Humphrey, Frank et al v. Love's Travel Stops & Country Stores, Inc. et al
ORDER granting 54 Plaintiff's Motion in Limine; granting in part, denying in part 59 Defendant's Motion in Limine (RESERVES on the motion to preclude evidence that someone moved the wet floor cone after Humphrey fell); granting 59 Defendant's Motion for Sanctions. Signed by District Judge William M. Conley on 6/26/14. (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
FRANK A. HUMPHREY,
FRANCIE CO., L.P.,
The court has received and reviewed the parties’ various motions in limine, as well as
defendant Francie Co., L.P.’s motion for sanctions pursuant to Federal Rule of Civil
Procedure 37. With respect to those pending motions, the court rules as follows:
I. Motions in Limine
A. Plaintiff’s Motions in Limine
Plaintiff Frank A. Humphrey has filed a single document containing two motions in
limine. (Dkt. #54.) First, Humphrey asks the court to prohibit all references to insurance
of any kind, including payments or insurance coverage for Humphrey’s medical expenses.
As grounds, Humphrey asserts that the collateral source rule prohibits such references and
that they are likely to confuse the jury. Francie Co. does not oppose this motion, and so it
Second, Humphrey asks the court to prohibit the defense from alluding to or
soliciting testimony about damage demands or requests that he made before trial, on the
grounds that they are irrelevant and unduly prejudicial. Again, Francie Co. does not object,
and so this motion is GRANTED.
B. Defendant’s Motions in Limine
Francie Co. has filed a single document containing four, different motions in limine.
(Dkt. #59.) First, Francie Co. asks the court to preclude Humphrey from offering any
speculation as to the cause of his slip that goes beyond the theory of inadequate warnings
advanced at summary judgment. Humphrey has produced no evidence of other forms of
negligence that could have caused his fall -- for instance, inadequate lighting, defective floor
tiles or unusual chemicals in the mop water -- and does not oppose this motion.
Accordingly, it, too, is GRANTED.
Second, Francie Co. asks the court to preclude Humphrey from offering a lay opinion
as to where the wet floor cone “should have been placed.” It contends that the placement
of a wet floor cone in a restaurant “implicates a number of areas of specialized knowledge,
including safety regulations, customer foot traffic analysis, and restaurant policies.” As a
layperson lacking qualifications in those areas of study, Francie Co. contends that
Humphrey should not be allowed to opine on the question of the cone’s placement.
Humphrey points out in response that lay opinion testimony is admissible where: (1)
it will help the jury understand the witness’s testimony; (2) it is rationally based on the
witness’s perception of fact; and (3) it is not based on scientific, technical, or other
specialized knowledge within the scope of Federal Rule of Evidence 702. Fed. R. Evid. 701.
He notes that Francie Co. has cited no authority for the notion that the placement of a wet
floor cone is “specialized knowledge” under Rule 702.
Furthermore, he argues that
Humphrey’s testimony will help the jury to understand why Humphrey did not see the
cones and why he did not believe the floor directly ahead of him was slippery, leading him
not to slow his stride.
With one caveat, the court will DENY Francie Co.’s motion. Humphrey’s opinion
on where the wet floor cone ought to have been placed to provide him and other customers
with an adequate warning requires no specialized or technical knowledge, nor would
Humphrey be allowed to offer an expert opinion on the subject in any event. He will,
therefore, permitted to testify that the cone “should have” been placed elsewhere because he
could not see it, as that opinion is both helpful and rationally based on his own perception.
Of course, Humphrey will not be allowed to opine as to where wet floor or other safety
cones should be placed as a general matter, nor may he testify as to whether Francie Co.’s
placement of the cone met or did not meet any industry or other safety standard.
Third, Francie Co. asks the court to preclude evidence that other customers have
fallen at the same Hardee’s location as irrelevant and, in the alternative, as unfairly
prejudicial. Since Humphrey does not oppose this motion, it will also be GRANTED.
Fourth and finally, Francie Co. asks the court to preclude evidence that someone
moved a wet floor cone under Federal Rule of Evidence 407, which makes inadmissible for
purposes of proving negligence any evidence of “measures . . . taken that would have made
an earlier injury or harm less likely to occur.” Humphrey responds that remedial measures
are admissible to show “the feasibility of precautionary measures.” Fed. R. Evid. 407. He
argues that evidence the cone was moved shows that the cone could have been placed in a
different location, making that testimony admissible.
The court will RESERVE on this motion. To the extent that Francie Co. argues (or
leaves open an argument) that there was only one “feasible” place to put the cone (or, at
least, that its placement in another spot was not feasible), then it would open the door for
See Ross v. Black & Decker, Inc., 977 F.2d 1178, 1185 (7th Cir. 1992)
(“Because B & D made what has evolved into a tactical trial error by not stipulating to
feasibility, this ruling [admitting evidence of remedial measure] was proper.”). However, if
Francie Co. stipulates that placing a cone on the spot where Humphrey slipped was
“feasible” (or, at least, it was feasible to place a cone to the spot to which it was moved
following Humphrey’s fall), Humphrey will not be permitted to introduce evidence of this
See Fed. R. Evid. 407 advisory committee’s note (1972 Proposed
Rules) (“The requirement that the other purpose be controverted calls for automatic
exclusion unless a genuine issue be present and allows the opposing party to lay the
groundwork for exclusion by making an admission.”).
II. Motion for Sanctions
Pursuant to Fed. R. Civ. P. 37, Francie Co. also moves for sanctions to preclude all
evidence of damages, except those related to past and future pain and suffering. In federal
court, a party must provide as part of his initial disclosures “a computation of each category
of damages claimed by the disclosing party.” Fed. R. Civ. P. 26(a)(1)(iii). Humphrey’s
initial Rule 26 disclosures read as follows:
1. Compensatory Damages: Pain and suffering (past & future):
2. Future medical expenses, to the extent not covered by
insurance. Amount to be determined.
3. Lost earnings/potential lost earnings: up to $103,000
annually, subject to revision based on expert report/analysis.
Francie Co. now represents, and Humphrey does not dispute, that he never
supplemented these disclosures, nor did he make available any evidentiary material
underlying the numbers in question, which is also required by Rule 26(a)(1)(iii). Moreover,
he neither disclosed any information regarding past medical expenses, past wage loss or out
of pocket expenses, nor did he provide any computation of future medical expenses.
Finally, he did not retain an expert on lost earnings.
Failure to disclose information required by Rule 26(a) means that “the party is not
allowed to use that information . . . on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Humphrey does not
even attempt to show that his failure to disclose was substantially justified or harmless. In
fact, he does not attempt to address the motion for sanctions at all: his response is silent on
the issue. (See dkt. #74.) With neither a justification for failing to make these disclosures,
nor any grounds to deem this failure harmless, the court agrees that Humphrey is now
barred from offering evidence on medical expenses and out-of-pocket expenses by the
Federal Rules of Civil Procedure.
The question on lost earnings may be closer, since
Humphrey at least provided a figure for that category of damages, but absent a showing that
Humphrey later made available evidentiary material supporting this figure, evidence related
to this category of damages will be excluded as well. Defendant’s motion for sanctions will,
therefore, be granted accordingly.
IT IS ORDERED that:
1) Plaintiff Frank A. Humphrey’s motions in limine (dkt. #54) are GRANTED.
2) With respect to defendant Francie Co., L.P.’s motions in limine (dkt. #59) the
a. GRANTS its motions to preclude speculation as to other potential causes
for Humphrey’s slip and to exclude evidence of other customers’ falls at
the Hardee’s location;
b. DENIES its motion to preclude Humphrey from testifying as to where the
cone should have been placed to warn him of the wet floor, with the caveat
noted above; and
c. RESERVES on the motion to preclude evidence that someone moved the
wet floor cone after Humphrey fell.
3) Defendant’s motion for sanctions (dkt. #59) is GRANTED as set forth above.
Entered this 26th day of June, 2014.
BY THE COURT:
WILLIAM M. CONLEY
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