Angelique Primus v. Target Corporation

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-3894
_____________
ANGELIQUE PRIMUS,
Appellant
v.
TARGET CORPORATION
_____________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-11-cv-04648
District Judge: The Honorable Berle M. Schiller
_____________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
July 16, 2013
Before: RENDELL, SMITH, and SHWARTZ, Circuit Judges
(Filed: August 8, 2013)
_____________
OPINION
_____________
SMITH, Circuit Judge.
Angelique Primus was injured while shopping at Target in Warrington,
Pennsylvania. For reasons unknown, a box of unassembled furniture fell on her

-- 1 of 4 --

2
hand. She sued Target Corporation for negligence. Her theory was simple: Target
used a safety arm to keep the boxes on its shelves, but it should have used a fence.
In support of this theory, Primus introduced evidence that fences are safer than
safety arms (because boxes can slide under safety arms). In response, Target intro-
duced evidence that safety arms are safer than fences (because shoppers can injure
themselves while lifting boxes over fences). After thirty-four minutes of delibera-
tion, the jury reached a verdict: Target was not negligent. This appeal followed.*
Primus objects to a pair of evidentiary rulings. The rulings excluded evi-
dence that was meant to contradict—and thereby impeach—Target’s witnesses.
Primus’s two objections share the same fatal flaw. The evidence at issue did not
contradict any witness.
We review the District Court’s decision to exclude evidence for an abuse of
discretion. United States v. Mornan, 413 F.3d 372, 377 (3d Cir. 2005). Federal
Rule of Evidence 607 allows a party to impeach witnesses by contradicting their
testimonies. United States v. Gilmore, 553 F.3d 266, 271 (3d Cir. 2009); United
States v. Kincaid-Chauncey, 556 F.3d 923, 932 n.8 (9th Cir. 2009) (“Although im-
peachment by contradiction is not specifically formalized in the Federal Rules of
Evidence, it is part of the general body of evidentiary law and is a permissible the-
* The District Court had diversity jurisdiction under 28 U.S.C. § 1332, and
we have appellate jurisdiction under 28 U.S.C. § 1291.

-- 2 of 4 --

3
ory of impeachment under Federal Rule of Evidence 607.”). “Impeachment by
contradiction is a means of policing the [witness]’s obligation to speak the truth in
response to proper questions.” Gilmore, 553 F.3d at 271 (quotation marks omitted).
Impeachment-by-contradiction evidence must satisfy the Rule 403 balancing re-
quirement. See id. Above all, such evidence must “meaningfully contradict[]”—or
be inconsistent with—a witness’s testimony. Morgan v. Covington Twp., 648 F.3d
172, 181 n.7 (3d Cir. 2011).
The first ruling excluded photos that Primus’s counsel had taken at a local
Target—not the Target where Primus was injured. The photos showed that the
store used fences rather than safety arms to display some boxes of furniture. J.A.
487–504. The District Court excluded the photos because they had not been au-
thenticated. See Fed. R. Evid. 901(a). Authenticated or not, the photos had a bigger
problem: they did not in fact contradict any witness’s testimony. Primus tried to
introduce the photos to contradict a Target witness who had said that “I would not
consider [a waist-level fence that displayed furniture boxes] safe.” J.A. 406–07.
Yet the possibility that such fences are unsafe is entirely consistent with the possi-
bility that Target used them. Stores occasionally do things that are unsafe. Absent
an actual contradiction, the evidence could not impeach by contradiction.
The second ruling was proper for the same reason. Primus tried to prove that
Target could eliminate the risk of fences by leaving gaps, which would allow cus-

-- 3 of 4 --

4
tomers to remove boxes by sliding rather than lifting them. In a pretrial deposition,
Target’s expert had testified that gaps “would negate the lift.” J.A. 54. Primus tried
to introduce this testimony to impeach a Target representative who had indicated
that “fencing can certainly be placed with spaces between it.” J.A. 318. Target ob-
jected, and the District Court ruled that Primus should raise the issue when the ex-
pert testified. That did not happen—the expert never testified, and Primus never
mentioned his testimony again. The problem here is the same as before. The ex-
pert’s testimony did not contradict anything that the Target representative had said.
The expert simply said that gaps “would negate the lift.” No one ever said other-
wise. The expert’s testimony was therefore inadmissible to impeach by contradic-
tion.
The District Court did not abuse its discretion. We will affirm its judgment.

-- 4 of 4 --