Sheetz et al v. Wal-Mart Stores, Inc. et al

Filing 86

ORDER (memorandum filed previously as separate docket entry). IT IS ORDERED THAT Defendants motion 44 in limine is GRANTED without prejudice to the Plaintiffs ability to seek admission of this evidence on other grounds at trial, should trial developments warrant such an approach. Signed by Honorable Yvette Kane on 11/22/17. (rw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PATRICIA A. SHEETZ, et al.,
Plaintiffs
v.
WAL-MART STORES, EAST, L.P.,
Defendant

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No. 4:15-cv-02210
(Judge Kane)

ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Presently before the Court is a motion in limine to preclude any evidence of the
subsequent grouping of shoe benches pursuant to Federal Rule of Evidence 403 and 407, filed by
Defendant Wal-Mart Stores, East, L.P., in anticipation of a jury trial scheduled for November 6,
2017. (Doc. No. 44.)
Defendant moves to preclude Plaintiffs Patricia A. Sheetz (“Mrs. Sheetz”), and her
husband Richard H. Sheetz, Jr. (collectively referred to herein as “Plaintiffs”), from introducing
at trial a photograph taken in the summer of 20141 of shoe benches configured together at the
end of a shoe aisle in the Wal-Mart Store located at 167 Hogan Boulevard, Mill Hall,
Pennsylvania. Accordingly to Defendant, Plaintiffs’ private investigator visited the Wal-Mart
Store in May or June of 2014 and photographed the shoe benches situated in the aisles between
rows of shoes, as had existed at the time of Mrs. Sheetz’s fall in December of 2013. In addition,
the investigator photographed three shoe benches that had been placed together at the end of a
shorter aisle. Defendant urges the Court to exclude the photograph of the shoe benches grouped
in the rear of the shoe department under Federal Rule of Evidence 403 because such evidence
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At an in limine hearing conducted on October 23, 2017, counsel for Plaintiffs represented to the
Court that the photographs at issue here were taken in May or June of 2014, not November of
2014 as stated in the motion in limine.
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holds no probative value, as Mrs. Sheetz “did not fall in or around the area where the shoe
benches were grouped.” Alternatively, Defendant argues that the photograph depicting the
clustered arrangement of shoe benches constitutes evidence of a remedial measure implemented
subsequent to Mrs. Sheetz’ fall, and thus, is inadmissible under Federal Rule of Evidence 407.
Plaintiffs oppose the motion in limine. (Doc. No. 54.) In response to Defendant’s motion
in limine, Plaintiffs dispute Defendant’s position that Federal Rule of Evidence 403 compels
exclusion of the photograph of the grouped benches at trial. Relying on Federal Rule of
Evidence 406, Plaintiffs argue that the photograph is relevant in that it constitutes evidence of
Wal-Mart’s routine practice of placing benches haphazardly throughout its shoe aisles, which is
further buttressed by the testimony of Ms. Jackqueline Lucas (“Ms. Lucas”), the supervisor of
Wal-Mart’s shoe department, that the benches were randomly situated throughout the shoe
department at the time of Mrs. Sheetz’s fall. (Id. at 7.) Plaintiffs also object to Defendant’s
characterization of such evidence as indicative of a subsequent remedial measure under Federal
Rule of Evidence 407, and posit that the photograph falls within the exception to Rule 407’s
prohibition against introducing evidence of subsequent remedial measures where offered to
prove the feasibility of precautionary measures if controverted.
As it concerns the question of relevancy, a number of evidentiary principles guide the
Court’s consideration of the evidence at issue. The Federal Rules of Evidence “can aptly be
characterized as . . . rules of inclusion, which are designed to broadly permit fact-finders to
consider pertinent factual information while searching for the truth.” Univac Dental Co. v.
Dentsply Int'l, Inc., 268 F.R.D. 190, 196 (M.D. Pa. 2010). The “inclusionary quality” of the
evidentiary rules is embodied by Rules 401, 402, and 403. Id. Pursuant to Rule 401, evidence is
relevant where it has “any tendency to make a fact more or less probable than it would be

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without the evidence,” and that “fact is of consequence in determining the action.” Fed. R. Evid.
401. Expounding on the Rule’s expansive definition of relevance, the Advisory Committee
Notes indicate that “[r]elevancy is not an inherent characteristic of any item of evidence but
exists only as a relation between an item of evidence and a matter properly provable in the case.”
Fed. R. Evid. 401, Advisory Committee Note. Therefore, a court’s relevancy determination will
depend upon the purpose for which the evidence at issue is offered. Rule 402 governs the
admissibility of relevant evidence, instructing that “[a]ll relevant evidence is admissible, except
as otherwise provided . . . by these rules . . . .” Fed. R. Evid. 402. Under Rule 403, however,
relevant evidence may be subject to exclusion if “its probative value is substantially outweighed
by the danger of one or more of the following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R.
Evid. 403. Rule 403 requires the court to weigh the degree of relevance against certain
countervailing factors.
Informed by these rules, the Court is unpersuaded that the photograph constitutes relevant
habit evidence under Federal Rule of Evidence 406, as Plaintiffs so argue. Federal Rule of
Evidence 406 states:
Evidence of the habit of a person or of the routine practice of an organization, whether
corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove
that the conduct of the person or organization on a particular occasion as in conformity
with the habit or routine practice.
Fed. R. Evid. 406. The purpose of habit evidence is “‘to fill the gap in direct evidence about what
[an organization] did on a specific occasion with circumstantial evidence sufficient to reasonably
allow one to conclude that the[organization] probably acted in conformity with [its] usual pattern
on the occasion in question.’” York Int'l Corp. v. Liberty Mut. Ins. Co., 140 F. Supp. 3d 357, 362
(M.D. Pa. 2015) (citation and quotation marks omitted). The Advisory Committee Note to Rule
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406 defines habit as the “regular practice of meeting a particular kind of situation with a specific
type of conduct . . . .” Fed. R. Evid. 406, Advisory Committee Note (quoting McCormick on
Evidence, § 162, p. 340). As acknowledged by the Advisory Committee, however, “[t]he extent
to which instances must be multiplied and consistency of behavior maintained in order to rise to
the status of habit inevitably gives rise to differences of opinion,” and while “adequacy of
sampling and uniformity of response are key factors, precise standards for measuring their
sufficiency for evidence purposes cannot be formulated.” Fed. R. Evid. 406, Advisory
Committee Note. Relying on the Advisory Committee Note to Federal Rule of Evidence 406,
courts in this Circuit have “carefully scrutinized” evidence offered as examples of habit to ensure
that such evidence establishes a “‘degree of specificity and frequency of uniform response” that
reflects “more than a mere tendency to act in a given manner.” York Int'l Corp., 140 F. Supp. 3d
at 362 (citation omitted).
Tested against the above standards, it is apparent that Rule 406 does not permit the
introduction of the photograph at trial. First, the photograph of the grouped shoe benches, alone,
is simply not evidence of a routine practice on the part of Wal-Mart. While Plaintiffs insist that
the photograph supports the testimony of Ms. Lucas that Wal-Mart randomly positioned shoe
benches throughout the shoe department, the Court’s review of the deposition transcript of Ms.
Lucas, attached as an exhibit to Plaintiffs’ response, reveals that Ms. Lucas did not attest to WalMart’s practice of randomly configuring the shoe benches throughout the department, let alone to
any particular routine of arranging benches together at the end of the aisle. Indeed, the
deposition testimony does not provide any insight into Wal-Mart’s purportedly random,
continuous system of placing its shoe benches throughout the shoe department before, during,
and after Ms. Sheetz’s fall, as would establish the “degree of specificity and frequency of

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uniform response” required for a routine practice. In the absence of other evidence of systematic
conduct that would support an inference that the shoe benches were routinely configured
randomly, the photograph is nothing more than a snapshot of conduct performed on a particular
occasion, and thus, is not relevant within the meaning of Rule 406. Second, and more
importantly, Defendant has represented in its reply brief that it “does not dispute that it placed
shoe benches throughout its shoe aisles at the time of [Mrs. Sheetz’s] fall.” (Doc. No. 59 at 2.)
Thus, even assuming, arguendo, that the photograph is admissible to prove that Wal-Mart acted
in conformity with its usual pattern of randomly positioning its shoe benches throughout the shoe
aisles on the occasion in question, its probative value is nevertheless substantially outweighed by
the danger of presenting needlessly cumulative evidence, given that there is no dispute as to the
presence of the shoe benches in the shoe aisles at the time Mrs. Sheetz fell. Accordingly, the
Court will grant Defendant’s motion in limine (Doc. No. 44), insofar as it will preclude Plaintiffs
from introducing the photograph as habit evidence under Rule 406.
AND NOW, on this 22nd day of November 2017, in accordance with the foregoing, IT
IS ORDERED THAT Defendant’s motion in limine (Doc. No. 44), is GRANTED without
prejudice to the Plaintiffs’ ability to seek admission of this evidence on other grounds at trial,
should trial developments warrant such an approach.

s/ Yvette Kane
Yvette Kane, District Judge
United States District Court
Middle District of Pennsylvania

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