Robinson v. Walmart Stores East, LP et al

Filing 101

ORDER ruling 85 defendant's motion in limine and 88 plaintiff's motions in limine. Signed on 8/17/15 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
ST. JOSEPH DIVISION
George Robinson,
Plaintiff,
vs.
Walmart Stores East, LP,
Defendant.

)
)
) No. 14-6006-CV-SJ-FJG
)
)

ORDER
Pending before the Court are (1) Defendant’s Motion in Limine (Doc. No. 85); and
(2) Plaintiff’s Motions in Limine (Doc. No. 88). The Court rules as follows:

I.

DEFENDANT’S MOTION IN LIMINE (DOC. No. 85)

Defendant seeks an Order in limine prohibiting plaintiff, his witnesses, or his
counsel from mentioning or presenting in testimony or statements in the presence of the
jury, evidence of the following, pursuant to F.R.E. 401 (relevance) and 403 (probative
value substantially outweighed by danger of unfair prejudice or unfair and harmful
surprise, as well as confusion of issues, misleading the jury, undue delay, or presentation
of cumulative evidence):
A.

Walmart’s financial condition, financial history, size or general
corporate structure

Defendant states its financial condition is not relevant, as plaintiff does not have a
claim for punitive damages (only for negligence), and the sole purpose for injecting such
information would be to prejudice Walmart (making the evidence inadmissible under FRE
403).
Plaintiff does not oppose, as long as prohibition is applied to both parties.
Ruling: SUSTAINED.
B.

Walmart’s liability insurance

Defendant notes that under Missouri law, reference to liability insurance is
inadmissible, Noel v. Roberts, 449 S.W.2d 572, 574 (Mo. 1978), and therefore should be
excluded.
Plaintiff indicates he does not intend to make reference to Walmart having liability
insurance; similarly, plaintiff states Walmart should not introduce evidence or make
reference to workers compensation insurance.

Ruling: SUSTAINED.
C.

Evidence and witnesses not revealed during discovery

Defendant indicates that evidence or witnesses not revealed in discovery should
not be allowed, as such evidence would constitute unfair surprise and would result in
prejudice. Defendant notes that plaintiff’s proposed exhibits 41, 42, 43, 45, 46, 47, and
48 on its original Exhibit List (Doc. No. 67) were not disclosed during discovery.
Plaintiff does not oppose, as long as prohibition applies to both parties. Plaintiff
withdraws proposed exhibits 41, 42, 43, 46, 47, and 48.
Ruling: SUSTAINED. If the parties wish to use any material not disclosed during
discovery (including plaintiff’s exhibit 45, listed above but not withdrawn), they
must make a showing prior to trial.
D.

Experts and Experts’ Testimony not properly identified pursuant to
Rule 26

Defendant indicates that under the Federal Rules, expert reports are required to
contain a complete statement of all opinions to be expressed and the factual basis
therefore (FRCP 26(a)(2)(B)), and failure to comply with those requirements can result in
the Court precluding the use of that witness at trial. FRCP 37(c). Further, under 8th
Circuit precedent, an expert is not allowed to opine on matters not specifically contained
in his or her report. See Dairy Farmers of America, Inc. v. Travelers Ins. Co., 391 F.3d
936, 943-44 (8th Cir. 2004).
Plaintiff does not oppose, as long as prohibition is applied to both parties.
Ruling: SUSTAINED.
E.

Any medical record/billing not properly disclosed during discovery

Defendant argues that plaintiff must have properly disclosed his medical records
and bills during discovery for them to be admissible.
Plaintiff does not oppose, as long as prohibition is applied to both parties.
Ruling: SUSTAINED.
F.

Evidence of Walmart’s policies, procedures, and training

Walmart indicates that plaintiff obtained documents in discovery related to
Walmart’s policies and procedures; Walmart indicates it anticipates that plaintiff will
attempt to introduce store policies or documents to show that Walmart did not follow its
procedures. Walmart says these documents are not relevant to plaintiff’s claim, and
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should be excluded (arguing that the law, rather than Walmart’s policies, should set the
negligence standard). Additionally, Walmart argues that these documents risk confusing
and misleading the jury, as well as wasting the Court’s time and creating undue prejudice
n this matter.
In response, plaintiff states that he does not intend to introduce policies or
procedures to prove that a Walmart employee closing an overhead door on plaintiff’s
head constitutes negligence; instead, plaintiff indicates that there is evidence that
Walmart had a video camera recording the area outside the door used by plaintiff, and
Walmart had a policy to retain video footage from all the videos of the accident scene.
Plaintiff states he repeatedly requested that Walmart produce the footage from this video,
but Walmart claims it does not exist. Plaintiff states that defendant’s failure to follow its
policies regarding investigating and retaining evidence following plaintiff’s injury goes
directly to the reliability of that evidence and the credibility and accuracy of testimony by
Walmart employees.
Ruling: PROVISIONALLY SUSTAINED. If plaintiff can explain the delay in filing
this lawsuit and seeking video evidence, plaintiff may be allowed to submit
evidence of Walmart’s policies. From the filings made to-date, the Court cannot
determine the specifics of Walmart’s retention policy.
G.

References to other claims or lawsuits involving Walmart

Defendant argues that evidence of other lawsuit is not relevant or probative of any
fact or legal issue in this case, and it is improper to admit evidence of prior lawsuits
against Walmart absent evidence that the facts of the prior litigation are relevant. See
Overfield v. Sharp, 668 S.W.2d 220, 223 (Mo. App. 1984). See also Pierce v.
Platte-Clay Elec. Co-Op, Inc., 769 S.W.2d 769, 774 (Mo. banc 1989) (finding evidence of
other lawsuits inadmissible unless plaintiff shows they involve facts and occurrences
substantially similar to those in the instant case). Defendant also argues such evidence
is inadmissible hearsay. See Johnson v. Ford Motor Co., 988 F.2d 573, 579 (5th Cir.
1993). Defendant also indicates such evidence could “raise extraneous controversial
points, lead to a confusion of issues, and present undue prejudice disproportionate to its
usefulness.” Drabik v. Stanley-Bostitch, Inc., 997 F.2d 496, 503, 508 (8th Cir. 1993).
Plaintiff does not intend to introduce evidence of other claims, incidents or lawsuits
against Walmart involving persons being struck by an overhead door unless Walmart
attempts to introduce testimony that no other persons have been struck by a closing
DSD-type door.
Ruling: SUSTAINED.
H.

Prior settlement negotiations with Walmart or Claims Management,
Inc.

Defendant indicates it is well settled that settlement offers are not admissible at
subsequent trial. Harmon v. Hamilton, 903 S.W.2d 610, 615 (Mo. App. 1995).
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Plaintiff does not oppose, as long as prohibition is applied to both parties.
Ruling: SUSTAINED.
II.

PLAINTIFF’S MOTIONS IN LIMINE (Doc. No. 88)

Plaintiff seeks an order prohibiting opposing counsel, as well as all witnesses
called on behalf of defendants, from mentioning the following matters in the presence of
the jury, whether at trial or voir dire, directly or indirectly:
A.

Asking questions of soliciting comments regarding the character of
any potential witness from any member of the jury panel during voir
dire.

Plaintiff notes that in a past case involving the same defendant, witness Lawrence
Scheffe also appeared as a witness. See Rodrick V. Wal-Mart Stores East, L.P., 666
F.3d 1093 (2012). During voir dire in Rodrick, a potential juror spoke of Mr. Scheffe’s
good character, and counsel for Wal-Mart then made reference to these statements
during closing arguments. Plaintiff in Rodrick objected, and the District Court was
required to give a curative instruction. The Eighth Circuit affirmed on appeal, noting that
the comment was improper, but finding that the curative instruction removed prejudice.
See id., 666 F.3d at 1099.
Defendant does not oppose, as long as prohibition is applied to both parties, and
so long as plaintiff is not suggesting that defendant should not inquire at voir dire of the
potential jury panel’s knowledge or familiarity with certain witnesses.
Ruling: SUSTAINED.
B.

Plaintiff’s marital status at the time of his injury.

Plaintiff states that due to “misunderstanding”, there is some question as to
whether plaintiff’s divorce from his first wife had been finalized when plaintiff married his
current wife. Plaintiff argues that this issue has no relevance or probative value in this
matter, but carries a high risk of unfair prejudice toward plaintiff. FRE 403.
Defendant first argues that plaintiff has failed to assert any prejudice from offering
this evidence, and this alone compels the conclusion that the evidence be allowed before
the jury, particularly where it has any tendency to make a fact of consequence more or
less probable. Defendant also argues that plaintiff’s statements regarding his marital
status go toward his credibility.
In reply, plaintiff indicates that his marital status has no bearing on the primary
issues in this case which are (1) whether plaintiff was struck on the head by the DSD door
on 12/4/2008; (2) whether defendant’s employee was negligent in his operation of the
door that day; and (3) the nature and extent of plaintiff’s injuries and damages. Plaintiff
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argues that FRE 608(b) governing evidence of character for truthfulness is subject to the
dictates of FRE 403, requiring balancing of the probative value of the proffered evidence
against the likelihood of unfair prejudice. Plaintiff argues that admitting evidence of
marital status will cause mini-trials of a collateral issue (as to whether plaintiff believed his
ex-wife had filed and finalized divorce papers prior to plaintiff marrying his current wife).
Ruling: SUSTAINED.
C.

Unrelated prior injuries.

Plaintiff states he has provided defense counsel with information regarding prior
workers compensation claims, settlements, or claims for injuries that are unrelated
medically to the injuries plaintiff complains of in the instant case. Plaintiff states that
cross-examination of plaintiff on evidence of unrelated claims is inadmissible, and
admitting such evidence has been found to be prejudicial error. Cantrell v. Superior
Loan Corp., 603 S.W.2d 629, 640 (Mo. App. E.D. 1980), citing Cammarata v. Payton, 316
S.W.2d 474 (Mo. 1958). Plaintiff anticipates defendant will attempt to introduce such
evidence to imply that plaintiff has a history of claims or that plaintiff has claimed the same
injuries from multiple defendants. However, plaintiff states that injuries and conditions
which are not connected with being struck on the head by the DSD door at Walmart are
irrelevant and inadmissible, and not admissible to impeach a witness. Senter v.
Ferguson, 486 S.W.2d 644, 647 (Mo. App. 1972).
Defendant states that this motion is too broad as stated; Walmart indicates it has
no intention of raising prior unrelated injuries for purposes of suggesting a pattern exists
or multiple parties are blamed. However, Walmart notes that a lost wage claim has been
made, and plaintiff’s work performance and record is at issue as related to damages on
his lost wages claim. Defendant argues it should be permitted to cross examine plaintiff
on: prior as well as subsequent work-related injuries; history of absenteeism; and work
performance in general.
Plaintiff replies that the lost wage claim is for a specific period of time – from the
date of the incident in December 2008 through February 9, 2009, when his treating
physician released him to return to work. Plaintiff indicates that it is difficult to see the
relevance of prior or subsequent work related injuries as related to his wage loss claim, as
defendant does not claim that these prior or subsequent injuries were the cause of
plaintiff missing work for that period. Plaintiff also argues that even if prior or subsequent
injuries were relevant, under Rule 403 the relevance is far outweighed by the prejudicial
impact. Plaintiff argues defendant seeks to raise these issues to show that plaintiff is
litigious, which is a serious charge likely to result in undue prejudice. Plaintiff also
argues that this evidence would mislead or confuse the jury.
Ruling: SUSTAINED.

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D.

Absence of prior injuries at the DSD door.

Evidence that no other accidents or injuries occurred at the same place is not
admissible to show that defendant was free from negligence on a particular occasion, or
that the place was not dangerous. Blackwell v. J.J. Newberry, Co., 156 S.W.2d 14 (Mo.
App. 1941). Plaintiff notes this is not a product liability or premises liability case; instead,
his claim centers on whether the actions of Walmart’s employee in closing the door were
negligent.
Defendant argues that Blackwell does not stand for the proposition asserted by
plaintiff. Instead, Blackwell states that “Evidence of the sort, when relevant, should be
admitted, unless in the discretion of the Court it seems to involve a serious inconvenience
by way of unfair surprise or confusion of issues.” Id. at 20. Defendant states that
evidence of lack of prior accidents may be admissible where an adequate foundation is
laid. Carbin v. National Super Markets, Inc., 823 S.W.2d 93, 94 (Mo. App. E.D. 1991).
Defendant states evidence of prior accidents may be relevant and admissible to show:
(1) the nonexistence of an unduly dangerous situation; or (2) want of knowledge of or
grounds to realize the danger. Id.; see also Pierce v. Platte-Clay Electric Co-op., Inc.,
769 S.W.2d at 774; Luthy v. Denny’s, Inc., 782 S.W.2d 661, 665-66 (Mo. App. 1989);
McJunkins v.Windham Power Lifts, Inc., 767 S.W.2d 95, 97-100 (Mo. App. 1989). To lay
a proper foundation, defendant must show (1) no accidents occurred under conditions
substantially similar to what the plaintiff faced; and (2) that an adequate number of such
similar conditions have occurred to make the absence of prior accidents meaningful.
Hendson v. Board of Educ. of the Washington School Dist., 948 S.W.2d 202, 206-07 (Mo.
App. E.D. 1991)); McJunkins, 767 S.W. 2d at 100. Defendant states it will easily lay a
foundation because (1) plaintiff had been a vendor at this Walmart and used this door
twice per week for 2-3 years prior to the alleged incident, without incident; (2) employee
Walker will testify that he opened and closed the door many times in the past, and the
evidence will show that Walker’s use of the door on the day in question was reasonable
and not negligent.
In reply, plaintiff notes that in Missouri, it has “been uniformly held in this state that
evidence of no accidents or injuries occurred at a particular place other than the one in
question is not admissible to show freedom from negligence on a particular occasion or
that the place or appliance was safe and not dangerous.” Johnson v. Kansas City Public
Services, 228 S.W.2d 796, 798 (Mo. 1950). Plaintiff further notes that his claim is not
that the door was defective, so there were no prior instances where someone had been
hit by the DSD door because someone pulled it down on them.
Ruling: SUSTAINED.
E.

Workers compensation and health insurance.

Plaintiff argues that the collateral source rule prohibits evidence of payments
received from workers compensation or health insurance. Hannah v. Haskins, 612 F.2d
373, 375 (8th Cir. 1980); Hager v. Wright Tire & Appliance, Inc., 33 S.W.3d 605, 608 (Mo.
App. W.D. 2000); Banks v. Village Enterprises, Inc., 32 S.W.3d 780 (Mo. App. W.D.
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2000). Plaintiff also notes that the workers’ compensation carrier has a right of
subrogration under R.S. Mo. § 287.150, and so if defendant is allowed to comment on
payment of these bills by the workers comp carrier, plaintiff should be allowed to explain
the concept of subrogation (and, plaintiff argues that trial would then be focused on these
collateral issues.).
Defendant opposes the motion as stated; although defendant does not oppose the
preclusion of references to insurance and insurance payments (including worker’s
compensation claims and payments), defendant argues it must be allowed to put on
evidence that plaintiff was injured while making deliveries for his employer while he was
working. Further defendant argues that if plaintiff opens the door, defendant should be
allowed to cross examine plaintiff on workers compensation.
Ruling: SUSTAINED.
F.

Any suggestion that a verdict against Walmart might cause prices at
Walmart to rise.

Plaintiff states any suggestion that prices might rise would have no basis in fact,
would be misleading, is irrelevant, and would clearly result in unfair prejudice to plaintiff.
FRE 403.
Defendant does not oppose.
Ruling: SUSTAINED.
G.

Publishing of any exhibit without redaction of personal identifying
information of plaintiff’s wife, ex-wife, or minor children.

Plaintiff notes that defendant subpoenaed and received plaintiff’s employment
records, which contain personal identifying information for plaintiff’s wife, ex-wife, and
minor children. Plaintiff requests this information be redacted prior to being introduced
or admitted as an exhibit. FRCP 5.2.
Defendant does not oppose.
Ruling: SUSTAINED.
H.

Failure to call a witness.

Plaintiff argues that he was seen by a number of medical providers who treated his
head injury, and he does not intend to call each and every such medical provider.
Instead, he intends to call only the key medical treaters and experts who are familiar with
the totality of his treatment, testing, and care. Plaintiff states that while it is permissible
under certain circumstances to comment on failure to call a witness, the defendant would
need to demonstrate that it was a key witness that was important to the case and
possesses relevant information. See Boardman v. National Medical Enterprises, 106
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F.3d 840 (8th Cir. (Mo.) 1997).
Defendant indicates it does not oppose this motion, to the extent plaintiff calls “key
and relevant” witnesses to meet and satisfy his burden of proof (such as the medical
doctors who evaluated his injuries, conducted objective testing, prescribed treatments,
etc.). If, on the other hand, plaintiff relies only on retained experts to present his alleged
damages, or fails to call a key and relevant witness, defendant should be allowed to
comment on the failure. See Boardman, 106 F.3d 840.
Ruling: PROVISIONALLY SUSTAINED. If plaintiff relies only on retained experts
to present his damages, or fails to call a key and relevant witness, defendant will
be allowed to comment on that failure.
I.

Retention of attorney/prior claims handled by Plaintiff’s counsel.

Plaintiff argues that defendant should be prohibited from making reference to
when plaintiff hired legal counsel or when plaintiff first contemplated a lawsuit, as such
evidence is reversible error. Kramer v. Lai, 783 S.W.2d 925 (Mo. App. W.D. 1989).
Defendant does not oppose.
Ruling: SUSTAINED.
J.

Recovery not subject to taxation

Plaintiff states that instructing a jury that if any award should be made to plaintiff it
would not be subject to state or federal income taxes constituted prejudicial error which
may have tended to influence the amount of verdict. Senter v. Ferguson, 486 S.W.2d
644 (Mo. App. 1972).
Defendant does not oppose.
Ruling: SUSTAINED.
K.

Declarations of sympathy for Plaintiff

Plaintiff argues that defendant should be prohibited from making declarations that
defendant or counsel feel sympathy for plaintiff, as such requests for sympathy are
inappropriate. Morrissey v. Welsh Co.¸821 F.2d 1294 (8th Cir. (Mo.) 1987). Plaintiff
argues that a statement by defendant or counsel that it feels sympathy for plaintiff, which
is typically followed by a statement that it was not defendant’s fault, is nothing more than
an attempt to win favor with the jury.
Defendant opposes this motion as overreaching. The case cited by plaintiff,
Morrissey, 821 F.2d 1294, dealt with the plaintiff’s counsel’s inappropriate solicitation of
sympathy for the benefit of plaintiff, and the Eighth Circuit found that behavior
unacceptable. Id. at 1304. The Eighth Circuit reversed and remanded for a new trial on
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damages, as such statements undermined confidence in the damages verdict. Id. at 27.
Here, if you granted plaintiff’s motion in limine, it would prevent defendant from saying,
“Defendant may feel sympathy for plaintiff, but it nonetheless does not think it is at fault.”
Defendant says it is offensive to common sense to think that this is an attempt to win favor
with the jury.
Ruling: OVERRULED.
L.

Financial incentive.

Defendants should be prohibited from making argument or statements regarding
the financial circumstances of plaintiff (such as plaintiff is attempting to “strike it rich” or
“win the lottery). Remarks intended to arouse, incite, or prejudice the jury”), not made
within the scope of legitimate argument, are improper. DeLaporte v. Robey Bldg.
Supply, Inc., 812 S.W.2d 526, 537 (Mo. App. E.D. 1991).
Defendant opposes this motion as stated, as it is too broad and lacks specificity to
allow the Court to rule. Defendant states that, as it understands it, “it appears Plaintiff is
seeking to preclude Defendant from presenting evidence that Plaintiff should not have
brought this lawsuit. While Defendant does not intend to directly question Plaintiff
regarding his decision to utilize the judicial system, it goes without saying that the
Defendant intends to show that Plaintiff’s claims lack merit. Thus, in a sense, Defendant
intends to indirectly criticize Plaintiff’s decision to see the incident at Walmart as an
opportunity to bring this action.” Doc. No. 97, p. 8. Defendant indicates that infringing
on its rights to point out that plaintiff’s claims lack merit violates defendant’s rights to due
process under the law.
Ruling: OVERRULED.
M.

Speculative accounts of how plaintiff’s injury was sustained.

Plaintiff argues that the parties contest where the Walmart DSD door struck
plaintiff – on his head, as argued by plaintiff, or on his shoulder/back, as argued by
defendant. Plaintiff argues that two witnesses listed by defendant, Jannette Neal and
David Walker (both Walmart employees) testified during deposition that they did not see
the DSD door strike plaintiff on the date in question (Neal Depo, 15:20 – 16:4, Neal’s
knowledge is based on her reviewing the video of plaintiff being struck; and Walker Depo,
32:3-8, who testified he did not see the door strike plaintiff and he has never watched the
video). Plaintiff states that testimony by Mr. Walker indicating he knows where the door
struck plaintiff would be pure speculation. Plaintiff also argues that the video speaks for
itself, and any interpretation of the video by the Walmart witnesses is without foundation
and invades the province of the jury. FRE 602, 701 (testimony in form of lay opinions
must be rationally based on the perception of the witness, U.S. v. Peoples, 250 F.3d 630,
641 (8th Cir. (Mo.) 2001)).
Defendant argues that plaintiff’s motion is an attempt to prevent defendant’s
witnesses from testifying as to what they saw or observed on the day of the incident.
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Defendant argues that plaintiff has cited no authority for the proposition that defendant
cannot put on evidence contradicting plaintiff’s versions of events. Additionally,
defendant argues that plaintiff misquotes Dave Walker’s testimony, which instead shows
that Mr. Walker saw what happened, and the door did not hit plaintiff in the head. Depo.,
Exh. A to Doc. No. 97, 45:19-23. Moreover, there is video evidence, and defendant
asserts that plaintiff’s conduct as seen in the video does not support his claim he was hit
in the head. Therefore, defendant argues that testimony or evidence showing that the
door did not hit plaintiff in the head is not speculative.
Ruling: OVERRULED.
N.

Whether plaintiff ever served in the military.

Plaintiff argues that one of his health care providers wrote that plaintiff stated he
was in the military, and this health care provider is not listed as a witness by either party.
Plaintiff denies making this claim, and believes that the entry was made in error. Plaintiff
argues that a witness may not be cross-examined as to a distinct collateral fact for the
purposes of impeaching his testimony by contradicting him. Senter v. Ferguson, 486
S.W.2d 644, 647-48 (Mo. App. 1972).
Defendant opposes this motion in limine, indicating that misrepresentations as to
military service go towards plaintiff’s credibility. Defendant recognizes that evidence of a
person’s character is generally not admissible under Rule 404(a), but the credibility of a
witness may be attacked by any party under FRE 607. Additionally, specific instances of
conduct if probative of truthfulness may be inquired into on cross-examination of plaintiff
or other witnesses giving opinions about plaintiff’s character for truthfulness (FRE
608(b)).
Plaintiff replies that defendant simply seeks to embarrass plaintiff and mislead the
jury. Plaintiff asserts that any possible relevancy as to whether plaintiff claimed he
served in the military is far outweighed by the prejudicial impact from the implication that
defendant will argue that plaintiff made false claims about military service.
Ruling: PROVISIONALLY SUSTAINED, unless plaintiff puts the issue into
evidence.
IT IS SO ORDERED.
/s/Fernando J. Gaitan, Jr.
Fernando J. Gaitan, Jr.
United States District Judge
Dated: August 17, 2015
Kansas City, Missouri

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