Hopkins v. Speedway SuperAmerica LLC et al

Filing 33

MEMORANDUM OPINION AND ORDER by Judge David J. Hale on 8/1/2017 - Speedway's motion for summary judgment (D.N. 21) is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED as to Hopkins's claim for injuries to his shoulder. The motion is DENIED as to Hopkins's claim for burn injuries to his hand. cc: Counsel(DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
SHAWN HOPKINS,

Plaintiff,

v.

Civil Action No. 3:15-cv-834-DJH

SPEEDWAY SUPERAMERICA LLC, et al.,

Defendants.

* * * * *
MEMORANDUM OPINION AND ORDER
In September 2014, Plaintiff Shawn Hopkins slipped in a Speedway convenience store
and injured his hand and shoulder. Hopkins brought this negligence action in Jefferson Circuit
Court against Defendants Speedway Superamerica LLC, Speedway LLC, and MPC Investment,
LLC (collectively Speedway). Speedway removed the case to federal court. (Docket No. 1)
Speedway filed a motion for summary judgment, arguing that Hopkins is unable to prove
causation, an essential element of his claim. (D.N. 21) For the reasons set forth below,
Speedway’s motion will be granted in part and denied in part.
I. BACKGROUND
Hopkins went to a Speedway store in Louisville, Kentucky, for a cup of coffee on the
morning of September 24, 2014. (D.N. 21-1, PageID # 157) He poured a cup of coffee at the
self-service island and walked toward the fountain machine to obtain ice. (Id.) On his way to
the fountain machine, he slipped on a liquid substance on the floor. (Id.) As he slipped, Hopkins
reached out and grabbed the coffee island with his right hand to prevent himself from falling.
(Id.) The incident caused Hopkins to spill his coffee, burning his hand. (D.N. 1-2, PageID # 13;
D.N. 21-3, PageID # 196) He also claims that the incident aggravated a pre-existing injury to his

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right shoulder, for which he had surgery in August 2014. (D.N. 1-2, PageID # 13; D.N. 17-1,
PageID # 129)
In his answers to Speedway’s interrogatories, Hopkins indicated that he did not plan to
call any expert witnesses except perhaps his treating physicians and therapists. (D.N. 21-2,
PageID # 173) The Court’s amended scheduling order entered August 26, 2016, required
Hopkins to disclose his expert witnesses by October 15, 2016, and Speedway to disclose its
expert witnesses by November 15, 2016. (D.N. 14, PageID # 111) Speedway timely disclosed
its expert witness. (D.N. 17) Hopkins failed to timely disclose any expert witnesses. Unless this
failure is substantially justified or is harmless, Rule 37(c)(1) of the Federal Rules of Civil
Procedure would require the exclusion of any expert witness Hopkins might attempt to use at
trial. However, Hopkins’s response to Speedway’s motion for summary judgment indicated that
he does not plan to retain an expert, as he cannot afford one. (D.N. 24-1, PageID # 217)
II. STANDARD
In order to grant a motion for summary judgment, the Court must find that there is no
genuine dispute as to any material fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of identifying the
basis for its motion and the parts of the record that demonstrate an absence of any genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving party
satisfies this burden, the non-moving party must point to specific facts demonstrating a genuine
issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
While the Court must review the evidence in a light most favorable to the non-moving
party, the non-moving party must do more than “simply show that there is some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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586 (1986). The non-moving party must present specific facts demonstrating that a genuine
issue of fact exists by “citing to particular parts of materials in the record” or by “showing that
the materials cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P.
56(c)(1). The non-moving party must establish a genuine issue of material fact with respect to
each element of each of his claims. Celotex, 477 U.S. at 322–23. The mere existence of a
scintilla of evidence in support of the non-moving party’s position will be insufficient. Instead,
there must be evidence upon which a jury could reasonably find for the non-moving party.
Anderson, 477 U.S. at 252.
III. DISCUSSION
While Kentucky substantive law governs Hopkins’s negligence claim, federal procedural
law governs the rules of practice concerning disclosure of witnesses and evidence. Hayes v.
Equitable Energy Res., Co., 266 F.3d 560, 566 (6th Cir. 2001). “To prevail on a negligence
claim under Kentucky law, the plaintiff must prove that the defendant 1) owed the plaintiff a
duty of care, 2) the defendant breached the standard of care by which his or her duty is measured,
and 3) that the breach was the legal causation of the consequent injury.” Johnson v. Wal-Mart
Stores East, LP, 169 F. Supp. 3d 700, 703 (E.D. Ky. 2016) (citing Pathways, Inc. v. Hammons,
113 S.W.3d 85, 88–89 (Ky. 2003); Wright v. House of Imports, Inc., 381 S.W.3d 209, 213 (Ky.
2012)). Speedway asserts that Hopkins cannot prove that Speedway’s conduct was the legal or
proximate cause of his injuries without a medical expert and that his claim therefore fails as a
matter of law. (D.N. 21-1, PageID # 156)
“Kentucky law usually requires expert or medical testimony to establish that an incident
legally caused a medical injury.” Lacefield v. LG Elecs., Inc., No. 3:06-12-KKC, 2008 WL
544472, at *3 (E.D. Ky. Feb. 26, 2008). An exception to this rule exists for situations “in which

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causation is so apparent that laymen with general knowledge would have no difficulty in
recognizing it.” Id. (quoting Jarboe v. Harting, 397 S.W.2d 775, 778 (Ky. 1975)). Unless the
exception applies, the general rule is that medical testimony is necessary to show “that causation
is probable and not merely possible.” Id. “[T]he necessary expert testimony may be supplied by
the defendant’s admissions during discovery, or through medical evidence obtained from other
treating physicians.” Vance ex rel. Hammons v. United States, 90 F.3d 1145, 1148 (6th Cir.
1996) (citing Perkins v. Hausladen, 828 S.W.2d 652, 655–56 (Ky. 1992)). “Failure of the
plaintiff to secure an admission or ‘produce such testimony must result in dismissal of the action
by entry of summary judgment.’” Blair v. GEICO Gen. Ins. Co., 917 F. Supp. 2d 647, 657 (E.D.
Ky. 2013) (quoting Goodwin v. CSX Transp., Inc., No. 3:07-cv-438-TBR, 2010 WL 4226454
(W.D. Ky. Oct. 21, 2010)).
A.
Speedway has made no admissions as to causation, and Hopkins failed to sufficiently
disclose an expert witness in compliance with Rule 26(a) of the Federal Rules of Civil Procedure
and the Court’s scheduling order, which set an expert disclosure deadline of November 15, 2016.
(See D.N. 14) Rule 26(a)(2)(B) requires that the disclosure of experts “retained or specially
employed” to provide expert testimony be accompanied by a written report prepared and signed
by the expert. For expert witnesses not required to provide a written report, Rule 26(a)(2)(C)
requires that the party’s disclosure state the subject matter on which the expert will testify, as
well as a summary of the facts and opinions to which the expert will testify.
In its first set of interrogatories, Speedway asked Hopkins to identify each person he
might call as an expert witness and state the subject matter, facts, and opinions to which the
expert will testify. (D.N. 21-2, PageID # 172–73) Hopkins answered: “None decided upon at

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this point other than perhaps physicians and/or therapists at Ellis and Badenhausen.” (Id.,
PageID # 173) The record reflects that Hopkins was treated at Ellis and Badenhausen by Dr.
Rueff, who performed surgery on Hopkins’s shoulder in August 2014. (See id., PageID # 189–
90) But Hopkins did not return to Dr. Rueff until June 8, 2015, after he injured his right shoulder
yet again, in an unrelated incident, while trying to turn a pool filter. (D.N. 17-1, PageID # 131)
In his response to Speedway’s motion for summary judgment, Hopkins relies only on the
medical records currently before the Court. (See D.N. 24-1, PageID # 220–21) He concedes that
he did not make a full Rule 26 disclosure “because no expert for opinions other than possible
treatment notes was to be listed.” (Id., PageID # 219) Hopkins states that “he does not expect to
call a medical expert to testify, and if a medical expert does testify for one reason or another,
then only the statements in the medical records will be mentioned and not opinions [in
accordance with McFerrin v. Allstate Property & Casualty Company, 29 F. Supp. 3d (E.D. Ky.
2014)].” (Id., PageID #222) Indeed, the plaintiff in McFerrin failed to properly disclose his
expert, but stated that his treating physician would not be providing expert testimony. The court
held that the treating physician could only “testify as a fact witness, and cannot testify as to his
professional opinion concerning [causation].” McFerrin, 29 F. Supp. 3d at 935.
Based on Hopkins’s response, it is unclear exactly how or if he plans to use his treating
physician as a witness. But it is clear that, in the absence of a sufficient disclosure under Rule
26(a)(2)(B) or 26(a)(2)(C), a party is not permitted to use an expert witness at trial. Fed. R. Civ.
P. 37(c).1 Because Hopkins did not properly disclose his treating physician or any other witness

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Notably, Hopkins has not argued that his failure to sufficiently disclose an expert was
“substantially justified” or “harmless” under Rule 37(c). As Rule 37(c) requires absolute
compliance with Rule 26, the sanction is appropriate here. Roberts ex rel. Johnson v. Galen of
Virginia, Inc., 325 F.3d 776, 782 (6th Cir. 2003). But the imposed sanction has limited effect at
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as an expert under Rules 26(a)(2)(B) and 26(a)(2)(C), he may not use his treating physician or
any other witness as an expert. Thus, Hopkins can only establish causation “if the cause of his
injuries is so apparent that lay members of the jury could easily determine whether and to what
extent” Speedway’s conduct caused his injuries. Lacefield, 2008 WL 544472, at *3; see also
McFerrin, 29 F. Supp. 3d at 935.
B.
Hopkins suffered two separate injuries as a result of his slip-and-fall accident at
Speedway, but Speedway’s motion only addresses the alleged shoulder injury and not the coffee
burn.

The burn to Hopkins’s hand fits within the layman’s exception to the general rule

requiring expert testimony.

In Tatham v. Palmer, the court found the layman’s exception

applicable where the plaintiff, who had no history of headaches, suffered from incessant
headaches following an automobile accident in which his head struck the windshield of the car.
439 S.W.2d 938, 938 (Ky. 1969). The court stated that “it is within the realm of common
knowledge that a severe blow to the head will cause headaches.” Id. at 939.
Similarly, “it is within the realm of common knowledge that” a hot liquid will cause a
burn to the skin. Id. In his deposition, Hopkins gave his own account of the incident, stating that
he spilled hot coffee on himself as he slipped. (D.N. 21-3, PageID # 196) The burn injury was
clearly visible, and the record contains a photograph showing redness on Hopkins’s hand after he
spilled hot coffee on it.

(D.N. 24-2, PageID # 226)

Further, Hopkins’s answers to

interrogatories reflect that he experienced “pain and suffering” to his right hand from the coffee
burns, which he claims subsided after three or four weeks. (D.N. 21-2, PageID # 173) Medical
records also show that Hopkins was treated for burns to his hand following the incident. (Id.,
this time, as Hopkins has provided no testimony from any witness—either expert witness or fact
witness—in opposition to Speedway’s motion for summary judgment.
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PageID # 187–88) A lay juror could reasonably infer causation with respect to this injury from
the evidence. See generally Tatham, 439 S.W.2d at 939. Therefore, summary judgment on this
claim is improper.
C.
The alleged injury to Hopkins’s right shoulder, however, does not fall within the
layman’s exception, and Hopkins is without expert testimony to prove causation. In response to
Speedway’s motion, Hopkins argues that the “evidence directly indicates” that there was an
injury and no expert is necessary. (D.N. 24-1, PageID # 220) Hopkins asserts generally that the
“layman’s exception” applies, but offers little support and ignores the key fact of a pre-existing
shoulder injury. (Id., PageID # 221, 223) Unlike the burn injury, the extent and cause of
Hopkins’s shoulder injury are not apparent given his extensive history of right shoulder pain and
a very recent and complex surgery. See McFerrin, 29 F. Supp. 3d at 935–36; Blair, 917 F. Supp.
2d at 658.
Courts have found the layman’s exception inapplicable and have required expert medical
testimony in situations where the plaintiff, like Hopkins, suffered from a pre-existing injury. The
plaintiff in Blair experienced neck pain following an automobile accident. Blair, 917 F. Supp.
2d at 650, 658. The court determined that because Blair had a history of neck pain for which she
received medical treatment prior to the accident, “a juror could not reasonably infer from
common or layman’s knowledge that the accident caused Blair’s injuries.”

Id. at 658.

Comparing Blair’s injury to the plaintiff’s injury in Tatham, the court explained:
It is conceivable that jurors could determine causation when they hear testimony
that a man had never had headaches, see evidence that he was in a car accident,
read the reports that he was treated in a hospital due to head injuries, look at the
scar on his forehead, and hear his testimony that he now experiences debilitating
headaches. However, it is another thing all together to charge a jury of common
men and women unaided by expert medical assistance with the task of sorting out
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how much, if any, of Blair’s neck pain arose from the accident and how much can
be attributed to her pre-existing neck pain. . . .
Blair, 917 F. Supp. 2d at 658. Similarly, the plaintiff’s extensive history of back problems in
McFerrin required expert testimony concerning the cause of an alleged fracture following an
automobile accident. See 29 F. Supp. 3d at 926, 935.
Hopkins stated that he began having shoulder problems as early as 2013, eventually
experiencing severe pain in his right shoulder. (D.N. 21-3, PageID # 196) From the record, it
appears that he first complained to a physician about shoulder pain in February 2013. (D.N. 171, PageID # 128; D.N. 21-3, PageID # 196) Prior to the incident at Speedway, Hopkins saw a
physician or received treatment and diagnostic imaging for his shoulder at least nine times from
February 2013 to August 2014. (D.N. 17-1, PageID # 128–29) On August 13, 2014, roughly
one month before the incident, Hopkins underwent complex shoulder surgery. (Id., PageID #
129) He began physical therapy on August 20, 2014. (Id.) As in Blair and McFerrin, Hopkins’s
extensive history of shoulder problems and recent surgery require expert testimony to prove
causation. A reasonable lay juror could not infer that the incident at Speedway caused Hopkins’s
shoulder injury. Even if it had, a reasonable lay juror could not separate the injury attributable to
the incident at Speedway from the pre-existing injury without the assistance of an expert. See
generally Blair, 917 F. Supp. 2d at 658. With no expert testimony, Hopkins is unable to
establish causation
Speedway, however, submitted the expert report of Dr. Stacie Grossfeld, who examined
Hopkins, his medical records, and video footage of the incident. (See D.N. 17-1) Dr. Grossfeld
concluded that the incident at Speedway did not cause any injury to Hopkins’s shoulder. (D.N.
17-1, PageID # 135–36) Hopkins has provided no expert testimony to refute Dr. Grossfeld’s
conclusions. He relies solely on the medical records already before the Court and insists that this
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case is one in which the layman’s exception applies. However, due to his medical history, his
injury is not so apparent that the layman’s exception applies. See Blair, 917 F. Supp. 2d at 658;
McFerrin, 29 F. Supp. 3d at 935. The medical records and the mere possibility that Hopkins
may call a treating physician as a witness at trial are insufficient to survive summary judgment.
With respect to the shoulder injury, the record lacks any evidence upon which a jury could
reasonably find for Hopkins on the issue of causation. Anderson, 477 U.S. at at 252. Therefore,
there are no genuine issues of material fact with regard to Hopkins’s shoulder injury, and
Speedway is entitled to summary judgment on that claim.
D.
Finally, the Court will address Hopkins’s argument that Speedway bears the burden of
proving it exercised reasonable care under Lanier v. Wal-Mart, 99 S.W.3d 431 (Ky. 2003).
(D.N. 24-1, PageID # 224) First, Hopkins provides an inaccurate summary of Lanier. Second,
Hopkins’s thinly supported argument is inapposite in light of Speedway’s motion for summary
judgment, which is based on causation.
In premises liability cases, Kentucky employs a burden-shifting approach to the elements
of duty and breach. See Lanier, 99 S.W.3d at 436. This means that a rebuttable presumption of
negligence is established once the plaintiff proves that (1) he encountered a dangerous condition
on the premises; (2) the encounter was a substantial factor in causing the accident; and (3) the
premises were not in a reasonably safe condition by reason of the dangerous condition. Id. at
435–36. The burden then shifts to the defendant to prove the absence of negligence through the
exercise of reasonable care. Id. Thus, regardless of the burden-shifting approach, Hopkins still
must prove the element of causation. Id.; see also Mitchell v. Flying J Inc., No. 5:06-cv-73-R,
2007 WL 1959174, at *2 (W.D. Ky. June 29, 2007) (explaining that the plaintiff must initially

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prove causation even under Lanier’s burden-shifting approach). Speedway’s motion argues that
Hopkins has no proof of causation and cannot establish that Speedway’s conduct caused his
shoulder injury. Hopkins provides no proof to refute this argument and fails to rebut Speedway’s
evidence with respect to the shoulder injury. Accordingly, Speedway is entitled to summary
judgment on that claim.
IV. CONCLUSION
For the reasons set forth above, Speedway’s motion for summary judgment (D.N. 21) is
GRANTED IN PART AND DENIED IN PART. The motion is GRANTED as to Hopkins’s
claim for injuries to his shoulder. The motion is DENIED as to Hopkins’s claim for burn
injuries to his hand.
August 1, 2017

David J. Hale, Judge
United States District Court

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