1 of 72 DOCUMENTS

DR. JOHN KIM, Appellant v. MARINA DISTRICT DEVELOPMENT COMPANY

LLC, d/b/a BORGATA HOTEL CASINO & SPA
No. 10-4390
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
488 Fed. Appx. 545; 2012 U.S. App. LEXIS 14255
July 10, 2012, Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
July 12, 2012, Filed
NOTICE: NOT PRECEDENTIAL OPINION UNDER THIRD CIRCUIT INTERNAL OPERATING PROCEDURE
RULE 5.7. SUCH OPINIONS ARE NOT REGARDED AS PRECEDENTS WHICH BIND THE COURT.
PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE
CITATION TO UNPUBLISHED OPINIONS.
SUBSEQUENT HISTORY: US Supreme Court certiorari denied by Kim v. Marina Dist. Dev. Co., LLC, 2013 U.S.
LEXIS 1136 (U.S., Feb. 19, 2013)
PRIOR HISTORY: [**1]
On Appeal from the United States District Court for the District of New Jersey. District Court No. 1-09-cv-01553.
District Judge: The Honorable Renee M. Bumb.
Kim v. Marina Dist. Dev. Co. LLC, 2010 U.S. Dist. LEXIS 71090 (D.N.J., July 14, 2010)
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff hotel guest sued defendant hotel in the United States District Court for the
District of New Jersey for negligence. The district court granted partial summary judgment in favor of the hotel on
claims for negligent medical treatment and for punitive damages, and a jury returned a verdict in the hotel's favor on the
remaining claim of negligent food preparation. The guest appealed.
OVERVIEW: The guest became ill after eating breakfast from the room service menu at the hotel. The following day,
he was diagnosed with food poisoning. The court of appeals found that the district court appropriately denied the guest's
motion for a default judgment because the guest did not move for entry of default under Fed. R. Civ. P. 55(a); also, the
hotel had defended itself by requesting an extension of time to file an answer. The district court did not abuse its
discretion in admission or preclusion of evidence. Exclusion of health department records was not improper, as the
records concerned events that predated the guest's illness and did not involve the room service kitchen. Testimony by
the guest's medical expert as to the cause of his food poisoning was properly excluded because the expert's opinion was
based on evidence obtained from the guest's counsel; the expert neither examined the guest nor took a thorough case
history.
OUTCOME: The district court's judgment was affirmed.
CORE TERMS: punitive damages, summary judgment, breakfast, pretrial, food, girlfriend, hotel, food poisoning, pain
and suffering, amount in controversy, evidentiary rulings, abuse of discretion, prejudicial, precluding, diversity,
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requisite, illness, default, preparation, emergency, clinic
LexisNexis(R) Headnotes
Civil Procedure > Summary Judgment > Appellate Review > Appealability
Civil Procedure > Appeals > Appellate Jurisdiction > Interlocutory Orders
[HN1] The United States Court of Appeals for the Third Circuit is unaware of any authority requiring review of an
interlocutory ruling denying summary judgment if the matter proceeded to trial and the jury rendered a verdict.
Civil Procedure > Summary Judgment > Appellate Review > Standards of Review
Civil Procedure > Appeals > Standards of Review > De Novo Review
[HN2] A court of appeals exercises plenary review over an order granting summary judgment.
Civil Procedure > Appeals > Standards of Review > Abuse of Discretion
Evidence > Procedural Considerations > Rulings on Evidence
[HN3] A court of appeals reviews a district court's evidentiary rulings for an abuse of discretion.
COUNSEL: For JOHN KIM, Plaintiff - Appellant: Kristie M. Howard, Esq., Colonia, NJ; Rickey N. Jones, Esq.,
Baltimore, MD.
For MARINA DIST DEV CO, Defendant - Appellee: Russell L. Lichtenstein, Esq., Jeffrey Ryan Lindsay, Esq., Gerard
W. Quinn, Esq., Cooper, Levenson, April, Niedelman & Wagenheim, Atlantic City, NJ.
JUDGES: Before: RENDELL, SMITH, and BARRY, Circuit Judges.
OPINION BY: SMITH
OPINION
[*546] SMITH, Circuit Judge.
In February of 2008, Dr. John Kim, a Maryland resident, and his girlfriend traveled to the Borgata Hotel Casino & Spa
in New Jersey. The following morning he ordered steak and eggs for breakfast from the room service menu. His
girlfriend also ordered a breakfast. At some point after eating his meal, Dr. Kim felt ill. His symptoms became
progressively worse, prompting his girlfriend to summon the Casino's emergency medical technicians (EMTs).
According to Dr. Kim, his medical status did not improve. The following day, he decided to check out and to return
home. The front desk, however, convinced Dr. Kim to visit the hotel medical clinic in the hotel, and [**2] the clinic in
turn persuaded him to go to the hospital. While at the emergency room, Dr. Kim was diagnosed with food poisoning.
Dr. Kim returned to his home in Maryland to convalesce. His illness caused him to cancel his patient appointments for
the following week. Subsequently, he filed this diversity action in the United States District Court for the District of
New Jersey. He claimed that the Borgata was negligent in the preparation of its food and in the medical treatment it had
provided. He sought damages for the loss of wages, his medical bills, bodily injury, and pain and suffering. In addition,
Dr. Kim sought punitive damages. The Borgata successfully moved for partial summary judgment on the claim for
negligent treatment and for punitive damages. Thereafter, a jury returned a verdict in favor of the Borgata, finding that it
had not been negligent in the preparation of Dr. Kim's food. This timely appeal followed.
1
1 The District Court exercised diversity jurisdiction under 28 U.S.C. 1332. We recognize that subsequent events cast some doubt on
whether the requisite amount in controversy was satisfied when the complaint was filed. The post-filing revelations, however, did not [**3]
clearly establish that Dr. Kim's claims could never have amounted to the requisite $75,000 amount in controversy given the claimed $71,000
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488 Fed. Appx. 545, *; 2012 U.S. App. LEXIS 14255, **1
in lost profits, the medical expenses incurred, the pain and suffering sustained, and the request for punitive damages. See Huber v. Taylor,
532 F.3d 237, 244 (3d Cir. 2008) (discussing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 290, 58 S. Ct. 586, 82 L. Ed. 845
(1938)). We exercise jurisdiction under 28 U.S.C. 1291.
Dr. Kim contends that the District Court made multiple errors. He asserts that the Court erred early in the proceeding by
failing to enter default judgment. We conclude that the Court appropriately denied the motion because Dr. Kim did not
move for entry of default. Fed. R. Civ. P. 55(a). Furthermore, the averments of his motion demonstrated that the
Borgata had otherwise defended itself by requesting an extension of time to answer the complaint, which Dr. Kim was
unwilling to grant.
The District Court, according to Dr. Kim, also made several prejudicial pretrial decisions. After consideration of the
record, we conclude that the District Court did not err in its pretrial rulings. The only pretrial decision which warrants
discussion is the grant of [**4] summary judgment on Dr. Kim's punitive damages claim in favor of the Borgata.
2
For
substantially the reasons given by the District Court, we agree with the dismissal of the claim for punitive damages. To
the extent Dr. Kim challenges the denial of his motion for summary judgment on liability, [HN1] we are unaware of
any authority requiring review of this interlocutory ruling inasmuch as this matter proceeded to trial and the jury [*547]
rendered a verdict. See Baughman v. Cooper-Jarrett, Inc., 530 F.2d 529, 532 (3d Cir. 1976), overruled on other
grounds by Croker v. Boeing Co., 662 F.2d 975, 984 (3d Cir. 1981).
2 [HN2] We exercise plenary review over an order granting summary judgment. Pichler v. UNITE, 542 F.3d 380, 385-86 (3d Cir. 2008).
According to Dr. Kim, several of the District Court's evidentiary rulings during trial were also erroneous and
prejudicial. [HN3] We review a District Court's evidentiary rulings for an abuse of discretion. Travelers Cas. & Sur.
Co. v. Ins. Co. of N. Am., 609 F.3d 143, 157 (3d Cir. 2010). We fail to find any abuse of discretion by the District Court
in its admission or preclusion of evidence. Whether Dr. Kim was able to engage in gambling in the Casino the very
same evening [**5] that he consumed the allegedly tainted food was clearly relevant to his claim for damages. The
exclusion of the records of the health department was not improper as the records concerned events that predated Dr.
Kim's illness and focused on facilities other than the in-room dining kitchen. Nor do we find error in the exclusion of
the ServSafe Certificates of the three cooks who might have been involved in preparing Dr. Kim's breakfast. The
Certificates, which were issued after the events at issue here, failed to explain the meaning of the scores set forth
therein, and notably Dr. Kim failed to proffer any evidence in that regard. Finally, Dr. Kim faults the District Court for
precluding his medical expert from testifying about the cause of Dr. Kim's food poisoning. This was not error as the
Court explained that the expert's opinion in that regard was based on evidence obtained from Dr. Kim's counsel, instead
of from Dr. Kim. The Court further noted that the expert had neither examined Dr. Kim nor taken a thorough case
history, thereby precluding the expert from obtaining information necessary to form an opinion on causation.
Accordingly, we will affirm the judgment of the District Court.
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488 Fed. Appx. 545, *546; 2012 U.S. App. LEXIS 14255, **3