Barnes v. C.U.S. Nashville, LLC

Filing 164

ORDER: For the reasons stated above, Plaintiff's General Motions in Limine are GRANTED as to Paragraph 3 and RESERVED for later judgment as to Paragraph 6. The Report of Magistrate Judge Brown is ADOPTED in its entirety as to Plaintiff's M otion regarding Charles Coones' testimony, which is GRANTED in part and DENIED in part. The Report of Magistrate Judge Brown is ADOPTED as to Plaintiff's Motion regarding evidence of the 2008 accident, with the clarification that the Motion is GRANTED in part and DENIED in part. The Report of Magistrate Judge Brown is ADOPTED in part as to Plaintiff's Motion to exclude photographs of her other than the night of her injury, and the Court finds that the Motion must be GRANTED in par t and RESERVED in part for resolution in the context of trial. The Report of Magistrate Judge Brown as to Plaintiff's Rule 37(c)(1) motion to bar certain testimony of Dr. Bryant is ADOPTED in some respects but not others, such that the Motion is DENIED. Defendant's Motion in Limine No. 2 is GRANTED in part, DENIED in part, and RESERVED in part. Defendant's Motion in Limine No. 3 is DENIED. Defendant's Motion in Limine No. 4 is GRANTED. Defendant's Motion in Limine No. 5 is ESERVED for later Judgment. Defendant's Motion in Limine No. 10 is RESERVED for later judgment. Defendant's Motion in Limine No. 11 is GRANTED. Signed by Senior Judge John T. Nixon on 4/29/11. (dt)

IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

BRITTANY BARNES,

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Plaintiff,
v.
CUS NASHVILLE, LLC,
d/b/a COYOTE UGLY SALOON,
Defendant.

No. 3:09-cv-0764
Judge Nixon
Magistrate Judge Brown
JURY DEMAND

ORDER
Pending before the Court are Plaintiff Brittany Barnes’ (“Plaintiff” or “Barnes”) Motions
in Limine (Doc. Nos. 88, 89, 90, 91, & 110) and Defendant CUS Nashville, LLC, d/b/a Coyote
Ugly Saloon’s (“Defendant” or “CUS Nashville”) Motions in Limine (Doc. Nos. 98, 99, 101,
102, 104, 106, 107, & 108). Magistrate Judge Brown previously issued a Report and
Recommendation (“Report”), regarding all of Plaintiff’s Motions in Limine except for Plaintiff’s
General Motions in Limine (Doc. No. 88), which were resolved in part by an earlier Order of this
Court (Doc. No. 147). Plaintiff and Defendant both filed Objections to the Report. (Doc. Nos.
156 & 157.) At a hearing before this Court on April 22, 2011, the Parties indicated that they had
come to an agreement regarding Defendant’s previously unresolved Motion in Limine No. 7
(Doc. No. 104), rendering it MOOT, and that agreement had also been reached as to all but the
third and sixth paragraphs of Plaintiff’s General Motions in Limine (Doc. No. 88), rendering the
remaining general motions contained in that filing MOOT as well. The Parties indicated that
they also intended to defer argument on Defendant’s Motion in Limine No. 9 (Doc. No. 106) to a
later time. As a result, the Court heard oral argument on Defendant’s second, third, fourth, tenth,
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and eleventh Motions in Limine as well as on the third and sixth paragraphs of Plaintiff’s
General Motions in Limine. The Parties did not present oral argument on Defendant’s Motion in
Limine No. 5.
The Court’s rulings on these matters are outlined below.
I. BACKGROUND1
The Court will summarize the facts and history of this case to date briefly for the purpose
of providing context for the following rulings. Plaintiff, a resident of Kentucky, filed suit in this
Court against CUS Nashville, a Tennessee limited liability company with its principal place of
business in Cornwall, New York on August 20, 2009. (Doc. No. 1 at 1.) Plaintiff alleges that
some time after 2:00 a.m. on September 19, 2008, she slipped and fell off of the bar at the
Coyote Ugly Saloon in downtown Nashville, resulting in a head injury and complete and
permanent loss of her sense of smell. She went to the hospital in Nashville after her fall, and
then again when she returned home to Lexington. (Doc. No. 82 at 3.) She alleges that
Defendant is liable for her injuries on the basis of negligence, because (1) CUS Nashville
encouraged her to dance on a wet, slippery bar when it had knowledge that this could result in
serious injury, and (2) CUS Nashville failed to remove or warn of the conditions prior to her fall.
Defendant has denied that it was negligent and that the bar was wet and slippery at the time of
the accident. Instead, Defendant asserts that Plaintiff herself was negligent in failing to exercise
ordinary care while dancing on the bar after consuming alcohol. Further, Defendant challenges
Plaintiff’s claimed complete loss of her sense of smell, and argues that any dysfunction could
have been caused by other factors such as a car accident two weeks after Barnes fell off the bar
and her history of smoking.
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The following facts are drawn from the Parties’ Joint Pre-Trial Order (Doc. No. 111) unless otherwise noted.
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This case was previously scheduled for trial in August of 2010, and the Parties filed the
motions that are presently under consideration on August 2, 2010. After a pretrial conference on
August 12, however, the case was referred to Magistrate Judge Griffin for a settlement
conference (Doc. No. 140), which ultimately proved unsuccessful (Doc. No. 143). Pretrial
conference and jury trial were then rescheduled for April 22, 2011 and May 3, 2011, respectively
(Doc. No. 144). Plaintiff’s Motions in Limine were referred to Magistrate Judge Brown on
March 1, 2011 (Doc. No. 153), and he subsequently issued his Report on March 23, 2011 (Doc.
No. 155). Plaintiff filed objections on March 31, 2011 (Doc. No. 156), as did Defendant on
April 1, 2011 (Doc. No. 157). As described above, this Court heard most of the remaining
motions at the pretrial conference on April 22, 2011.
II. DISCUSSION
A. Plaintiff’s Motions in Limine
i.

Plaintiff’s General Motions in Limine

As explained above, the parties have agreed to all matters contained in Plaintiffs General
Motions in Limine (Doc. No. 88) save two, contained in paragraphs three and six of the Motion.
Defendant filed a Response (Doc. No. 120).
Paragraph three argues that Defendant should be precluded from suggesting that “that
Plaintiffs’ counsel solicited the representation of Brittany Barnes or otherwise encouraged the
Plaintiff to make a claim for damages against the Defendant” because such a suggestion would
have no factual basis and would be unduly prejudicial under Federal Rules of Evidence 401 and
403. (Doc. No. 120 at 2.) As the undersigned stated at the April 22 hearing, this element of the
Motion is GRANTED to the extent that Defendant is precluded from asking whether Plaintiff’s
counsel solicited representation of Barnes.
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The sixth paragraph argues that the Defense “should be precluded from asking an expert
to agree to facts not supported by the testimony in this case,” specifically to improper
hypothetical questions. As stated at the April 22 hearing, the Court RESERVES this issue for
resolution during trial. Plaintiff may raise this objection in the context of the testimony
presented.
ii.

Plaintiff’s Motion in Limine to Exclude Opinion Testimony of Defendant’s Expert
Witness, Charles M. Coones

In this Motion, Plaintiff moves to exclude the testimony of Defendant’s expert witness
Charles M. Coones, a civil engineer and certified safety professional, on several matters,
specifically: his reliance on Occupational Safety and Health Administration (“OSHA”) standards
in his expert report; his opinions and observations regarding the static coefficient of friction
(“SCOF”) on the bar surface; his testimony regarding grab rails to assist patrons atop the bar; his
opinions regarding the adequacy of warning signs on Defendant’s premises; and his conclusions
regarding Plaintiff’s knowledge of bar conditions (Doc. No. 89). Defendant filed a Response
(Doc. No. 121). Magistrate Judge Brown recommended that this Motion should be granted in
part and denied in part.
In his Report, Magistrate Judge Brown recommends that Coones should not be allowed to
testify as to OSHA standards because they are offered so as to invade the province of the jury by
asserting that the bar’s conditions were or were not safe according to OSHA. (Doc. No. 155 at
2.) As to SCOF readings of the bar surface, the Report concluded that Coones should be allowed
to testify about them, but not as to any industry or OSHA standard regarding SCOF on walking
surfaces. Id. at 2-3. The Magistrate Judge took note of the fact that the OSHA standards
Defendant cites are not intended to be binding, and that Coones could testify in other ways
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regarding the SCOF reading and the conditions of the bar that would not invade the province of
the jury (i.e., by comparison to readings on other familiar surfaces). Id. at 3. Consistent with his
recommendations described above, Magistrate Judge Brown also concluded that testimony as to
the existence of grab bars would be permissible, but not as to OSHA standards on this point. Id.
Finally, the Report recommends that while Coones’ testimony regarding the existence and
location of warning signs would be acceptable, any testimony as to the adequacy that these signs
provided or Barnes’ knowledge of the bar conditions and assumption of the risk would invade
the province of the jury. Id.
Defendant objected to the Report on the basis that Coones should be allowed to testify as
to the OSHA standard of .05 SCOF because it would assist the jury in understanding and
assessing a fact at issue—whether CUS Nashville took adequate precautions to ensure that the
bar surface was not slippery. (Doc. No. 157 at 1.) This standard is accepted in his field, and
Plaintiff provides no expert testimony to challenge it. Id. at 2. Further, Defendant insists that the
purpose of this testimony is not to establish a negligence per se standard (that Defendant’s
conduct did not meet, presumably), and instead rebuts Plaintiff’s claim that adequate precautions
were not taken regarding the bar surface. Id. Defendant requests that the Court find this
evidence will not invade the province of the jury and admit it, or, alternatively, hold a hearing
regarding the use of this standard. Id.
The Court finds the Magistrate Judge’s Report to be well-founded and ADOPTS it in its
entirety, thereby GRANTING in part and DENYING in part Plaintiff’s Motion regarding
Coones’ testimony as described above. The Court disagrees with Defendant’s argument that the
OSHA standard is helpful to the jury. The Court has been provided no reason to believe that a
non-mandatory standard for employee safety is one that creates a benchmark for customer safety,
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and admission of the standard creates a danger of confusing the jury or leading them to believe
that the OSHA standard takes the issue of the bar’s safety OUT of their hands (despite
Defendant’s assurances that the standard is not intended to establish negligence per se). These
concerns outweigh the limited probative value that the OSHA standard provides. Further,
Coones may testify regarding the SCOF reading as Magistrate Judge Brown described in his
Report to help the jury assess the nature of the bar’s surface on the night in question. No hearing
will be necessary on this matter.
iii.

Plaintiff’s Motion in Limine to Exclude Any Testimony or Evidence of Plaintiff’s
October 2008 Motor Vehicle Accident and Arrest for Driving Under the Influence
of Alcohol

In this Motion, Plaintiff moves the Court to preclude Defendant’s counsel or any witness
from referencing Plaintiff’s October 2008 motor vehicle accident and arrest (Doc. No. 90). In
this same motion, Plaintiff also asserted that Dr. G. Lee Bryant should be prevented from
testifying that Plaintiff potentially sustained olfactory nerve damage during the accident. Id.
Defendant filed a Response (Doc. No. 124). Magistrate Judge Brown recommended that this
Motion should be granted in part and denied in part. (Doc. No. 155 at 4.) Magistrate Judge
Brown concluded that evidence of Plaintiff’s accident has probative value and should be
admitted because the airbag in her car deployed in the accident, and the jury might determine
that this caused or exacerbated Plaintiff’s injuries. Id. The Report finds that evidence of
Plaintiff’s arrest and conviction should not be admitted because of its highly prejudicial nature
and its lack of probative value except as to Plaintiff’s character. Id. The Report further stated
that “Defendant may introduce evidence that Plaintiff consumed alcohol after her injury by other
means.” Id.

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Plaintiff filed an objection to the report on the basis that “a jury should not be permitted
to speculate as to (1) whether the airbag struck Plaintiff’s head and/or (2) whether it exacerbated
or caused any of her injuries,” particularly in light of the fact that Plaintiff denies that the airbag
hit her head. (Doc. No. 156 at 2.) She alleges that “Defendant seeks to bootstrap Plaintiff’s
failed field sobriety test into evidence by contending that her failure of the horizontal gaze
nystagmus test is evidence of a traumatic head injury.” Id. In her Motion, she also argued that
Dr. Bryant’s testimony regarding the possibility that Plaintiff sustained olfactory nerve damage
should be excluded as unreliable under Daubert v. Merrill Dow Pharm., 509 U.S. 579 (1993).
The Court is in agreement with the Magistrate Judge’s Report and ADOPTS it to the
extent that evidence of Plaintiff’s arrest and conviction for driving under the influence must be
excluded as unduly prejudicial, and that other evidence regarding the occurrence of the incident
must be admitted as probative of the cause of Plaintiff’s anosmia. The Court now clarifies
whether other evidence that relates to Plaintiff’s consumption of alcohol prior to the car accident
may be admitted, and whether the testimony of Dr. Bryant will be allowed.
The Court finds that the results of field sobriety tests taken after the accident should be
admitted because they appear to bear importantly on the issue of whether Plaintiff suffered
trauma to her head in the accident. Plaintiff argues that her fall on Defendant’s premises is the
cause of her long-term olfactory dysfunction, but this front-end car crash is a plausible
intervening cause or contributing factor to that condition. The testimony of Dr. Bryant will be
that the results of the tests, particularly the nystagmus test, indicate the possibility of a head
injury in the accident that could have caused or exacerbated the loss of smell about which
Plaintiff complains. Whether the fall or some other factor caused the alleged anosmia is central
to the issue of injury and damages in this case. The test results have significant probative value
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as to an outcome-determinative fact in this case and should be admitted. Fed. R. Evid. 401, 402.
Of course, Plaintiff will have an opportunity to attack Dr. Bryant’s testimony as to his reasons
for believing that Plaintiff sustained head trauma during the accident and to suggest that such
testimony is too speculative. Plaintiff’s attack on Dr. Bryant’s status as an expert really goes to
the weight of his testimony, not to its admissibility. The Court has been presented with no
reason to doubt the reliability of the methods or analytical mode on which Dr. Bryant relied in
coming to his conclusions. Plaintiff may elicit at trial reasons for the jury to find that his
conclusions should be doubted.
There is indeed a risk of prejudice to Plaintiff that comes with the admission of such
evidence. The Court finds, however, that the possibility of prejudice arising from the revelation
that Plaintiff consumed alcohol before the car accident does not “substantially outweigh” the
probative value of this evidence, which the court perceives as fairly high. Fed. R. Evid. 403.
Further, the Court notes that it is no secret in this case that Plaintiff has consumed alcohol on
occasion. Defendant is prohibited from referencing or eliciting testimony regarding Plaintiff’s
arrest and conviction, as well as her blood-alcohol level or conclusions by the police that she was
in fact intoxicated at the time of the accident.
Plaintiff’s Motion is GRANTED in part and DENIED in part.
iv.

Plaintiff’s Motion in Limine to Exclude Any Photographs Taken of Plaintiff Other
Than the Night of Plaintiff’s Injury

Plaintiff next seeks to exclude photographs taken of her other than on the night of her
injury at CUS Nashville on the basis that such evidence should be excluded under Federal Rules
of Evidence 402, 403, and 404(b). (Doc. No. 91.) Defendant filed a Response. (Doc. No. 122.)
Magistrate Judge Brown recommended that all photographs of Plaintiff other than on the night of
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her injury should be excluded because they are not relevant absent contrary testimony from
Plaintiff for which the pictures from before or after her fall could serve as impeachment material.
(Doc. No. 155 at 4.) Plaintiff objects to the Report on the basis that there is no reason to believe
that Plaintiff’s drinking alcohol or partying before or after the night of the incident is relevant to
any issue in dispute. (Doc. No. 156 at 4.) Defendant argues that some of the photographs
demonstrate facts that will be relevant to Plaintiff’s credibility and to her claim for damages, and
asks the Court to consider the photographs in the context of trial. (Doc. No. 157 at 3.)
The Court ADOPTS in part the Report’s conclusion that photographs of Plaintiff other
than the night of her injury may only be admitted for impeachment purposes regarding Plaintiff’s
conduct after the date of her injury. For example, were Plaintiff to testify for the purpose of
damages that the injury she sustained at Coyote Ugly has changed her lifestyle such that she can
no longer enjoy or attend nights out with her friends, photographs of her post-injury conduct
might be relevant. The Court notes that it sees little independent probative value to images taken
after the incident, as they simply depict Plaintiff on single instances in which she was posing for
or was otherwise captured in photographs. They may, however, create unfair prejudice and
mislead the jury regarding Plaintiff’s post-injury experience (unless being offered to contradict
testimony as to Plaintiff’s post-injury conduct), and constitute improper character evidence,
creating an impression for the jury that Plaintiff is a “party girl.” For these reasons, they may
only have a limited purpose. The Court will RESERVE judgment on any specific photographs
offered for impeachment purposes to the context of trial.
Plaintiff’s conduct prior to the night in question is not probative of any issue in this case
other than her character. The Court DECLINES to adopt the Magistrate Judge’s
recommendation that photographs taken prior to the night of Plaintiff’s injury might be
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admissible for impeachment purposes. As such, this Motion is GRANTED in part and
RESERVED in part for future resolution in the context of trial.
v.

Plaintiff’s Rule 37(c)(1) Motion to Preclude Defendant’s Expert Witness, G. Lee
Bryant, M.D., from Offering Opinions Neither Set Forth in His Report or His
Discovery Deposition.

Finally, Plaintiff argues that Dr. G. Lee Bryant, M.D., should be precluded from offering
certain opinions, primarily in regard to Plaintiff’s olfactory dysfunction, that Plaintiff alleges
were not set forth in his expert report or in his discovery deposition. (Doc. No. 110.)
Specifically, Plaintiff seeks to exclude Dr. Bryant’s testimony suggesting that the cause(s) of
Plaintiff’s anosmia could have been airbag deployment and a deceleration event during the
October 2008 accident, or Plaintiff’s asthma. Id. at 2. Plaintiff also seeks to exclude Dr.
Bryant’s testimony regarding nerve shearing. Id. at 3. Defendant filed a Response. (Doc. No.
123.)
Magistrate Judge Brown recommended in his report that the Motion be granted in part
and denied in part. Although Dr. Bryant’s expert report could have been more comprehensive, it
provided notice of testimony regarding airbag deployment in a sentence stating that it was Dr.
Bryant’s opinion that Plaintiff’s anosmia “could have been affected by several different factors . .
. including a blow to the head suffered from the deployment of an airbag from a motor vehicle
accident.” (Doc. No. 155 at 5 (quoting Bryant Dep. (Doc. No. 110-1)).) Magistrate Judge
Brown also opined that the while Plaintiff’s asthma was not disclosed to Defendant until after
Bryant’s report was submitted, Plaintiff had adequate opportunity to cross-examine Dr. Bryant
and the deposition may be used to rebut the testimony of Dr. Osetinsky. (Doc. No. 155 at 5.) As
to the deceleration event and nerve shearing, however, the Magistrate Judge concluded that Dr.
Bryant’s report gave no indication that Dr. Bryant would testify on this topic, and Local Rule
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39.01(c)(6)(d) prevents an expert from testifying beyond the scope of his expert report. (Doc.
No. 155 at 5-6.)
Only Defendant objected to the Report, asserting that “deceleration is a physical
consequence of a front end collision and airbag deployment,” and that Dr. Bryant adequately
linked the accident to Plaintiff’s loss of smell in his report and deposition. (Doc. No. 157 at 3.)
Further, Defendant argues that Dr. Bryant’s testimony is being offered to impeach that of Dr.
Osetinsky, who was unaware of the accident, and Dr. Bryant will testify that Dr. Osetinsky
should have considered this factor as it is crucial to the issue of causation. Id. at 3-4. It is
Defendant’s view that it would be “overly harsh” to limit Dr. Bryant’s testimony to airbag
deployment and not “other natural aspects of a front-end collision, particularly when Plaintiff’s
counsel has had adequate opportunity to cross-examine Dr. Bryant on two separate occasions.”
Id. at 4.
The Court agrees with the Magistrate Judge’s Report and ADOPTS in part it as to the
issue of airbag deployment and asthma. Dr. Bryant may testify regarding airbag deployment in
the 2008 car accident and asthma as potential factors in Plaintiff’s alleged anosmia. However,
the Court DECLINES to adopt the Report as to the issues of a deceleration event or nerve
shearing. The Court agrees that Dr. Bryant’s expert report provided inadequate notice about the
possible occurrence and effects of a deceleration event during the October 2008 car accident. A
deceleration event, from the Court’s review of Dr. Bryant’s deposition, appears to be a possible
mechanism of injury to Plaintiff’s brain that may occur during a car accident, such as the one
Plaintiff was in, where there is a front-end collision and airbag deployment. (Bryant Dep. at 3031.) Although Dr. Bryant’s expert report indicated that he was going to testify that the airbag
deployment in the car accident could have caused Plaintiff’s olfactory dysfunction, he did not
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explicitly state that deceleration could have also had this same effect. Nerve shearing is a
physical phenomenon regarding the brain and olfactory nerve receptors that can explain the loss
of the sense of smell following an impact to the skull or deceleration. Id. at 31. Despite the
requirement that an expert report include not only the expert’s opinions but also the “basis and
reasons for them,” Fed. R. Civ. P. 26(a)(2)(B)(i), no information was provided in the expert
report or the accompanying attachments regarding the possibility of nerve shearing as a
mechanism by which anosmia occurs.
Nevertheless, the Court finds that the subjects of Dr. Bryant’s testimony, particularly as
to nerve shearing, were not wholly unexpected, and that the failure to provide adequate
disclosure is ultimately harmless and non-prejudicial in light of the time the Parties have had
subsequent to the taking of the depositions in question prior to the now-impending trial date—
almost exactly a year. Rule 26, which requires expert disclosures, “contemplates that the expert
will supplement, elaborate upon, explain and subject himself to cross-examination upon his
report.” Thompson v. Doane Pet Care Co., 470 F.3d 1201, 1203 (6th Cir. 2006). It is not
surprising that Dr. Bryant would testify to the underlying physical occurrences that explain how
the alleged airbag impact he specifically referenced would cause a loss of sense of smell. This is
not to say, of course, that Dr. Bryant’s expert report was adequate without a better explanation of
the reasons underlying his findings; a more substantial explanation would have furthered the goal
of Rule 26 to limit the need for expert depositions, see E.E.O.C. v. Freeman, 626 F. Supp. 2d
811, 822 (M.D. Tenn. 2009 (quoting Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 642 (7th
Cir. 2008)). The Court must point out, however, that Dr. Osetinsky himself testified on nerve
shearing and trauma as an underlying cause of Plaintiff’s injury in his deposition several months
prior to the deposition of Dr. Bryant (Osetinsky Dep. at 37-38.) Plaintiff was on notice of this
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phenomenon as an underlying physical cause of olfactory dysfunction and could easily have
returned to Dr. Osetinsky or an expert to develop an understanding of it, or to develop the
medical testimony further.
The inadequacy of the report is more apparent as to the issue of deceleration, which,
although it is a “consequence” of airbag deployment (as Defendant asserts), could be a cause of
injury independent from the possibility of the airbag striking Plaintiff during the accident. The
link established in the report between the car accident and Plaintiff’s anosmia was not specific to
the issue of deceleration, even though the Court agrees that the deceleration effect Dr. Bryant
describes is a natural one in a front-end collision. However, Plaintiff has had plenty of notice
and time prior to trial (and, indeed, two deposition opportunities) to explore Dr. Bryant’s
findings and to supplement her evidence regarding the loss of her sense of smell. Indeed, it
would be “harsh,” as Defendant puts it, to admit Dr. Osetinsky’s non-live testimony concluding
that the fall likely caused Plaintiff’s loss of smell—an opinion apparently made without
knowledge of Plaintiff’s car accident—without allowing Defendant an opportunity to rebut it in
court with testimony Plaintiff had ample time to review and prepare for.
In light of these findings, the Court will admit Dr. Bryant’s testimony regarding
deceleration and nerve shearing pursuant to Rule 37(c)(1). The Motion is DENIED.
B. Defendant’s Motions in Limine
i.

Defendant’s Motion in Limine No. 2 to Exclude Incident Reports

First, Defendant moves to exclude from evidence a number of incident reports
documenting patrons falling off CUS Nashville’s bar (and the bars at other Coyote Ugly Saloon
locations) before and after the incident in question. (Doc. No. 98, 98-1.) Plaintiff filed a
Response. (Doc. No. 127.) Plaintiff indicated initially that she only intended to submit six
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incident reports to the jury in her case in chief (Doc. No. 127 at 2), and then prior to the April 22
hearing indicated that she sought to introduce fourteen reports (Doc. No. 162).
Defendant’s Memorandum of Law asserts first that the prior incident reports should be
excluded under Federal Rules of Evidence 401 and 403 because they are not substantially similar
to the incident in question and because their probative value is substantially outweighed by the
danger of unfair prejudice. (Doc. No. 98-1 at 2.) Defendant cites a number of cases for the
proposition that only prior incidents that are substantially similar to the one at issue can be
admissible. Id. (citing Rye v. Black & Decker Mfg. Co., 889 F.2d 100 (6th Cir. 1989); Koloda v.
Gen. Motors Parts Div., Gen. Motors Corp., 716 F.2d 373 (6th Cir. 1983); Galloway v. Big G.
Express, Inc., No. 3:05-cv-545, 2008 WL 2704443 (E.D. Tenn. July 3, 2008)). Defendant also
asserts that the relevance of prior incidents depends on their proximity in time to the incident in
question, id. (citing Surles v. Greyhound Lines, Inc., 474 F.3d 288, 297 (6th Cir. 2007)), and that
incidents after the one in question are irrelevant under Rule 401, id. (citing Croskey v. BMW of
N. Am., Inc., 532 F.3d 511 (6th Cir. 2008); Ellis ex rel. Perdergrass v. Cleveland Mun. Sch.
Dist., 455 F.3d 690 (6th Cir. 2006)). Defendant has summarized all the incident reports in
question in this case and argues that they are not substantially similar or are insufficiently
detailed as to the wet bar condition that Plaintiff claims was the source of her injury. (Doc. No.
98-1 at 3-4.) Further, Defendant argues that the incident reports provided by other Coyote Ugly
locations are inadmissible hearsay. Id. at 14.
Plaintiff agrees in her Response that prior incidents must be “substantially similar” to be
admissible under Rye, and that notice or knowledge of the existence of a dangerous condition is a
proper purpose for which evidence of other accidents can be admitted. (Doc. No. 127 at 2.)
Plaintiff argues that each of the six accidents originally highlighted to the Court that documented
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a patron falling off of the main bar at Defendant’s premises and sustaining a head injury were
substantially similar to her own situation, because they “occurred under similar circumstances.”
Id. at 3 (quoting Rye, 889 F.2d at 102). Each of these incident reports gave Defendant notice that
allowing or encouraging sober or inebriated patrons to dance on an elevated surface above a
concrete floor will inevitably result in one of them falling off of it and suffering a serious injury,
regardless of the precise cause. (Doc. No. 107 at 3-4.) Further, Plaintiff argues that these
incident reports are relevant to Defendant’s gross negligence or recklessness (key in determining
punitive damages), because they are relevant to show that Defendant failed to take remedial
measures despite having knowledge of the six prior falls from the bar. Id. at 5.
The incident reports Plaintiff has provided to the Court document a wide range of
scenarios in which a Coyote Ugly patron fell off the bar and hit her head. Throughout this case,
however, including in Plaintiff’s Complaint (Doc. No. 1) and her Pretrial Brief (Doc. No. 82),
Plaintiff has asserted that Defendant’s negligence was in encouraging her to get onto a “wet and
slick” bar without adequately removing or warning of the wet and slick conditions that cause her
to slip and fall. The development of the case to date has focused heavily on the bar’s surface
(indeed, much of the evidence the Court considers in this Order pertains solely to the condition
of the bar on the night of Plaintiff’s fall). The Court cannot allow Plaintiff at this juncture to
make this a case about whether the very act of encouraging women to dance on the bar is
negligent when Plaintiff has asserted all along that the bar surface was the reason she fell. Nor
will the Court confuse the vague notion of “inevitability” Plaintiff suggests with the notice of a
dangerous condition required by the law.
As such, the Court finds that only two of the incident reports in question could be said to
be adequately similar to the circumstances of Plaintiff’s injury such that she may claim the
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reports put Defendant on notice of a dangerous condition. Incident Report No. 4 (Doc. No. 1621 at 3), recorded about three years prior to Plaintiff’s injury, states:
A woman fell off the bar and must have mistepped
Slipped off w/ left foot
She is concious [sic] and knows where she is. Claims she had 8 beers only one here.
Obvious gash on back of head
Incident Report No. 6 (Doc. No. 162-1 at 5), recorded about two-and-a-half years prior to
Plaintiff’s injury, states in relevant part:
Subject 1 was dancing on the Bar. She decided to get down off the Bar. Subject 1 lost
her footing when she stepped to the edge and fell to the ground, landing on her back and
then cracked her head on the concrete.
These reports describe instances in which a patron specifically “slipped” or otherwise could not
get a hold on the surface of the bar on Defendant’s premises, resulting in falls that caused head
injuries. Although these reports do not specifically mention liquid on the bar, the accidents
describe a substantially similar cause for the falls described—the inadequate grip on the bar’s
surface. These reports may properly be introduced as probative of the issue of Defendant’s
notice as to the potential slipping danger presented by the bar surface, Fed. R. Evid. 401. These
reports will not confuse the issues or mislead the jury, and, of course, Defendant may attack the
adequacy of the notice these reports might have provided through cross-examination and closing
argument.
For the reasons described above, Defendant’s Motion is GRANTED in part and
DENIED in part. The Court RESERVES for later judgment whether Plaintiff may introduce
other incident reports for the purpose of establishing a punitive damage amount, if such an
inquiry proves necessary after the first stage of the bifurcated proceedings in this case.

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ii.

Defendant’s Motion in Limine No. 3 to Exclude Undisclosed Rule 26 Medical
Testimony

In this Motion (Doc. No. 99) and Memorandum of Law (Doc. No. 99-1), Defendant
moves for the exclusion of certain proposed testimony by Dr. Osetinsky and Dr. Dirk B.
Thacker. Plaintiff filed a Response. (Doc. No. 131.)

a. Testimony of Dr. Osetinsky
Plaintiff provided a disclosure to Defendant indicating that Dr. Osetinsky was not
retained for the purpose of litigation, such that Plaintiff was not including copies of his
curriculum vitae and other materials appropriate for an expert witness, and indicating that Dr.
Osetinsky’s testimony might opine on the effect of Plaintiff’s loss of smell on her life and side
effects of her head injury. (Doc. No. 19.) Defendant asserts that in his deposition, Dr. Osetinsky
testified that he used a “scratch-and-sniff” test, known as the Pennsylvania smell test, to confirm
Plaintiff was not malingering, and that he also testified about the nature and permanency of the
injuries Plaintiff suffered. (Doc. No. 2-3.) Defendant argues that the testimony of Dr. Osetinsky
should be excluded because he was not a treating physician but instead was hired in anticipation
of litigation and Plaintiff failed to provide a Rule 26 disclosure. (Doc. No. 99-1 at 4.) In support
of this claim, Defendant emphasizes that Plaintiff visited Dr. Osetinsky only once, ten months
after her last treatment, having already retained counsel and sent demand letters to Defendant.
Id. at 4-5. Further, Defendant argues that Plaintiff provided certain medical documents to Dr.
Osetinsky to accomplish the purpose of her visit, which was to confirm that she was not
malingering, and that Dr. Osetinsky admitted there was no treatment purpose of the test. Id. at 5.
17

As such, Defendant argues that Dr. Osetinsky should be barred from providing opinion
testimony at trial because he was not disclosed as a Rule 26 expert, and Defendant was not
provided an opportunity to understand his opinions or their basis prior to deposition. Id. In the
alternative, Defendant seeks the exclusion of his testimony on the Pennsylvania Smell Test,
which was “clearly in anticipation of litigation.” Id.
Plaintiff asserts, however, that Dr. Osetinsky was not selected or retained as an expert,
and that his treatment was “for the purpose of diagnosing and determining the extent and
duration of Plaintiff’s loss of sense of smell,” as explained in a letter Dr. Osetinsky wrote to
Plaintiff’s primary physicians (Ex. 4 to Osetinsky Dep.). (Doc. No. 131 at 1-2.) Dr. Osetinsky
was not paid by counsel or by her family (“other than perhaps a co-pay”), id. at 2, and counsel
claimed at the April 22 hearing that Plaintiff had been referred to him through family. Plaintiff
emphasizes that counsel nonetheless provided a disclosure to Defendant regarding the content of
Dr. Osetinsky’s expected testimony, from which the deposition testimony did not substantially
deviate. Id. at 2. To the extent any deviation occurred, Plaintiff could not have anticipated this
because counsel did not have contact with the Doctor prior to the deposition. Id. Additionally,
Plaintiff explained at the April 22 hearing that the point of Dr. Osetinsky’s deposition testimony
regarding the Pennsylvania Smell Test was that it showed Plaintiff has a permanent loss of sense
of smell. In response to a question as to how he knew Barnes was being truthful, the Doctor had
explained that there is an element of the test regarding malingering—not that the purpose of the
test is to assess malingering, as Defendant suggests. If, however, the Court were to find the Rule
26 disclosure was deficient, Plaintiff argues that the opinion should not be excluded because any
failure to disclose was harmless error, as Defendant had ample time to have its own expert
review Dr. Osetinsky’s testimony. Id. at 2.
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The Court cannot find that Dr. Osetinsky was retained as an expert or in anticipation of
litigation in this case, such that a disclosure in compliance with Federal Rule of Civil Procedure
26(a)(2)(B) was required. Defendant has not provided the Court with any reason to disbelieve
the assertions of Plaintiff’s counsel that Dr. Osetinsky was not selected or retained by counsel for
the purpose of litigation, and that he received no payment for his services other than the usual
medical charges incurred for treatment. Although the timing of Plaintiff’s visit to Dr. Osetinsky
could be suspect, a one-time visit to an ear, nose, and throat specialist in order to assess the
extent and permanency of damage to her sense of smell is not unreasonable given that the
Doctor’s finding that her condition was likely permanent. Such a finding would explain why
Plaintiff did not return to Dr. Osetinsky or receive a treatment recommendation from him.
Further, the Court cannot find on the evidence before it that purpose of Plaintiff’s visit to
Dr. Osetinsky and of the administration of the Pennsylvania Smell Test was to confirm that she
was not malingering. In the deposition testimony excerpted by Defendant and attached to its
Motion, Dr. Osetinsky appears to state that he was confident Plaintiff was not malingering, and
then goes on to explain general and specific causes of the loss of sense of smell and the effects of
this loss, his opinion as to the permanence of Plaintiff’s loss of sense of smell, and other matters
regarding side effects of head injuries. (Doc. No. 99-10.) The Court then reviewed the
deposition more fully, because the excerpt provided by Defendant, which began on page 17 and
did not include the content cited from pages 15 and 16, did not go into any detail as to the issue
of malingering. It is true that in describing Plaintiff’s test results, Dr. Osetinsky stated, “This is a
test to identify who has a sense of smell and who may be exaggerating that they don’t smell,”
and also that “This test often picks up people that are trying to malinger.” (Osetinsky Dep. at
16.) From these statements, however, the Court cannot infer that the test is only performed to
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detect malingering, even if it does screen for malingering when assessing the extent of a patient’s
loss of smell. There is no statement in the section of the deposition highlighted for the Court, as
Defendant asserted, that the reason the test was performed was to detect malingering, or that the
test is “not generally done to give treatment.” (Doc. No. 99-1 at 2.) Dr. Osetinsky did not say
these things, and Defendant has not given the Court a reason to believe that such is generally the
case regarding the smell test. In light of these findings, the Court further rejects Defendant’s
assertion that Dr. Osetinsky was retained as an expert in anticipation of litigation and thus was
subject to the disclosure requirements of Rule 26(a)(2)(B). Nor can such a finding be made
specifically as to the testimony regarding the issue of malingering—this element of Dr.
Osetinsky’s opinion appears to have been well within the scope of his description of the test he
performed in assessing the state of Plaintiff’s injury and not offered in anticipation of litigation.
Defendant’s Motion is DENIED as to the exclusion of Dr. Osetinsky’s testimony.
b. Testimony of Dr. Thacker
Dr. Thacker also treated Plaintiff on one occasion at Central Baptist Hospital in
Lexington after she returned from Nashville on September 20, 2008. Dr. Thacker was not
initially disclosed to Defendant, and Magistrate Judge Brown allowed for an extension to April
21, 2010 for depositions to be taken of two physicians (Dr. Fengler and Dr. Thacker) with regard
to “limited areas discussed at [a] telephone conference” with the parties. (Doc. No. 44 at 2.) It
appears from the Order that the areas discussed were, in Magistrate Judge Brown’s words: (1)
testimony of a “treating emergency room doctor to establish that the Plaintiff was treated for a
skull fracture on the evening of the incident, that she incurred medical bills of approximately
$8,600, that the medical bills were reasonable, and that a skull fracture would normally require
follow up visits for treatment with a neurologist”; and (2) testimony of a physician in Lexington
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“as to the reasonableness of the treatment and bills in Kentucky.” Id. at 1-2. Defendant
interpreted the Magistrate Judge’s Order to mean that the depositions could be taken within the
new deadline “to the extent that the subject matter would not be considered Rule 26 testimony.”
(Doc. No. 99-1 at 3.) Also in this Order, Magistrate Judge Brown provided Defendant’s counsel
an additional seven days after the later of the two depositions to supplement Defendant’s expert
disclosures should additional facts learned from these depositions have an impact on Defendant’s
disclosures. Id. The depositions were taken and Defendant did not subsequently supplement its
expert disclosures.
According to Defendant, Dr. Thacker’s testimony included opinions on a variety of
medical bills submitted by other doctors, some of which pertained to treatment that occurred in
Nashville or after the date on which he treated Plaintiff, as well as opinions on the findings of Dr.
Osetinsky. (Doc. No. 99-1 at 3-4.) Defendant argues that it is Plaintiff’s burden to prove that
medical expenses incurred are necessary and reasonable, and that competent expert testimony is
necessary to meet this burden in most cases. Id. at 5 (citing Borner v. Autry, 284 S.W.3d 216,
218 (Tenn. 2009)). Defendant states that a treating physician such as Dr. Thacker should not be
permitted to testify as to whether other doctors’ bills are reasonable and necessary without
providing some disclosure. Id. Expenses incurred by a radiologist, neurologist and
otolaryngologist, most of whom treated Plaintiff after she was seen by Dr. Thacker and some of
whom treated her Nashville (where Dr. Thacker admitted he did not know about the cost of
treatment), were outside the scope of his treatment and should be excluded in the absence of
disclosures. Id. at 5-6.
Plaintiff essentially argues that Defendant is only challenging the failure to disclose, but
that Plaintiff’s Second Supplemental Expert Witness Disclosure (Doc. No. 45), filed over a week
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prior to Magistrate Judge Brown’s Order discussed above, stated that he would present testimony
as to the necessity of Barnes’ follow-up care in Lexington and medical bills incurred. (Doc. No.
131 at 4.) Plaintiff asserted at the April 22 hearing that Magistrate Judge Brown provided an
opportunity for supplemental disclosures to deal with the potential of surprise to Defendant, but
that there was no surprise, and Defendant did not need to supplement its disclosures.
The Court agrees with Defendant that full Rule 26 disclosures should have been provided
for Dr. Thacker as to his testimony regarding other physicians’ treatment of Plaintiff and related
expenses. This testimony clearly goes beyond the scope of his treatment of Plaintiff. However,
the Court’s review of Dr. Thacker’s deposition testimony indicates that Defendant’s counsel was
nonetheless able to effectively cross-examine Dr. Thacker regarding his experience and ability to
assess the reasonableness and necessity of other doctors’ treatment of Plaintiff—only common
sense was necessary to accomplish this. He will again be able to do so at trial. Dr. Thacker’s
Defendant apparently did not need to take advantage of the seven days provided in Magistrate
Judge Brown’s Order to supplement its expert disclosures in the case of any surprise. A court
need not exclude testimony about which a party failed to make required disclosures if this failure
is harmless. Fed. R. Civ. P. 37(c)(1). The Court finds that the failure in this instance was
harmless. As such, the Court DENIES in part the Motion to Exclude Dr. Thacker’s testimony
regarding the reasonableness and necessity of medical treatment and bills in Lexington. The
Motion is GRANTED in part, however, as to Dr. Thacker’s testimony regarding medical bills
incurred in Nashville (Thacker Dep. at 39-41); Dr. Thacker admitted in this portion of his
deposition that he is not and never has been licensed to practice medicine in Tennessee, and
admitted that he was guessing whether the charges he was asked to consider from Tennessee

22

would be reasonable and necessary in the medical community in this state, id. at 41. Such
speculative testimony is inadmissible.
iii.

Defendant’s Motion in Limine No. 4. to Exclude Supplemental DVD and
Testimony of Mitch Davis

In this Motion in Limine, Defendant seeks to exclude a DVD and testimony from Mitch
Davis, a private investigator retained by Plaintiff to observe and record the goings-on at
Defendant’s premises on a night subsequent to Plaintiff’s injury. (Doc. No. 101.) Plaintiff filed
a Response. (Doc. No. 133.) The parties were heard on this motion at the April 22 hearing, and
Plaintiff also provided the Court with a copy of the video she seeks to introduce, which the Court
has reviewed. Defendant argues first that the video and authenticating testimony should be
excluded because it was only made known to Defendant on July 23, 2010, less than the thirty
days away from the August trial date, in violation of Local Rules 33, 34, and 36. (Doc. No. 101
at 1.) Beyond the lateness issue, Defendant argues that this evidence is irrelevant because it
depicts the operation of Defendant’s business after the night of the incident and because any
probative value it might have is outweighed by its prejudicial effect. Id. at 1-2. Specifically, the
video depicts Defendant’s premises on June 12, 2010, around midnight, a peak business time,
which would give the jury an unfair impression of Defendant’s operations. Plaintiff’s injury
occurred over two hours later, around 2:30 a.m., at which time the bar has been described as
“dead” on the night in question. At the hearing, counsel also emphasized that there is video of
Plaintiff falling from the bar and a number of photographs from the night in question, and that
Defendant would even stipulate to the drinking and encouragement of patrons to dance on the
bar.

23

Plaintiff’s Response asserts that the video is demonstrative evidence depicting female
patrons being encouraged by one of Defendant’s bartenders to dance on the bar, and some of
these intoxicated patrons getting up on the bar to dance. (Doc. No. 133 at 1.) The DVD is at
least relevant, Plaintiff asserts, to establish Defendant’s recklessness, or conscious disregard of
substantial and unjustified risk to others (i.e., the risk shown by the incident reports describing
patrons falling off the bar), for the purpose of assessing punitive damages. Id. at 1. At the
hearing, Plaintiff’s counsel further pointed out that while there is video depicting Plaintiff’s fall
from the bar, it is only eight second long and does not depict the encouragement to get on the bar
or other people on the bar. Further, he stressed that the jury has no idea what the bar looks like,
and that, in fact, it is a “circus.”
The Court finds that this demonstrative evidence may not be presented to the jury
because it will not help jurors to determine whether Defendant was negligent or reckless, and
will instead create the potential for prejudice and confusion. The Parties do not seems to
disagree that the night depicted in the video is unlike the night of the incident in that the bar is
quite crowded. The video depicts a number of women dancing on the bar, some doing so
suggestively or with beer in their hands, as well as many other individuals standing in front of
the bar. The bar seems to be boisterous, and a bartender with a microphone standing atop the bar
does indeed encourage patrons to get up on the bar and dance. Indeed, it looks like a somewhat
racy circus, to borrow the term used by Plaintiff’s counsel.
This is problematic, because the jury is not being asked to find whether racy dancing and
debauchery goes on at Coyote Ugly. It is being asked to find whether CUS Nashville was
negligent and thus liable to Plaintiff, and whether its alleged recklessness entitles Plaintiff to
punitive damages. The video in question does not depict anything that the witnesses will not be
24

able to describe adequately for the jury—women being encouraged to dance on the bar, some
intoxicated, some consuming alcohol. There is no need for a visual aid to illustrate testimony
that bartenders encouraged women to dance on the bar, or that women on the bar were drinking,
particularly given that Defendant does not contest these facts and that Plaintiff herself was
drinking and fell off the bar. The video is not helpful as to factors related to Plaintiff’s fall such
as the surface of the bar and surrounding areas or other characteristics of the bar area (it is shot in
black and white, a few yards away from the bar). Other than the woman who asks patrons to get
onto the bar, it is not evident who is a CUS Nashville employee and who is a patron, so the video
is not useful for assessing factors such as what duties the bartenders are performing and how they
are performing them. Further, the circus-like atmosphere depicted in the video is apparently
unlike the environment in which Plaintiff was injured, which was instead a “dead” bar scene, and
will likely confuse or mislead the jury and create the potential for prejudice against Defendant.
In light of these concerns, the Court GRANTS this Motion.
iv.

Defendant’s Motion in Limine No. 5 to Exclude Photographs taken by Plaintiff’s
Counsel During Inspection and After the Incident

Defendant’s fifth Motion in Limine seeks to exclude photographs taken of its premises
after the incident. (Doc. No. 106.) Plaintiff filed a Response. (Doc. No. 135.) Although the
parties indicated that this motion was outstanding in a Notice of Unresolved Motions in Limine
(Doc. No. 162) filed prior to the April 22 hearing and were heard on all of Defendant’s motions
listed in that filing, neither addressed this motion in their oral presentations.
Defendant’s objection to these pictures is these pictures were taken a year after the
incident in question and that they could evidence post-remedial efforts by Defendant. (Doc. No.
102 at 1.) Plaintiff first claims that Defense counsel had previously made no objection to the
25

admissibility of two of the photographs, but has now changed course with this Motion. (Doc.
No. 135 at 2.) Plaintiff next points out inconsistencies regarding Defendant’s Interrogatory
responses stating that there was one warning sign on Defendant’s premises and Coones’
proposed expert testimony stating that there are a number of warning signs on Defendant’s
premises. Id. at 2. Plaintiff wants to be allowed to show the jury all of the signs counsel
photographed if Coones is to be believed, or for Defendant to be required to identify which of the
warning signs counsel photographed was the sign referenced in its Interrogatory response. Id.
In his frustration with Defendant’s actions, Plaintiff’s counsel seems to have forgotten to
tell the Court why these images should be admitted at all. Presumably, Plaintiff is of the opinion
that these photographs would demonstrate for the jury the nature and verbiage of warnings on
Defendant’s premises, albeit a year later. Nor did Defendant, in its cursory objection to the
photographs, explain to the Court why the photographs would constitute improper evidence of
post-remedial efforts if its own expert will testify as to the number and type of warning signs on
the premises several months after the incident. This matter will be RESERVED for resolution
in the context of trial if the Parties are unable to resolve it themselves prior to that time, which
they are encouraged to do.
v.

Defendant’s Motion in Limine No. 10 to Exclude Evidence of Corporate
Ownership of Defendant and Other Coyote Ugly Saloon

Defendant moves next to exclude evidence of CUS Nashville’s corporate ownership and
the ownership of other Coyote Ugly operations (the Court believes it is safe to assume that
Defendant meant “Saloons,” not simply a single other “Saloon”). (Doc. No. 107.) Plaintiff filed
a Response. (Doc. No. 129.) Defendant argues that such evidence is irrelevant because
Defendant is a local LLC with separate ownership from other Coyote Ugly locations, and
26

because it would be unfairly prejudicial to compare Defendant’s circumstances to those of other
Coyote Ugly locations as they are not parties and there is no evidence to show that they are
sufficiently similar to Defendant to justify comparison. (Doc. No. 107 at 1.) Plaintiff asserts that
all Coyote Ugly Development Corporation owns a majority interest in Defendant and many other
local Coyote Ugly operations, and that they are required to follow certain policies under the
control of Liliana Lovell. (Doc. No. 129 at 1-2.) As such, corporate ownership may become
relevant, and Plaintiff urged the Court to reserve ruling in her Response, id., as well as at the
April 22 hearing. At that hearing, the Court instructed the Parties that this Motion would be
RESERVED for resolution in the context of trial, and that they are not to mention this matter
before the jury prior to the Court’s ruling.
vi.

Defendant’s Motion in Limine No. 11 to Exclude Evidence of “Body Shots,”
“Penalty Shots” and/or “Spankings”

Finally, Defendant moves to exclude evidence of certain drinking activities that are
sometimes carried out at the bar, including “body shots,” “penalty shots” and “spankings.” (Doc.
No. 108.) Plaintiff filed a Response. (Doc. No. 128.) As the Court learned at the April 22
hearing, “body shots” at the Coyote Ugly Saloon involve a bartender lying on the bar while a
patron (or another bartender) takes a shot off of her belly, while a “penalty shot” involves the
bartender pouring a shot into the patron’s mouth while the patron is on the bar and spanking the
patron (Doc. No. 128 at 2). Plaintiff asserts, first, that this evidence is relevant because it
pertains to the multitude of tasks bartenders are expected to perform that might prevent them
from performing the task of keeping the bar clean and dry while patrons are on it. Id. at 3.
Second, Plaintiff argues that the fact that Defendant’s bartenders were encouraged to pour body
shots and penalty shots corroborates the testimony of Julie Knudsen that on the night in question,
27

bartenders poured shots of liquor that resulted in the bar being wet. Id. at 4. Defendant argues
that there is no evidence to suggest that body shots or penalty shots occurred on the night in
question, rendering the evidence irrelevant, and that the evidence would be unfairly prejudicial
as its probative value is outweighed by its prejudicial effect. (Doc. No. 108 at 1.) Defendant
elaborated at the April 22 hearing that only the testimony of witness Julie Knudsen indicates that
the bar was wet on the night of the incident, and that all the witnesses in the case have in fact
suggested that the bar was “dead” on the night and time in question (soon before closing time).
The Court agrees with Defendant that the probative value of this evidence is very low
because there is no evidence whatsoever that body shots or penalty shots were occurring at the
time of the incident, and that its admission would be unduly prejudicial. Relevant evidence is
“evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Fed. R. Evid. 401. Knudsen’s testimony that shots of liquor were being poured while
she and Barnes were sitting at the bar, and that liquid from the shots ended up on the bar surface,
makes no reference whatsoever to body shots or penalty shots. In relevant part, she stated, “I
didn’t see [bartenders] deliberately pour anything onto the surface of the bar, but there was liquid
on the bar because of the liquid they had poured [into shot glasses],” and, “The shots spilled onto
the bar.” (Knudsen Dep. at 60-61.) The fact alone that Knudsen saw shots being poured and that
liquor from the shots splashed onto the bar, regardless of whether the shots were then consumed
off of the body of a bartender or poured into someone’s mouth, would tend to show that the bar
was wet—a fact that is indeed consequential to the outcome of this case. That body shots and
penalty shots sometimes occur at CUS Nashville, however, makes this fact no more or less
likely, particularly because none of the evidence in this case suggests that such activities
28

occurred when Plaintiff was injured. The evidence has no probative value in this respect. Also,
in terms of corroboration, it would not be helpful in assessing Knudsen’s testimony about liquor
splashing onto the bar when being poured into shot glasses for the jury to know that on some
occasions, the contents of those shot glasses are consumed off of bartenders’ bodies or poured
into customers’ mouths. Further, there has been no evidence to show that the bar was busy when
Plaintiff was there (instead, quite the opposite), or that the bartenders were overwhelmed with
tasks due to obligations such as doing body and penalty shots. Evidence that these activities
occurred at other times is not probative of Defendant’s negligence on the night in question.
Ultimately, the proposed evidence creates the potential for confusing the jury as to what
went on the night of Plaintiff’s injury and distracting them from the facts presented as to this
particular incident. Given the risqué nature of these aforementioned drinking practices, there is
also a possibility of prejudice against Defendant that clearly outweighs whatever limited
probative value this evidence could be said to present. As such, the Court finds that this
evidence must be excluded. Fed. R. Evid. 401, 403. Defendant’s Motion is therefore
GRANTED.
III. CONCLUSION
For the reasons stated above, Plaintiff’s General Motions in Limine are GRANTED as to
Paragraph 3 and RESERVED for later judgment as to Paragraph 6. The Report of Magistrate
Judge Brown is ADOPTED in its entirety as to Plaintiff’s Motion regarding Charles Coones’
testimony, which is GRANTED in part and DENIED in part. The Report of Magistrate Judge
Brown is ADOPTED as to Plaintiff’s Motion regarding evidence of the 2008 accident, with the
clarification that the Motion is GRANTED in part and DENIED in part. The Report of
Magistrate Judge Brown is ADOPTED in part as to Plaintiff’s Motion to exclude photographs
29

of her other than the night of her injury, and the Court finds that the Motion must be GRANTED
in part and RESERVED in part for resolution in the context of trial. The Report of Magistrate
Judge Brown as to Plaintiff’s Rule 37(c)(1) motion to bar certain testimony of Dr. Bryant is
ADOPTED in some respects but not others, such that the Motion is DENIED.
Defendant’s Motion in Limine No. 2 is GRANTED in part, DENIED in part, and
RESERVED in part. Defendant’s Motion in Limine No. 3 is DENIED. Defendant’s Motion in
Limine No. 4 is GRANTED. Defendant’s Motion in Limine No. 5 is RESERVED for later
Judgment. Defendant’s Motion in Limine No. 10 is RESERVED for later judgment.
Defendant’s Motion in Limine No. 11 is GRANTED.
It is so ORDERED.
Entered this the __29th_______ day of April, 2011.

30