United States District Court, W.D. Kentucky, Bowling Green Division
TAMMY A. GARRISON PLAINTIFF
SAM'S EAST, INC. DEFENDANT and XEROX RECOVERY SERVICES INTERVENING PLAINTIFF
MEMORANDUM OPINION AND ORDER
N. Stivers, Judge United States District Court
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
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).
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.
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
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).
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).
STANDARD OF REVIEW
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).
contends that the Magistrate Judge made several errors in
deciding to grant part of Defendant's motion to strike