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Selby v. Kmart Corp.

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

December 11, 2017

SHENA SELBY, a disabled person, by her Mother and Guardian, MOLLIE SELBY PLAINTIFF
v.
KMART CORPORATION DEFENDANT

          MEMORANDUM OPINION AND ORDER

          H. Brent Brennenstuhl, United States Magistrate Judge.

         Before 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.

         Procedural History and Nature of the Motion

         This is 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).

         In 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).

         On 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 trial.

(Id.).

         In the 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 becomes available.

(Id.). The remaining enumerated paragraphs read as follows:

(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 disclosures.

(Id. PageID # 54-55).

         On 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 ...


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