Burrows v. Wal-Mart Stores East LP

Filing 45

ORDER granting in part and denying in part 28 Motion in Limine as more fully set forth herein. Signed by Honorable Scott L. Palk on 5/28/2019. (md)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ROBERT STEVE BURROWS,
Plaintiff,
v.
WAL-MART STORES EAST, LP,
Defendant.

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Case No. CIV-18-335-SLP

ORDER
Before the Court are Defendant’s Motions in Limine [Doc. No. 28]. Defendant’s
motions (filed as a single document) are at issue. See Resp., Doc. No. 34; Reply, Doc. No.
43.
I.

Introduction and background
On December 16, 2016, Plaintiff visited Defendant’s Stillwater retail location.

Plaintiff alleges that he slipped and injured himself because of an unmarked, clear liquid
in the men’s restroom—which Plaintiff contends had been mopped recently. Plaintiff
asserts a single claim for premises liability/negligence against Defendant. See Pet., Doc.
No. 1-2. To prevail on a premises liability claim, Plaintiff must prove “(1) existence of a
duty on the part of the defendant to protect a plaintiff from injury; (2) defendant’s breach
of the duty; and (3) injury to plaintiff proximately resulting therefrom.” Scott v. Archon
Grp., L.P., 2008 OK 45, ¶ 17, 191 P.3d 1207, 1211.
“The purpose of a motion in limine is to allow the Court to decide evidentiary issues
in advance of trial to avoid delay and ensure an evenhanded and expeditious trial.” Dry

Clean Super Ctr., Inc. v. Kwik Indus., Inc., No. 08-cv-578-WJM-CBS, 2012 WL 503510,
at *4 (D. Colo. Feb. 15, 2012). “Properly filed motions in limine permit the trial judge to
eliminate from further consideration evidentiary submissions that clearly ought not to be
presented to the jury because they clearly would be inadmissible for any purpose.” Id.
(quotation marks omitted). Motions in limine “are designed to narrow the evidentiary
issues for trial and to eliminate unnecessary trial interruptions.” Graves v. Dist. of
Columbia, 850 F. Supp. 2d 6, 10 (D.D.C. 2011) (quotation marks omitted). Limine
motions “should target their arguments to demonstrating why certain items or categories
of evidence should (or should not) be introduced at trial, and [they should] direct the trial
judge to specific evidence in the record that would favor or disfavor the introduction of
those particular items or categories of evidence.” Id. at 11.
Some limine rulings, like those involving balancing under Federal Rule of Evidence
403, are necessarily preliminary because the required balancing may be reassessed as the
evidence actually comes in at trial. Thus, a court’s limine rulings are subject to change as
the case unfolds or at the Court’s discretion. See Luce v. United States, 469 U.S. 38, 4142 (1984). Or, a judge may decline to rule on an issue raised via limine motion, preferring
to “await developments at trial before [so] ruling” to allow the “decision[ to] be better
informed by the context, foundation, and relevance of the contested evidence within the
framework of the trial as a whole.” Graves, 850 F. Supp. 2d at 11 (quotation marks and
citations omitted).
The Court expects the parties’ counsel to abide by these rulings. Counsel are to
make relevant witnesses aware of the rulings indicated herein as well.
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II.

Discussion and analysis
A.

Defendant’s exclusion requests to which Plaintiff does not object

Defendant asks the Court to exclude (i) “[p]ossible insurance coverage for
Walmart,” (ii) “[a]ccidents and/or injuries occurring at any other Walmart store[s],” (iii)
“[o]ther accidents and/or injuries occurring at the subject Walmart which are not
substantially similar to the allegations made by Plaintiff,” (iv) “[e]vidence of Walmart’s
financial information, net worth, sales information and the number of Walmart stores,” and
(v) testimony from Dr. Will Clark or “any report, calculation or opinions created by Dr.
Will Clark.” Mot. 1-2, Doc. No. 28. Plaintiff indicates that he does not intend to present
any such evidence. Accordingly, Defendant’s requests for exclusion of these types of
evidence are GRANTED based on the parties’ agreements regarding the same.
B.

Defendant’s subsequent remedial measures

Defendant requests that the Court prohibit Plaintiff from “introducing [evidence] of
subsequent measures to prove negligence or culpable conduct” under Rule 407. Mot. 5,
Doc. No. 28. Plaintiff indicates that any evidence regarding post-injury actions taken by
Defendant will be introduced for a permissible purpose—i.e., impeachment and to rebut
defenses offered by Defendant. See Fed. R. Evid. 407.
To the extent Defendant seeks to prevent Plaintiff from introducing video taken
outside its restroom from immediately following when Plaintiff claims to have been
injured, Defendant’s exclusion request is denied. Based on the description of the video
provided by both Plaintiff and Defendant, it appears to the Court that the video is relevant.
Defendant’s objection to the video is that it does not show the location where Plaintiff
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claims to have actually been injured. But Defendant may inquire of any witness with which
Plaintiff’s counsel discusses the video regarding what the vide does or does not show.
Lacking sufficient context at this time to rule further on Defendant’s limine request,
the Court will reserve ruling on questions related to the remainder of this request until trial.
If the Court allows admission of evidence falling within the scope of Rule 407, the Court
will issue an appropriate limiting instruction to the jury at Defendant’s request regarding
their consideration of such evidence. See Rimkus v. Nw. Colo. Ski Corp., 706 F.2d 1060,
1066 (10th Cir. 1983).
C.

Plaintiff’s non-use of health insurance

Defendant’s sixth limine request—for exclusion of “[a]ny mention of medical bills
beyond those paid by insurance, [by] Plaintiff, or [as shown by] liens filed for those bills”
(id. at 2)—has been addressed by the Court in its ruling on Plaintiff’s limine motions, being
filed contemporaneously hereto. No additional expansion on the Court’s ruling is required.
D.

Plaintiff’s medical records and bills

Defendant asks the Court to bar Plaintiff from “introduc[ing] numerous medical
records and/or bills by his own testimony.” Mot. 8, Doc. No. 28. To the extent Defendant’s
request addresses Plaintiff’s medical bills, it is moot based on the parties’ stipulation as to
“the identify and authenticity of [Plaintiff’s] medical bills.” Resp. 5, Doc. No. 34; see
Reply 2, Doc. No. 43 (indicating only that the parties have not reached a stipulation as to
Plaintiff’s medical records, but not addressing medical bills).
As to Defendant’s request to bar Plaintiff from authenticating his own medical
records regarding treatment and the necessity for such treatment, the Court will address
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Plaintiff’s medical records once such records are available to the Court for its review at
trial. Plaintiff must, before such records are submitted to the jury, authenticate the records
via stipulation, testimony of an appropriate witness, or as otherwise allowed by applicable
rules and precedent.

Plaintiff may not provide expert testimony regarding the

reasonableness or necessity of his medical treatment unless such testimony is within
Plaintiff’s personal knowledge or the general knowledge of a lay person. See infra Part
II.E.
E.

Pseudo-expert testimony by Plaintiff regarding reasonableness
and necessity of medical treatment and regarding injury
causation

Defendant fears that Plaintiff may “attempt to testify as to the nature and extent of
his alleged injuries, [the] reasonableness and necessity of [his] medical treatment, and the
causation of his injuries, including potential future medical treatment.” Mot. 9, Doc. No.
28. The parties have not provided the Court sufficient information for it to evaluate what
testimony Plaintiff intends to offer. Certainly, Plaintiff may testify regarding what he
experienced and what he observed. However, to the extent Plaintiff attempts to opine
regarding causation for medical injuries beyond that which is obvious to a lay person (e.g.,
if a person dropped a heavy object on someone’s foot, the cause of injury to the foot might
not require expert testimony absent any pre-existing condition), Plaintiff will be disallowed
from doing so. See Fed. R. Evid. 701; Shelton v. Apex Surgical, LLC, No. CIV-08-1087HE, 2009 WL 3837411, at *4 (W.D. Okla. Nov. 13, 2009). The Court reserves ruling on
questions related to the remainder of this request until trial.

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F.

Allegedly arbitrary safety rules

It is unclear from the parties’ briefs what Defendant seeks to exclude and what
Plaintiff seeks to introduce under Defendant’s ninth limine request.

Accordingly,

Defendant’s request is DENIED without prejudice to the issue being raised at trial where
additional clarity may be provided to the Court regarding the evidence at issue.
III.

Conclusion
IT IS THEREFORE ORDERED that Defendant’s Motions in Limine [Doc. No. 28]

are GRANTED IN PART and DENIED IN PART as stated herein.
IT IS SO ORDERED this 28th day of May, 2019.

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