Hill et al v. Cartee Restaurant Group, Inc.

Filing 96

MEMORANDUM OPINION AND ORDER granting 69 RENEWED MOTION in Limine to Prohibit And Exclude Any Testimony, Inference, Or Argument That Any Compensation Awarded To The Plaintiff Will Not Be Subject To State Or Federal Income Taxes; granting 70 RENE WED MOTION in Limine to Prohibit And Exclude Any Testimony, Inference, Or Argument Regarding The Plaintiffs' Attorneys' Financial Interest Or Motive; granting 71 MOTION in Limine to Permit Plaintiff To Submit Redacted Medical Expense Ex hibits To Conceal The Existence Of Collateral Source Payments And Discounts Or Alternatively To Present A Typewritten Summary Of Medical Expenses Incurred By Plaintiff, Melody Hill; granting 72 RENEWED MOTION in Limine to Prohibit And Exclude Any Evidence, Testimony Or Reference To Payments Made To The Plaintiff By Plaintiff's Employer, OhioHealth Coporation; denying 75 MOTION for an Adverse Jury Instruction due to Defendant's Spoliation of Relevant Evidence; granting in part and denying in part 77 OMNIBUS MOTION in Limine. Signed by Judge Robert C. Chambers on 8/6/2014. (cc: attys; any unrepresented party) (skm)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

MELODY HILL and STEVE HILL,
residents of the State of Ohio,
Plaintiffs,
v.

CIVIL ACTION NO. 3:13-1960

CARTEE RESTAURANT GROUP, INC.,
a West Virginia corporation,
Defendant.

MEMORANDUM OPINION AND ORDER
Pending before the Court are Plaintiffs’ several pretrial Motions (ECF Nos. 69, 70, 71,
72, and 75) and Defendant’s Omnibus Motion in Limine (ECF No. 77). The Court heard oral
argument regarding these Motions on August 4, 2014. These Motions are ripe for resolution.
First, as Defendant does not object, the Court GRANTS Plaintiffs’ Renewed Motion in
Limine to Prohibit and Exclude Any Testimony, Inference, or Argument That Any
Compensation Awarded to the Plaintiff Will Not Be Subject to State or Federal Income Taxes
(ECF No. 69).
Second, as Defendant does not object, the Court also GRANTS Plaintiffs’ Renewed
Motion in Limine to Prohibit and Exclude Any Testimony, Inference, or Argument Regarding
the Plaintiffs’ Attorneys’ Financial Interest or Motive (ECF No. 70).
Third, for the reasons stated at the hearing, the Court GRANTS Plaintiffs’ Motion in
Limine to Permit Plaintiff to Submit Redacted Medical Expense Exhibits to Conceal the
Existence of Collateral Source Payments and Discounts or Alternatively to Present a Typewritten

Summary of Medical Expenses Incurred by Plaintiff, Melody Hill (ECF No. 71). The Court
FINDS that redaction of discounts is proper, pursuant to Kenney v. Liston, No. 13-0427, 2014
WL 2565563 (W. Va. June 4, 2014). Additionally, the Court FINDS that Plaintiffs may prepare
as a summary a list of expenses with pertinent information (such as the date and the nature of
each expense) and DIRECTS Plaintiffs to provide that list to Defendant as least one week before
trial.
Fourth, as Defendant does not object, the Court GRANTS Plaintiffs’ Renewed Motion in
Limine to Prohibit and Exclude Any Evidence, Testimony or Reference to Payments Made to the
Plaintiff by Plaintiff’s Employer, OhioHealth Corporation (ECF No. 72).
Fifth, the Court DENIES Plaintiffs’ Motion For an Adverse Jury Instruction Due to
Defendant’s Spoliation of Relevant Evidence (ECF No. 75). Plaintiff Melody Hill allegedly
slipped and fell on a pool of clear liquid on August 26, 2011, around 12:30 p.m., as she was
walking toward the women’s restroom of an Arby’s restaurant owned and operated by
Defendant. Plaintiffs seek an adverse jury instruction based on Defendant’s destruction or nonretention of the so-called Arby’s Daily Operations Checklist for that date. The checklist is a twopage document listing various parts of the restaurant that must be checked by employees,
including the floors. Daily Operations Checklist, ECF No. 83-1. As stated on the checklist itself,
it is typically completed around 10:30 a.m., before the lunch rush, and then again at 4:30 p.m.,
before the dinner rush. Id.; Stacie Fellure Dep. 15:16-16:20, Feb. 26, 2014, ECF No. 75-3.
Although Defendant does not impose a checklist retention policy, managers are free to impose
their own such policies. Under the policy imposed by the applicable manager for this Arby’s
restaurant, the checklists for a given month were saved until the end of the month and then

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discarded. Scott Menear Dep., 77:10-78:2, Feb. 26, 2014, ECF No. 83-2. A manager would also
conduct hourly safety inspections, although there was no policy requiring that records of those
inspections be made. Id., 23:4-23.
Allegedly pursuant to the general manager’s policy, the Daily Operations Checklist for
August 26, 2011, was destroyed within just a few days of Plaintiff’s accident. The Court is
troubled that this destruction took place when Defendant itself made efforts to collect
information regarding the accident—including taking statements from two employees on duty—
shortly after the accident occurred. Additionally, Plaintiff has presented evidence that she was in
contact with Defendant’s insurance adjuster within days of her accident. Although this evidence
suggests conduct on the part of Defendant which may be, at the least, negligent, the Court does
not believe that an adverse jury instruction based on spoliation of evidence is warranted. The
checklist would have been completed approximately two hours before the accident. Defendant
presents testimony that a manager completed two inspections of the floor between the time when
the checklist would have been completed and when the accident occurred. In light of this
evidence, the Court believes that an adverse jury instruction would unfairly characterize the
significance of the checklist and its omission from the case. This is especially true since
Plaintiffs are still free to present evidence and argument regarding the destruction of the checklist
at trial. For these reasons, the Court rejects Plaintiffs’ request for an adverse jury instruction.
Sixth, the Court GRANTS in part and DENIES in part Defendant’s Omnibus Motion
in Limine (ECF No. 77). Specifically, Items 1 through 7, Items 9 through 12, and Items 15 and
16, are GRANTED, as Plaintiffs did not object to these items. For the reasons stated at the
hearing, the Court DENIES Item 8. Having reviewed the evidentiary deposition of Dr. Mehta,

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Plaintiff’s treating physician, and considered the arguments of counsel, the Court also DENIES
Item 13. Dr. Mehta’s testimony is sufficient to permit Plaintiffs to claim damages for future
patellofemoral arthritis. Further, Plaintiffs’ vocational consultant may testify as to future reduced
or impaired employment characteristics consistent with the medical evidence; therefore, Item 14
is DENIED.
The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to
counsel of record and any unrepresented parties.

ENTER:

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August 6, 2014