Sound Check, Inc. v. American Federation

1The Honorable Jean C. Hamilton, Chief Judge, United States District Court for
the Eastern District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-1695
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Marie Grace Gordon, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Phar-Mor, Inc., *
* [UNPUBLISHED]
Appellee. *
___________
Submitted: January 27, 2000
Filed: February 1, 2000
___________
Before McMILLIAN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit
Judges.
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PER CURIAM.
Marie Grace Gordon appeals from the district court’s1 adverse grant of judgment
as a matter of law in her diversity personal injury action against Phar-Mor, Inc. Ms.
Gordon alleged that she slipped and fell in the checkout lane at a Phar-Mor pharmacy
store after a bottle of liquid dishwashing detergent leaked onto the floor. We affirm.

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Upon de novo review, see Sip-Top, Inc. v. Ekco Group, Inc., 86 F.3d 827, 830
(8th Cir. 1996), we conclude the district court properly granted judgment as a matter
of law to Phar-Mor. We agree with the district court that Ms. Gordon presented
insufficient proof from which a reasonable jury could conclude as required under
Missouri law that Phar-Mor had either actual or constructive notice that the detergent
had leaked onto the floor. See Scheerer v. Hardee’s Food Sys., Inc., 92 F.3d 702, 709
(8th Cir. 1996) (actual notice); Elmore v. Wal-Mart Stores, Inc., 812 S.W.2d 178, 180
(Mo. Ct. App. 1991) (constructive notice).
We also find that the district court did not abuse its discretion in quashing the
subpoena served on Phar-Mor’s attorney, whose testimony would have been irrelevant
to Phar-Mor’s liability or Ms. Gordon’s damages. Cf. United States v. Jackson, 67
F.3d 1359, 1367 (8th Cir. 1995) (trial court did not abuse its discretion in granting
motion to quash subpoena where testimony would have been irrelevant to defendant’s
factual guilt or innocence), cert. denied, 517 U.S. 1192 (1996). Last, we conclude that
the court did not abuse its discretion in excluding proof which Ms. Gordon had not
listed in her pretrial materials, see Radecki v. Joura, 177 F.3d 694, 696 (8th Cir. 1999)
(trial court did not clearly abuse its discretion in granting motion in limine to exclude
expert witness who was not listed prior to pretrial conference), and that Ms. Gordon’s
remaining arguments are meritless.
Accordingly, we affirm.

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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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