*1 Plaintiffs' Motion in Limine [73] requests a determination that Defendant's purported spoliation of evidence in this case entitles Plaintiff to “a jury instruction that a presumption exists that the missing video footage would have been unfavorable to the Defendant and that the jury may take all negative inferences it so choses therefrom.” Although Defendant produced video depicting the event from a single security camera, Plaintiffs contend that additional footage was not turned over and is now unrecoverable. Specifically, Plaintiffs claim that Defendant should have preserved an additional view of the slip and fall and should have recorded a greater lapse of time.

Based on the record before the Court, Plaintiff Jolynne Overpeck fell at the subject store on September 27, 2011. On October 18, 2011, twenty-one days after the incident, Plaintiffs' counsel mailed a letter to Defendant's insurance adjuster requesting relevant video footage from the store. On November 10, 2011, the insurance adjuster sent a letter to Plaintiff's counsel indicating that the video was Defendant's proprietary work product and would not be produced. According to Defendant, the electronic footage recorded on the store's surveillance system generally remains available for twenty-one or twenty-two days after filming. If it is not extracted before that time, it is thereafter overwritten for newer footage. According to Bryan Gardner, the manager at Roger's, he extracted what he considered to be the “best” footage of the incident on the day of or day following the accident. He further testified, however, that he usually preserves a few minutes preceding and a few minutes following the subject event. Here, Gardner preserved three and half minutes of video prior to Plaintiff's slip and fall and seven minutes afterward.

In this diversity case, federal law applies to the issue of spoliation. King v. Ill. Cent. R.R., 337 F.3d 550, 555 (5th Cir. 2003) (articulating that federal law controls when addressing spoliation and noting that “[e]videntiary ‘presumptions' which merely permit an adverse inference based on unproduced evidence are, likewise, controlled by federal law.”); Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005) (concluding “that federal law applies because spoliation sanctions constitute an evidentiary matter”). Under the spoliation doctrine, a jury may be instructed “that a party who intentionally destroys important evidence in bad faith did so because the contents of those documents were unfavorable to that party.” Russell, 234 Fed.Appx., at 207. That inference, however, is contingent on the “bad conduct” of the defendant and “mere negligence” is insufficient to warrant such an instruction. King, 337 F.3d at 556 (holding that plaintiff must establish “bad conduct”); Russell v. Univ. of Texas, 234 Fed.Appx. 195, 208 (5th Cir. 2007) (noting that negligent conduct is insufficient to warrant a jury instruction).

In Stahl v. Wal-Mart Stores, Inc., another Mississippi district court was forced to consider whether summary judgment was appropriate as a potential sanction based on defendant's purported spoliation of evidence. 47 F. Supp. 2d 783, 786 (S.D. Miss. 1998). There, the plaintiff fell as a result of slipping on a clear liquid that defendant determined to have come from a leaking bottle of tire glaze. Id. at 784. According to defendant, that leak was caused by a faulty cap that was cracked, broken, or loose. Id. Although defendant had a corporate policy that mandated preserving evidence related to store accidents, a store employee nonetheless disposed of the subject bottle after the incident. Id. Plaintiff further put forth evidence that store employees had received training regarding the evidentiary preservation policy. Id. at 787. In considering whether defendant's conduct arose to the level of “bad faith” necessary to justify the more severe sanction of dismissal, the court noted that “plaintiff would not be entitled even to an ‘adverse inference,’ much less to summary judgment, unless she were to prove that [defendant] intentionally discarded the tire glaze bottle.” Id. at 786. Based on the court's review of the record, the evidence presented “would not necessarily lead to a finding that [defendant] intentionally disposed of the bottle and in so doing, acted in bad faith.” Id. at 787.

*2 In the case at bar, the uncontroverted testimony establishes that electronic surveillance footage is available on the store's recording system for twenty-one or twenty-two days after filming. Further, the testimony reveals that, Gardner's policy was to extract and preserve relevant footage shortly after any such incident. According to his testimony, he usually preserves a few minutes prior to the subject event and a few minutes following the subject event. Here, he preserved footage from the time Plaintiff Jolynne Overpeck appeared in the camera's focus until seven minutes after the fall. Although Plaintiffs make much of the fact that all relevant video footage was requested in a letter sent to the insurance adjuster, that letter was not sent until twenty-one days after the incident. Further, Gardner testified that he chose to preserve the footage from one specific camera because it provided the best view of the scene. Based on the current record, the Court is unable to find that the deletion of the other camera angle or other footage was attributable to bad faith as opposed to negligence or inadvertence. As articulated by the Fifth Circuit, “[t]ypically, we do not draw an inference of bad faith when documents are destroyed under a routine policy.” Russell, 234 Fed.Appx. at 208 (citation omitted). Plaintiffs' showing here is simply insufficient to establish that the evidence was not destroyed pursuant to Defendant's typical policy, and the Court therefore refuses to administer a spoliation instruction.

Conversely, Defendant has filed its own motion in limine regarding the lost footage, attempting to exclude “[a]ny evidence, testimony, or argument that there is somehow not ‘enough’ video footage.” According to Defendant, such evidence would be irrelevant and should be excluded pursuant to Federal Rules of Evidence 401, 402, and 403. In response, Plaintiffs simply reiterate the arguments previously made in support their own motion in limine and argue that Mississippi law controls whether a spoliation inference is proper. Although the Court has already determined that Plaintiffs have failed to establish the requisite “bad faith” showing necessary to avail themselves of a spoliation instruction, see King, 337 F.3d at 556, the Court defers ruling on whether any questioning regarding the mere past existence of additional footage will be precluded until trial. At that time, and outside the presence of the jury, the Court will determine whether the relevance of such evidence is substantially outweighed by its potential for undue prejudice. As such, Defendant's motion [77] is also denied.

Defendant has additionally filed a motion to limit or exclude testimony and for partial summary judgment [42], contending that “Plaintiff has not and, at this juncture, cannot produce competent evidence to establish, with reasonable certainty, the cost of any alleged future surgery she may require.” According to Defendant, “[b]ecause there is no testimony establishing future medical expenses beyond the equivocal and speculative testimony offered by [Plaintiff's expert], there is no evidence or basis to support a jury finding of damages for future surgery and all testimony from Plaintiff or witnesses called on her behalf regarding future surgery or the costs associated therewith must be excluded.” In light of this, Defendant posits that it “is entitled to partial summary judgment dismissing Plaintiff's claims for such damages as there is no proof for jury consideration on this point.”

In support of the claim for damages, Plaintiffs have largely relied on the expert testimony of Dr. Randall Frazier, an orthopedic surgeon who performed surgery on Plaintiff's knee on November 9, 2011. During Frazier's deposition, he testified that he anticipated additional problems with Plaintiff's knee that would eventually precipitate the need for a partial knee replacement. As to the cost of that procedure, he initially indicated that $100,000 was a reasonable estimate. He then, however, indicated that such a figure was appropriate for a full knee replacement rather than the partial replacement required by Plaintiff. According to Frazier, that would reduce the cost by $15,000 to $20,000. Additionally, Frazier testified that “you could say she was on the road to [requiring a partial knee replacement] in the future” regardless of the injury suffered on the subject date.

Defendant primarily complains that Frazier's evaluation of the cost of the procedure is inadmissible because the specific cost given by Frazier was too speculative. Additionally, however, Defendant argues that there is insufficient evidence that the subject incident necessitated the future surgery.

*3 Indeed, for a medical expert's opinion to be admissible, the expert must be able to articulate that there is more than a mere possibility that a causal relationship exists between a specific action and injury. Ellis v. Packnett, 2007 WL 2900451, *1 (S.D. Miss. Sept. 28, 2007) (citing Spaulding v. United States, 241 Fed.Appx. 187, 190 (5th Cir. 2007)). If a physician cannot provide an opinion with sufficient certainty, that testimony should be excluded. Id.

In Spaulding, the Fifth Circuit articulated that under Mississippi law, expert testimony regarding medical causation is not probative unless it is stated in terms of probabilities, not possibilities. 241 Fed.Appx. at 190. Notably, however, such a requirement does not mandate that an expert use a specific word before his opinion may be allowed. Id. (citing Daughtery v. Conley, 906 So. 2d 108, 110 (Miss. Ct. App. 2004)); see also Vanlandingham v. Patton, 35 So. 3d 1242, 1249 (Miss. Ct. App. 2010) (noting that the expert is not required to use “magical language.”). An expert need not testify with absolute certainty, and the ultimate question remains whether the expert's testimony is reliable. Id. (citing Pittman v. Hodges, 462 So. 2d 330, 333-34 (Miss. 1984)); see also Kidd v. McRae's Stores P'ship, 951 So. 2d 622, 626 (Miss. Ct. App. 2007) (noting that the intent of the law is that “if a physician cannot form an opinion with sufficient certainty so as to make a medical judgment, neither can a jury use that information to reach a decision.”).

The Court is satisfied that Frazier has stated that the Plaintiff's injury was the result of the subject incident in terms of a reasonable degree of medical certainty. Although Frazier stated that Plaintiff was “on the road” to requiring the corrective surgery, he also stated:

Accordingly, Plaintiffs will not be precluded from offering such portions of Frazier's testimony at trial, and the Court finds that Plaintiff has provided sufficient evidence of future damages at the present juncture.

Moreover, as to the amount of those damages, the Court determines that Defendant's objection is better suited for adjudication at trial. Although Frazier initially provided an estimate for a total knee replacement and then subtracted in order to reach the cost for a partial knee replacement, the Court declines to strike such testimony on the present record. Instead, the Court will defer ruling on the admissibility until trial at which time the Court may better gauge the reliability of the testimony. Upon Defendant's renewed objection, the testimony may be disallowed unless, outside the presence of the jury and to the court's satisfaction, Plaintiffs can establish that the opinion is reasonably certain and based on a reliable methodology. Further, Defendant's motion for partial summary judgment is denied on the basis that Plaintiffs have provided sufficient evidence that the future surgery is causally related to the subject incident. Accordingly, Defendant's motion [42] is denied.

*4 Defendant seeks to preclude Plaintiffs from making reference to a number of issues such as insurance coverage, insurance investigations, and previously undisclosed damages. Defendant further seeks to bar testimony from previously undisclosed witnesses and to preclude lay witnesses from testifying to expert matters. Plaintiff has failed to respond to that motion. To the extent Defendant request that the Court enforce the Federal Rules of Evidence, the motion is granted. All other issues can be handled by objection at trial.

For the reasons set forth above, Plaintiffs' Motion in Limine [73] is DENIED, Defendant's Motion in Limine [76] is GRANTED, Defendant's Motion in Limine [77] is DENIED, and Defendant's Motion to Exclude Testimony and for Partial Summary Judgment [42] is DENIED.

SO ORDERED, this the 10th day of February, 2014.