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Plunkett v. Best Buy Co. Inc.

United States District Court, W.D. Washington, Tacoma

October 31, 2017

JUDITH PLUNKETT, Plaintiff,
v.
BEST BUY CO., INC, Defendant.

          ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          David W. Christel United States Magistrate Judge

         Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. Dkt. 15. Currently before the Court is Defendant Best Buy Co., Inc.'s Motion for Summary Judgment ("Motion"). Dkt. 18.

         The Court concludes Plaintiff Judith Plunkett has failed to show there is a genuine dispute as to material facts regarding whether Defendant acted negligently when it placed a row of nested shopping carts in a main aisle of its Silverdale, Washington store. Therefore, the Motion (Dkt. 18) is granted.

         I. BACKGROUND

         This case arises out of a "slip and fall" incident which occurred on December 3, 2014. See Dkt. 1. Plaintiff alleges she tripped over the protruding lower tray of a shopping cart in Defendant's Silverdale store ("the fall"). See Dkt. 2-2, 19-2, 21, 24. The shopping carts, which Defendant provided to customers, were nested together in a main aisle of the store. See Dkt. 2-2, 19-2, 21-1. Plaintiff contends Defendant's negligence caused the fall and, as a result of the fall, she "was severely injured, requiring medical treatment and resulting in a loss of life's enjoyment, pain and suffering, economic loss, and other injuries and losses." Dkt. 2-2, p. 2.

         Defendant filed the Motion on September 13, 2017. Dkt. 18. Plaintiff filed her Response on September 29, 2017, Dkt. 21, and Defendant filed a Reply on October 6, 2017. Dkt. 24. The Court heard oral argument on October 12, 2017.[1] After oral argument concluded, the Court allowed Plaintiff to correct an error in the Declaration of Joellen Gill and provided the parties an opportunity to file supplemental briefing on or before October 19, 2017. See Dkt. 26. Plaintiff filed an Amended Declaration of Joellen Gill with attachments. Dkt. 27, 28. The parties did not file supplemental briefing.

         II. MOTION TO STRIKE MOTION

         Plaintiff moved to strike the entire Motion because Defendant allegedly failed to comply with discovery requests. Dkt. 21, pp. 4-5. Plaintiff requested the Motion be struck as a sanction under Federal Rule of Civil Procedure 37. The Court heard argument on this matter at the October 12 hearing. See Dkt. 26. The Court found it was not appropriate to strike the Motion as a discovery sanction, and denied Plaintiffs request. See Dkt. 26.

         III. MOTION TO STRIKE EXPERT REPORT

         Defendant requests the Court strike the expert report and Declaration of Joellen Gill. Dkt. 24, pp. 5-6. During summary judgment, a party may object to material cited by the adverse party that would not be admissible in evidence. Fed.R.Civ.P. 56(c)(2). An expert opinion is admissible pursuant to Federal Rule of Evidence 702:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

         The Supreme Court has held that a trial court must act as a "gatekeeper" in determining whether to admit or exclude expert evidence in accordance with Federal Rule of Evidence 702. Daubertv. MerrellDow Pharm., Inc.,509 U.S. 579 (1993). To be admissible, expert testimony must ...


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