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Garrison v. Sam's East, Inc.

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

August 2, 2019

TAMMY A. GARRISON PLAINTIFF
v.
SAM'S EAST, INC. DEFENDANT and XEROX RECOVERY SERVICES INTERVENING PLAINTIFF

          MEMORANDUM OPINION AND ORDER

          GREG N. STIVERS, CHIEF JUDGE UNITED STATES DISTRICT COURT

         This 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.

         I. BACKGROUND

         On July 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).

         On 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).

         In its 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 62).

         II. JURISDICTION

         The Court has jurisdiction over this matter based on diversity jurisdiction. 28 U.S.C. § 1332.

         III. STANDARD OF REVIEW

         In 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, 247-48 (1986).

         While 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 252.

         IV. DISCUSSION

         It is 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)).

         Attempting 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, ...


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