United States District Court, W.D. Kentucky, Louisville
Charles R. Simpson III, Senior Judge
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.
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.
Objections by Coty
filed objections (DN 86) to Plaintiff's witness list (DN
84). Plaintiff filed a response to the objections (DN 92).
Coty's objections to Plaintiffs' factual
objects to Plaintiffs calling Summer Ashley 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).
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
Fed. R. Civ. P. 26(e)(1)(A) (emphasis added).
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
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
Q: So she would be able to testify as to your emotional state
after the injury; is that correct?
(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.