UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) JOHNNY CHARLES ) ) Plaintiff, ) v. ) No. 1: 16-cv-02054 (GMH) ) HOME DEPOT U.S.A., INC. ) ) Defendant. ) __________________________________________)

MEMORANDUM OPINION AND ORDER

Plaintiff Johnny Charles has sued Defendant Home Depot U.S.A., Inc., for damages

stemming from an injury he sustained at one of Defendant’s stores. Three motions are currently

pending before the Court: Defendant’s motion in limine to exclude certain evidence from trial,

Defendant’s motion to strike Plaintiff’s memorandum in opposition to Defendant’s motion in

limine, and Plaintiff’s motion for an extension of time to file a response to Defendant’s motion in

limine. For the reasons discussed below, the Court will grant in part Defendant’s motion in limine

but will defer ruling on Defendant’s request to exclude evidence that may be relevant for

impeachment. The Court will also deny Defendant’s motion to strike and grant Plaintiff’s motion

for an extension of time nunc pro tunc.

I. BACKGROUND

Plaintiff initiated this lawsuit in October 2016 alleging that, while he was visiting one of

Defendant’s stores, he stumbled on a hole in the floor and suffered an injury to his ankle. ECF

No. 1 at 2–3. In February 2019, the Court set a September 2019 trial date. Minute Entry dated

February 27, 2019. In July 2019, the Court entered an order (“Pretrial Order”) establishing, among

other things, the following deadlines: August 7, 2019, for the filing of motions in limine; August 14, 2019, for the filing of oppositions to any such motions; and August 21, 2019, for the filing of

replies to any oppositions. ECF No. 33 at 5.

Consistent with the schedule set in the Pretrial Order, on August 7, 2019, Defendant filed

the motion in limine at issue here, 1 seeking to exclude from trial “[a]ny and all evidence or

arguments of any actions taken by . . . [Defendant] following [Plaintiff’s injury],” in particular

Plaintiff’s testimony that, after his injury, one of Defendant’s employees placed a caution sign

over the hole in the floor on which he stumbled, and then filled in the hole. ECF No. 36 at 1. In

support of that motion, Defendant primarily relies on Federal Rule of Evidence 407, which

provides that, “[w]hen measures are taken that would have made an earlier injury or harm less

likely to occur, evidence of the subsequent measures is not admissible to prove: negligence;

culpable conduct; a defect in a product or its design; or a need for a warning or instruction.” Fed.

R. Evid. 407; ECF No. 36-1 at 1–2. On August 21, 2019—one week after the Pretrial Order’s

deadline for filing oppositions—Plaintiff filed his opposition to Defendant’s motion in limine

arguing that he intends to submit evidence of the caution sign for impeachment purposes, to prove

the feasibility of precautionary measures, and to prove the existence of the hole. ECF No. 37.

Plaintiff contends that these purposes are permissible under Rule 407. Id. Defendant moved to

strike Plaintiff’s opposition, noting that it was filed one week after the deadline in the Court’s

Pretrial Order. ECF No. 38. On September 6, 2019, Plaintiff filed an opposition to Defendant’s

motion to strike and simultaneously moved for an extension of time to file a response to

Defendant’s motion in limine, thus he essentially requests a retroactive extension of time to file a

response to Defendant’s motion in limine. ECF Nos. 39, 41. In other words, if Plaintiff’s motion

1 Defendant filed another motion in limine on August 7, 2019 (ECF No. 35), which the Court granted as conceded. Minute Order dated Sept. 20, 2019.

2 were granted, his opposition would be deemed timely filed. ECF No. 39 at 3. Meanwhile, on

August 28, 2019, the Court vacated the September 2019 trial date. Minute Order dated August 28,

2019. The trial date has since been rescheduled for March 2022. Minute Entry dated September

24, 2021.

For the reasons that follow, the Court will deny Defendant’s motion to strike, grant in part

Defendant’s motion in limine, and grant Plaintiff’s motion for an extension of time. 2

II. DISCUSSION

A. Motion to Strike

Beginning with Defendant’s motion to strike, Defendant argues that Plaintiff’s opposition

to Defendant’s motion in limine should be stricken as untimely because it was filed on August 21,

2019—i.e., one week after the Pretrial Order’s August 14, 2019 deadline for oppositions to

motions in limine. ECF No. 38 at 1. In response, Plaintiff cites Rule 6(b)(1)(B) of the Federal

Rules of Civil Procedure, which provides that, “[w]hen an act . . . must be done within a specified

time, the court may, for good cause, extend the time . . . on motion made after the time has expired

if the party failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B); ECF No. 39 at

2. Specifically, Plaintiff’s counsel asserts that his delay in filing the opposition resulted from

excusable neglect because, in calculating his deadline, he “neglected to consult the [ ] Pretrial

Order” and instead relied on Local Rule 7(b), which states that oppositions to motions must

generally be filed within two weeks after the filing of corresponding motions. ECF No. 39 at 2;

LCvR 7(b).

2 The relevant docket entries for purposes of this Memorandum Opinion and Order are (1) Defendant’s motion in limine (ECF No. 36), (2) Plaintiff’s memorandum in opposition to Defendant’s motion in limine (ECF No. 37), (3) Defendant’s motion to strike Plaintiff’s opposition and reply in support of its motion in limine (ECF No. 38), (4) Plaintiff’s memorandum in opposition to Defendant’s motion to strike (ECF No. 39); (5) Plaintiff’s surreply in opposition to Defendant’s motion in limine (ECF No. 40); and (6) Plaintiff’s motion for an extension to time. The page numbers cited herein are those assigned by the Court’s CM/ECF system.

3 In determining whether a party has demonstrated excusable neglect, the Court has

extensive discretion, see Yesudian ex rel. United States v. Howard University,

(D.C. Cir. 2001), and undertakes its analysis by considering the following factors: (1) the prejudice

to the opposing party; (2) the length of the delay and its potential impact on the judicial

proceedings; (3) the reason for the delay, including whether it was within the control of the party

seeking an extension; and (4) whether the party seeking an extension acted in good faith. Pioneer

Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship,

(1993); see also In re Vitamins

Antitrust Class Actions,

(D.C. Cir. 2003) (applying the Pioneer factors).

“Where . . . no excusable neglect [is] shown, the late filing is not permitted.” Am. Land

Acquisition, Corp. v. Pergament, No. 13 CV 4357,

, at *5 (E.D.N.Y. Mar. 6,

2014) (alterations in original) (quoting In re Lynch,

(2d Cir. 2005)). In making

an excusable neglect determination, “the [third] Pioneer factor—fault—is ‘perhaps the most

important single factor.’” Jarvis v. Parker,

(D.D.C. 2014) (quoting Inst. for

Policy Studies v. CIA,

(D.D.C. 2007)); see also Wilson v. Prudential Fin.,

(D.D.C. 2003) (describing fault as the “key factor” in excusable neglect analysis).

Here, the first, second, and fourth Pioneer factors weigh strongly in Plaintiff’s favor.

Defendant would not be prejudiced if the Court considered Plaintiff’s delayed opposition in ruling

on its motion in limine because trial was reset for March 2022, the parties have had ample time to

prepare for it, and Plaintiff’s delayed filing had no material effect on the proceedings. Also, the

length of the delay—one week—was short and, again, did not impact judicial proceedings given

that the September 2019 trial date was vacated, and the trial was rescheduled for March 2022. Cf.

D.A. v. District of Columbia, Civil Action No. 07–1084,

, at *3 (D.D.C. Dec. 6,

2007) (finding that a delay of “approximately two weeks” weighed in favor of excusable neglect),

4 report and recommendation adopted,

(D.D.C. Jan. 8, 2008); see also Cryer

v. InterSolutions, Inc., No. 06–cv–2032,

, at *6 (D.D.C. Apr. 20, 2007) (finding

that the length of the delay was “not great” where a motion was filed 22 days after the deadline).

Furthermore, there is no reason to believe that Plaintiff’s counsel acted in bad faith.

Turning to the third factor—the reason for delay—the Court finds that Plaintiff’s mistaken

reliance on the Federal Rules of Civil Procedure in determining the opposition deadline ultimately

does not outweigh the other three Pioneer factors. The D.C. Circuit’s decision in Yesudian is

instructive. There, the court considered whether the district court’s acceptance of a late filing

constituted a reversible error where counsel “mistaken[ly] reli[ed] on the D.C. Superior Court rules

in lieu of those for the federal district court for the District of Columbia.”

. The

Circuit noted that such a mistake was “[f]oolish,” but ultimately deferred to the district court and

upheld its decision to accept counsel’s late filing. The Circuit emphasized that the district court

had determined there was no prejudice from the delayed filing, the delay was brief—one week—

and there was no suggestion of any material effect on the proceedings or of bad faith.

Although

the Circuit’s decision in Yesudian also rested on the deference owed to district courts, the situation

confronted by the District Court in that case is analogous to that presented here; that is, the first,

second, and fourth Pioneer factors weigh strongly in favor of accepting the delayed filing and,

with respect to the third factor, Plaintiff’s counsel mistakenly relied on the wrong schedule to

determine the due date for his opposition. 3 In contrast, the cases where this Court has found no

3 Plaintiff claims that the D.C. Circuit in Yesudian “held that it was excusable neglect for an attorney to file a document one week late because of simple oversight.” ECF No. 39 at 2. However, as discussed above, Yesudian “rested less on substance than on the deference afforded the trial court in assessing whether particular facts constitute excusable neglect.” Cohen v. Bd. of Trs. of the Univ. of D.C.,

, 290 n.5 (D.D.C. 2014) (quoting Inst. for Policy Studies,

); D.A.,

, at *6 (same); see Yesudian,

(emphasizing the “great deference that we owe district courts in what are effectively their ‘case-management decisions’” (quoting Maldonado-Denis v. Castillo-Rodriguez,

, 583–84 (1st Cir. 1994))). So, contrary to Plaintiff’s suggestion,

5 excusable neglect are distinguishable, as they involved repeated failures to comply with court

deadlines, failure to provide any explanation for missing the deadline, and inadvertently mis-

calendaring the due date. See, e.g., Cohen,

(no excusable neglect where

“numerous delays [were] caused by plaintiff’s failures to comply with deadlines throughout th[e]

litigation”); Embassy of Fed. Republic of Nigeria v. Ugwuonye,

(D.D.C.

2012) (relying in part on “multiple delays” in denying a motion for extension of time and noting

that “this is not the first time [the party] has missed a deadline in this action”); McDowell-Bonner

v. District of Columbia,

(D.D.C. 2009) (finding no excusable neglect

where the parties whose filings were untimely offered no explanation for missing court-ordered

deadlines); Inst. for Policy Studies, 246 F.R.D. at 383–84 (same where the party whose filing was

untimely stated that the delay resulted from “inadvertent[ ] mis-calendaring of the due date” rather

than here where the party relied on the incorrect rule (alteration in original) (quoting the record)));

Halmon v. Jones Lang Wootten USA,

(D.D.C. 2005) (same where counsel

who failed to file a timely response stated that the delay occurred because she “did not place the

due date on her calendar” (quoting the record)).

Accordingly, the Court finds that the lack of prejudice created by counsel’s error, the short

period of delay that resulted, and the lack of bad faith weigh strongly in favor of accepting

Plaintiff’s delayed opposition, and his counsel’s mistaken reliance on the Federal Rules of Civil

Procedure does not outweigh those three factors.

Yesudian does not stand for the proposition that a one-week inadvertent delay always constitutes excusable neglect— only that it is permissible for a district court to find it as such, as the Court does here.

6 B. Motion in Limine

Turning to Defendant’s motion in limine, Defendant seeks to exclude evidence regarding

its employees’ actions following the incident; specifically, placement of a warning sign over the

hole in the floor following Plaintiff’s accident and evidence that Defendant subsequently filled in

the alleged hole. ECF No. 36-1 at 1–2. Defendant argues that this evidence is prohibited by Rule

407, which states: “[w]hen measures are taken that would have made an earlier injury or harm

less likely to occur, evidence of the subsequent measures is not admissible to prove: negligence;

culpable conduct; a defect in a product or its design; or a need for a warning or instruction. But

the court may admit this evidence for another purpose, such as impeachment or—if disputed—

proving ownership, control, or the feasibility of precautionary measures.” Fed. R. Evid. 407. The

purpose of Rule 407 is to “protect the important policy of encouraging defendants to repair and

improve their products and premises without the fear that such actions will be used later against

them in a lawsuit.” Werner v. Upjohn Co., Inc.,

(4th Cir. 1980). “Rule 407

promotes an important policy of encouraging subsequent remedial measures” and for this policy

to be effective, courts must narrowly apply the exceptions to it, or risk “subverting the policy

underlying the rule.”

(finding that courts should not be “too quick to read new exceptions

into” Rule 407). Notably, Plaintiff does not respond to Defendant’s argument that evidence that

Defendant subsequently filled in the alleged hole is inadmissible under Rule 407. Presumably,

that is because Plaintiff does not intend to offer such evidence. Indeed, this type of evidence would

appear to be clearly inadmissible under Rule 407. Andler v. Clear Channel Broadcasting, Inc.,

Civil Action No. 2:06-CV-265,

, at *3 (S.D. Ohio June 6, 2008) (barring

evidence of the subsequent remedial measure of filling in a hole under Rule 407 because who was

responsible for repairing the hole was not disputed, Plaintiff did not prove this evidence’s

7 relevance, and including the evidence “may mislead the jury to conclude that defendant was

negligent and/or that plaintiff's injury could have been prevented”). In any event, the Court will

treat this argument as conceded. Islamic Relations Action Network, Inc. v. Gaubatz,

(D.D.C. 2018) (“[F]ailure to respond to any aspect of [the opposing party’s] Motion

may be deemed a concession with regard to that part of the Motion.”); Augustus v. McHugh,

(D.D.C. 2012) (finding that Plaintiff did not challenge the Defendant’s legal

argument in a summary judgement motion, and as a result “[t]hese arguments [were] deemed

conceded”). Plaintiff does, however, contend that evidence that a warning sign was placed over

the hole after he fell is admissible pursuant to Rule 407’s impeachment exception, Rule 407’s

feasibility of precautionary measures exception, and because the evidence could be used to prove

the existence of a hole in the floor.

Defendant also moves to exclude evidence of “any [ ] post incident actions” and “evidence

of Defendant[’s] . . . policies and procedures for handling of a customer’s claim of injury in its

store” following an accident as irrelevant under Rule 401 because the “actions [Defendant] took

following the incident, whether taking a customer’s statement, placing a caution sign or taking

photos . . . has no bearing on the plaintiff’s claims of negligence/premises liability and

[Defendant’s] duty of reasonable care owed to plaintiff.” ECF No. 36-1 at 2. Plaintiff contends

that “Home Depot’s post-incident actions, policies, and procedures are relevant to [his] claims,

because those actions help to make more probable the fact that Home Depot knew or should have

known of this dangerous condition prior to [his] injury.” ECF No. 37 at 6. Plaintiff also argues

for the first time in his reply brief, without elaborating, that failure to take or keep pictures could

potentially be evidence of spoliation of evidence. ECF No. 40 at 2.

The Court will address each argument in turn below.

8 1. Exclusion of Evidence under Rule 407

a. Introduction of Evidence for Impeachment

Plaintiff first argues that testimony he intends to offer regarding placement of a warning

sign is relevant to impeaching Defendant’s witness Jacob Nunyi, who was the manager on duty at

the Home Depot where Plaintiff allegedly sustained his injuries and who may testify that he does

not recall placing a warning sign after Plaintiff’s accident. Plaintiff bases this argument on Mr.

Nunyi’s affidavit—executed May 12, 2018, and offered by Defendant in support of its motion for

summary judgment—where Mr. Nunyi affirmed that “[t]o the best of [his] recollection at no time

on October 16, 2013 did [he] personally or direct anyone to place a caution sign in the area Mr.

Charles claims to have injured himself.” ECF No. 26-1 at 2. Plaintiff contends that “Mr. Nunyi’s

recollection of the incident is in conflict with other evidence[,]” and that evidence that a warning

sign was placed at the site may be offered to impeach Mr. Nunyi’s testimony. ECF No. 37 at 4.

For the reasons below, the Court will defer ruling on this part of Defendant’s motion in limine

until trial.

It is well-established that “the court may admit [evidence of subsequent measures] for . . .

impeachment[.]” Fed. R. Evid. 407; English v. Washington Metro Area Transit Authority,

, 16 (D.D.C. 2017) (“Rule 407 expressly contemplates that evidence of post-accident

remedial measures may be admitted for impeachment or certain other purposes.”). Defendant does

not disagree with that general rule, but instead argues that the evidence cannot be used for

impeachment because “[c]onflicting testimony of different witnesses is not impeachment

testimony.” ECF No. 38-1 at 1–2. Defendant is incorrect. Impeachment evidence is not limited

to showing inconsistencies within one witness’ testimony, but is any “evidence [which] is ‘offered

to discredit a witness to reduce the effectiveness of her testimony by bringing forth evidence which

9 explains why the jury should not put faith in her . . . testimony.’” Standley v. Edmonds-Leach,

(D.C. Cir. 2015) (alteration in original) (quoting Chiasson v. Zapata Gulf Marine

Corp.,

(5th Cir. 1993)). The D.C. Circuit has explained that, “[i]mpeachment

evidence used ‘[t]o attack the credibility of witnesses by the presentation of evidence showing that

facts asserted or relied upon in their testimony are false . . . impeach[es] by contradiction.’”

Standley,

(alterations in original) (quoting Wegener v. Johnson,

(8th Cir. 2008)). Thus, the D.C. Circuit has recognized that “[i]mpeachment by contradiction

is an established way to impeach a witness’s credibility.” Standley,

. Here,

evidence that a warning sign was placed after Plaintiff’s alleged accident would contradict Mr.

Nunyi’s assertion, if he were to so testify, that he did not place a warning sign in the area following

Plaintiff’s accident. Thus, such evidence could constitute impeachment evidence allowable under

Rule 407.

Nevertheless, the Court does not yet know what Mr. Nunyi will testify to at trial, as he

could ultimately remember placing a warning sign in the area, or he may not mention it at all

during his testimony. Without the benefit of that testimony, the Court cannot at this time determine

if the evidence would indeed be relevant to impeaching Mr. Nunyi’s testimony by contradiction.

To be sure, addressing evidentiary disputes in advance of trial is preferred; however, issues raised

in motions in limine that may benefit from further development may be deferred until a later time.

See, e.g., Hart v. RCI Hosp. Holdings, Inc.,

(S.D.N.Y. 2015) (“Courts

may reserve deciding a motion in limine until trial, and a court’s ruling on such a motion is ‘subject

to change when a case unfolds, particularly if the actual testimony differs from what was contained

in [a party’s] proffer.’” (alteration in original) (internal citation omitted) (quoting Luce v. United

States, 469 U.S. at 41, 105 (1984))); Flythe v. District of Columbia,

(D.D.C.

10 2014) (“[A] trial judge's discretion ‘extends not only to the substantive evidentiary ruling, but also

to the threshold question of whether a motion in limine presents an evidentiary issue that is

appropriate for ruling in advance of trial.’” (quoting Graves v. District of Columbia,

(D.D.C. 2011))); Barnett v. PA Consulting Group, Inc.,

(D.D.C.

2014) (same); see also, e.g., Rosemann v. Roto-Die, Inc.,

(8th Cir. 2004)

(finding no error in district court ruling “that the evidence would ‘likely be admissible’ but ‘it’s

too early to decide’”); Jonasson v. Lutheran Child and Family Services,

(7th

Cir. 1997) (“Some evidentiary submissions, however, cannot be evaluated accurately or

sufficiently by the trial judge in such a procedural environment. In these instances, it is necessary

to defer ruling until during trial, when the trial judge can better estimate its impact on the jury.”);

Spencer v. Sea-Land Service, Inc., No. 98CIV2817,

, at *1 (S.D.N.Y. 1999)

(finding the “defendant's motion in limine under Rule 407 [to be] premature” because the Court

“simply [did] not know yet whether, at the time of the trial, there [would] be a proper basis for [the

evidence’s] admission”).

Accordingly, the Court will wait until trial to determine whether this evidence can be used

by Plaintiff to impeach Mr. Nunyi’s testimony.

b. Introduction of Evidence to Show the Feasibility of Precautionary Measures

Plaintiff next argues that the evidence is admissible for the purpose of proving the

feasibility of placing a warning sign. ECF No. 37 at 5. Rule 407 authorizes evidence of subsequent

measures for proving, if disputed, “the feasibility of precautionary measures.” Fed. R. Evid. 407.

But here, Defendant does not dispute the feasibility of subsequent remedial measures and thus

argues that Rule 407’s exception does not apply. ECF No. 38-1 at 2; see Werner,

(“Federal Rule of Evidence 407 . . . does, however, permit evidence of subsequent remedial

11 measures to be used to prove the feasibility of such measures, but only if feasibility is controverted

by the defendant.”).

Plaintiff responds by arguing that the evidence should be admissible because placing a sign

was “not unreasonable.” ECF No. 37 at 5. But “reasonableness” is not a basis to admit evidence

of subsequent remedial measures under Rule 407 where, as here, Defendant does not dispute the

feasibility of precautionary measures. Rule 407’s feasibility exception “is not an open sesame

whose mere invocation parts Rule 407 and ushers in evidence of subsequent repairs and remedies.

To read it that casually w[ould] cause the exception to engulf the rule.” In re Joint E. Dist. & S.

Dist. Asbestos Litig.,

(2d Cir. 1993). Plaintiff contends that Defendant does

dispute feasibility and points to Defendant’s motion for summary judgment where it argued that

“it is not ‘expected to assume burdens of care which are unreasonable.’” ECF No. 37 at 5 (citing

ECF No. 26 at 4). Plaintiff takes Defendant’s argument out of context. Defendant was not arguing

that placing a warning sign was unreasonable or infeasible; rather, Defendant was arguing that the

alleged hole was not a defect as a matter of law and was quoting a D.C. Court of Appeals case

discussing whether a storeowner had constructive notice of a dangerous condition and the

storeowner’s duty of care. See ECF No. 26 at 4 (“Moreover, the court in Whitehouse noted that

even if the storeowner had notice of the defect it is not determinative of negligence and ‘the store

is not expected to assume burdens of care which are unreasonable in the light of the relative

expense and difficulty . . . as weighed against the probability and seriousness of the foreseeable

harm to others.’” (alterations in original) (quoting Whitehouse v. Safeway Stores, Inc.,

(D.C. 1978))). Thus, the dispute raised by Defendant in its motion for summary judgment

was not whether placement of a warning sign was feasible, but whether it was necessary. See In

re Joint Litig.,

(declining to allow evidence of subsequent product warning where

12 the defendant “at no point argued that it was unable to issue a warning,” but, rather “vigorously

denied that its product required a warning or was defective without a warning”); Mills v. Beech

Aircraft Corp., Inc.,

, 763–64 (5th Cir. 1989) (declining to allow evidence of revised

installation instructions following accident where “defendants . . . did not contest the feasibility of

a better installation instruction, but rather maintained that the instructions in the [ ] manual were

acceptable). Because Defendant does not dispute the feasibility of placing a warning sign, Plaintiff

may not use the evidence to prove the feasibility of precautionary measures.

c. Introduction of Evidence to Show the Existence of a Hole

Plaintiff’s final argument is that the evidence of placement of a warning sign after his fall

“is admissible to prove that a defect existed at the time of the incident.” ECF No. 37 at 5.

Presumably realizing, as Defendant points out, that proving the existence of a defect “is the very

purpose for which Fed. R. Evid. 407 excludes [ ] evidence” of subsequent remedial measures (ECF

No. 38-1 at 2), Plaintiff explains in his surreply that he only intends to admit the evidence to “prove

that there was [ ] something abnormal (albeit not ‘defective’) about the floor.” ECF No. 40 at 1.

But simply replacing the word “defect” with the phrase “something abnormal” does not cure the

infirmity of Plaintiff’s argument.

Plaintiff does not explain why establishing the existence of “something abnormal” is

meaningfully different than establishing the existence of a “defect,” such that concerns of

undermining the purpose of Rule 407 would be abated. In either case, defendants may be less

likely to take subsequent remedial measures if those measures could be used to suggest there was

something wrong, even if not “legally” defective, as Plaintiff suggests here. ECF No. 40 at 1.

Unsurprisingly, Plaintiff does not cite any authority suggesting that Rule 407’s prohibition on

evidence of subsequent remedial measures as evidence of a defect does not apply when the

13 evidence is offered to prove the existence of “something abnormal.” See generally ECF No. 40.

Plaintiff does point to McFarlane v. Caterpillar, Inc. as support for the admissibility of evidence

intended to establish “the unaltered state of the [floor] at the time [of the accident],”

,

181–82 (D.C. Cir. 1992), but McFarlane does not provide the support that Plaintiff suggests. That

specific evidence in McFarlane was not evidence of a subsequent remedial measure, but of the

dimensions of a machine that did not meet manufacturing specifications. See

(finding that

portion of “post-accident service report” “indicating that the dimensions of a spool in the hydraulic

system did not meet manufacturing specification” “was clearly not ‘evidence of . . . subsequent

measures’ that must be excluded under Rule 407; rather, it was evidence of the unaltered state of

the spool at the time it was inspected”). Here, neither party disputes that placement of a warning

sign following Plaintiff’s injury is not properly considered a subsequent remedial measure covered

by Rule 407.

More, even if there was a meaningful distinction between “something abnormal” and “a

defect,” Rule 403 provides another basis for excluding the evidence here. Fed. R. Evid. 403; see

Friedman v. Nat’l Presto Indus., Inc.,

(E.D.N.Y. 1983) (“In the event that

the evidence of defendant’s subsequent measures is not excludable under Rule 407, the court must

then make the analysis required by Rule 403.”). Rule 403 provides that “[t]he court may exclude

relevant evidence if its probative value is substantially outweighed by a danger of one or more of

the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting

time, or needlessly presenting cumulative evidence.” The Court has considerable discretion in

weighing the probative value and potential prejudicial effect of evidence. See Webb v. Hyman,

(D.D.C. 1994) (“Rule 403 grants the trial judge considerable discretion

in determining the balancing of the prejudicial and probative effect of this kind of evidence.”);

14 Caulfield v. Stark,

(D.C. 2006) (“‘The determination of what evidence is

relevant, and what evidence may tend to confuse the jury, is left to the sound discretion of the trial

court.’” (quoting Turcios v. United States Servs. Indus.,

(D.C. 1996))).

Here Defendant correctly notes that such evidence would be highly prejudicial. ECF No.

38-1 at 2–3. Rule 407 inherently recognizes the likely prejudicial effect of subsequent remedial

evidence. See Fed. R. Evid. 407; see also Ray v. Am. Nat’l Red. Cross,

(D.C.

1997) (“[A]dmitting evidence of what the defendant’s conduct was after the alleged negligent act

or omission will ‘distract the minds of the jury from the real issue and . . . create a prejudice against

defendant.’” (emphasis in original) (ellipses in original) (quoting Avery v. S. Kann Sons Co.,

(D.C. Cir. 1937)); cf. Gauthier v. AMF, Inc.,

(9th Cir. 1986)

(finding that the lower court’s admission of evidence that should have been barred by Rule 407

“was prejudicial error that requires a new trial”). More, this evidence would likely “confus[e] the

issues, [or] mislead[ ] the jury,” Fed. R. Evid. 403, see Diehl v. Blaw-Knox,

(3rd

Cir. 2004) (“[W]e appreciate the potential that subsequent design changes represent for distracting

juries from the issue at hand[.]”)). Indeed, as discussed above, even Plaintiff may have fallen prey

to this confusion, as he initially argued that the evidence could be used to “to prove that a defect

existed at the time of the incident[,]” before correcting himself and replacing that word with

“something abnormal.” ECF No. 37 at 5; ECF No. 40 at 1.

With respect to the probative value of such evidence, it is not clear how placement of a

warning sign following Plaintiff’s injury would demonstrate, as Plaintiff argues, that Defendant

had constructive or actual knowledge of any alleged hole in the floor prior to his injury, because

Defendant’s employee may have simply placed the warning sign where Plaintiff told him to place

it. See ECF No. 36-2 at 2 (Plaintiff’s deposition testimony where he stated “[Mr. Nunyi] said,

15 where you at, sir. And I took him over to [the alleged hole]” and then “he went and got the caution

sign and put it over the hole”). Thus, the mere fact that Defendants placed a warning sign on the

floor allegedly after Plaintiff showed Defendant where to place it does not have significant

probative value in demonstrating “the ease with which the manager visually identified the hole

and immediately placed a caution cone over the hole[.]” ECF No. 37 at 6; Bell v. Gonzales, No.

Civ.A. 03-163,

, at *4 (D.D.C. Dec. 23, 2005) (excluding evidence under Rule

403 after determining that “the danger of unfair prejudice is significant and outweighs the minimal

probative value” because the disputed “evidence [was something] any reasonable jury would find

difficult to ignore, despite the analytically and factually flawed basis for [the] conclusion” the jury

was likely to draw); Medina v. District of Columbia, Civil Action No. 97-594,

,

at *6 (D.D.C. July 7, 2008) (precluding evidence under Rule 407 because its probative value was

as “part of an effort to establish culpable conduct . . . and [was] therefore expressly barred by Rule

407”).

Accordingly, the Court finds that Rule 407 bars evidence of placement of a warning sign

to establish a hole, defect, or “something abnormal” on the floor and that the probative value of

such evidence is also outweighed by the potential for prejudice, misleading the jury, and confusing

the issues.

2. Exclusion of Evidence under Rule 401

Recall that Defendant also seeks to exclude as irrelevant under Rule 401 “any [ ] post

incident actions” and “evidence of Defendant[’s] . . . policies and procedures for handling of a

customer’s claim of injury in its store” following an accident. Rule 401 defines relevant evidence

as evidence that “(a) [ ] has any tendency to make a fact more or less probable than it would be

without the evidence; and (b) the fact is of consequence in determining the action.” Irrelevant

16 evidence is inadmissible under Rule 402. See Fed. R. Evid. 402. Defendant contends that “[t]he

actions [it] took following the incident, whether taking a customer’s statement, placing a caution

sign or taking photos . . . has no bearing on the plaintiff’s claims of negligence/premises liability

and its duty of reasonable care owed to [P]laintiff.” ECF No. 36-1 at 2. Plaintiff’s only response

to this argument is to summarily state that such evidence is relevant because it “helps to make

more probable the fact that Home Depot knew or should have known of this dangerous condition

prior to Mr. Charles’s injury.” ECF No. 37 at 6. But Plaintiff fails to explain how Defendant’s

general policies and procedures for handling an accident after it occurs would have any bearing

on whether Defendant knew of or should have known about an alleged defect in the floor before

the incident occurs. See Andler,

, at *2 (“[P]laintiff has not explained how the

timing of defendant’s repair or defendant’s response to the knowledge of the hole will aid the jury

in its determination [of whether the defendant was negligent prior to the plaintiff’s injury].

Therefore, there is no showing that these proffered reasons are relevant to any issue in this case.”

(internal quotation marks omitted)). The Court agrees that such actions have no clear relevance to

what Defendant knew or should have known prior to the incident.

Plaintiff also argues that failure to take or keep pictures could potentially be evidence of

spoliation of evidence. ECF No. 40 at 2. 4 But it is again not clear what bearing that argument has

on relevance under Rules 401 and 402, nor does Plaintiff offer any evidence to suggest that such

spoliation occurred. To the extent that Plaintiff is attempting to allege intentional spoliation, he

would be required to show that “[t]he party having control over the evidence had an obligation to

4 Defendant correctly notes that Plaintiff raised this argument for the first time on reply, and thus the Court may deem it waived. ECF No. 42 at 2 n.1; see Herbert v. Nat’l Acad. of Scis.,

(D.C. Cir. 1992) (declining to consider arguments raised in appellate reply brief because “an argument discussed for the first time in reply would be manifestly unfair to the [party] who … has no opportunity for a written response”). However, because Defendant had an opportunity to respond with its own surreply, the Court will address the argument. See also Goodrich v. Teets,

(D.D.C. 2007) (considering argument raised for the first time in reply brief because opposing party had the opportunity to respond in its own reply).

17 preserve it when it was destroyed or altered; (2) the destruction or loss was accompanied by a

‘culpable state of mind’; and (3) the evidence that was destroyed or altered was ‘relevant’ to the

claims or defenses of the party that sought the discovery of the spoliated evidence, to the extent

that a reasonable factfinder could conclude that the lost evidence would have supported the claims

or defense of the party that sought it.” Ashraf-Hassan v. Embassy of France in the U.S.,

(D.D.C. 2015) (quoting Mazloum v. D.C. Metro. Police Dep’t,

(D.D.C. 2008)). Here Plaintiff has made no effort to meet the showing required for

intentional spoilation; rather, Plaintiff only summarily states that “[t]he failure of Defendant to

follow its own policies and procedures by taking or keeping photographs, if admitted by

Defendant’s representatives, could be evidence of spoliation of evidence.” ECF No. 40 at 2.

Plaintiff cites nothing to support this throw-away argument; thus, it is of no help to his effort to

introduce evidence Defendant’s post-accident policies, procedures, and actions. See, e.g., Al-

Tamimi v. Adelson,

(D.C. Cir. 2019) (“Mentioning an argument ‘in the most skeletal

way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on

its bones’ is tantamount to failing to raise it.” (quoting Schneider v. Kissinger,

, 200

n.1 (D.C. Cir. 2005))); CTS Corp. v. EPA,

(D.C. Cir. 2014) (finding an argument

made in conclusory fashion forfeited). Accordingly, the Court will grant Defendant’s motion in

limine to exclude evidence of Home Depot’s policies and procedures for handling customer claims

and any post-incident actions taken, with the exception, discussed in Part II.B.1.a, of placement of

the warning sign to the extent it becomes relevant to impeach Mr. Nunyi during trial.

III. CONCLUSION

For the reasons discussed above, it is hereby

18 ORDERED that Defendant’s motion in limine (ECF No. 36) is GRANTED IN PART; it

is further

ORDERED that Defendant’s motion to strike Plaintiff’s memorandum in opposition to

Defendant’s motion in limine (ECF No. 38) is DENIED; it is further

ORDERED that Plaintiff’s motion for an extension of time to file a response to

Defendant’s motion in limine (ECF No. 41) is GRANTED.

SO ORDERED. Digitally signed by G. Michael Harvey Date: 2021.09.28 Date: September 28, 2021 14:00:43 -04'00' _______________________________ G. MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE

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