United States District Court, W.D. Kentucky, Bowling Green Division
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 42). The matter is now ripe for
adjudication. For the reasons that follow, the motion is
Statement of Facts
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).
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).
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).
STANDARD OF REVIEW
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).
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
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 ...