allowing testimony on the absence of prior accidents at a Wal-Mart store, subject to the substantial similarity testSummary of this case from Leon v. FedEx Ground Package Sys., Inc.
May 16, 2002
MEMORANDUM AND ORDER
This slip and fall case comes before the court on motions in limine filed by both parties.
In this motion, (Dk. 79), plaintiff asks the court to preclude defendant from offering evidence regarding the absence of prior accidents in the service bay area. Plaintiff cites no cases in support of its motion, and the court has found none.
Under Kansas law, evidence of the absence of prior complaints or accidents in the same area is properly admitted on the issue of safety. Schlobohm v. United Parcel Service, Inc., 248 Kan. 122, 804 P.2d 978, 982-83 (1991). Accordingly, this motion is denied, but defendant is cautioned that the court will apply the substantial similarity test, as discussed below, in considering the admission of such testimony.
Defendant has filed two motions in limine, (Dks. 73 and 80), each addressing various evidentiary issues.
I. Defendant's March 25, 2002 motion
As to this motion in limine, plaintiff states that she has no objection to granting the motion as to four of the five items. Accordingly, plaintiff shall not refer to the following evidence before the jury during voir dire, opening statements, or in a question, nor elicit the same from a witness:
Wal-Mart's financial condition;
Wal-Mart's liability insurance; other occurrences or complaints against Wal-Mart; and offers to compromise.
Although the court will grant defendant's motion to the extent of these four items, the court adds that ordinarily motions of this type are not filed unless the matter is contested. Filing a motion in the first instance, rather than fulfilling one's duty to communicate with opposing counsel, increases both burden on the court and the expense to the clients. The court encourages the movant not to file motions in the future unless he believes, after reasonable communication with the opposing counsel, that the matter is in fact disputed.
Condition of store on other dates
The fifth item addressed in this motion in limine is disputed. Defendant seeks to preclude plaintiff from mentioning "what witnesses may have observed concerning the store, at times other than the date on which Ms. Goeken claims to have fallen." (Dk. 73, p. 1). In support of this motion, defendant alleges that such evidence is irrelevant, and any relevance is outweighed by the prejudicial effect its admission into evidence would have.
Defendant seeks to admit evidence of the absence of other accidents in the area on other dates, however.
The sole statement defendant makes in support of this assertion is "the condition of the store may have changed substantially since the date on which Ms. Goeken claims to have fallen." Id., p. 3. In its reply brief, defendant adds that admission of such evidence would "lengthen trial by a factor of two, because each of those prior service incidents would have to be tried." (Dk. 78, p. 2-3).
Plaintiff's response is equally curt. Plaintiff states solely that she anticipates offering evidence from plaintiff or others "concerning the times that she or others visited the Wal-mart store in Great Bend, Kansas and specifically the tire and lube location of the store." (Dk. 76, p. 1). Specifically, plaintiff states that she expects to testify "that she has had the van serviced on a number of prior occasions and that she was never instructed to go to her vehicle while it was in the service bay to retrieve items." Id.
To the extent defendant's motion relates to plaintiff's specific testimony set forth above, the motion is denied. To the extent plaintiff or others may seek to admit evidence concerning times others visited the store, the court takes the motion under advisement, lacking the requisite knowledge of the specific evidence sought to be admitted, and invites plaintiff to supplement its response with whatever other specific testimony it anticipates eliciting relative to this motion. Plaintiff shall not refer to this evidence before the jury during voir dire, opening statement or in a question, nor elicit the same from a witness without first approaching the bench and making a complete proffer of this evidence.
The court notes that this issue will likely be resolved by application of the same rules which govern the admissibility of prior accidents to show lack of safety. Proof of other similar accidents at the same or a similar location "is often admitted as circumstantial evidence on many common issues" in negligence cases. See 1 Christopher B. Mueller Laird C. Kirkpatrick, Federal Evidence § 88 p. 438. "The evidence may tend to show a particular condition existed, that it was dangerous, that it is possible for such a condition to cause an accident, that the condition actually did cause the accident, or that the person responsible for the device or location knew or should have known of the condition." Id.; see, e.g., Four Corners Helicopters, Inc. v. Turbomeca, S.A., 979 F.2d 1434, 1440 (10th Cir. 1992) (evidence of other accidents is relevant to show notice, demonstrate the existence of a defect, or to refute the testimony of a defense witness); Simons v. Eaton Corporation, No. 93-1144-PFK, 1994 WL 721494, at *3 (D.Kan. Dec. 6, 1994) (evidence of other slip and falls offered to prove a dangerous condition and the defendant's constructive notice of it.)
Plaintiff will, of course, be subject to the general requirements of substantial similarity of conditions, reasonable proximity in time, and avoidance of confusion of issues, as will defendant in offering the absence of prior accidents. See Wheeler v. John Deere Co., 862 F.2d 1404, 1407 (10th Cir. 1988) (before evidence of other accidents is admissible for any purpose the party seeking its admission must show the circumstances surrounding the other accidents were substantially similar to the accident that is the subject of the litigation before the court); Horn v. Chicago, Rock Island Pac. Rd. Co., 187 Kan. 423, 425, 357 P.2d 815 (1960).
Where, as here, the evidence is offered to prove a dangerous condition, then a "high degree of similarity" is necessary. Four Corners Helicopters, Inc., 979 F.2d at 1440. "Once a court has determined that accidents are substantially similar, any differences in the circumstances surrounding those occurrences go merely to the weight to be given the evidence." Kinser v. Gehl Co., 184 F.3d 1259, 1273 (10th Cir. 1999) (quoting Ponder v. Warren Tool Corp., 834 F.2d 1553, 1560 (10th Cir. 1987)), cert. denied, 528 U.S. 1139 (2000). In sum, the admissibility of such testimony will depend on the purpose for which the plaintiff offers them, their substantial similarity to the accident here, and the probative value of that evidence not being substantially outweighed by Rule 403 factors.
Mode of Operation
The court notes plaintiff's allegation that such evidence is relevant because at least one of her negligence theories is based upon defendant's mode of operation. See Martin v. Wal-Mart Stores, Inc., 956 F.2d 278, 1992 WL 19835, at *2-*3 (10th Cir. 1992); Jackson v. K-Mart Corp., 251 Kan. 700 (1992). Under this theory, a proprietor can be liable for a dangerous condition on his premises caused by a third party even absent actual or constructive notice of the condition, where, based on the mode of operation of the business, the proprietor could reasonably foresee that the dangerous condition would regularly occur. Thus plaintiff can recover without showing the proprietor's actual or constructive knowledge of the condition "if the plaintiff shows the proprietor adopted a mode of operation where a patron's carelessness should be anticipated and the proprietor fails to use reasonable measures commensurate with the risk involved to discover the condition and remove it." Jackson, 251 Kan. at 709-711, citing 16 Kan. App. 2d at 723.
Three general theories are available under Kansas law for holding a commercial owner liable for a customer's injuries sustained from a slip and fall. The first is for transitory dangerous conditions traceable to the proprietor or its agents. Jackson, 251 Kan. at 704. Stated another way, this theory covers a customer's injuries resulting from dangerous conditions negligently created or maintained by the proprietor or his servants. Little v. Butner, 186 Kan. 75, 81, 348 P.2d 1022 (1960). Under this theory, "the condition is one which is traceable to the proprietor's own act, that is, a condition created by him or under his authority, or is one under his authority, or is one in which he is shown to have taken action." Id. The Kansas Supreme Court has said that "[t]here has been considerable latitude in the proximity said to be traceable." Jackson, 251 Kan. at 704.
This theory does not require the plaintiff to prove notice by the proprietor in order to prevail. Id. To recover under this theory, the plaintiff would have to prove that the condition which caused her fall in the service bay was created by a negligent act of the defendant or its employees.
The second theory is for transitory dangerous conditions not traceable to the proprietor or its agents, covering injuries to customers caused by dangerous conditions "coming about through no active fault of the proprietor and not involving an instrumentality employed by him in the conduct of his business." Little, 186 Kan. at 81. In order to prevail on this theory, plaintiff must prove, among other elements, that the defendant had actual or constructive notice of the dangerous condition.
The third possible theory is an exception to the notice requirement which has been termed the "Mode-of-Operation Rule." Jackson, 251 Kan. at 708. That theory focuses upon a business's choice of a particular mode of operation and not upon the events surrounding the plaintiff's accident. As stated above, under this rule, the plaintiff is not required to prove notice if the proprietor could reasonably anticipate that hazardous conditions would regularly arise.
The mode of operation rule has no application in this case. That rule applies only where plaintiff's injuries are caused by a dangerous condition created by a third party, and not by the proprietor. Here, the pretrial order properly makes no mention of the mode of operation theory of liability, and alleges solely that plaintiff's injuries arose from the acts or omissions of the defendant or its agents.
Because plaintiff alleges that her injuries resulted from a dangerous condition negligently created or maintained by the proprietor or his servants, plaintiff need not prove notice by the proprietor in order to prevail. Evidence relating to defendant's mode of operation is thus neither helpful nor necessary. Plaintiff will, of course, have to prove that the condition which caused her fall in the service bay was created by a negligent act of the defendant or its employees, among the traditional elements of a prima facie slip and fall case.
II. Defendant's May 6, 2002 motion
In this motion, (Dk. 80) defendant seeks to preclude plaintiff from mentioning the following items:
Wal-Mart's policies or standards; and Medical treatment and related billings not timely disclosed by plaintiff.
Defendant claims that certain documents and photographs in plaintiff's Exhibit List relating to defendant's policies and procedures are irrelevant, and if relevant, are more prejudicial than probative. Defendant believes that the jury will be confused because it will rely upon defendant's policies, rather than upon the law, in determining the standard of negligence.
Defendant's position is supported by Alvarado v. City of Dodge, 238 Kan. 48 (1985). In Alvarado, a false imprisonment case, the plaintiff claimed that the trial court erred in excluding evidence of defendant's own standards for detaining suspected shoplifters. The court held that evidence of defendant's policy was properly inadmissible, in these words:
These standards are obviously stricter than the probable cause test required by K.S.A. 21-3424. We agree with the Court of Appeals that a merchant's liability for false arrest should depend on the minimum legal standards established by statute rather than the merchant's own standards. A merchant should not be penalized for establishing higher standards for its employees than the applicable statutory standards. . . . We agree with the Court of Appeals that the trial court did not err in excluding this evidence.Alvarado at 185.
The court finds Alvarado persuasive. The photos and policies which plaintiff seeks to admit are likely to confuse the jury on the issue of standard of care because defendant's rules may demand a higher standard of care than the common law on negligence. Even if the court were to instruct the jury that the policies are not admitted as legal standards of duty, but as evidence of the measure of caution which ought to be exercised in situations to which the rules apply, see Robinson v. Missouri Pacific R. Co., 16 F.3d 1083, 1091 (10th Cir. 1994), the court remains concerned that the prejudicial effect of the evidence would outweigh its evidentiary value. Accordingly, plaintiff's exhibits 6, 14, 15 and 20-23 shall not be admitted for the purpose of showing a dangerous condition or lack of safety. To the extent plaintiff may seek to admit such evidence for another purpose, the court takes the motion under advisement and invites plaintiff to supplement its response stating that purpose.
Unsupplemented discovery — medical treatment and billing
Defendant next seeks to preclude plaintiff from admitting any evidence of medical treatment and/or billings which was not disclosed to defendant prior to the close of discovery, i.e., Sept. 31, 2000. Defendant states that plaintiff failed to supplement its discovery responses until approximately the date of the status conference, at which time defendant's counsel first learned, from examining the exhibit notebook plaintiff provided, that plaintiff's medical expenses had grown from approximately $9,000 on June 1, 2002 to over $84,562 as of April 22, 2002.
Trial is set for May 29, 2002. Defendant claims this is "classic prejudice," and trial by ambush, warranting a bar "from introducing medical evidence of any kind, beyond the $9,000 which was disclosed." (Dk.80, p. 5).
In her response, plaintiff does not allege that she ever supplemented her 1990 response. Instead, she alleges that defendant's allegation that she failed to supplement her answers to interrogatories is an "unfounded technicality." (Dk. 89, p. 5).
Specifically, plaintiff states that she disclosed the names and addresses of all plaintiff's medical care providers to defendant during discovery, that plaintiff timely executed medical authorization forms giving defendant "total access" to the records and bills of each of those providers, that defendant has been represented by two prior law firms in this case, and that such counsel used the medical authorization forms to seek and obtain plaintiff's medical records on one or more occasions.
Plantiff additionally shows the court that current defense counsel refused to stipulate to the foundation for plaintiff's medical bills and was personally given verbal and written notice in January of 2002 of evidentiary depositions of plaintiff's eight medical providers to occur in February and March of 2002. Despite his knowledge of these depositions relating to plaintiff's medical bills, defendant's counsel chose to appear at only two of the eight.
Defense counsel has filed a reply brief, tacitly admitting that he received timely notice of the depositions of plaintiff's medical providers, and stating that he elected not to appear at them because he believed they related solely to the $9,000 in medical expenses which plaintiff had disclosed.
Parties have a duty to supplement their initial disclosures and discovery responses at appropriate intervals during the discovery period. See Fed.R.Civ.P. 26(e)(1), (2). It is undisputed that plaintiff has failed to meet this duty. To show the court that the opposing party had a means to obtain the same information does not constitute the affirmative and requisite supplementation of initial disclosures or discovery requests by plaintiff which the rules require.
"The failure to comply with the disclosure requirements of the Rule frustrates the purpose of the Rules — the elimination of unfair surprise and the conservation of resources." Reed v. Binder, 165 F.R.D. 424, 431 (D.N.J. 1996). Plaintiff has the burden to show that she was substantially justified in failing to comply with Fed.R.Civ.P. 26(a). Nguyen v. IBP, Inc., 162 F.R.D. 675, 680 (D.Kan. 1995). Substantial justification in this context requires justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure request. See Pierce v. Underwood, 487 U.S. 552, 565 (1988). Here, the mere fact that a plaintiff has signed an authorization for release of medical records does not create a dispute as to compliance. Substantial justification has not been shown.
The selection and imposition of sanctions lies within the sound discretion of the court. See Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); D.Kan. Rule 11.1(c). Defendant seeks solely the sanction of exclusion of evidence. Although exclusion of evidence not properly disclosed is among the available sanctions, see Fed.R.Civ.P. 37(c)(1), that sanction is severe, and not usually appropriate. "Exclusion of evidence is a severe sanction because it implicates due process concerns." In re Indep. Serv. Orgs. Antitrust Litig., 168 F.R.D. 651, 653 (D.Kan. 1996). Courts will not generally impose such a drastic remedy, unless the failure to disclose or supplement is in bad faith or callous disregard of the discovery rules. See Tritchler v. Consolidation Coal Co., 91 F.3d 134, 1996 WL 379706, at *2 (4th Cir. 1996) (Table). No evidence of bad faith or callous disregard has been shown, and the court will not bar plaintiff from seeking to admit such evidence.
In evaluating the sanction to be imposed, the court weighs the prejudice, if any, to the opponent. Noncompliance with the disclosure requirements of Fed.R.Civ.P. 26(a) is harmless only when there is no prejudice to the opposing party. In re Indep. Serv. Orgs. Antitrust Litig., 168 F.R.D. at 653.
Defendant contends that plaintiff's failure to provide timely disclosures has prejudiced its ability to plan a defense strategy, conduct discovery, and perhaps retain a medical expert to address the damage claims of plaintiff. Although defendant may not have been aware of the extent of plaintiff's medical treatment and bills, defendant knew or should have known that plaintiff alleged physical injuries, that plaintiff had received some medical care, and that it was reasonably foreseeable that plaintiff would receive additional medical care and treatment between the close of discovery in 2000 and the trial date in 2002.
Taking additional discovery immediately prior to trial for the purpose of updating medical treatment and expenses is a common practice. By participating in the evidentiary depositions noticed by plaintiff, held in February and March of 2000, or merely by asking basic questions about the purpose and extent of such depositions, defendant could easily have avoided the prejudice that it now claims to have suffered. The parties' lack of reasonable communication is evident.
The court thus finds, under these unique circumstances, that defendant has waived any claim of prejudice, and shall consider plaintiff's noncompliance with the disclosure requirements of Fed.R.Civ.P. 26(a) to be harmless. The court chooses to leave the parties where it finds them, and will not look favorably upon any request for continuance of the trial date for the purpose of conducting additional discovery. IT IS THEREFORE ORDERED that plaintiff's motion in limine (Dk. 79) is denied, that defendant's first motion in limine (Dk. 73) is granted in part and denied in part in accordance with the terms of this order, and that defendant's second motion in limine (Dk. 80) is granted in part and denied in part in accordance with the terms of this order.