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Trent v. Anderson

United States District Court, W.D. Kentucky, Bowling Green Division

June 12, 2017

MICHELLE TRENT PLAINTIFF
v.
TIMOTHY B. ANDERSON, et al., DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          H. BRENT BRENNENSTUHL, UNITED STATES MAGISTRATE JUDGE

         Before the Court is the Defendants' motion for summary judgment, DN 30. Plaintiff Michelle Trent has responded in opposition at ¶ 32 and Defendants have replied at ¶ 33. The parties have consented to the undersigned's exercise of dispositive authority pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (DN 9).

         Nature of the Case

         Trent brings this action seeking recovery for injury sustained in a motor vehicle collision. On September 14, 2013, Trent was operating a motor vehicle on the property of a shopping mall. Defendants operated a tractor trailer which was making a delivery to one of the stores in the mall. The operator of Defendants' vehicle was apparently unaware that Trent was behind him when he began backing up to the loading dock, and the trailer made contact with Trent's vehicle.

         Defendants' Motion for Summary Judgment

         Defendants move for summary judgment under Fed.R.Civ.P. 56. Defendants argue that they are entitled to summary judgment because Trent has failed to timely identify expert witnesses in accordance with the scheduling order. Without such expert testimony, Defendants further contend, Trent cannot establish the necessary legal element of causation to support her claims.

         In support of their argument, the Defendants outline the proceedings in the case as follows:

1. The case was removed to this court under diversity jurisdiction on January 15, 2016.
2. On March 10, 2016, the undersigned entered a scheduling order in the case. That order provided a deadline of November 1, 2016 for Trent's disclosure of the identity of any person who may be used at trial to provide expert testimony under Fed.R.Civ.P. 26(a)(2)(A) and to submit written reports from any expert witnesses who are retained or specially employed as required by Fed.R.Civ.P. 26(a)(2)(B) (see DN 10).
3. On December 21, 2015, the Defendants served Trent with an interrogatory inquiring as to the identity and testimony of any expert witnesses. Trent responded to the interrogatory with an objection that the inquiry encroached upon attorney work product and that she would supplement the response in accordance with the rules and pretrial orders of the court.
4. On February 21, 2017, the Defendants served Trent with a supplement interrogatory inquiring as to whether any healthcare professional has identified any specific medical treatment required in the future for injuries sustained in the accident. If so, Trent was to identify the provider and the nature of the treatments. Trent responded to the interrogatory that in answer was “unknown.” In addition, Defendant repeated the earlier interrogatory regarding expert witnesses, to which Trent responded as before.

         While Trent did file an expert identification by the deadline established in the scheduling order, she only included the names of her treating physicians and provided no reports or description of the anticipated testimony (DN 25).

         Defendants argue that, as a diversity case, Trent must satisfy a three-element test under Kentucky law to establish negligence on the Defendants' part. Those elements are (1) that the defendant owed the plaintiff a duty of care; (2) the defendant breached the duty under the applicable standard of measure, and: (3) the breach was the legal causation of the injury. Simmons v. Strong, 978 F.Supp.2d 779, 783 (E.D. Ky. 2013); Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88-89 (Ky. 2003). Defendants cite Blair v. Geico Gen. Ins. Co., 917 F.Supp.2d 647, 657 (E.D. Ky. 2013) for the proposition that “Kentucky law usually requires expert or medical testimony to establish that an incident legally cause a medical injury.” Defendants acknowledge that there are exceptions when causation is so apparent that a layperson would recognize it based upon general knowledge. See Blair, 917 F.Supp.2d at 657. Defendants argue, however, that this “readily apparent” exception is a high bar and, even if met in this case regarding the injury, projection of future medical expenses, pain and suffering and lost earnings are clearly beyond the ken of the average layperson. Defendants further argue that Trent's past medical history is complicated, and the jury cannot unravel causation without expert testimony.

         Defendants contend that Trent has failed to identify any medical experts for purposes of testifying as to future consequences of her injuries including treatment and suffering. If her treating physicians are permitted to testify, Defendants assert that their testimony must be limited to their direct knowledge of her course of treatment as a matter of fact, and they may not stray into expert opinion as to what the future holds. Consequently, Defendants move for summary judgment on Trent's personal injury claim on the basis that she cannot establish by expert testimony a causal connection between the accident and her claimed injuries. In the alternative, Defendants move for summary judgment on her claims for future medical expenses, impairment of power to earn money and medical expenses because, even if her treating physicians are permitted to testify, they cannot offer expert opinions as to these aspects of the claim.

         Trent's Response

         Trent responds to the Defendants' motion with the assertion that she has complied with “both the letter and the spirit of the scheduling order” (DN 31, p. 3). She notes that on April 1, 2016 she filed her initial disclosure naming the treating physicians who would testify regarding “plaintiff's injuries, treatment, medical expense, pain and suffering, future treatment and prognoses” (Id.). She states that she also provided Defendants with a full copy of her medical records in her possession. On November 1, 2016, the deadline established by the scheduling order, she provided a disclosure of the identities of her non-retained experts who may testify. As she has no retained experts, she explains that no reports were required.

         By Trent's reading of the scheduling order, she has done all that is required. She notes that Rule 26(a)(2)(D) requires that expert disclosures must be made 90 days before trial absent a stipulation or court order. She states that the scheduling order only required her to identify experts not specifically retained for purposes of testifying at trial. As the scheduling order did not set a deadline for making further disclosures regarding non-retained experts, she concludes that the default 90-day-before-trial deadline ...


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