United States District Court, S.D. Indiana, Terre Haute Division
ENTRY ON DEFENDANT'S MOTIONS
William T. Lawrence, Judge United States District Court
Southern District of Indiana
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.
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.
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
(ii) a summary of the facts and opinions to which the witness
is expected to testify.
Fed. R. Civ. P. 26(a)(2).
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.”
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). As such,
Thortons' motion is DENIED.
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).
SUMMARY OF FACTUAL ALLEGATIONS
properly supported facts of record, viewed in the light most
favorable to the Plaintiff, Sheri Williams, are as follow.
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 ...