Dodson v. Belk, Inc.

362 F. Supp. 3d 1283
CourtDistrict Court, N.D. Georgia
DecidedNovember 2, 2018
DocketCIVIL ACTION NO. 1:16-CV-0416-CC
StatusPublished

This text of 362 F. Supp. 3d 1283 (Dodson v. Belk, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dodson v. Belk, Inc., 362 F. Supp. 3d 1283 (N.D. Ga. 2018).

Opinion

CLARENCE COOPER, SENIOR UNITED STATES DISTRICT JUDGE

This premises liability case is before the Court on the following motions: (1) Plaintiff Terri Dodson's Motion in Limine to *1287Exclude Defendant's Expert Amber Stern, PhD, P.E. [Doc. No. 67]; (2) Plaintiff's Motion in Limine to Exclude Defendant from Mentioning or Referring to Plaintiff's Prior Counsel [Doc. No. 68]; (3) Plaintiff's Motion in Limine to Exclude Defendant from Arguing or Presenting Evidence of a Defense of Superior Knowledge Regarding the Water on Its Floor [Doc. No. 69]; and (4) Defendant's Motion in Limine [Doc. No. 70]. The Court addresses each of the motions filed by Plaintiff Terri Dodson ("Plaintiff") and the motion filed by Defendant Belk, Inc. ("Defendant" or "Belk") in turn.

I. DEFENDANT'S EXPERT

Plaintiff moves the Court to exclude the opinions of Defendant's expert witness, Amber Stern, PhD, P.E. Plaintiff asserts that Dr. Stern's opinions fail to meet the standards set forth in Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

This Court's Local Rules provide the following regarding Daubert motions: "Any party objecting to an expert's testimony based upon Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) shall file a motion no later than the date that the proposed pretrial order is submitted. Otherwise, such objections will be waived, unless expressly authorized by court order based upon a showing that the failure to comply was justified." LR 26.2C, NDGa. Here, Plaintiff filed the instant motion over three months after the proposed pretrial order was submitted. While the motion is styled as a motion in limine, the motion is undoubtedly one objecting to an expert's testimony based upon Daubert. As such, the motion should have been filed no later than the date that the parties submitted the proposed pretrial order. Plaintiff has not shown that her failure to do so was justified. Accordingly, the Court finds that Plaintiff has waived her objections to the opinions and testimony of Dr. Stern, and the Court DENIES the Motion in Limine to Exclude Defendant's Expert Amber Stern, PhD, P.E.

II. PLAINTIFF'S PRIOR COUNSEL

Plaintiff next moves the Court to preclude Defendant or Defendant's counsel from soliciting testimony, attempting to qualify the jury, or testifying in any manner that Plaintiff had prior counsel. Plaintiff asserts that her prior lawyers do not retain any financial interest in this case and have no relevance to any fact at issue in the litigation. Therefore, Plaintiff urges that any mention to the jury or jury pool that Plaintiff had prior counsel would be unfairly prejudicial.

Defendant opposes Plaintiff's motion to the extent that it seeks to preclude Defendant from qualifying the jury as to Plaintiff's prior counsel. Defendant maintains that it is entitled to a complete and thorough voir dire process, and Defendant mentions that Plaintiff's prior counsel, Montlick & Associates, P.C., provided a letter of representation indicating that Plaintiff assigned them a portion of the eventual recovery in this case.

Plaintiff has since provided an email from one of her prior attorneys, Jason T. Schneider, in which he unambiguously states: "This will confirm that neither my firm nor Montlick & Associates have an attorney lien or other financial interest in this case." (Ex. A to Plaintiff's Reply to Her Motion in Limine to Exclude Defendant from Mentioning or Referring to Plaintiff's Prior Counsel [Doc. No. 82-1].)

*1288"The conduct of voir dire of prospective jurors is a matter directed to the sound discretion of the trial judge, subject to the essential demands of fairness." United States v. Brooks, 670 F.2d 148, 152 (11th Cir. 1982) (quotation marks and citation omitted). Given that Plaintiff's prior attorneys no longer have a financial interest in this case, the Court finds that qualifying jurors as to Plaintiff's prior counsel is unnecessary and could only be prejudicial.

For the above reason, and because Defendant has not made any arguments as to why it should be able to solicit testimony or testify in any manner that Plaintiff had prior counsel, the Court GRANTS Plaintiff's Motion in Limine to Exclude Defendant from Mentioning or Referring to Plaintiff's Prior Counsel.

III. DEFENSE OF SUPERIOR KNOWLEDGE

Plaintiff moves the Court to preclude Defendant from testifying as to when and how long the water was on the floor at the Belk store where Plaintiff fell. Relying on Federal Rule of Evidence 403, Plaintiff argues that such testimony should be excluded because Defendant failed to maintain the video surveillance footage of the day in question, which would indicate whether its employees should have known of the water's existence based upon their movements within the vicinity of the water. Essentially, then, Plaintiff's position is that Defendant committed spoliation of evidence by destroying or failing to preserve video evidence and that Defendant should be sanctioned in the form of not being able to present to the jury a defense of superior knowledge.

"Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." Graff v. Baja Marine Corp., 310 F. App'x 298, 301 (11th Cir. 2009) (internal quotation marks and citation omitted). A district court has broad discretion to impose sanctions for spoliation as part of its "inherent power to manage its own affairs and to achieve the orderly and expeditious disposition of cases." Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005).

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Bluebook (online)
362 F. Supp. 3d 1283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dodson-v-belk-inc-gand-2018.