Patel, et al v. Prime Fitness Inc

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R. 47.5.4.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 99-40636
Summary Calendar
____________________
MARINA PATEL; HAGAI PATEL,
Plaintiffs-Appellants,
versus
PRIME FITNESS INC., Etc.; ET AL,
Defendants,
PRIME FITNESS INC., doing business as
Larry North Total Fitness, doing business as
Larry North Fitness Center,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(4:97-CV-221)
_________________________________________________________________
February 29, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
Marina Patel, injured in January 1996 while using a leg-press
machine at Prime Fitness, Inc., and Hagai Patel, her husband, contest
the evidentiary rulings prohibiting them from introducing evidence of
spoliation of documents, some of which were Marina Patel’s “workout
card”, machine maintenance records, and an incident report; and
allowing evidence of their alien status.

-- 1 of 3 --

- 2 -
In May 1997, Prime Fitness closed and divested itself of its
assets; that July, the Patels brought this negligence action. In
February 1998, when they requested the documents at issue, Prime
Fitness responded that they could not be located.
The Patels contend they were prohibited from introducing any
evidence regarding the absence and/or existence of the records,
hindering their ability to cross-examine and impeach Prime Fitness’
witnesses; and that they should have been allowed to raise the
inference that the records were unfavorable to Prime Fitness, because
they had informed it of a potential claim two months after Marina
Patel’s injury, and Prime Fitness failed to preserve them.
Evidentiary rulings are reviewed for abuse of discretion, we will not
reverse unless a party’s substantial rights are affected. See, e.g.,
FED. R. EVID. 103; Caparotta v. Entergy Corp., 168 F.3d 754, 755-56
(5th Cir. 1999).
Contrary to the Patels’ assertion, the court ruled that they
could ask questions at trial about the absence of the records. Its
finding that the Patels had not produced sufficient evidence to
warrant a spoliation instruction was not an abuse of discretion; and
its prohibiting them from “referencing any allegations of spoliation
against [Prime Fitness]”, without first showing bad conduct on its
part, was consistent with our case law. See Vick v. Texas Employment
Comm’n, 514 F.2d 734, 737 (5th Cir. 1975) (“[t]he adverse inference
to be drawn from destruction of records is predicated on bad conduct
of the defendant”).

-- 2 of 3 --

- 3 -
For the other issue, the court denied the Patels’ motion in
limine to prohibit evidence regarding their alien status (Prime
Fitness contends the evidence was relevant to Marina Patel’s lost
earning capacity claim). But, because the Patels failed at trial to
object to the introduction of this evidence (as trial strategy, they
introduced evidence regarding their status), we review only for plain
error. See, e.g., United States v. Olano, 507 U.S. 725, 736 (1993)
(to warrant reversal, error must be clear, “affect[] substantial
rights”, and “‘seriously affect the fairness, integrity, or public
reputation of judicial proceedings.’”) (citation omitted); see also
Marceaux v. Conoco, Inc., 124 F.3d 730, 734 (5th Cir. 1997) (“‘an
overruled motion in limine does not preserve error on appeal’”)
(citation omitted). The requisite prejudice is lacking.
AFFIRMED

-- 3 of 3 --