United States District Court, M.D. Louisiana
RULING AND ORDER
BRIAN A. JACKSON UNITED STATES DISTRICT COURT MIDDLE DISTRICT
the Court is PetSmart, Inc.'s Motion in Limine
(Doc. 26) to exclude the testimony of Matthew
D'Aubin. For the reasons that follow, the Motion
in Limine (Doc. 26) is DENIED.
Schilling sued PetSmart for negligence after she slipped and
fell in the vestibule of a Denham Springs, Louisiana PetSmart
store on a rainy day. (Doc. 1-1). To support her claim,
Plaintiff retained Matthew D'Aubin to inspect the
condition of the floor of the vestibule at the PetSmart
store. (Doc. 17-3). DAubin inspected the floor of the
vestibule on March 30, 2017-87 days after Plaintiffs January
2, 2017 fall. (Id.). It rained the day of the
inspection. (Id.). D'Aubin observed "that
the concrete floor where the shopping carts are housed was
wet and slippery" and that as it "continued to rain
... the concrete area in the vicinity of the shopping carts
became increasingly . . . wet and slippery."
moves to exclude D'Aubin's testimony on the grounds
that it is irrelevant and its probative value is
substantially outweighed by a danger of misleading the jury
and confusing the issues. (Doc. 26). PetSmart asserts
that D'Aubin's testimony about the condition of the
floor of the vestibule on March 30, 2017 has no bearing on
the condition of the floor of the vestibule on the date of
Plaintiffs fall. (Doc. 26-1 at p. 6). Plaintiff rejoins that
D'Aubin's post-incident investigation is relevant
because it tends to show that the floor becomes slippery when
it rains. (Doc. 34).
party objecting to the admission of evidence bears the burden
of showing that the evidence is inadmissible. Lyondell
Chem. Co. u. Occidental Chem. Corp., 608 F.3d 284, 295
(5th Cir. 2010).
asks the Court to exclude D'Aubin's testimony about
the condition of the floor of the vestibule because it is not
relevant. (Doc. 26 at p. 1). Evidence is relevant if it has
any tendency to make a fact of consequence more or less
probable than it would be without the evidence. Fed.R.Evid.
401. Evidence that is not relevant is not admissible.
Fed.R.Evid. 402. D'Aubin's testimony that the floor
of the vestibule was slippery on a rainy day 87 days after
Plaintiffs fall tends to make it more probable that the floor
of the vestibule was slippery on the rainy day that Plaintiff
has not identified any change in the condition of the floor
of the vestibule between the date of D'Aubin's
inspection and the date of Plaintiff s fall. Nor has PetSmart
shown that the weather conditions on the date of DAubin's
inspection differed from the weather conditions on the date
of Plaintiffs fall in a way that would diminish the relevance
of the testimony. D'Aubin's delay in inspecting the
floor of the vestibule goes to the weight of the testimony
and not to its admissibility. See F. W. Woolworth Co. v.
Seckinger, 125 F.2d 97, 98 (5th Cir. 1942) (holding that
lay-witness testimony about the condition of a floor
one-and-a-half months after an accident was relevant). So the
Court rejects PetSmart's relevance challenge to
PetSmart asks the Court to exclude D'Aubin's
testimony because it has low probative value and may mislead
the jury. (Doc. 26-1 at p. 1). The Court may exclude relevant
evidence if its probative value is substantially outweighed
by a danger of unfair prejudice, confusing the issues, or
misleading the jury. Fed.R.Evid. 403. PetSmart asserts that
D'Aubin's testimony about his post-incident
investigation will mislead the jury and spark a mini-trial on
the condition of the store's vestibule 87 days after
Plaintiffs fall. (Doc. 26-1 at p. 7). The Court disagrees.
the jury is capable of distinguishing between testimony about
the condition of the floor of the vestibule 87 days after
Plaintiffs fall and testimony about the condition of the
floor of the vestibule on the date of Plaintiffs fall. And
the Court will issue an instruction limiting the purposes for
which the jury can consider the testimony. See United
States v. Sanders, 343 F.3d 511, 518 (5th Cir. 2003)
("Under the Rule 403 standard, when the court issues a
limiting instruction, it minimizes the danger of undue
PetSmart's fear of a mini-trial is unjustified. (Doc.
26-1 at p. 7). The Court will not allow the parties to dwell
on D'Aubin's post-incident investigation: D'Aubin
may testify to his perception of the condition of the
vestibule floor on the date he inspected it and nothing more.
See Fed.R.Evid. 701.