United States District Court, W.D. Kentucky, Bowling Green Division
SHENA SELBY, a disabled person, by her Mother and Guardian, MOLLIE SELBY PLAINTIFF
KMART CORPORATION DEFENDANT
MEMORANDUM OPINION AND ORDER
Brent Brennenstuhl, United States Magistrate Judge.
the Court is Defendant Kmart Corporation's motion,
pursuant to Fed.R.Civ.P. 26(a) and 37, to strike
Plaintiff's expert witness disclosures and to exclude her
expert witnesses (DN 16). Plaintiff Shena Selby has filed a
response (DN 18), and Kmart has filed a reply (DN 20). The
matter stands submitted to the undersigned for ruling.
History and Nature of the Motion
a personal injury action that arises out of an accident on
September 22, 2016 (DN 1-1 PageID # 4). Selby, a customer and
business invitee, apparently tripped and fell while in the
parking lot of Kmart's store in Russell Springs, Russell
County, Kentucky (DN 1-1 PageID # 4; DN 15 PageID # 55).
Selby originally filed this action in the Russell Circuit
Court on January 30, 2017 (DN 1-1 PageID # 4). Kmart
subsequently removed the action to this Court (DN 1).
compliance with the District Judge's order (DN 6),
counsel for the parties conducted a planning meeting and
submitted a joint proposed litigation plan (DN 8). On April
11, 2017, the undersigned conducted a Rule 16 scheduling
conference with counsel for the parties (DN 9). In pertinent
part the scheduling order reads as follows:
No later than November 1, 2017, counsel for the Plaintiff
shall disclose 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 shall submit written reports from any expert
witnesses who are retained or specially employed as required
by Fed.R.Civ.P. 26(a)(2)(B).
(DN 9 PageID # 35).
November 1, 2017, Selby submitted her expert witness
disclosures (DN 15). In the first enumerated paragraph, Selby
makes a general assertion that “any physician(s)”
who have rendered treatment regarding her claim of personal
injuries “will testify consistent with their medical
records” (DN 15 PageID # 54). However, with the
exception of Dr. Barret H. Lessenberry, Selby does not
identify any physicians (Id.). Instead she
identified the following seven entities: Lifeline Health Care
of Russell Springs, T. J. Sampson Community Hospital, Baron
Metcalf EMS, Russell County EMS, Russell County Hospital,
Anesthesiology Associates of Glasgow, and Adair Family
Medical Center (Id.). The final sentences in this
paragraph read as follows:
Specifically, Dr. Lessenberry will give testimony regarding
his care and treatment of the Plaintiff, as it relates to the
injury complained of herein. Dr. Lessenberry will give
testimony regarding the permanent impairment of the Plaintiff
as a result of the injury complained of herein. Dr.
Lessenberry will also offer testimony as a fact witness at
second enumerated paragraph, Selby identifies John
Schorering, a professional engineer, and provides his address
(Id.). The final sentences of this paragraph state:
Mr. Schorering will offer testimony regarding the unsafe curb
and entrance of the Defendant. Specifically, that the curb
and sidewalk was constructed and maintained in such a manner
that it caused Ms. Selby to trip and fall, as complained of
herein. Mr. Schorering has agreed to give said testimony but
has yet to be formally retained or employed but will provide
a written report once it is completed. Undersigned agrees to
supplement this disclosure with written report once it
(Id.). The remaining enumerated paragraphs read as
(3) Any expert witness identified by any other party.
(4) Any expert whom it may be necessary to call to rebut the
testimony of any other party and/or witness.
(5) The Plaintiffs reserves [sic] the right to amend these
(Id. PageID # 54-55).
November 6, 2017, Kmart moved to strike Selby's expert
disclosures and to exclude any expert testimony from Dr.
Lessenberry, the seven entities mentioned above, and Mr.
Schorering (DN 16). Selby ...