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Hopkins v. Speedway Superamerica LLC

United States District Court, W.D. Kentucky, Louisville Division

August 1, 2017

SHAWN HOPKINS, Plaintiff,
v.
SPEEDWAY SUPERAMERICA LLC, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          David J. Hale, Judge United States District Court

         In September 2014, Plaintiff Shawn Hopkins slipped in a Speedway convenience store and injured his hand and shoulder. Hopkins brought this negligence action in Jefferson Circuit Court against Defendants Speedway Superamerica LLC, Speedway LLC, and MPC Investment, LLC (collectively Speedway). Speedway removed the case to federal court. (Docket No. 1) Speedway filed a motion for summary judgment, arguing that Hopkins is unable to prove causation, an essential element of his claim. (D.N. 21) For the reasons set forth below, Speedway's motion will be granted in part and denied in part.

         I. BACKGROUND

         Hopkins went to a Speedway store in Louisville, Kentucky, for a cup of coffee on the morning of September 24, 2014. (D.N. 21-1, PageID # 157) He poured a cup of coffee at the self-service island and walked toward the fountain machine to obtain ice. (Id.) On his way to the fountain machine, he slipped on a liquid substance on the floor. (Id.) As he slipped, Hopkins reached out and grabbed the coffee island with his right hand to prevent himself from falling. (Id.) The incident caused Hopkins to spill his coffee, burning his hand. (D.N. 1-2, PageID # 13; D.N. 21-3, PageID # 196) He also claims that the incident aggravated a pre-existing injury to his right shoulder, for which he had surgery in August 2014. (D.N. 1-2, PageID # 13; D.N. 17-1, PageID # 129)

         In his answers to Speedway's interrogatories, Hopkins indicated that he did not plan to call any expert witnesses except perhaps his treating physicians and therapists. (D.N. 21-2, PageID # 173) The Court's amended scheduling order entered August 26, 2016, required Hopkins to disclose his expert witnesses by October 15, 2016, and Speedway to disclose its expert witnesses by November 15, 2016. (D.N. 14, PageID # 111) Speedway timely disclosed its expert witness. (D.N. 17) Hopkins failed to timely disclose any expert witnesses. Unless this failure is substantially justified or is harmless, Rule 37(c)(1) of the Federal Rules of Civil Procedure would require the exclusion of any expert witness Hopkins might attempt to use at trial. However, Hopkins's response to Speedway's motion for summary judgment indicated that he does not plan to retain an expert, as he cannot afford one. (D.N. 24-1, PageID # 217)

         II. STANDARD

         In order to grant a motion for summary judgment, the Court must find that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of identifying the basis for its motion and the parts of the record that demonstrate an absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving party satisfies this burden, the non-moving party must point to specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

         While the Court must review the evidence in a light most favorable to the non-moving party, the non-moving party must do more than “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party must present specific facts demonstrating that a genuine issue of fact exists by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence . . . of a genuine dispute.” Fed.R.Civ.P. 56(c)(1). The non-moving party must establish a genuine issue of material fact with respect to each element of each of his claims. Celotex, 477 U.S. at 322-23. The mere existence of a scintilla of evidence in support of the non-moving party's position will be insufficient. Instead, there must be evidence upon which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 252.

         III. DISCUSSION

         While Kentucky substantive law governs Hopkins's negligence claim, federal procedural law governs the rules of practice concerning disclosure of witnesses and evidence. Hayes v. Equitable Energy Res., Co., 266 F.3d 560, 566 (6th Cir. 2001). “To prevail on a negligence claim under Kentucky law, the plaintiff must prove that the defendant 1) owed the plaintiff a duty of care, 2) the defendant breached the standard of care by which his or her duty is measured, and 3) that the breach was the legal causation of the consequent injury.” Johnson v. Wal-Mart Stores East, LP, 169 F.Supp.3d 700, 703 (E.D. Ky. 2016) (citing Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88-89 (Ky. 2003); Wright v. House of Imports, Inc., 381 S.W.3d 209, 213 (Ky. 2012)). Speedway asserts that Hopkins cannot prove that Speedway's conduct was the legal or proximate cause of his injuries without a medical expert and that his claim therefore fails as a matter of law. (D.N. 21-1, PageID # 156)

         “Kentucky law usually requires expert or medical testimony to establish that an incident legally caused a medical injury.” Lacefield v. LG Elecs., Inc., No. 3:06-12-KKC, 2008 WL 544472, at *3 (E.D. Ky. Feb. 26, 2008). An exception to this rule exists for situations “in which causation is so apparent that laymen with general knowledge would have no difficulty in recognizing it.” Id. (quoting Jarboe v. Harting, 397 S.W.2d 775, 778 (Ky. 1975)). Unless the exception applies, the general rule is that medical testimony is necessary to show “that causation is probable and not merely possible.” Id. “[T]he necessary expert testimony may be supplied by the defendant's admissions during discovery, or through medical evidence obtained from other treating physicians.” Vance ex rel. Hammons v. United States, 90 F.3d 1145, 1148 (6th Cir. 1996) (citing Perkins v. Hausladen, 828 S.W.2d 652, 655-56 (Ky. 1992)). “Failure of the plaintiff to secure an admission or ‘produce such testimony must result in dismissal of the action by entry of summary judgment.'” Blair v. GEICO Gen. Ins. Co., 917 F.Supp.2d 647, 657 (E.D. Ky. 2013) (quoting Goodwin v. CSX Transp., Inc., No. 3:07-cv-438-TBR, 2010 WL 4226454 (W.D. Ky. Oct. 21, 2010)).

         A.

         Speedway has made no admissions as to causation, and Hopkins failed to sufficiently disclose an expert witness in compliance with Rule 26(a) of the Federal Rules of Civil Procedure and the Court's scheduling order, which set an expert disclosure deadline of November 15, 2016. (See D.N. 14) Rule 26(a)(2)(B) requires that the disclosure of experts “retained or specially employed” to provide expert testimony be accompanied by a written report prepared and signed by the expert. For expert witnesses not required to provide a written report, Rule 26(a)(2)(C) requires that the party's disclosure state the subject matter on which the expert will testify, as well as a summary of the facts and opinions to which the expert will testify.

         In its first set of interrogatories, Speedway asked Hopkins to identify each person he might call as an expert witness and state the subject matter, facts, and opinions to which the expert will testify. (D.N. 21-2, PageID # 172-73) Hopkins answered: “None decided upon at this point other than perhaps physicians and/or therapists at Ellis and Badenhausen.” (Id., PageID # 173) The record reflects that Hopkins was treated at Ellis and Badenhausen by Dr. Rueff, who performed surgery on Hopkins's shoulder in August 2014. (See id., PageID # 189- 90) But Hopkins did not return to Dr. ...


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