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Garrison v. Xerox Recovery Services

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

September 12, 2018



          Greg N. Stivers, Judge United States District Court

         This matter is before the Court on Plaintiff's Objection to the Magistrate Judge's Memorandum, Opinion, & Order Granting in Part Defendant's Motion to Strike (DN 40). For the reasons discussed below, the objection is OVERRULED.

         I. BACKGROUND

         A. Factual Background

         Plaintiff Tammy Garrison (“Plaintiff”) asserts claims for personal injury in this action arising from her slip and fall on an unknown liquid substance at the Sam's Club (“Sam's”) in Bowling Green, Kentucky. (Notice Removal Ex. 1, ¶¶ 3, 5-7, DN 1-1 [hereinafter Compl.]). Plaintiff filed suit in the Warren Circuit Court relating to her injuries, and Sam's removed the action to federal court pursuant to 28 U.S.C. §§ 1332, 1446. (Compl.; Notice Removal ¶¶ 9-10, DN 1).

         On December 6, 2016, the first scheduling order was entered in this case and established June 30, 2017, as the deadline for Plaintiff's disclosure of expert witnesses. (Scheduling Order, DN 13). The scheduling order was subsequently amended twice by agreement of the parties, with the latest deadline for Plaintiff's expert identification set for November 30, 2017. (Agreed Am. Scheduling Order, DN 18). On the day of the disclosure deadline, Plaintiff filed an expert witness disclosure, and Sam's advised by letter on December 15, 2017 that it believed the disclosure was deficient under Fed.R.Civ.P. 26(a)(2)(C) and requested that Plaintiff supplement her disclosure. (Expert Witness Disclosure, DN 22; Mot. Strike Expert Witness Disclosure Ex. 1, DN 28-2). Plaintiff's counsel did not respond.

         On April 20, 2018, Sam's moved to strike Plaintiff's expert witness disclosure after she failed to supplement it. (Def.'s Mot. Strike Expert Witness Disclosure, DN 28). In its motion, Sam's argued that Plaintiff's disclosure failed to state the subject matter on which the witnesses were expected to testify and failed to provide a summary of the facts and opinions to which the experts were expected to testify, as required by Fed.R.Civ.P. 26(a)(2)(C). (Def.'s Mem. Supp. Mot. Strike Expert Witness Disclosure 4-5, DN 28-1). Sam's further argued that exclusion of the witnesses was appropriate under Fed.R.Civ.P. 37(c). (Def.'s Mem. Supp. Mot. Strike Expert Witness Disclosure 5).

         After reviewing Plaintiff's expert witness disclosure as well as both parties' memoranda, the Magistrate Judge entered an order granting in part and denying in part Sam's motion to strike. (Mem. Op. & Order 8, DN 38). The Magistrate Judge imposed sanctions against Plaintiff pursuant to Fed.R.Civ.P. 37(c)(1) for failing to comply with Fed.R.Civ.P. 26(a)(2)(C) and ordered that the witnesses identified by Plaintiff in her expert witness disclosure were precluded from offering any testimony or opinion as an expert witness under Fed.R.Civ.P. 26(a)(2)(C). (Mem. Op. & Order 8). The Magistrate Judge, however, ordered that the witnesses were permitted to testify as fact witnesses under Fed.R.Civ.P. 26(a)(1). (Mem. Op. & Order 8). Plaintiff has objected to that ruling on the basis that the Magistrate Judge's conclusions were clearly erroneous and contrary to law. (Pl.'s Obj., DN 40).


         The Court has jurisdiction over Plaintiff's claims based on 28 U.S.C. §§ 1332, 1446. There is diversity of citizenship among the parties and the amount in controversy exceeds $75, 000. (Notice Removal ¶¶ 8-9, DN 1).


         Fed. R. Civ. P. 72(a) provides that the district court judge must consider objections to a magistrate judge's order on a non-dispositive matter and must “modify or set aside any part of the order that is clearly erroneous or is contrary to law.” A “magistrate judge's factual findings are reviewed under the clearly erroneous standard.” Scott-Warren v. Liberty Life Assurance Co. of Boston, No. 3:14-CV-00738-CRS-CHL, 2016 WL 5661774, at *3 (W.D. Ky. Sept. 29, 2016) (citation omitted). “A factual finding is clearly erroneous when ‘the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'” Id. (citation omitted). This “standard only requires the reviewing court to determine if there is any evidence to support the magistrate judge's finding and that the finding was reasonable.” Id. (citation omitted). Alternatively, a “magistrate judge's legal conclusions are subject to the plenary ‘contrary to law' standard.” Id. (citation omitted). “A legal conclusion is contrary to law when it contradicts or ignores applicable legal principles found in the Constitution, statutes, and case precedent.” Id. (citations omitted).


         Plaintiff contends that the Magistrate Judge made several errors in deciding to grant part of Defendant's motion to strike ...

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