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Porter v. Home Depot U.S.A., Inc.

United States District Court, E.D. New York

January 8, 2015

HOME DEPOT U.S.A., INC., Defendant.



Before the court is Plaintiff Lilly May Porter's ("Plaintiff" or "Porter") motion in limine to exclude Plaintiff's medical record of December 1, 2010, regarding a lump or nodule in her left palm and any testimony relating to that record. (Mot. in Limine ("Mot.") (Dkt. 27).) Defendant Home Depot U.S.A., Inc. ("Defendant" or "Home Depot") opposes this motion. (Opp'n to Mot. ("Opp'n") (Dkt. 32).) For the reasons discussed below, the court DENIES the motion without prejudice in part and RESERVES JUDGMENT in part.


Plaintiff brought this suit to recover for injuries allegedly incurred on December 15, 2010, in Defendant's Home Depot store, where she tripped and fell over a box that she claims was negligently "pushed into her path by an employee of Home Depot." (Pl.'s Detailed Statement of Damages ("Statement of Damages") (Dkt. 26) at 1; see also Mot. ¶ 2.) Plaintiff contends that Home Depot's negligence proximately caused the accident and her resulting injuries. (Joint Pretrial Order (Dkt. 24) ¶ 4.) Plaintiff primarily alleges injuries to her lower back, neck, right knee, and both shoulders. (Statement of Damages at 1-2.) She also notes having experienced pain, tinging, swelling, weakness, and numbness of her hands, in connection with these injuries. (See id. at 1-2; Mot. ¶ 2.)

Specifically, Plaintiff claims that she first began to experience "pains in her neck, lower back, right knee and both shoulders" after she left the Home Depot store on December 15, 2010. (Id. at 1.) On December 17, 2010, Plaintiff saw her primary care physician, David O. Hosten, M.D., and "complain[ed] of tingling in her hands, shoulder and wrist pain." (Id.; see also Mot. ¶ 2 (Plaintiff complained of "swelling and pain to her hands as well as a burning sensation in the left upper extremity'"); Opp'n at 1-2.) She alleges that she returned to Dr. Hosten on December 22, 2010, with similar complaints. (Statement of Damages at 1.) Plaintiff states that since December 2010 she has undergone extensive treatment for her injuries, including three surgeries, as well as injections and other medications for pain relief. (Id. at 1-2.) Plaintiff also reports that one effect of her injuries was "significant neck pain radiating into her hands, numbness, tingling and weakness, " which she experienced in Spring 2012. (Id. at 2.)

Plaintiff seeks damages in excess of $4 million (id. at 4), including past and future medical expenses, past and future pain and suffering, and past and future lost wages. (Joint Pretrial Order ¶ 4.) She estimates that her costs for future medical care are nearly $1.75 million. (Statement of Damages at 2-3.)

A trial is scheduled to begin with jury selection on January 12, 2015. (Oct. 1, 2014, Min. Entry; Dec. 17, 2014, Scheduling Order.) Plaintiff filed this motion on December 23, 2014, which Defendant opposed on December 31, 2014.


"The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence." Gorbea v. Verizon N.Y., Inc., No. 11-CV-3758 (KAM), 2014 WL 2916964, at *1 (E.D.N.Y. June 25, 2014) (citing Luce v. United States, 469 U.S. 38, 40 n.2 (1984); Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996); Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. L.E. Myers Co. Grp., 937 F.Supp. 276, 283 (S.D.N.Y. 1996)). "Evidence should be excluded on a motion in limine only when the evidence is clearly inadmissible on all potential grounds." United States v. Paredes, 176 F.Supp.2d 179, 181 (S.D.N.Y. 2001). "[C]ourts considering a motion in limine may reserve decision until trial, so that the motion is placed in the appropriate factual context." Jean-Laurent v. Hennessy, 840 F.Supp.2d 529, 536 (E.D.N.Y. 2011) (citing Nat'l Union Fire Ins. Co., 937 F.Supp. at 287). Further, a district court's ruling on a motion in limine is preliminary and "subject to change when the case unfolds." Luce, 469 U.S. at 41.


Plaintiff's motion concerns her medical record dated December 1, 2010, which apparently discloses that Plaintiff presented to her primary care physician, Dr. Hosten, on that date with a complaint or complaints regarding her left hand, and that Dr. Hosten made note of a "nodule" or "cyst" on her palm.[1] (See Mot. ¶ 6; Opp'n at 2.) Plaintiff contends that Defendant should be precluded from offering this record and "any testimony regarding same" as evidence at trial, on the grounds that: (1) Defendant had failed previously to raise any defense regarding causation of Plaintiff's injuries; and (2) the report submitted by Defendant's expert witness, Alexios Apazidis, M.D., M.B.A., fails to discuss the cyst or to disclose any opinion regarding causation, as required by Federal Rule of Civil Procedure 26(a)(2)(B). (Mot. ¶¶ 2, 5-6.)

In response, Defendant contends that it was not required to affirmatively raise a lack-of-causation defense, as is it Plaintiff who must prove causation and damages, and it denied Plaintiff's allegations of causation in its Answer. (Opp'n at 4-5.) Defendant argues that the medical record is relevant to causation and is admissible under the Federal Rules of Evidence.[2] (Opp'n at 2-3.) Defendant further notes that Dr. Apazidis's report discloses that he reviewed the medical record at issue, and that at trial Dr. Apazidis "will be asked to give his opinion based on the evidence that is then before the Court." (Opp'n at 1, 4.) Finally, Defendant notes that it had believed Plaintiff would herself be offering this record at trial, as Plaintiff's Exhibit 1 in the parties' Joint Pretrial Order is "[m]edical records and bills from Dr. David O. Hosten." (Opp'n at 5 n.3; see also Joint Pretrial Order at 10.)

A. The December 1, 2010, Medical Record

Relevant evidence is defined as evidence having "any tendency to make a fact [that is of consequence in determining the action] more or less probable than it would be without the evidence." Fed.R.Evid. 401. Relevant evidence is admissible unless the United States Constitution, a federal statute, the Federal Rules of Evidence, or other rules prescribed by the United States Supreme Court provide otherwise. Fed.R.Evid. 402. For example, relevant evidence may be excluded when "its probative value is substantially outweighed by a danger of... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence, " Fed.R.Evid. 403, or as a sanction for failure to ...

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