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Williams v. Thorntons Inc.

United States District Court, S.D. Indiana, Terre Haute Division

April 24, 2018

SHERI WILLIAMS, Plaintiff,
v.
THORNTONS INC., Defendant.

          ENTRY ON DEFENDANT'S MOTIONS

          Hon. William T. Lawrence, Judge United States District Court Southern District of Indiana

         This cause is before the Court on the Motion for Summary Judgment filed by the Defendant, Thorntons Inc. (“Thorntons”) (Dkt. No. 28); Thorntons' motion to strike expert report (Dkt. No. 42); Thorntons' Motion to Strike Statement of Plaintiff's Claims (Dkt. No. 44); and Thorntons' motion for partial summary judgment (Dkt. No. 61). The motions are fully briefed, and the Court, being duly advised, DENIES the motion for summary judgment; DENIES the motion to strike; and GRANTS IN PART AND DENIES IN PART the motion for partial summary judgment.

         I. PRELIMINARY MATTERS

         The Court will first address Thorntons' motion to strike expert report. Thorntons argues that the Court should strike Williams' identification of Dr. Sameer Bavishi, Dr. Harold Loveall, and Mr. Chris Schmidt as experts and issue an order precluding Williams from eliciting standard of care and proximate causation opinions from those individuals because Williams did not serve a report by November 9, 2017.

         Federal Rule of Civil Procedure 26(a)(2) governs the disclosure of expert witnesses and provides, in relevant part:

(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report- prepared and signed by the witness-if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony.

* * *

(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state:
(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and
(ii) a summary of the facts and opinions to which the witness is expected to testify.

Fed. R. Civ. P. 26(a)(2).

         As the Advisory Committee Note to the 2010 amendment indicate, the subsection (C) disclosure requirements were added to “resolve a tension that has sometimes prompted courts to require reports under Rule 26(a)(2)(B) even from witnesses exempted from the report requirement.” Fed.R.Civ.P. 26, 2010 Advisory Committee Note. With the amendment to subsection (C), “[a]n (a)(2)(B) report is required only from an expert described in (a)(2)(B).” Id. (emphasis added). Further, “[a] witness who is not required to provide a report under Rule 26(a)(2)(B) may both testify as a fact witness and also provide expert testimony.” Id. The Advisory Committee Note lists, as frequent examples of an expert witness covered by subsection (C), “treating physicians or other health care professionals and employees of a party who do not regularly provide expert testimony.” Id.[1]

         Here, the Court finds that, because the medical providers are not retained experts, they fall within the disclosure requirements of subsections (a)(2)(A) and (a)(2)(C). Further, the Court finds that Williams has provided adequate disclosures as required by Rule 26(a)(2)(C).[2] As such, Thortons' motion is DENIED.

         II. STANDARD

         Federal Rule of Civil Procedure 56(a) provides that 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.” In ruling on a motion for summary judgment, the admissible evidence presented by the non-moving party must be believed, and all reasonable inferences must be drawn in the non-movant's favor. Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (“We view the record in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor.”). However, a party who bears the burden of proof on a particular issue may not rest on its pleadings, but must show what evidence it has that there is a genuine issue of material fact that requires trial. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003). Finally, the non-moving party bears the burden of specifically identifying the relevant evidence of record, and “the court is not required to scour the record in search of evidence to defeat a motion for summary judgment.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001).

         III. SUMMARY OF FACTUAL ALLEGATIONS

         The properly supported facts of record, viewed in the light most favorable to the Plaintiff, Sheri Williams, are as follow.

         On Saturday, June 6, 2015, Williams stopped at a Thorntons located at 2330 S. 3rd Street, Terre Haute, Indiana. Williams parked in the parking spot that was immediately adjacent to the empty handicap parking space outside Thorntons' entrance. After she went inside and bought tea, she walked out, stepped off the curb, took one step ...


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