ORDER
Merdelin Johnson sued the Target Corporation for negligence in this diversity action after she slipped on a spill at a Target store and allegedly sustained neck and back injuries. Her claim eventually went to trial and the jury found in Target’s favor. Johnson appeals, challenging certain evidentiary rulings as well as the
Johnson was shopping at a Target store in Evanston, Illinois, when she slipped on a spill that she described later as either a liquid or powder. According to Johnson, her body pitched forward but she did not fall. She reported the spill to a Target employee and later filed an incident report. She saw a physician a week later for neck and back pain.
Johnson, an Illinois citizen, sued Target in state court, alleging that the accident occurred as a result of the company’s negligence. Target, she maintained, had failed to adequately inspect and maintain safety in its Evanston store. Her neck and back injuries, she further alleged, required her to seek medical help, subjected her to physical pain, caused her to miss work, and prevented her from performing everyday activities. Target, a Minnesota corporation, removed the case to federal court.
Discovery ensued and Target — in response to some of Johnson’s requests— mistakenly admitted that it knew about the origin of the spill. Shortly after the close of discovery, Target realized that such admissions were mistaken and moved to withdraw them; the court granted the motion. Subsequently, the court ruled that evidence of prior slip-and-fall accidents at the Evanston store (more than 30 such accidents over a 3-year period) had to be excluded from trial because Johnson did not show that any of these accidents resembled her own.
The case proceeded to trial, at which Johnson, three Target employees, and a treating physician testified. Johnson tried to show that she slipped on an absorbent powder that Target used to clean up liquid spills. Target called one of its employees, who testified that the absorbent clumps up after put on a liquid and is not slippery, and counsel read to the jury Johnson’s deposition transcript, in which she said that she did not know what the spill was or how long it had been on the floor. The jury returned a verdict in Target’s favor. Target then sought litigation costs from Johnson in the amount of $5500. The court settled upon $2500.
On appeal, Johnson first challenges the district court’s pretrial ruling that Target could withdraw two of its admissions concerning the origin of the spill. The court granted Target’s motion because the admissions were clearly inconsistent with its other discovery responses denying knowledge about the spill. Johnson argues that she was prejudiced by the court’s decision in that she had relied on the admissions and could no longer seek more evidence because discovery had closed.
Johnson’s argument is not persuasive. A court may permit withdrawal of an admission if the party opposing withdrawal fails to show prejudice, FED. R. CIV. P. 36(b); Banos v. City of Chicago,
Next Johnson faults the district court’s pretrial decision to exclude evidence of slip-and-fall accidents at the Ev-anston store. But the court did not abuse its discretion by excluding this evidence because evidence of prior accidents is relevant so long as the accidents are “substantially similar” to the one at issue. Mihailovich v. Laatsch,
Johnson next argues that at trial the court improperly limited the testimony she wanted to present from Dr. Carl Hill, the physician who treated her shortly after her accident and diagnosed a slipped disk and muscle spasms. The court limited Dr. Hill to testifying about his examination of Johnson, and declined to treat him as an expert witness because she had not designated him as such before trial. Johnson acknowledges failing to list Dr. Hill as an expert witness, but downplays the oversight as harmless because she did list him as a lay witness.
The district court did not abuse its discretion by limiting Dr. Hill’s testimony. If a party fails to identify a proposed expert witness, see Fed.R.Civ.P. 26(a)(2), that witness’s testimony is automatically excluded unless the party shows that its failure to disclose was justified or harmless. Fed. R.CivP. 37(c)(1); NutraSweet Co. v. X-L Eng’g Co.,
Last, Johnson argues that the district court abused its discretion by awarding $2500 in costs to Target. The court had reduced Target’s proposed costs by roughly half (deciding that some costs for transcripts and copies were unauthorized) but found her documentation of below-poverty-line earnings insufficient to establish her inability to pay. Johnson argues that the court should not have awarded costs to Target because she cannot—now or in the “near future”—pay the costs. A prevailing party, however, presumptively receives the costs of litigation and it is the losing party’s burden to overcome this presumption. Fed.R.CivP. 54(d)(1); Rivera v. City of Chicago,
Johnson’s remaining arguments (regarding pleadings, discovery, evidentiary rulings, and jury instructions) are undeveloped or based on factual misunderstandings and warrant no further discussion. See FED. R. APP. P. 28(a)(9); Anderson v. Hardman,
AFFIRMED.