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Miller v. Coty, Inc.

United States District Court, W.D. Kentucky, Louisville

December 21, 2018



          Charles R. Simpson III, Senior Judge

         This matter is before the Court on objections by Defendants Coty, Inc. and Coty, US, LLC (collectively, “Coty”) to Plaintiffs witness lists (DN 86) and on objection by Plaintiffs May Miller and Timothy Miller (collectively, “Plaintiffs”) to Coty's witness lists (DN 87). Plaintiffs have requested a hearing on Coty's objections. The Court finds a hearing unnecessary. Fully briefed, these matters are ripe for decision.

         I. BACKGROUND

         This case arises from an injury sustained while using an at-home hair-removal waxing kit. In May of 2013, Timothy Miller (“Timothy”) purchased a “Sally Hansen Extra Strength All-Over Body Wax Kit.” (“Product”). Timothy alleges he purchased the Product for his wife, Plaintiff May Miller (“May”), to be used on her pubic area after discussing the topic of waxing. When Plaintiffs used the Product at home later that month, May sustained an injury to her labia majora. Specifically, the injury occurred while Timothy Miller was waxing May's pubic area. Plaintiffs bring claims against Coty under Kentucky's laws of products liability, breach of warranty, and consumer protection. This matter is set for jury trial on February 25, 2019. Pursuant to the scheduling order, the parties submitted objections to the other party's witness lists.

         II. Objections by Coty

         Coty filed objections (DN 86) to Plaintiff's witness list (DN 84). Plaintiff filed a response to the objections (DN 92).

         A. Coty's objections to Plaintiffs' factual witnesses

         Coty objects to Plaintiffs calling Summer Ashley[1] and Ann Munoz as fact witnesses because Plaintiffs never included the two witnesses in their Rule 26 Initial Disclosures, nor did Plaintiffs amend or supplement their disclosures prior to filing their Witness List. (DN 86, at 3-4). In support of their objections, Coty relies on Rule 37(c)(1):

Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.

Fed. R. Civ. P. 37(c)(1).

         1. Summer Ashley

         Ms. Ashley is expected to testify to May's emotional state after May's injury. (DN 92, at 2). Plaintiffs contend that Ms. Ashley was made known to Coty throughout the discovery process, and therefore exclusion is improper under the Federal Rules. (Id. at 2-3). This Court agrees. Rule 26 contains an exemption from the duty to disclose:

(1) In General. A party who has made a disclosure under Rule 26(a)--or who has responded to an interrogatory, request for production, or request for admission--must supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing

Fed. R. Civ. P. 26(e)(1)(A) (emphasis added).

         The record is clear that Ms. Ashley and the subject of the information about which she may testify was made known to Coty throughout the discovery process. Ms. Ashley was identified in Plaintiffs' Answers to Interrogatories on November 7, 2014 as someone known to have knowledge of discoverable matters. (DN 92-1, at 2). Additionally, Coty's counsel questioned May about Ms. Ashley during May's deposition on March 10, 2015:

Q: You list a Sumner Summer?
A: Summer Sumner, it's actually Ashley now. She got married.
Q: And who is that?
A: She has been a friend of mine.
Q: And what does she add to this?
A: She was emotionally supportive during or immediately after the injury.
Q: So she would be able to testify as to your emotional state after the injury; is that correct?
A: Yes.

(Miller Dep. 66:20-67:5, Mar. 10, 2015, DN 92-2, at 4-5). The Court finds that the non-disclosure of Ms. Ashley was not harmful to Coty because Coty was aware of this individual and that she had discoverable information. See Odom v. Thompson, No. 5:13-CV-211-TBR, 2017 WL 6522072, at *2 (W.D. Ky. Dec. 19, 2017) (declining to exclude witnesses where party was aware of the individuals and their relevance to the case); Jackson v. Herrington, No. 4:05-CV-00186-JMH, 2011 WL 1750200, at *2-3 (W.D. Ky. May 6, 2011) (declining to exclude witnesses who were not initially disclosed, but were identified in documents that were produced during discovery). Coty's objection to the testimony of Ms. Ashley will be overruled.

         2. ...

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