Heller v. Hillstone Restaurant Group, Inc.

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DEBORAH HELLER 	CIVIL ACTION
VERSUS 	NO. 24-2295
HILLSTONE RESTAURANT GROUP, INC. 	SECTION: D(5)
ORDER AND REASONS
Before the Court is a Motion in Limine filed by Defendant Hillstone Restaurant
Group, Inc. (“Hillstone”), challenging the admission eight specific types of evidence.1
Plaintiff Deborah Heller (“Heller”) opposes the Motion.2 Defendant has filed a Reply.3
During the pretrial conference, the Court ruled on six of the eight challenged types of
evidence.4 After careful consideration of the parties’ memoranda, the record, and the
applicable law, the Court DENIES the remainder of the Motion.
I. 	FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of an incident in which Plaintiff Deborah Heller alleges
that she slipped and fell in the women’s restroom of Houston’s Restaurant after
sewage started emerging out of the floor drain.5 On November 7, 2025, Plaintiff filed
the instant Motion in Limine.6 Plaintiff seeks to prohibit testimony and evidence of
eight specific types. During the pretrial conference, the Court ruled on six of the eight
1 R. Doc. 41.
2 R. Doc. 42.
3 R. Doc. 44.
4 R. Doc. 52 at pp. 1-2.
5 The Court detailed the factual background in the Order and Reasons on Defendant’s Motion for
Summary Judgment (R. Doc. 65) and incorporates that background here by reference.
6 R. Doc. 41.
Case 2:24-cv-02295-WBV-MBN Document 66 Filed 01/09/26 Page 1 of 10

2
challenged types of evidence.7 The Court addresses the remaining types of evidence
below.8
II. 	LEGAL STANDARD
According to the Fifth Circuit, the purpose of a motion in limine is to prohibit
opposing counsel “from mentioning the existence of, alluding to, or offering evidence
on matters so highly prejudicial to the moving party that a timely motion to strike or
an instruction by the court to the jury to disregard the offending matter cannot
overcome its prejudicial influence on the jurors’ minds.”9 	Under Federal Rule of
Evidence 401, evidence is relevant if it has any tendency to make a fact more or less
probable than it would be without the evidence, or if the fact it seeks to prove is of
consequence in determining the action.10
While all relevant evidence is admissible, the Court may exclude relevant
evidence if its probative value is substantially outweighed by danger of “unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.”11 	However, the Fifth Circuit has held
that, “[t]he exclusion of evidence under Rule 403 should occur only sparingly.”12
Additionally, “[r]elevant evidence is inherently prejudicial; but it is only unfair
prejudice, substantially outweighing probative value, which permits exclusion of
7 R. Doc. 52 at pp. 1-2.
8 The Motion is pending only as it relates to Items C and G, as listed in Defendant’s Motion, R. Doc.
41.
9 O’Rear v. Fruehauf Corp., 554 F.2d 1304, 1306 n.1 (5th Cir. 1977) (citation modified).
10 FED. R. E VID. 401.
11 FED. R. E VID. 403.
12 United States v. Pace, 10 F.3d 1106, 1115–16 (5th Cir. 1993); See United States v. Powers, 168 F.3d
741, 749 (5th Cir. 1999).
Case 2:24-cv-02295-WBV-MBN Document 66 Filed 01/09/26 Page 2 of 10

3
relevant matter under Rule 403.”13 	District courts are afforded wide discretion in
determining the relevance and admissibility of evidence under Fed. R. Evid. 401 and
402.14 A district court’s ruling on evidentiary issues is reviewed by an appellate court
for an abuse of discretion.15 	Thus, when the district court conducts “a carefully
detailed analysis of the evidentiary issues and the court’s own ruling, appellate courts
are chary about finding an abuse of discretion.”16
III. 	ANALYSIS
In the instant Motion, Defendants seek to exclude evidence of eight specific
types, two of which remain pending. The Court considers the arguments regarding
those two issues in turn.
A. Motion in limine to prohibit testimony and/or evidence from Daniel
Morris (or any other witness) regarding any alleged statements
made by any employee of Hillstone immediately following the
accident.
Defendant moves to prohibit testimony from Daniel Morris or any other
witness regarding any alleged statements that were made by any of Defendant’s
employees 	immediately 	following 	Plaintiff’s 	fall 	in 	the 	women’s 	restroom.17
Defendant 	argues 	that 	alleged 	statements 	testified 	to 	by 	Daniel 	Morris 	are
inadmissible hearsay because Plaintiff cannot prove that the employee that allegedly
made the statements was an employee or had the authority to speak for Hillstone
13 Pace, 10 F.3d at 1115–16 (citation modified).
14 Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 384 (2008).
15 Kelly v. Boeing Petroleum Services, Inc., 61 F.3d 350, 356 (5th Cir. 1995).
16 Id.
17 R. Doc. 41-2 at p. 7. To the extent that Defendant seeks to exclude testimony from “any other
witness,” the Court does not have sufficient information regarding these unknown and unnamed
witnesses or any statements made by them to make a ruling as to those other unnamed witnesses.
Case 2:24-cv-02295-WBV-MBN Document 66 Filed 01/09/26 Page 3 of 10

4
regarding the statements.18 Furthermore, Defendant contends that the statements
are not relevant to the issue of notice or any other issue that forms part of Plaintiff’s
claim.
Plaintiff responds that Daniel Morris can establish that the declarant of the
statements 	was 	a 	Houston’s 	manager 	because 	of 	the 	manager’s 	actions 	after
Plaintiff’s fall.19 Plaintiff further contends that the fact that the sewage back-up may
have been an ongoing occurrence is relevant to the issue of whether Defendant knew
or should have known of a defect that it refused to remedy.20 Defendant replies that
the alleged statements of the declarant are irrelevant to “how long the hazard existed,
the cause of the blockage, or the cause of any prior blockage” and should be excluded
as such.21 Furthermore, Defendant argues that the evidence offered by Plaintiff is not
enough to establish that the declarant was an employee and that the employee was
cloaked with managerial authority.
Rule 801 of the Federal Rules of Evidence provides that a statement is not
hearsay if it “is offered against an opposing party and…was made by the party’s agent
or employee on a matter within the scope of that relationship and while it existed.”22
The Fifth Circuit has held that when considering such testimony, while the party
need not provide a name in all cases, “a district court should be presented with
sufficient evidence to conclude that the person who is alleged to have made the
18 Id. at p. 9. The alleged statements, specifically, that “that kind of happens” and “it’s been flooding
like that” are referenced in Morris’ deposition testimony. See R. Doc. 41-5 at p. 7 and R. Doc. 42-2 at
p. 3.
19 R. Doc. 42 at p. 4.
20 Id. at p. 3.
21 R. Doc. 44 at p. 3.
22 FED. R. E VID. 801(d)
Case 2:24-cv-02295-WBV-MBN Document 66 Filed 01/09/26 Page 4 of 10

5
damaging statement is in fact a party or an agent of that party for purposes of making
an admission within the context of Rule 801(d)(2)(D).”23
Plaintiff largely relies on a ruling from another section of this court in which
the Court found that a Plaintiff had not presented evidence to demonstrate that the
declarants were agents or employees of Defendant in the course and scope of their
employment.24 In that case, the Court noted that the Plaintiff did not provide any
information that described the representatives themselves or the place or time of the
negotiations.25
Unlike Namer, however, here the Court finds that the Plaintiff, as the
proponent of the statement, has provided sufficient evidence to conclude that the
person who Morris alleges made the statement is an employee of Hillstone. Morris
testified in his deposition that the declarant who made the challenged statements
flushed the toilets again after Plaintiff fell and additionally began to offer Plaintiff
and 	Morris 	complimentary 	drinks.26 	Investigating 	the 	accident 	and 	offering
complimentary drinks demonstrates that the declarant was an employee at the
restaurant and supports that the statements about the bathroom were made within
the course and scope of that employment relationship, as is required by Fed. R. Evid.
801(d)(D). Furthermore, Morris’s testimony that the employee responded to and
investigated the incident seemingly supports that supervision of incidents involving
23 Davis v. Mobil Oil Expl. & Producing Se., Inc., 864 F.2d 1171, 1174 (5th Cir. 1989).
24 Namer v. Am. Internet Servs., LLC, No. CV 15-3317, 2016 WL 828223, at *5 (E.D. La. Mar. 3, 2016).
25 Id.
26 R. Doc. 42-2, Deposition of Daniel Morris, at pp. 3-4. Morris and Heller’s receipt from the night in
question appears to corroborate Morris’s testimony as it reflects “PR COMP.” See R. Doc. 37-5.
Case 2:24-cv-02295-WBV-MBN Document 66 Filed 01/09/26 Page 5 of 10

6
the restaurant’s guests fall within the scope of the employee’s job.27 This evidence is
sufficient for the Court to find that the declarant was an employee of the restaurant
and speaking on a matter within the course and scope of his employment. The Court
turns to the relevancy of the statements.
Under Fed. R. Evid. 401, evidence is relevant if “it has any tendency to make
a fact more or less probable than it would be without the evidence” and “the fact is of
consequence in determining the action.”28 However, relevant evidence may be
excluded “if its probative value is substantially outweighed by a danger of…unfair
prejudice, confusing the issues, [or] misleading the jury.”29 Defendant argues that
Morris’s statements are inadmissible because they are irrelevant to the present
case.30 Plaintiff argues that the statements are relevant because his statements can
be used to demonstrate that Defendant had knowledge of a defect in its sewage
system.31 Under Louisiana’s merchant liability statute, a plaintiff must demonstrate
that the merchant either created the hazard or had actual or constructive knowledge
of the hazard.32 These statements relate to the issues of whether Defendant created
or had constructive notice of a hazard in its sewage system because they make that
fact more or less probable and whether Defendant breached a duty owed to Plaintiff.
As a result, the Court finds this evidence relevant under Rule 401.
27 Id. at p. 3.
28 FED. R. E VID. 401
29 FED. R. E VID. 403.
30 R. Doc. 41-2 at p. 10.
31 R. Doc. 42 at p. 3.
32 La. R.S. § 9:2800.6.
Case 2:24-cv-02295-WBV-MBN Document 66 Filed 01/09/26 Page 6 of 10

7
Furthermore, because Defendant can call Nick Siegel, the person who Plaintiff
avers made the statements to Morris, to testify, any danger of unfair prejudice is
mitigated by Defendant’s ability to call the alleged declarant to rebut the testimony
of Morris. As such, these statements do not run afoul of Rule 403. Thus, testimony
from Mr. Morris regarding the statements are relevant under Rule 401, not barred
by Rule 403, and admissible under Rule 801.
B. Motion in limine to prohibit testimony that the sewer/sanitary line
had dips or “bellies” or that sewer/sanitary line was in violation of
any standards.
Defendant argues that Plaintiff should not be permitted to introduce evidence
or testimony that the sewer/sanitary line for the women’s restroom at Houston’s
contained 	“bellies” 	or 	that 	these 	alleged 	“bellies” 	violated 	plumbing 	industry
standards.33 Defendant contends that this evidence is irrelevant and that, even if
found to be relevant, its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury.34 Furthermore,
Defendant states that, to the extent that Plaintiff attempts to introduce this evidence
using her expert witness, the testimony would constitute irrelevant expert testimony
under Fed. R. Evid. 702.35
Plaintiff responds that testimony regarding bellies in the sewer/sanitary line
is admissible because it is relevant and comports with Daubert.36 Plaintiff states that
33 R. Doc. 41-2 at p. 14.
34 Id. at p. 15 (citing FED R. E VID. 401, 403).
35 Id. at pp. 15-16. Importantly, in its Motion Defendant challenges neither Serauskas’s qualifications
as an expert witness nor the reliability of the methods by which he arrived at his conclusions.
36 R. Doc. 42 at p. 6.
Case 2:24-cv-02295-WBV-MBN Document 66 Filed 01/09/26 Page 7 of 10

8
she intends to call Damien Serauskas as an expert witness to testify about the bellies
in the sewer.37 Plaintiff contends that Serauskas’s testimony will assist the jury in
determining whether Defendant had constructive notice of issues with its sewer prior
to Plaintiff’s fall that was allegedly caused by sewage back-up.38 Plaintiff argues that
this testimony is probative of whether the piping underneath the women’s restroom
is prone to blockages and whether those bellies contribute to plumbing blockages.39
Defendant replies that Serauskas has not opined on what caused the clog at issue in
the present case and that, as a result, his testimony should not be admitted.40
Defendant also states that, to the extent that Plaintiff relies on Serauskas’s affidavit
to “cure” alleged defects in his report and sworn testimony or conflicts with either, it
should not be considered by the Court.41
“Evidence is relevant if…it has any tendency to make a fact more or less
probable than it would be without the evidence.”42 Furthermore, expert testimony
must be “the expert's proposed opinion would assist the trier of fact to understand or
determine a fact in issue.”43 This requirement that testimony assist the trier of fact
“requires a valid scientific connection to the pertinent inquiry as a precondition to
admissibility.”44
37 Id. at pp. 7-10.
38 Id. at p. 10.
39 Id. at p. 12.
40 R. Doc. 44 at p. 5.
41 Id. at p. 6.
42 FED. R. E VID. 401.
43 Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003).
44 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592, 113 S. Ct. 2786, 2796, 125 L. Ed. 2d 469
(1993).
Case 2:24-cv-02295-WBV-MBN Document 66 Filed 01/09/26 Page 8 of 10

9
Under Louisiana’s merchant liability statute, the Plaintiff must prove that
“[t]he merchant either created or had actual or constructive notice of the condition
which 	caused 	the 	damage, 	prior 	to 	the 	occurrence.”45 	The 	statute 	defines
“constructive notice” as when the Plaintiff “has proven that the condition existed for
such a period of time that it would have been discovered if the merchant had exercised
reasonable care.”46 The Plaintiff “must make a positive showing of the existence of
the condition prior to the fall.”47
In his report, Serauskas detailed his reasoning and arrival at the conclusion
that there were bellies in the underground piping at Houston’s.48 Serauskas testified
in his deposition that it was “highly likely that the bellies existed” at the time of
Plaintiff’s fall in August 2023 and that such bellies “would have been a highly likely
contributing 	factor 	to 	recurring 	clogs 	in 	that 	piping.”49 The 	Court 	finds 	that
Serauskas’s testimony and report will assist the trier of fact in the present case
because those opinions relate to whether Defendant created or had actual or
constructive knowledge of the hazard that allegedly caused the damage.50 Proving
creation or notice is a requirement under the applicable Louisiana law.51 Serauskas’s
proposed testimony links the bellies to the causation of the hazard that Plaintiff
45 La. R.S. 9:2800.6.
46 Id.
47 White v. Wal-Mart Stores, Inc., 699 So. 2d 1081, 1084 (La. 9/9/97).
48 R. Doc. 42-4 at pp. 7-8.
49 R. Doc. 42-1, Deposition of Damien Serauskas, PE, at pp. 4, 6-7. To the extent that Defendant objects
to the use of the Serauskas affidavit, the Court bases its finding of relevance regarding Serauskas’s
proposed testimony on his report and sworn testimony during his deposition. See R. Doc. 44 at p. 6.
50 La. R.S. 9:2800.6 (B)(2).
51 See White, 600 So. 2d at 1084 (“This statute is clear and unambiguous. The statute uses the
mandatory ‘shall.’ Thus, in addition to all other elements of his cause of action, a claimant must also
prove each of the enumerated requirements of Section (B).”).
Case 2:24-cv-02295-WBV-MBN Document 66 Filed 01/09/26 Page 9 of 10

10
alleges caused her fall. The issues which Defendant has identified are appropriate
topics of cross-examination and speak more to the scope of Serauskas’s testimony
rather than its admissibility or relevance. The Court also finds that the probative
value of said testimony regarding alleged “bellies” in the sewer/sanitary line of
Houston’s outweighs any danger of unfair prejudice, confusion of the issues, or
misleading the jury and that, as such, it should not be excluded.
IV. 	CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that the pending portions52 of the Motion53 are
DENIED.
New Orleans, Louisiana, January 9, 2026.
______________________________
WENDY B. VITTER
United States District Judge
52 The Motion is pending only as it relates to Items C and G, as listed in Defendant’s Motion, R. Doc.
41.
53 R. Doc. 41.
Case 2:24-cv-02295-WBV-MBN Document 66 Filed 01/09/26 Page 10 of 10