Barnes v. Costco Wholesale Corp.
Barnes v. Costco Wholesale Corp.
2021 WL 6536673 (C.D. Cal. 2021)
March 26, 2021
Blumenfeld Jr., Stanley, United States District Judge
Summary
The Court ordered the parties to provide offers of proof for ESI by April 19, 2021. The Court also ruled on the parties' motions in limine, granting some and denying others, and reserving some for ruling until the parties provide an offer of proof as to each witness.
Eugene Barnes
v.
Costco Wholesale Corporation, et al
v.
Costco Wholesale Corporation, et al
Case No.: 2:19-cv-05782-SB (KSx)
United States District Court, C.D. California
Filed March 26, 2021
Counsel
Victor Cruz, Deputy Clerk, Attorney(s) Present for Plaintiff(s): None AppearingN/A, Court Reporter, Attorney(s) Present for Defendant(s): None Appearing
Blumenfeld Jr., Stanley, United States District Judge
Proceedings: ORDER ON MOTIONS IN LIMINE [DKT. NOS. 47, 48, 49, 50, 55, 56, 57, 58]
*1 The Court conducted a pretrial conference on March 26, 2021. The parties are to carefully read this order, which supplements the tentative order the Court provided the parties in advance of the pretrial conference. The trial, currently set for April 19, 2021, is CONTINUED to June 1, 2021 at 8:00 a.m. In light of the age of this case and the trial conditions caused by the pandemic, the Court intends to trail the trial as necessary to bring this case to conclusion.
The Court has reviewed the pretrial filings and is concerned that the parties intend to present a needlessly unwieldly case. For instance, Plaintiff intends to call 9 separate physicians. (See Dkt. No. 60.) To properly manage this case, the Court requires the parties to file the witness and exhibit information below by no later than April 19, 2021.
Witnesses. The parties are hereby ORDERED to resubmit a joint witness list that contains a specific offer of proof for each witness, describing in detail (a) each specific subject about which the witness will testify, (b) the relevance of each subject, (c) the admissibility of each subject under Rules 402 and 403 of the Federal Rules of Evidence; and (d) the amount of time anticipated on direct examination and cross-examination on each subject. The failure to provide the specific information required may result in exclusion of evidence or appropriate sanctions. The parties must file this joint witness list by no later than April 19, 2021. The parties shall meet and confer in preparing this joint witness list by no later than April 5, 2021, and continuing as necessary, and shall cooperate in reasonably identifying the time needed for direct examination and cross-examination on each subject.
Exhibits. The parties are also ORDERED to meet and confer about the exhibits intended to be introduced at trial. Each exhibit must be introduced for admission as a whole rather than a portion thereof. For example, if a party seeks to introduce a portion of medical records, the portion to be introduced must be presented as its own exhibit (and not as a part of a whole). This applies to all evidence, including photographs and other reproductions or depictions.
On or before April 19, 2021, the parties are ordered to resubmit a joint exhibit list that contains each exhibit to be admitted in the table form below with the first five columns completed by the parties in full:
Ex. No. Description Stipulation Objection Response [Ruling]
Motions in Limine. The Court has reviewed the parties' motions in limine (Dkt. Nos. 47-50, 55-58) and hereby rules as follows (after hearing from the parties at the pretrial conference):
DEFENDANT'S MOTIONS IN LIMINE
1. Motion in Limine to Exclude Plaintiff's Deposition Errata re Date of Taking Photographs [Dkt. No. 47]
Defendant seeks to exclude changes to Plaintiff's deposition testimony regarding the date he took pictures of the boxes that fell upon him causing him injury. At this deposition, Plaintiff testified that he did not take the pictures the same day, but returned to the store at a later date to take the pictures. A month and a half after his deposition, Plaintiff, through his attorneys, sent a letter to Defendant to inform it that after reviewing the timestamps, he did in fact take the pictures on the same day. Plaintiff did not sign any errata sheet memorializing his change in testimony.
*2 Defendants seek to exclude this testimony because his letter was not signed under penalty of perjury and that his letter constitutes hearsay evidence. Defendant further objects to the changes on the grounds they are contradictory instead of corrective. Plaintiff contends that the changes in his testimony are corrective, because he testified that he could not remember at his deposition with certainty when he took the photos. Plaintiff also argues that Defendant has acquiesced to the changes by failing to respond to his letter or ask for further verification.
Defendant's first motion in limine is DENIED. The issue raised is one of potential impeachment not exclusion. Compare Hambleton Brothers Lumber Co. v. Balkin Enterprises, Inc., 397 F.3d 1217, 1225-26 (9th Cir. 2005) (addressing “sham” affidavit rule in the separate context of summary judgment).
2. Motion in Limine to Exclude Evidence Not Identified or Produced Per Rule 26 or Discovery, Including Four Photographs [Dkt. No. 48]
Defendant's second motion in limine seeks to exclude four photographs not identified in Plaintiff's initial Rule 26 disclosures or produced in discovery, but were introduced during Defendant's 30(b)(6) deposition. Defendant also argues that these photos lack foundation and authentication and are irrelevant and prejudicial. Plaintiff admits the photographs were not “produced pursuant to discovery.” But Plaintiff contends the delay was justified because Defendant withheld information about the weight of the boxes (and curiously suggests that it was proper to withhold evidence because the defense also withheld evidence). Plaintiff further represents that the photos are to be used for demonstrative purposes.
Plaintiff's counsel is to submit a declaration, by April 2, 2021, stating when the photographs were taken, by whom, and explaining the failure to produce them (including whether this was a deliberate choice). The Court reserves ruling on this motion.[1] The parties are also ordered to meet and confer to determine whether they can stipulate to the approximate weight of the boxes by obtaining reliance information from the manufacturer (or other reliable source).
3. Motion in Limine to Exclude or Limit Testimony of Plaintiff's Non-Retained Expert Alan Moellken, M.D. [Dkt. No. 49]
Defendant's next motion in limine seeks to exclude or limit Dr. Moellken's testimony as duplicative or cumulative under Federal Rule of Evidence 403. Defendants also contend that Dr. Moellken is acting as a retained expert, not a treating physician and was required to submit an expert report under Rule 26. Plaintiff responds that Dr. Moellken's proffered testimony is limited to Plaintiff's spine, not his shoulder, and is therefore not duplicative. Plaintiff likewise argues that Dr. Moellken was not required to prepare an expert report because he was Plaintiff's treating physician for his spinal care and pain management.
The Court cannot conclude from the proffered facts that Dr. Moellken's testimony is duplicative or improper at this juncture. To the extent the Court permits his testimony, he will not be permitted to testify beyond what is permitted as a treating physician. The Court reserves decision until the parties provide an offer of proof as to each witness to allow an informed decision about duplication and other issues under Fed. R. Evid. 403.
4. Motion in Limine to Exclude Evidence of Other Incidents, Other Products and Other Costco Warehouses [Dkt. No. 50]
*3 Defendant's final motion in limine seeks to exclude evidence of customers being injured at other Costco warehouses. Defendant argues that such incidents are irrelevant and prejudicial. Defendant further argues that even if such evidence were admissible, Plaintiff would need to show substantial similarity between the incidents. Plaintiff confusingly responds by addressing Defendant's alleged polices and/or procedures (or lack thereof) and, without offering any showing, contends that “Costco has a history of similar incidents, where similarly placed items, on the edge of pallets, [have] fallen on members, without warning” and that Defendant has “willfully and intentionally withheld evidence.”
The Court GRANTS the motion on this record subject to reconsideration. If Plaintiff wishes to introduce this evidence at trial, he will have to provide a detailed offer of proof in writing by no later than April 19, 2021 describing (a) the precise evidence to be introduced, (b) the foundation for the evidence, (c) the specific relevance of the evidence, and (d) the amount of time anticipated to present the evidence. Plaintiff is cautioned that he must make a specific showing of substantial similarity between any alleged accidents. See Daniel v. Coleman Co., Inc., 599 F.3d 1045, 1048 (9th Cir. 2010). Plaintiff should also cite to the record when relying on the record.
PLAINTIFF'S MOTIONS IN LIMINE
1. Motion in Limine to Exclude Defendant's Expert Ned Wolfe [Dkt. No. 55]
Plaintiff first seeks to exclude the testimony of Ned Wolfe, Defendant's liability expert. Specifically, Plaintiff seeks to exclude Wolfe's testimony regarding the amount of force required to knock over a box of merchandise and that the boxes were “statistically stable.” Plaintiff argues that Wolfe's testimony is not based on any facts or data, but rather speculation and hearsay. Defendant responds that (1) Wolfe's testimony is based on an invoice sheet containing the weight of the boxes, and (2) to the extent that his opinions are based on hearsay or other potentially unreliable date, those challenges go to the weight of his testimony rather than its admissibility.
The Court will await ruling until trial and may allow voir dire of the expert outside the presence of the jury. In providing the requisite offer of proof, Defendant is reminded to take care to provide all the opinions that will be offered and the specific grounds for each opinion.
2. Motion in Limine to Exclude Defendant's Expert Dr. Omid Komari, Ph.D. [Dkt. No. 56][2]
Plaintiff's next motion in limine is to exclude testimony from Defendant's biomechanical expert, Dr. Komari. Plaintiff seeks to exclude Dr. Komari's testimony about the amount of force required to knock over the boxes at issue in this case on the grounds that his testimony lacks a factual basis—specifically, the weight of each box. Subject to a proper foundation being established at trial, the motion is DENIED.
3. Motion in Limine to Exclude Defendant's Expert Dr. Ronald Kvitne [Dkt. No. 57]
Plaintiff's third motion in limine is to exclude testimony from Defendant's medical expert, Dr. Ronald Kvitne. Specifically, Plaintiff seeks to exclude Dr. Kvitne's testimony about the reasonableness and necessity of Plaintiff's medical treatment and the value of the care Plaintiff received. Plaintiff contends that Dr. Kvitne's opinions lack foundation and characterizes his Rule 26 report as “sketchy.” Finally, Plaintiff argues that Dr. Kvitne should be precluded from testifying regarding the causation of Plaintiff's injuries. Defendant responds that bases for Dr. Kvitne's opinions are accurately disclosed in his report.
*4 Plaintiff offers no convincing reason to exclude Dr. Kvitne's testimony at this time. Plaintiff's third motion in limine is DENIED without prejudice.
4. Motion in Limine to Exclude Prejudicial Evidence of Plaintiff's Alcohol Use and Purchase [Dkt. No. 58]
Plaintiff's final motion in limine seeks to exclude reference to Plaintiff's alcohol consumption and the receipt of Plaintiff's purchase of six handles of vodka. Plaintiff contends that such evidence is unduly prejudicial under Rule 403. Defendant contends that the evidence is more probative than prejudicial because Plaintiff's alcohol consumption provides important context to Plaintiff's medical treatment, particularly his ability to take prescription medication, and his ability to recover from the incident. Defendant also argues that the receipt shows that Plaintiff was able to continue shopping for 23 minutes after the alleged incident.
Plaintiff's fourth motion in limine is GRANTED in part. Defendant has not persuaded the Court that alcohol use is relevant to any specific medical issue in this case, and that evidence is excluded. To the extent that Defendant wishes the Court to revisit this issue, it shall submit a detailed offer of proof by April 19, 2021, disclosing the expert(s) who will testify to the medical relevance and what the expert(s) will say. Defendant may not refer to the alcohol contents of the receipt and may not introduce it into evidence, unless Plaintiff opens the door (e.g., by denying that he remained in the store to shop). The Court also will consider allowing the receipt to be admitted with redactions if Defendant proposes such admission.