United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
J. Hale, Judge United States District Court
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.
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)
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)
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).
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.
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)
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)).
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.
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. ...