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Alexander v. Walgreens Co.

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

December 10, 2019

CHARLES BRIAN ALEXANDER PLAINTIFF
v.
WALGREENS CO. DEFENDANT

          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 42). The matter is now ripe for adjudication. For the reasons that follow, the motion is GRANTED.

         I. BACKGROUND

         A. Statement of Facts

         In August 2017, Plaintiff Charles Alexander (“Alexander”) sought medical treatment for an eye infection. (Compl. ¶¶ 5-6, DN 1). He was diagnosed with Blepharitis, an infected eye or eyelid, and was prescribed with Ofloxacin, an eyedrop treatment. (Compl. ¶¶ 7-8). The prescription was called into Walgreens #4448, which is operated by Defendant Walgreens Co. (“Walgreens”). (Compl. ¶ 8). On August 19, 2017, Alexander picked up the prescription and began to apply the medicine to his eyes. (Compl. ¶¶ 8-11). Two days later, on August 21, 2017, Alexander was contacted by Walgreens informing him there was an error when filling the prescription. (Def.'s Mem. Supp. Mot. Summ. J. 1, DN 42-1). Alexander was given the ear-related formulation of Ofloxacin rather than the eye-related formulation. (Def.'s Mem. Supp. Mot. Summ J. 2). Alexander alleged that he suffered permanent damage to his eye as a result of this mistake. (Compl. ¶ 1).

         B. Procedural History

         On June 9, 2018, Alexander filed a complaint claiming negligence on the part of Walgreens. (Compl. ¶¶ 20-23). On March 19, 2019, the Magistrate Judge issued a scheduling order establishing deadlines for discovery. (Scheduling Order, DN 34). In relevant part, the scheduling order provides that the identity of any person who may be used at trial to provide expert testimony must have been disclosed by Alexander no later than May 15, 2019, and Daubert motions challenging those experts were to be filed no later than September 1, 2019. (Scheduling Order 2). Alexander provided his initial disclosures on April 15, 2019 but did not ever identify any expert witnesses. (Pl.'s Initial Disclosure, DN 35). On August 12, 2019, Walgreens moved for summary judgment. (Def.'s Mot. Summ. J., DN 42). Alexander responded, and Walgreens replied. (Pl.'s Resp. Def.'s Mot. Summ. J., DN 44; Def.'s Reply Mot. Summ. J., DN 46).

         II. JURISDICTION

         The Court has subject matter jurisdiction over this action via diversity under 28 U.S.C. § 1332. There is complete diversity between the parties because Alexander is a citizen and resident of Kentucky and Walgreens is an Illinois corporation. The amount in controversy as pleaded exceeds $75, 000.00. (See Compl. ¶¶ 2-4).

         III. STANDARD OF REVIEW

         Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Judgment as a matter of law should be granted if “a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue . . . .” Fed.R.Civ.P. 50(a)(1). 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, 323 (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. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (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-movant's] position will be insufficient” to overcome summary judgment. Anderson, 477 U.S. at 252.

         IV. DISCUSSION

         Walgreens argues first that Alexander has failed to identify any expert witness as required under Fed.R.Civ.P. 26 and that the deadline to identify such witnesses has now passed. (Def.'s Mem. Supp. Mot. Summ. J 2). Walgreens contends that without an expert witness Alexander is incapable of proving causation, which is an essential ...


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