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, CHIEF JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on Defendant's Motion for
Summary Judgment (DN 56). The motion is ripe for decision.
For the reasons provided below, the motion is GRANTED IN PART
and DENIED IN PART.
27, 2015, Plaintiff Tammy A. Garrison
(“Plaintiff”) was shopping at a store operated by
Defendant Sam's East, Inc. (“Defendant”) in
Bowling Green, Kentucky. While walking down the seafood aisle
pushing her shopping cart, Plaintiff slipped on a liquid
substance and fell. (Garrison Dep. 159:8-160:20, Feb. 15,
2017, DN 56-2). Plaintiff alleged she suffered several
injuries as a result of this fall. (Garrison Dep. 101:1-8).
She now seeks damages to compensate for her injuries,
associated medical expenses, and pain and suffering. (Compl.
¶ 9, DN 1-1).
November 30, 2017, Plaintiff's former counsel filed an
expert witness designation which identified her treating
medical providers but left out further information about
anticipated opinion testimony. (Pl.'s Resp. Def.'s
Mot. Summ. J. 2, DN 60 [hereinafter Pl.'s Resp.]).
Defendant moved to strike Plaintiff's designated expert
witness because she failed to comply with applicable
disclosure requirements. (Def.'s Mot. Strike, DN 40). The
Magistrate Judge granted the motion, prohibited
Plaintiff's expert witnesses from testifying on
causation, and imposed sanctions against Plaintiff. (Mem. Op.
& Order 6-7, DN 38). On September 12, 2018, this Court
overruled Plaintiff's Objections to the Magistrate
Judge's decision. (Mem. Op. & Order 7, DN 52).
present motion, Defendant now argues that the decision
prohibiting Plaintiff's expert witnesses from testifying
on the subject of causation doom her claim as a matter of
Kentucky tort law. (Def.'s Mem. Supp. Mot. Summ. J. 6, DN
56-1). Plaintiff contends there is sufficient evidence to
preclude summary judgment based on her testimony in
conjunction with the opinions from Defendant's medical
expert witness, Dr. Chad Price (“Dr. Price”).
(Pl.'s Resp. 3). Defendant replies that Plaintiff has
cherry-picked Dr. Price's opinions to offer evidence
directly contradicting his ultimate conclusions on the
question of causation. (Def.'s Reply Mot. Summ. J. 3, DN
Court has jurisdiction over this matter based on diversity
jurisdiction. 28 U.S.C. § 1332.
STANDARD OF REVIEW
ruling on a motion for summary judgment, the Court must
determine whether there is any genuine issue of material fact
that would preclude entry of judgment for the moving party as
a matter of law. See Fed.R.Civ.P. 56(a). The moving party
bears the initial burden of stating the basis for the motion
and identifying evidence in the record that demonstrates an
absence of a genuine dispute of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
If the moving party satisfies its burden, the non-moving
party must then produce specific evidence proving the
existence of a genuine dispute of fact for trial. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
the Court must view the evidence in the light most favorable
to the non-moving party, the non-moving party must do more
than merely show the existence of some “metaphysical
doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986) (citation omitted). Rather, the non-moving party must
present specific facts proving that a genuine factual dispute
exists by “citing to particular parts of the materials
in the record” or by “showing that the materials
cited do not establish the absence . . . of a genuine dispute
. . . .” Fed.R.Civ.P. 56(c)(1). “The mere
existence of a scintilla of evidence in support of the
[non-moving party's] position will be insufficient”
to overcome summary judgment. Anderson, 477 U.S. at
well established that causation is a “necessary element
of proof in any negligence case.” Baylis v. Lourdes
Hosp., Inc., 805 S.W.2d 122, 124 (Ky. 1991) (citations
omitted). “Kentucky law usually requires expert or
medical testimony to establish that an incident legally
caused a medical injury.” Blair v. GEICO Gen. Ins.
Co., 917 F.Supp.2d 647, 657 (E.D. Ky. 2013) (internal
quotation marks omitted) (citation omitted). “The
necessary expert testimony may be supplied by the
defendant's admission during discovery, or through
medical evidence obtained from other treating
physicians.” Vance By and Through Hammons v. United
States, 90 F.3d 1145, 1148 (6th Cir. 1996) (citation
omitted). This testimony from the expert “must be that
the causation is probable and not merely possible.”
Tatham v. Palmer, 439 S.W.2d 938, 939 (Ky1969). An
exception to this rule exists, however, for “situations
in which causation is so apparent that laymen with general
knowledge would have no difficulty in recognizing it . . .
.” Blair, 917 F.Supp.2d at 657 (internal
quotation marks omitted) (citation omitted). Therefore,
circumstantial evidence may be sufficient to prove causation
where the evidence reasonably establishes a causal connection
between the alleged negligence and the injury.
Baylis, 805 S.W.2d at 124 n.3 (quoting Johnson
v. Vaughn, 370 S.W.2d 591, 597 (Ky. 1963)).
to satisfy the expert testimony requirement, Plaintiff refers
to select portions of Dr. Price's report as supporting
the inference that the subject fall caused her injuries,