United States District Court, W.D. Washington, Tacoma
ORDER ON DEFENDANT'S MOTION FOR SUMMARY
W. Christel United States Magistrate Judge
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").
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.
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.
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. 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.
MOTION TO STRIKE MOTION
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.
MOTION TO STRIKE EXPERT REPORT
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
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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
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 ...