding Plaintiff’s increased risk for future medical care and
possible future costs incurred is admissible to aid the jury in assessing the extent and
value of the plaintiff’s present injuries, even if those future consequences are not
reasonably certain to occur. (Doc. No. 109).
Ruling: This Motion is PROVISIONALLY DENIED. It is contingent upon supporting
evidence.
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E. All witnesses except the Plaintiffs and designated representatives of the
Defendant, witnesses actually testifying, and those witnesses excused
from testifying (Doc. No. 97)
Defendant request exclusion of all witnesses, except the Plaintiffs and
designated representatives of the Defendant, the witness actually testifying, and those
witnesses excused from testifying, from the courtroom during the course of the trial.
Plaintiffs do not oppose. (Doc. No. 109)
Ruling: This Motion is GRANTED.
F. Evidence of damages or injuries not alleged in the Complaint (Doc. No.
98)
Defendant asks that the Court bar presentation of evidence of alleged damages
or injuries to the body parts of Mrs. Dusheke not set forth in the Complaint.
Plaintiffs do not oppose but indicate that Plaintiff’s knee injury, treatment and
possible future treatment for that knee injury are included within the definition of the
injury pleaded. (Doc. No. 109).
Ruling: This Motion is PROVISIONALLY DENIED. It is contingent upon supporting
evidence.
G. Evidence or testimony that concrete was defective or unsafe (Doc. No.
100).
Defendant indicates that Plaintiffs’ allegation that Defendant breached duty owed
to Plaintiffs by using “smooth, slick concrete” for the surface of the entrance/exit at
Gerbes is not supported by evidence produced during discovery so any such evidence
should be excluded. Specifically, Defendant indicates that Plaintiffs have not produced
evidence that the concrete used was abnormal, inappropriate, inherently slick,
inherently unsafe, negligently or improperly installed, and have not disclosed expert
witness testimony regarding the coefficient of friction of the concrete.
Plaintiffs do not oppose, except to allow Mrs. Dusheke to testify as to the slick
nature of the concrete. (Doc. No. 109).
Ruling: This Motion is GRANTED.
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H. Any expert opinions (Doc. No. 101)
Defendant indicates that for all expert testimony not identified as an exception to
Rule 26(a)(2)(B), parties must produce a copy of the expert’s written report containing
the witnesses opinions. Defendant indicates that Plaintiffs have not identified any such
exclusions (under Fed. R. Civ. P. 26(a)(2)(C)) and have not disclosed any expert
affidavits. Defendant indicates that, since disclosure of expert witness testimony was to
be completed by or before Jan. 12, 2012 (Doc. No. 39), no expert opinions should be
presented at trial by Plaintiffs.
Plaintiffs indicate that Dr. Thomas Turnbaugh was properly disclosed and will
testify as a treating physician. (Doc. No. 109)
Ruling: This Motion is GRANTED.
I. Reference or allusion to, or testimony regarding other prior or current
litigation involving Defendant (Doc. No. 102)
Defendant indicates that other prior or current litigation in which they may be
involved is irrelevant and unduly prejudicial (under FRE 403). Defendant indicates that
allegations of tortious acts are generally inadmissible to establish culpability of a
defendant on the occasion in question.
Plaintiffs do not oppose. (Doc. No. 109).
Ruling: This Motion is GRANTED.
J. Any reference to other alleged falls at stores owned and/or operated by
Defendant (Doc. No. 103).
Defendant requests exclusion of any reference to other alleged falls at stores
owned and/or operated by Defendant. Defendant indicates that admission of such
evidence is only allowed if judicial discretion concludes that conditions were the same in
other cases. Defendant indicates that the admission of such evidence would be
prejudicial to the Defendant.
Plaintiffs do not oppose. (Doc. No. 109).
Ruling: This Motion is GRANTED.
K. Alleged weather report from a website known as Weather Underground
(Doc. No. 104).
Defendant indicates that Plaintiffs have not established that Weather
Underground is an official weather bureau or governmental agency and that the report
is unauthenticated. Defendant states that Plaintiffs have not disclosed a representative
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of Weather Underground as an expert witness nor produced a report in discovery or
with Rule 26(a)(1) disclosures. Defendant further indicates that Weather Underground is
not otherwise known to meet standards of accuracy on par with official government
agencies which have been used by some federal courts.
Plaintiffs do not oppose. (Doc. No. 109).
Ruling: This Motion is GRANTED.
L. Testimony of Dr. Thomas Turnbaugh (Doc. No. 105)
Defendant indicates that Plaintiffs’ disclosure of Dr. Turnbaugh as a Rule
26(a)(2)(C) witness is defective because Plaintiffs disclosed general topics of opinions,
but not Dr. Turnbaugh’s actual opinions, notably that Plaintiffs disclosed that he may
testify as to causation, but did not disclose his causation opinions. Defendant further
indicates that Dr. Turnbaugh’s testimony regarding all of Mrs. Dusheke’s medical
expenses incurred from all providers, as well as his testimony regarding future medical
treatment/expenses, causation of the injury, and future implications of her well-being
and life activities qualify him as a Rule 26(a)(2)(B) expert witness, requiring production
of an expert report. Defendant requests that Dr. Turnbaugh’s testimony be barred
because the Plaintiffs failed to file Expert Affidavits for Dr. Turnbaugh by January 12,
2012, and due to the defective nature of the Plaintiffs’ aforementioned Rule 26(a)(2)(C)
disclosure,
Plaintiffs indicate that Dr. Turnbaugh will not be testifying as an expert, but only as
a fact witness, citing this Court’s Scheduling Order (Doc. No. 39, 6) that a treating
physician may testify as a fact witness as to opinions drawn during treatment of the
patient, including causation, diagnosis, prognosis, and extent of disability caused by the
injury. Plaintiffs indicate Dr. Turnbaugh’s testimony regarding causation, future
implications on Plaintiff’s health and well-being or life activities, and need for future
treatment qualify as causation, prognosis, and prognosis, respectively. Plaintiffs
indicate that only the need for future treatment, not costs associated with, are disputed
as the parties have already agreed as to likely costs if future treatments are needed.
Plaintiffs claim that this information does not require expert testimony, and that costs
should also be fact testimony as Dr. Turnbaugh has knowledge based on this injury as
to future costs which includes a follow-up procedure already performed by Dr.
Turnbaugh to remove a screw from Mrs. Dusheke’s knee at a cost of around $12,000.
Plaintiffs indicate that disclosure of Dr. Turnbaugh’s testimony as fact witness
was adequate, despite not providing detailed opinions, because it provided a subject
matter summary in compliance with Rule 26(a)(2)(C). Plaintiffs also indicate that
Defendant failed to complain about inadequate disclosure before this Motion. (Doc. No.
109).
Ruling: This Motion is GRANTED.
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M. Number of attorneys or office locations of Defense counsel (Doc. No.
106)
Defendant indicates that reference to the size in number of attorneys or locations
of the firm Boggs, Avellino, Lach & Boggs would be immaterial and only useful to
establish undue bias against Defendant.
Plaintiffs do not oppose. (Doc. No. 109).
Ruling: This Motion is GRANTED.
N. Future need of knee replacement surgery for Mrs. Dusheke (Doc. No.
108).
Defendants indicate that Plaintiffs do not have medical support to substantiate
any argument for the future need of knee replacement surgery. Defendant indicates
that Dr. Turnbaugh testified at two depositions that he could not testify with a
reasonable degree of medical certainty that Mrs. Duscheke would need a knee
replacement in the future as a result of her injury, and that he has never seen an injury
like Mrs. Dusheke’s (patella fracture) directly cause a need for knee replacement.
Plaintiffs do not oppose. Plaintiffs indicate they would oppose if the Motion were
construed to exclude evidence for other future treatment such as hardware removal.
(Doc. No. 109).
Ruling: This Motion is GRANTED.
Date: October 16, 2012
Kansas City, Missouri
S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
Chief United States District Judge
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