Covey v. Wal-Mart Stores East I, LP

Filing 96

ORDER (1) GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTIONS IN LIMINE, AND (2) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTIONS IN LIMINE. Signed on 12/18/17 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
LEA ANN COVEY,
Plaintiff,
vs.
WAL-MART STORES EAST, L.P.,
Defendant.

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Case No. 16-01262-CV-W-ODS

ORDER (1) GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTIONS
IN LIMINE, AND (2) GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTIONS IN LIMINE
Pending are Defendant’s Motions in Limine (Doc. #80), and Plaintiff’s Motions in
Limine (Doc. #79). Parties are reminded these rulings are interlocutory. Thus, the
denial of a request to bar evidence at this juncture preserves nothing for review, and the
parties may re-assert their objections at trial if they deem it appropriate to do so.
Evidence barred by this Order shall not be discussed in the jury’s presence (including
during opening statements) without leave of the Court. The parties are free to suggest
(out of the jury’s presence) that something has occurred during the trial that justifies a
change in the Court’s interlocutory ruling.
Defendant’s Motions in Limine
A. Defendant’s Financial Condition, History, Size, and Corporate Structure
Defendant seeks to exclude evidence or testimony regarding its “financial
condition, history, size or corporate structure.” Plaintiff does not oppose the motion.
Accordingly, the motion is granted.

B. Defendant’s Insurance Policy
Defendant seeks to exclude evidence of its insurance liability policy because this
evidence is inadmissible under Missouri law. Plaintiff does not oppose the motion.
Accordingly, the motion is granted.

C. Evidence and Witnesses Not Disclosed During Discovery
Defendant seeks to exclude evidence and witnesses not disclosed during
discovery. Plaintiff does not anticipate presenting evidence not disclosed in discovery
except to the extent she may present summaries of information contained in
documents, subparts of items produced in discovery, and any evidence and witnesses
that be may presented in rebuttal. Pursuant to Federal Rule of Civil Procedure 37(c),
evidence and witnesses not disclosed during discovery will be excluded at trial.
Accordingly, the motion is granted.

D. Expert Witnesses Not Identified
Defendant seeks to exclude testimony from any expert witness who was not
properly identified. More specifically, Defendant seeks to exclude any testimony from
Plaintiff’s treating physicians establishing Plaintiff is entitled to relief for future medical
care or treatment, or future costs. Defendant argues this is appropriate because
Plaintiff did not designate a retained expert to opine on these subjects. While Plaintiff
does not intend to call a retained expert at trial, Plaintiff opposes the motion to the
extent Defendant seeks to preclude treating physicians from testifying about Plaintiff’s
physical condition before and after the incident.
Neither party may introduce testimony from an expert witness not properly
identified during discovery. However, Plaintiff’s treating physicians may testify about
Plaintiff’s care, and her medical condition prior to and after the incident. Accordingly,
the motion is granted in part, and denied in part.

E. Medical and Billing Records
Defendant seeks to exclude any medical or billing records not properly disclosed
during discovery. Plaintiff believes all medical and billing records were produced.
Pursuant to Federal Rule of Civil Procedure 37(c), evidence not disclosed during
discovery will be excluded at trial. Accordingly, the motion is granted.

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F. Defendant’s Policies, Procedures, and Training
Defendant seeks to exclude evidence of its policies, procedures, and training that
are not relevant to this matter. Plaintiff does not intend to offer irrelevant policies and
procedures, but opposes the motion to the extent she has identified what she
characterizes as relevant policies and procedures. Plaintiff identifies Defendant’s “Slip,
Trip, and Fall Guidelines,” “Department of Safety Solutions,” and “Safety Toolkit” as
relevant policies and procedures.
The Court finds the policies and procedures identified above are relevant in this
matter. Accordingly, the motion is granted in part, and denied in part. Plaintiff may
present evidence of the three policies and procedures identified above, but may not
introduce other policies and procedures.

G. Evidence of Other Incidents or Claims
Defendant seeks to exclude evidence about any previous incidents, claims, or
lawsuits involving Defendant. Plaintiff does not oppose the motion. Accordingly, the
motion is granted.

H. Settlement Negotiations
Defendant seeks to exclude evidence about settlement negotiations between the
parties or Defendant’s claims handler. Plaintiff does not oppose the motion.
Accordingly, the motion is granted.

I. Plaintiff’s Family
Defendant seeks to exclude evidence or testimony from or about any potential
losses or injury suffered by Plaintiff’s husband or her children as a result of her fall.
Plaintiff does not oppose the motion. Accordingly, the motion is granted.

J. Parking Lot Conditions After Plaintiff’s Fall
Defendant seeks to exclude evidence or testimony about the condition of the
parking lot after Plaintiff’s incident, any incidents in the parking lot after Plaintiff’s
incident, and any construction work performed on Defendant’s parking lot after Plaintiff’s

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incident. Plaintiff opposes the motion in two parts. First, Plaintiff argues incidents in
which water pooled around the landscape island where Plaintiff fell are relevant to show
the likelihood of pre-incident flooding, and the nature and extent of the structural defect
in the parking lot. Plaintiff also argues a 2017 drain installation at the “exact location”
she fell is relevant to show water pooling was a “long-standing and known defect” in the
parking lot. Second, Plaintiff argues the 2017 drain installation was not a subsequent
remedial measure because the work was not done in response to Plaintiff’s incident.
Federal Rule of Evidence 407 provides “[w]hen measures are taken that would
have made an earlier injury or harm less likely to occur, evidence of the subsequent
measures is not admissible to prove...negligence.... But the Court may admit this
evidence for another purpose, such as impeachment or - if disputed - proving
ownership, control, or the feasibility of precautionary measures.” Fed. R. Evid. 407.
Evidence of the condition of the parking lot prior to and for a brief period of time
following Plaintiff’s fall is admissible because it is relevant and probative. However,
evidence of the installation of a drain in the parking lot in 2017 is a subsequent remedial
measure that is inadmissible under Rule 407, and Plaintiff has not demonstrated
another purpose for which the evidence should be admissible. Plaintiff also argues
remedial measures planned prior to an incident are admissible under Rule 407, but cites
no facts indicating the remodel or construction work on the parking lot was planned prior
to Plaintiff’s December 17, 2015 incident. Accordingly, the motion is granted in part,
and denied in part.

K. Defendant’s Withdrawn Expert Witness
Defendant seeks to exclude evidence or testimony about its withdrawn expert
witness or the cell phone download of Plaintiff’s phone performed by the withdrawn
expert witness. Plaintiff does not oppose the motion “as long as [Defendant] is not
going to argue or suggest Plaintiff was on her cell phone at the time of the fall.” The
motion is granted.

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L. Future Medical Expenses
Defendant seeks to exclude testimony or argument from Plaintiff establishing she
is entitled to future medical expenses because Plaintiff did not identify an expert to
opine on this subject. Plaintiff opposes the motion because her Amended Complaint
indicates she may require future medical care, and her treating physicians can testify “to
a reasonable degree of medical certainty” about Plaintiff’s future medical care.
Plaintiff’s treating physicians may testify about Plaintiff’s care and medical
condition prior to and after the incident, and may testify as to future medical care
Plaintiff may receive if the treating physician can testify with a reasonable degree of
certainty as to what that care entails. The motion is denied.

M. Photographs, Videos, or Images Taken After Plaintiff’s Fall
Defendant seeks to exclude any photographs, videos, or images taken after the
incident of the area where Plaintiff fell because these items are not relevant. Plaintiff
opposes the motion and categorizes photos she wishes to show the jury into two
groups: (1) photos taken the day after the incident by Defendant’s employee and
Plaintiff’s husband, and (2) photos taken “at later times” showing repeated incidents of
water pooling around the landscape island where Plaintiff fell.
Plaintiff may present photographs by Defendant’s employee and Plaintiff’s
husband taken the day after Plaintiff’s fall. This evidence is relevant and close in time to
Plaintiff’s fall. The Court will admonish the jury to make no inference from the existence
of orange cones placed in the area immediately after Plaintiff’s fall. However,
photographs taken one year following Plaintiff’s fall, and other photographs taken
outside a brief period after Plaintiff’s fall, are inadmissible because these photographs
do not show the scene close in time to Plaintiff’s fall. Accordingly, the motion is granted
in part, and denied in part.

N. Putting Ice Melt on the Fall Area
Defendant seeks to exclude evidence that it put ice melt down in the area of
Plaintiff’s fall after the incident because it is inadmissible as a subsequent remedial
measure. Plaintiff opposes the motion, arguing an exception to the subsequent

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remedial measures doctrine applies because putting down ice melt shows the condition
of the site at the time of the incident.
As discussed above, the Court will permit photographs taken the day following
Plaintiff’s fall to show the scene of the incident, but will give a limiting instruction
regarding Defendant’s use of orange cones to alert others to proceed with caution.
Those same photographs also show Defendant spread ice melt in the area after the
incident. Use of ice melt may be admissible as an exception to the subsequent
remedial measures doctrine because it is evidence “of the condition of the accident site
at the time of the fall.” Hefele v. Nat’l Super Mkts., Inc., 748 S.W.2d 800, 803 (Mo. Ct.
App. 1988). The Court will permit these photographs and a brief identification of the ice
melt spread on the site of Plaintiff’s fall, but will give a limiting instruction indicating the
jury is not to consider the spreading of ice melt for any purpose except to show the
condition of the scene of Plaintiff’s fall. Accordingly, the motion is denied consistent
with this Order.

Plaintiff’s Motions in Limine
A. Plaintiff’s Medications
Plaintiff seeks to exclude any evidence or testimony about whether Plaintiff’s
medications were the cause of her fall. Plaintiff notes Defendant did not identify an
expert witness in this matter, and argues any evidence or testimony about Plaintiff’s use
of Percocet and/or Adderall would be speculative and inadmissible. Defendant argues
Plaintiff’s medications and prescriptions, due to pre-existing conditions, are admissible
to show her condition pre- and post-incident. Defendant also wishes to question
Plaintiff and her treating physicians about the amount and effect of medications Plaintiff
was taking.
The motion is granted in part, and denied in part. Defendant may present
evidence of Plaintiff’s prescriptions to show her condition pre- and post-incident.
However, absent evidence that Plaintiff was abusing her medications, Defendant may
not argue Plaintiff’s ingestion of Percocet and/or Adderall was the cause of her fall.

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B. Others at Fault
Plaintiff seeks to exclude argument or evidence that Plaintiff’s fall was the fault of
anyone other than Plaintiff or Defendant. Defendant does not oppose the motion.
According, the motion is granted.

C. Intervening or Superseding Cause
Plaintiff seeks to exclude argument and testimony that Plaintiff’s fall was caused
by any intervening or superseding cause other than rain. Defendant does not oppose
the motion. Accordingly, the motion is granted.

D. Mitigation
Plaintiff seeks to exclude evidence or testimony that Plaintiff failed to mitigate her
damages. Defendant does not oppose the motion. Accordingly, the motion is granted.

E. Health Insurance Payments
Pursuant to the collateral source rule, Plaintiff seeks to exclude evidence of the
source of any payments for Plaintiff’s medical bills. Defendant does not intend to
discuss the source of payments, but does intend to inform the jury of the amount paid to
satisfy Plaintiff’s medical bills. Defendant cites a newly amended version of section
490.715(5) of the Missouri Revised Statutes to argue Plaintiff is limited to presenting
evidence only of her actual costs. Plaintiff argues this amended statute, if applicable to
this case, does not preclude evidence of the charged amounts of her medical bills.
Consistent with the collateral source rule, the parties will not be able to discuss
the source of payments made to satisfy Plaintiff’s medical bills. Regarding the damages
issue raised by the parties, the Court notes Plaintiff is seeking actual damages in this
matter. To the extent Plaintiff’s medical bills have been satisfied prior to trial, the parties
may not present evidence of the charged amounts of those bills that were not paid in full
due to write-offs or other reductions. If Plaintiff has unpaid medical bills that have not
been reduced prior to trial, Plaintiff may present the charged amount of those bills as
evidence of her actual damages. The motion is granted in part, and denied in part,
consistent with this Order.

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F. Plaintiff’s Attorney’s Fees
Plaintiff seeks to exclude argument indicating Plaintiff’s attorney has a
contingency fee or interest in the recovery in this matter. Defendant does not oppose
the motion. Accordingly, the motion is granted.

G. Burden of Proof
Plaintiff seeks to exclude argument that Plaintiff bears the sole burden of proof at
trial because Defendant bears the burden of proving its affirmative defenses.
Defendant opposes the motion because Plaintiff has the sole burden of proving the
elements of her negligence claim. Defendant agrees it bears the burden of proof on any
affirmative defenses it may pursue.
The burden of proving negligence rests on the party asserting it, and the party
asserting any affirmative defenses bears the burden of proof on that particular defense.
DeLong Plumbing Two, Inc. v. 3050 N. Kenwood LLC, 304 S.W.3d 784, 789 (Mo. Ct.
App. 2010) (citations omitted). The Court will instruct the jury consistent with this rule of
law. The motion is denied.

H. Tax Consequences of a Verdict for Plaintiff
Plaintiff seeks to exclude evidence or argument about the tax consequences of
any judgment or award in Plaintiff’s favor. Defendant does not oppose the motion.
Accordingly, the motion is granted.

I. Lottery or Gambling References
Plaintiff seeks to exclude any references comparing Plaintiff’s lawsuit to the
lottery or gambling. Defendant does not oppose the motion. Accordingly, the motion is
granted.

IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: December 18, 2017

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