Lawton et al v. Foremost Insurance Company et al
MEMORANDUM OPINION AND ORDER Signed by Chief Judge Joseph H. McKinley, Jr. on 3/6/2018 granting 37 Defendant's Motion to Exclude Plaintiff's Expert Larry Griffith. cc: Counsel (JM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO: 4:16-CV-00049-JHM
MARTY LEE LAWTON
SHARLOTTE LAWTON, and
FOREMOST INSURANCE COMPANY
HAMILTON BEACH BRANDS, INC.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant’s Motion to Exclude Plaintiff’s Expert
Larry Griffith [DN 37]. Fully briefed, this matter is ripe for decision. For the following reasons,
Defendant’s Motion is GRANTED.
This case arises out of a house fire that Plaintiffs claim was caused by a product made by
Defendant Hamilton Beach Brands, Inc. This suit was originally filed in Ohio County Circuit
Court. It was removed to this Court on April 29, 2016 on the basis of diversity jurisdiction
pursuant to 28 U.S.C. § 1332. (Notice of Removal [DN 1] ¶ 11.) In the course of this litigation,
Magistrate Judge Brennenstuhl set a deadline of October 10, 2017 for Plaintiffs to disclose any
experts that may testify at trial. (Order [DN 32] at 1.) Plaintiffs missed that deadline. It was not
until November 29, 2017 that Plaintiffs gave notice to the Court that their expert disclosures
were served on Defendant. (Notice of Service of Plaintiff’s Disclosure of Expert Witnesses [DN
35].) Accordingly, Defendant filed this Motion to Exclude, asking that the testimony of proposed
expert Larry Griffith be excluded based on Plaintiff’s failure to timely disclose that his expert
testimony would be used at trial. To date, there is nothing in the record making Griffith’s expert
disclosure or report available to the Court.
Defendant moves to exclude all testimony of Larry Griffith. In their Response, Plaintiffs
concede that Griffith should be excluded from testifying as an expert because of the missed
deadline for expert disclosures. For this reason, they withdraw their designation of Griffith as an
expert witness. However, Plaintiffs request that the Court still allow Griffith to testify as a fact
witness. In replying, Defendant argues that allowing Griffith to testify as a fact witness is an
attempt to thwart the expert disclosure rules and may be confusing to the jury.
The Court finds that Griffith’s expert testimony must be excluded. The Federal Rules
require a party to disclose to the other parties the identity of any expert witness it may use at
trial. Fed. R. Civ. P. 26(a)(2)(A). In this case, Plaintiffs did not make Griffith’s expert disclosure
by the agreed upon deadline. Rule 37 provides, “If a party fails to provide information or identify
a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). As such, Plaintiffs’ withdraw of
Griffith’s designation as an expert witness is appropriate.
However, Griffith is not prohibited from testifying as a fact witness. Unlike expert
testimony, parties are not required to meet the strict standards of Fed. R. Civ. P. 26(a)(2) to rely
on the testimony of lay witnesses. In testifying as a lay witness, Griffith will only be permitted to
testify to facts of which he is personally aware. Fed. R. Evid. 602 (stating that a witness who is a
non-expert may only testify to a matter if evidence supports that “the witness has personal
knowledge of the matter.”). Therefore, Griffith may provide testimony such as what work he
personally did in repairing the Lawtons’ home and how much payment he received for his
For the reasons set forth above, IT IS HEREBY ORDERED that Defendant’s Motion to
Exclude Plaintiff’s Expert Larry Griffith is GRANTED.
March 6, 2018
cc: counsel of record
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