Elliott v. Target Corporation, et al, No. 2:2011cv01215 - Document 57 (D. Nev. 2013)

Court Description: ORDER Denying 42 Motion in Limine. FURTHER ORDERED that 43 Motion in Limine is Granted in part and Denied in part. FURTHER ORDERED that 44 Motion in Limine is Granted in part and Denied in part. FURTHER ORDERED that 45 Motion in Limine is Granted in part and Denied in part. FURTHER ORDERED that 46 Motion in Limine is Granted in part and Denied in part. Signed by Judge James C. Mahan on 5/16/13. (Copies have been distributed pursuant to the NEF - MMM)
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Elliott v. Target Corporation, et al Doc. 57 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 8 9 10 11 2:11-CV-1215 JCM (NJK) MARSHA ELLIOTT, Plaintiff(s), v. TARGET CORPORATION, 12 Defendant(s). 13 14 ORDER Presently before the court is defendant’s motion in limine to preclude plaintiff’s claim for lost 15 16 income. (Doc. # 42). There is no response. Also before the court is defendant’s motion in limine to limit plaintiff’s claim for past 17 18 damages. (Doc. # 43). Plaintiff filed a response in opposition. (Doc. # 47). Also before the court is defendant’s motion in limine to preclude plaintiff’s claim for future 19 20 damages. (Doc. # 44). There is no response. 21 Also before the court is defendant’s motion in limine to exclude all references and/or 22 statements that defendant is avoiding responsibility for the subject incident. (Doc. # 45). Plaintiff 23 filed a response in opposition. (Doc. # 49). Also before the court is defendant’s motion in limine to limit evidence and argument 24 25 regarding duty and breach. (Doc. # 46). Plaintiff filed a response in opposition. (Doc. # 48). 26 ... 27 ... 28 James C. Mahan U.S. District Judge Dockets.Justia.com 1 I. Legal Standard 2 “Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the 3 practice has developed pursuant to the district court’s inherent authority to manage the course of 4 trials.” Luce v. U.S., 469 U.S. 38, 41 n.4 (1980). Judges have broad discretion when ruling on 5 motions in limine. See Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002); see also 6 Trevino v. Gates, 99 F.3d 911, 922 (9th Cir. 1999) (“The district court has considerable latitude in 7 performing a Rule 403 balancing test and we will uphold its decision absent clear abuse of 8 discretion”). 9 “[I]n limine rulings are not binding on the trial judge [who] may always change his mind 10 during the course of a trial.” Ohler v. United States, 529 U.S. 753, 758 n.3 (2000); accord Luce, 469 11 U.S. at 41 (noting that in limine rulings are always subject to change, especially if the evidence 12 unfolds in an unanticipated manner). “Denial of a motion in limine does not necessarily mean that 13 all evidence contemplated by the motion will be admitted at trial. Denial merely means that without 14 the context of trial, the court is unable to determine whether the evidence in question should be 15 excluded.” Indiana Ins. Co. v. Gen. Elec. Co., 326 F. Supp.2d 844, 846 (N.D. Ohio 2004). 16 II. The court will address each of the arguments in turn. Additionally, the court will address 17 18 Discussion only the facts necessary to resolve the instant motions in limine. 19 A. 20 Defendant seeks an order precluding plaintiff from presenting any claim for lost income. 21 Defendant argues that plaintiff’s claim is speculative in nature, plaintiff has no evidence to 22 demonstrate the amount of lost income sustained, and plaintiff did not designate an expert to offer 23 any opinions as to the amount of lost income. MIL # 1 24 At the time of the incident, plaintiff worked for Southwest Airlines as a flight attendant. 25 Plaintiff asserts that she missed 1,226 hours of work, which resulted in lost wages of over $70,000. 26 Additionally, plaintiff asserts she lost company 401(k) matches of approximately $11,000. 27 ... 28 James C. Mahan U.S. District Judge -2- 1 Plaintiff earns pay based on the miles she flies, not on hours worked. Defendant essentially 2 argues that there is no direct evidence of the amount of miles plaintiff would have flown, and, in 3 turn, the amount of income she would have received from those miles. Defendant also argues that 4 plaintiff’s income never reached $70,000 as a flight attendant, so plaintiff can not argue that $70,000 5 is the amount of her lost income. Finally, defendant argues that the jury would not be able to do the 6 math to come up with a damages figure since the jury could not just multiply hourly pay times hours 7 missed to arrive at a figure. 8 The court finds defendant’s arguments unpersuasive. Plaintiff has put on evidence that she 9 was employed at the time of the incident and that she missed time from work allegedly due to the 10 injury. If defendant believes that plaintiff exaggerates her damages figure then defendant may make 11 that argument to the jury. The is nothing for the court to do on this issue at this time. Finally, the 12 court finds that the jury, if it finds liability, will be able to compute a damages figure as juries do 13 across the country all the time. 14 The motion in limine (doc. # 42) is DENIED. 15 B. 16 The subject incident occurred on September 28, 2009. Plaintiff suffered a foot injury 17 allegedly due to Target’s negligence. On September 2, 2010, plaintiff saw her treating physician for 18 her injuries for the last time. MIL # 2 19 Defendant moves the court for an order prohibiting three types of damages: (1) medical 20 expenses occurred after September 2, 2010; lost wages that occurred after September 2, 2010; and, 21 pain and suffering that occurred after September 2, 2010. 22 Plaintiff will not seek damages for any medical expenses or lost wages occurring after 23 September 2, 2010, because there were none. However, plaintiff intends to offer evidence, plaintiff’s 24 own statements, about her pain and suffering after September 2, 2010. This is permissible under 25 Federal Rule of Evidence 701. 26 The court finds that plaintiff may not seek damages for any medical expenses or lost wages 27 after September 2, 2010, based on the alleged injury in this case. However, plaintiff may offer to 28 James C. Mahan U.S. District Judge -3- 1 the jury her personal statements regarding her pain and suffering. See Fed. R. Evid. 701. 2 The motion in limine (doc. # 43) is GRANTED in part and DENIED in part. 3 C. 4 The third motion in limine seeks an order from the court very similar in scope to the second 5 motion in limine. Defendant seeks an order from the court prohibiting plaintiff from seeking 6 damages for future medical expenses, future lost wages, and future pain and suffering. Plaintiff did 7 not file a response. MIL # 3 8 The outcome of this motion in limine is the same as motion in limine number two. Plaintiff 9 may not seek damages for future medical expenses or future lost wages because plaintiff has 10 provided no evidence that her injury will require future medical attention or that she will miss work 11 in the future because of her alleged injuries. However, plaintiff may offer her own opinion testimony 12 about her future pain and suffering. See Fed. R. Evid. 701. 13 The motion in limine (doc. # 44) is GRANTED in part and DENIED in part. 14 D. 15 Defendant’s fourth motion in limine seeks an order from the court prohibiting the plaintiff 16 from making arguments in opening or closing statements that defendant is “avoiding responsibility” 17 by going to trial. Defendant also seeks an order from the court prohibiting plaintiff from making 18 “send a message” statements or any other improper statements during opening and closing 19 statements. MIL # 4 20 Plaintiff responds by arguing that it will present evidence that defendant was negligent, and 21 defendant’s negligence caused plaintiff’s injury. After presenting such evidence, plaintiff states that 22 it will make an argument to the jury to not let the defendant “avoid responsibility” by not paying for 23 the harm it caused to plaintiff. Further, plaintiff seeks an order from the court prohibiting defendant 24 from making any improper statements during opening or closing statements. 25 As an initial matter, “[t]he court will conduct the trial pursuant to the Federal Rules of Civil 26 Procedure and the Federal Rules of Evidence. The court expects the parties to adhere to these rules.” 27 Conboy v. Wynn Las Vegas, LLC, no. 2:11-cv-1649-JCM, 2013 WL 1701073, at *11 (D. Nev. April 28 James C. Mahan U.S. District Judge -4- 1 18, 2013). 2 Plaintiff may not argue to the jury that defendant is “avoiding responsibility” by electing to 3 proceed to trial. If plaintiff presents evidence that the defendant may have been negligent then 4 plaintiff may characterize that evidence as she wishes, provided that no statements are improper. 5 See Jain v. McFarland, 851 P.2d 450, 457 (Nev. 1993) (“Counsel is allowed to argue any reasonable 6 inferences from the evidence the parties have presented at trial. During closing argument, trial 7 counsel enjoys wide latitude in arguing facts and drawing inferences from the evidence.”) (internal 8 citations omitted) 9 However, neither party may make improper comments during opening or closing, especially 10 if the statements are unsupported by any evidence. E.g., Alexander v. Wal-Mart Stores, Inc., no. 11 2:11-cv-752-JCM, 2013 WL 427132, at *5-6 (D. Nev. Feb. 1, 2013); see also Lioce v. Cohen, 174 12 P.3d 970, 984 (Nev. 2008) (“An attorney may not make a golden rule argument, which is an 13 argument asking jurors to place themselves in the position of one of the parties. Golden rule 14 arguments are improper because they infect the jury’s objectivity.”); DeJesus v. Flick, 7 P.3d 459 15 (Nev. 2000) (providing examples of attorney “arguments to the jury [that] far exceeded the 16 boundaries of professional conduct”), overruled on other grounds by Lioce v. Cohen, 174 P.3d 970 17 (Nev. 2008). 18 The motion in limine (doc. #45) is GRANTED in part and DENIED in part. 19 E. 20 Defendant’s final motion in limine seeks an order from the court prohibiting plaintiff from 21 presenting certain evidence and arguments about defendant’s alleged breach and duty. Defendant 22 attempts to reargue much of the merits of its summary judgment motion, which this court has already 23 denied. See Elliot v. Target Corp., no. 11-cv-1125, 2012 WL 3278629 (D. Nev. Aug. 9, 2012). MIL # 5 24 Plaintiff allegedly injured her foot while attempting to reach a mop hook. While plaintiff 25 reached to grab the hook she wished to purchase, it became entangled in the stacked wire shelves, 26 causing a shelf to fall on her foot. In the order denying summary judgment, this court stated that 27 “Target’s vertical stacking of the wire shelving, on an unsecured display, in close proximity to goods 28 James C. Mahan U.S. District Judge -5- 1 that may easily be caught on the tines of the wire shelf could be viewed by a jury as an unreasonably 2 dangerous stocking technique.” Elliot, 2012 WL 3278629, at *5. 3 Defendant now argues that plaintiff never designated an expert to testify that the method of 4 display was unreasonably dangerous. Defendant argues that this failure limits plaintiff in two ways. 5 First, plaintiff should not be allowed to argue that the display was unreasonably dangerous for any 6 of the following reasons: (1) because other retailers might display the items differently; (2) because 7 there might be better or safer ways to display items; and, (3) defendant did not comply with industry 8 standards. Defendant has provided no case law citations for these proposition. Additionally, the 9 court has already held in the order at summary judgment that the jury must determine the factual 10 issue of whether the wire shelving was unreasonably dangerous. Plaintiff may present her evidence 11 that the wire shelving was unreasonably dangerous, provided that evidence complies with the federal 12 rules. 13 Second, defendant argues that plaintiff should not be allowed to testify that in her opinion 14 of the items was unreasonably dangerous because she is not an expert. Plaintiff counters by arguing 15 that it is her theory of the case that defendant’s negligence created a foreseeable hazard and that 16 ordinary care means what a prudent person or entity would do in the same situation as defendant. 17 Plaintiff moves the court to permit her to testify the way the shelves were stocked and what occurred 18 when she attempted to retrieve items above the shelving. 19 The court finds that the lack of an “expert” in stocking shelves does not preclude a jury from 20 determining whether the shelves were stocked in an unreasonably dangerous manner. Plaintiff, 21 pursuant to Rule 701, may present her own opinions and evidence of the events that led to her foot 22 injury at Target. 23 This is as far as the court may go prior to trial. The court will enforce the Federal Rules of 24 Evidence. Either party may make specific objections that party believes are warranted during the 25 course of the trial. The motion in limine (doc. # 46) is GRANTED in part and DENIED in part 26 27 ... 28 James C. Mahan U.S. District Judge -6- 1 Accordingly, 2 IT IS HEREBY ORDERED, ADJUDGED, DECREED that defendant’s motion in limine 3 4 5 6 7 8 9 10 11 12 (doc. # 42) be, and the same hereby, is DENIED. IT IS FURTHER ORDERED that defendant’s motion in limine (doc. # 43) be, and the same hereby, is GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that defendant’s motion in limine (doc. # 44) be, and the same hereby, is GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that defendant’s motion in limine (doc. # 45) be, and the same hereby, is GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that defendant’s motion in limine (doc. # 46) be, and the same hereby, is GRANTED in part and DENIED in part. DATED May 16, 2013. 13 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -7-