United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
AND DEFENDANT'S MOTION TO PRECLUDE EXPERT TESTIMONY (ECF
NOS. 26 AND 37)
R. SWEENEY II, JUDGE
Linda Waldon fell while shopping in a Wal-Mart store in
Crawfordsville, Indiana. She believes she slipped on a white
plastic hanger on the floor. Ms. Waldon sued Wal-Mart in
state court for damages to compensate her for the injuries
she sustained in the fall. Plaintiff Steve Waldon,
Linda's husband, brought a claim for loss of consortium.
Wal-Mart removed the action to this district court under 28
U.S.C. §§ 1441 and 1446, asserting diversity
jurisdiction under 28 U.S.C. § 1332.
has moved for summary judgment. Wal-Mart also has moved to
preclude the testimony of Plaintiffs' expert, Edmund Di
Marco, and to strike his affidavit, and has requested its
attorneys' fees and expenses for having to evaluate and
respond to the Di Marco affidavit. For the following reasons,
the Court finds that Di Marco's testimony should be
precluded, his affidavit should be stricken, Wal-Mart's
motion for summary judgment should be granted, and
Wal-Mart's request for sanctions should be denied.
Motion to Preclude Expert Testimony
the resolution of Wal-Mart's Motion to Preclude Expert
Testimony could affect the evidence on which Plaintiffs may
rely to establish a genuine issue of material fact in
response to the summary judgment motion, the Court first
considers the motion to preclude expert testimony. Wal-Mart
contends that Di Marco's expert testimony should be
excluded because his report fails to comply with Federal Rule
of Civil Procedure 26 and his opinions are inadmissible under
Federal Rule of Evidence 702. Plaintiffs have not responded
to the motion to exclude their expert's testimony. They
therefore have forfeited any argument in opposition to the
motion that they could have made. See, e.g.,
Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th
Cir. 2010) (“The silence resulting from the
[nonmovant's] failure to file a response brief is
deafening . . . . Failure to respond to an argument-as the
[nonmovant has] done here- results in waiver.”).
Wal-Mart's arguments regarding the expert testimony and
report are well-taken. Wal-Mart argues that Di Marco's
report is “a blatantly inadequate disclosure” and
“plainly violative” of Federal Rule of Civil
Procedure 26(a). And Wal-Mart asserts that it has been
prejudiced in its ability to address the issues raised on
summary judgment due to the untimely filing of the expert
affidavit. Under Rule 26(a), an expert retained by a party to
testify in a case must prepare a written report that includes
“a complete statement of all opinions the witness will
express and the basis and reasons for them; [and] the facts
or data considered by the witness in forming them . . .
.” Fed.R.Civ.P. 26(a)(2)(B)(i)-(ii); see also
Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 641 (7th
Cir. 2008). Rule 37(c)(1) provides teeth to this requirement:
“If a party fails to provide information . . . as
required by Rule 26(a) . . . the party is not allowed to use
that information or witness to supply evidence on a motion .
. . or at a trial, unless the failure was substantially
justified or is harmless.” Fed.R.Civ.P. 37(c)(1);
see also Ciomber, 527 F.3d at 641.
“This sanction is automatic and mandatory unless the
offending party can establish that its violation . . . was
either justified or harmless.” Ciomber, 527
F.3d at 641 (internal quotation marks omitted). Here,
Plaintiffs have provided no response.
read, Di Marco's expert report offers two opinions.
First, his report opines that “they [presumably
Wal-Mart and/or its employees] did not practice a safe
environment for the customers and the employees.”
(ECF No. 37-1.) The report also opines that certain
photos taken by Wal-Mart “showed slipping or tripping
hazard[s] in the area.” (ECF No. 37-1.) The
first opinion is a mere conclusion with no supporting
analysis, and thus does not meet the requirements of Federal
Rule of Evidence 702. See, e.g., Gopalratnam v.
Hewlett-Packard Co., 877 F.3d 771, 781 (7th Cir. 2017)
(“Rule 702 explicitly requires that expert testimony be
‘based on sufficient facts or data.'”)
(quoting Fed.R.Evid. 702); Zenith Elec. Corp. v. WH-TV
Broad Corp., 395 F.3d 416, 419 (7th Cir. 2005)
(“An expert who supplies nothing but a bottom line
supplies nothing of value to the judicial process.”).
The second opinion is based only on Di Marco's personal
observation, which is not a “‘substitute for
scientific methodology and [is] insufficient to satisfy
Daubert's most significant guidepost':
reliability.” Hartman v. EBSCO Indus., Inc.,
758 F.3d 810, 819 (7th Cir. 2014) (quoting Chapman v.
Maytag Corp., 297 F.3d 682, 688 (7th Cir. 2002)).
Indeed, Di Marco fails to identify any methodology whatsoever
on which he relied in forming his opinions.
Marco expert report is wholly lacking in any of “the
basis and reasons” for the expert's opinions or of
“the facts or data considered” by him in forming
his opinions. The report, and thus the expert disclosure, are
woefully inadequate under Federal Rule of Civil Procedure
26(a)(2). See Fed. R. Civ. P. (a)(2)(B)(i)-(v).
the opinions offered in Di Marco's affidavit were not
disclosed by Plaintiffs in their expert report. The opinions
in the affidavit are new opinions; they were not even
mentioned in Plaintiffs' expert disclosures served on
September 7, 2018. (Wal-Mart included a copy of Di
Marco's expert witness report as Exhibit A to its motion,
which exhibit was filed on November 8, 2018, as ECF No.
37-1.) These new opinions would come as a complete
surprise to Wal-Mart, and Plaintiffs waited to disclose them
until after Wal-Mart had moved for summary judgment. This
prevented Wal-Mart from addressing these undisclosed opinions
in its opening summary judgment brief and caused Wal-Mart to
seek additional time to move to limit or preclude expert
testimony and to seek discovery on the basis for Di
Marco's findings disclosed in his affidavit. (SeeECF
No. 35; ECF No. 36.) The opinions in the
affidavit could be excluded under Rule 37(c)(1) on this basis
alone. See Fed. R. Civ. P. 37(c)(1) (“If a
party fails to provide information . . . as required by Rule
26(a) . . ., the party is not allowed to use that information
or witness to supply evidence on a motion . . . or at a
trial, unless the failure was substantially justified or is
have not established, or even argued, that Di Marco's
untimely affidavit report was substantially justified or
harmless. However, the Court need not rely solely on the
inadequacies and untimeliness of Plaintiffs' expert
disclosure to reach the conclusion that Di Marco's
opinions and testimony must be excluded. As Wal-Mart
contends, Di Marco's expert testimony, both in his report
and his affidavit, is inadmissible because it is not reliable
or relevant, it is based on speculation, and it would not
assist the trier of fact. Fed.R.Civ.P. 702; Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)
(Federal Rules of Evidence require the district court to
ensure that expert testimony “is not only relevant, but
reliable”). Plaintiffs have not even responded, must
less argued otherwise, and they, as the proponents of the
expert, bear the burden of demonstrating that the testimony
is admissible. Lewis v. CITGO Petroleum Corp., 561
F.3d 698, 705 (7th Cir. 2009). The Court finds that Di
Marco's expert opinions, both in the Rule 26(a) expert
report and in the expert's affidavit, are not admissible
under Federal Rule of Evidence 702 and Daubert. The
affidavit is further excludable for failure to comply with
the strictures of Rule 26(a). Therefore, Wal-Mart's
Motion to Preclude Expert Testimony should be granted.
requests an award of sanctions under Rule 37(c) for
Plaintiffs' failure to comply with the expert disclosure
deadline in the Court's scheduling orders. Wal-Mart
should not have had to evaluate Di Marco's untimely
affidavit; however, Di Marco's timely yet inadequate
report by itself likely would have resulted in a motion to
strike the expert testimony. Therefore, the Court finds that
an award of sanctions is not appropriate in this instance.
judgment is appropriate when “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). In
considering a motion for summary judgment, the district court
“must construe all the facts and reasonable inferences
in the light most favorable to the nonmoving party, ”
Monroe v. Ind. Dep't of Transp., 871 F.3d 495,
503 (7th Cir. 2017), but the court does not draw
“inferences that are supported by only speculation or
conjecture, ” id.(quoting Argyropoulos v.
City of Alton, 539 F.3d 724, 732 (7th Cir. 2008)).
moving party bears the burden of showing the absence of
genuine issues of material fact. Lewis v. Wilkie,
909 F.3d 858, 866 (7th Cir. 2018). If the moving party
carries its burden, “the burden shifts to the
non-moving party to come forward with specific facts showing
that there is a genuine issue for trial.” Id.
(quoting Spierer v. Rossman, 798 F.3d 502, 507 (7th
Cir. 2015)). “Where the record taken as a whole could
not lead a rational trier of fact to find for the ...