                                                 NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                 No. 10-4390
                                _____________

                               DR. JOHN KIM,
                                     Appellant

                                       v.

           MARINA DISTRICT DEVELOPMENT COMPANY LLC,
                d/b/a BORGATA HOTEL CASINO & SPA
                           _____________

                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

               Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                July 10, 2012

           Before: RENDELL, SMITH, and BARRY, Circuit Judges

                             (Filed: July 12, 2012 )
                           _____________________

                                  OPINION
                           _____________________

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

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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 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




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been negligent in the preparation of Dr. Kim’s food. This timely appeal followed.1

      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 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.


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 clearly establish that Dr. Kim’s claims could never
have amounted to the requisite $75,000 amount in controversy given the claimed
$71,000 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 (1938)). We exercise jurisdiction under 28 U.S.C. § 1291.
2
  We exercise plenary review over an order granting summary judgment. Pichler
v. UNITE, 542 F.3d 380, 385-86 (3d Cir. 2008).
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Kim challenges the denial of his motion for summary judgment on liability, we are

unaware of any authority requiring review of this interlocutory ruling inasmuch as

this matter proceeded to trial and the jury 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).

      According to Dr. Kim, several of the District Court’s evidentiary rulings

during trial were also erroneous and prejudicial. 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 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

                                         4
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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