Walker et al v. Target Corporation
ORDER granting in part and denying in part 85 Motion for Partial Summary Judgment Signed by District Judge Keith Starrett on 7/7/2017 (dtj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
DR. DEBRA L. WALKER, et al.
CIVIL ACTION NO. 2:16-CV-42-KS-MTP
MEMORANDUM OPINION AND ORDER
For the reasons below, the Court grants in part and denies in part
Defendant’s Motion for Partial Summary Judgment . Specifically, the Court denies
the motion as to Plaintiffs’ claim of lost wages and wage-earning capacity, but the
Court grants the motion as to Plaintiff’s claim of past and future medical expenses for
a spinal cord stimulator and radiofrequency ablation.
This is a slip-and-fall case. Plaintiff Debra Walker slipped in a puddle of water
while shopping at Target in Hattiesburg, Mississippi. She claims that the fall caused
her to sustain permanently disabling injuries. Her husband claims a loss of
consortium. Defendant filed a Motion for Summary Judgment  as to certain
elements of Mrs. Walker’s alleged damages, which the Court now addresses.
II. STANDARD OF REVIEW
Rule 56 provides that “[t]he court shall grant summary judgment if the movant
shows that 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); see also Sierra Club, Inc.
v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010). “An issue is
material if its resolution could affect the outcome of the action.” Sierra Club, Inc., 627
F.3d at 138. “An issue is ‘genuine’ if the evidence is sufficient for a reasonable jury to
return a verdict for the nonmoving party.” Cuadra v. Houston Indep. Sch. Dist., 626
F.3d 808, 812 (5th Cir. 2010).
The Court is not permitted to make credibility determinations or weigh the
evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). When deciding
whether a genuine fact issue exists, “the court must view the facts and the inference
to be drawn therefrom in the light most favorable to the nonmoving party.” Sierra
Club, Inc., 627 F.3d at 138. However, “[c]onclusional allegations and denials,
speculation, improbable inferences, unsubstantiated assertions, and legalistic
argumentation do not adequately substitute for specific facts showing a genuine issue
for trial.” Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
Lost Wages, Future Wages, and Wage Earning Capacity
First, Defendant argues that Plaintiffs have no evidence that Mrs. Walker is
permanently disabled and has lost all wage-earning capacity. Therefore, Defendant
contends that the Court should grant summary judgment as to any claim of lost wages
– whether past, present, or future – and lost earning capacity.
Of course, “plaintiffs bear the burden of going forward with sufficient evidence
to prove their damages by a preponderance of the evidence.” Potts v. MDOT, 3 So. 3d
810, 813 (Miss. Ct. App. 2009).
A claim for damages for a lost or diminished earning capacity must be
supported by satisfactory proof of the fact of such impairment, the extent
thereof, and, in the case of a claim for permanent impairment of earning
power, by satisfactory evidence of the permanency of the injury; and the
proof should be made by the best evidence available. Proof with certainty
or mathematical exactness is not required, nor need the proof be clear
and indubitable; but such damages must be established by substantial
evidence and cannot be left to mere conjecture.
Id. at 813-14 (quoting Casey v. Texgas Corp., 361 So. 2d 498, 499 (Miss. 1978))
(citations and punctuation omitted).
“Mississippi law . . . does not require . . . plaintiffs to use expert testimony to
prove” a loss of wage-earning capacity. Coleman v. Swift Transp. Co. of Ariz., LLC, No.
3:13-CV-3-DMB-SAA, 2014 U.S. Dist. LEXIS 96538, at *19 (N.D. Miss. July 16, 2014).
Rather, the jury is required to “measure any damages for loss of wage earning capacity
by looking at the plaintiffs’ health, physical ability, age, and earning power before the
accident as well as the effect of their injuries on earning power.” Id. at 21. Therefore,
medical records, a medical expert’s testimony as to the plaintiff’s injuries (rather than
as to her earning capacity), and the plaintiff’s own testimony as to the effect the
injuries had on her ability to work may be sufficient to support an award of damages
for lost earning capacity. See, e.g. id. at *20; see also Coleman v. Lehman, 649 F. Supp.
363, 369 (N.D. Miss. 1986) (in bench trial, court based award of lost past and future
wages on plaintiff’s employment and medical history, her own testimony regarding the
effect of her injuries, and a physician’s assignment of disability percentage).
Here, the record contains sufficient evidence to create a genuine dispute of
material fact as to Plaintiff’s claims of lost wages and lost earning capacity. First,
Plaintiff provided extensive testimony as to the alleged effect the accident had on her.
For example, she testified that she is now unable to walk without assistance;1 she has
restrictions on bending, lifting, and twisting;2 she claims to suffer from crippling fear,
stress, and depression;3 she claims she can not sit for prolonged periods of time;4 and
she claims to suffer from chronic pain.5
In addition to Plaintiff’s own testimony, the record includes a determination by
an examiner with the Social Security Administration that she is “disabled,” and that
“medical improvement [is] not expected . . . .” Exhibit 4 to Response at 9, 13, Walker
v. Target Corp., No. 2:16-CV-42-KS-MTP (S.D. Miss. May 18, 2017), ECF No. 108-4.
Based on Plaintiff’s medical records, the report noted:
[Claimant] has multilevel inoperable spondyloses with discopathies
including facet and ligamentum flavum hypertrophies. She is unable to
bend, lift, or twist. Cannot sit or stand for more than thirty minutes
without significant low back or hip pain. Very slow on stairs. Has
significant impairment in the ability to ambulate effectively. Maintains
forward flexed gait with inability to stand without difficulty. She also has
severely impaired ability to sleep soundly, markedly contributing to her
Id. at 5. Plaintiff’s psychiatric analysis included the following notes: “[T]he
preponderance of the evidence suggests that the [claimant’s] pain and physical
problems are the primary limiting factor. However, she appears to have secondary
Exhibit 8 to Response at 125-28, Walker v. Target Corp., No. 2:16-CV-42-KSMTP (S.D. Miss. May 18, 2017), ECF No. 109-8.
Id. at 113, 131.
Id. at 125-28.
Id. at 138.
Id. at 139.
depressive and anxious features associated with adjustment issues to her pain and
physical limitations.” Id. at 6. The examiner also noted that she “appears to have
moderate limitations in the ability to carry out detailed instructions, sustain attention
and concentration, and to perform at a persistent pace due to her mood features.” Id.
Finally, Mrs. Walker’s medical records contain evidence of her medical problems.
See Exhibit 4 to Response, Walker v. Target Corp., No. 2:16-CV-42-KS-MTP (S.D. Miss.
May 18, 2017), ECF No. 111-4; Exhibit C to Motion to Strike, Walker v. Target Corp.,
2:16-CV-42-KS-MTP (S.D. Miss. May1, 2017), ECF No. 100. Among other things, she
has had multiple herniated discs in her back, chronic pain syndrome, and a torn
Taken together, all of this evidence is sufficient to create a genuine dispute of
material fact as to whether Mrs. Walker is disabled or has lost wage-earning capacity.
The Court denies Defendant’s motion for summary judgment as to Mrs. Walker’s claim
for lost wages and lost earning capacity.
Medical Expenses – Spinal Cord Stimulator and RF Ablation
Next, Defendant argues that Plaintiffs have no evidence to support their claim
that certain past and future medical expenses were caused by the subject slip-and-fall.
Specifically, they contend that Plaintiffs have presented no evidence to support a
demand for past and future medical expenses for the implantation and/or replacement
of a spinal cord stimulator or a radiofrequency ablation procedure.
First, Plaintiffs argue that their summary of Dr. David Lee’s expected expert
testimony creates a genuine dispute of material fact on this issue. See Exhibit 3 to
Response at 7-8, Walker v. Target Corp., No. 2:16-CV-42-KS-MTP (S.D. Miss. May 18,
2017), ECF No. 111-3. The Court previously ruled that although David Lee may testify
as an expert, he may only offer fact or opinion testimony that is contained within the
medical records from his treatment of Mrs. Walker that were produced to Defendant.
See Memorandum Opinion and Order at 6-7, Walker v. Target Corp., No. 2:16-CV-42KS-MTP (S.D. Miss. July 6, 2017), ECF No. 152. Therefore, regardless of what
Plaintiffs’ summary provides, if the expected testimony is not in the medical records,
it will not be admitted at trial or considered on summary judgment. See Lee v. Offshore
Logistical & Transp., LLC, No. 16-31049, 2017 U.S. App. LEXIS 10387, at *3 (5th Cir.
June 9, 2017); see also FED. R. CIV. P. 37(c)(1).
Next, Plaintiff contends that Lee’s “medical records are replete with statements
relating to causation,” but she failed to direct the Court to any specific statement or
record therein.6 “Rule 56 does not impose upon the district court a duty to sift through
the record in search of evidence to support a party’s opposition to summary judgment.”
Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003). Therefore, if a party opposing
summary judgment does not pinpoint the specific evidence in support of their
opposition, “that evidence is not properly before the district court.” Id. (citing Ragas v.
Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998); Skotak v. Tenneco Resins,
Inc., 953 F.2d 909, 916 (5th Cir. 1992)).
See Exhibit 4 to Response to Motion for Partial Summary Judgment, Walker
v. Target Corp., No. 2:16-CV-42-KS-MTP (S.D. Miss. May 18, 2017), ECF No. 111-4.
Finally, Plaintiff argues that the affidavits of David Lee7 and Lacy Sapp8 create
a genuine dispute of material fact on this issue. In a previous order, the Court excluded
Lee’s affidavit from both trial and the Court’s consideration on summary judgment
pursuant to Rule 37. See Memorandum Opinion and Order , at 6-7. Therefore, the
Court will not consider it in addressing the current motion.
As for Sapp’s affidavit, Defendant argues that it should be excluded pursuant
to Rule 37. Rule 26 provides that “a party must disclose to the other parties the
identity of any witness it may use at trial to present” expert testimony. FED. R. CIV. P.
26(a)(2)(A). “Unless otherwise stipulated or ordered by the court, this disclosure must
be accompanied by a written report – prepared and signed by the witness – if the
witness is one retained or specially employed to provide expert testimony in the case
. . . .” FED. R. CIV. P. 26(a)(2)(B). The report must contain the following:
a complete statement of all opinions the witness will express and
the basis and reasons for them;
the facts or date considered by the witness in forming them;
any exhibits that will be used to summarize or support them;
the witness’s qualifications, including a list of all publications
authored in the previous 10 years;
a list of all other cases in which, during the previous 4 years, the
See Exhibit 4 to Response to Motion to Exclude Opinions of Medical
Experts, Walker v. Target Corp., No. 2:16-CV-42-KS-MTP (S.D. Miss. May 18,
2017), ECF No. 107-4.
Exhibit 1 to Response to Motion for Partial Summary Judgment, Walker v.
Target Corp., No. 2:16-CV-42-KS-MTP (S.D. Miss. May 18, 2017), ECF No. 111-1.
witness testified as an expert at trial or deposition; and
a statement of the compensation to be paid for the study and
testimony in the case.
FED. R. CIV. P. 26(a)(2)(B)(i)-(vi). “A party must make these disclosures at the times
and in the sequence that the court orders.” FED. R. CIV. P. 26(a)(2)(D).9 Local Rule 26
provides that a “party must make full and complete disclosure as required by FED. R.
CIV. P. 26(a) and L.U.Civ.R. 26(a)(2)(D) no later than the time specified in the case
management order.” L.U.Civ.R. 26(a)(2).
Additionally, “[t]he parties must supplement these disclosures when required
under Rule 26(e).” FED. R. CIV. P. 26(a)(2)(E). “[A] party is required to supplement its
expert disclosures if the court so orders or if ‘the party learns that in some material
respect the information disclosed is incomplete or incorrect and if the additional or
corrective information has not otherwise been made known to the other parties during
the discovery process or in writing.” Sierra Club, 73 F.3d at 57 n. 42 (quoting FED. R.
CIV. P. 26(e)(1)). “[T]he party’s duty to supplement extends both to information
included in the report and to information given during the expert’s deposition. Any
additions or changes to this information must be disclosed by the time the party’s
The Advisory Committee’s Notes to Rule 26 of the Federal Rules of Civil
Procedure provide that expert witnesses “must prepare a detailed and complete
written report, stating the testimony the witness is expected to present during
direct examination, together with the reasons therefor.” FED. R. CIV. P. 26 advisory
committee’s note; see also Sierra Club, 73 F.3d at 571. “These Notes also explain
that the purpose of the reports is to avoid the disclosure of ‘sketchy and vague’
expert information, as was the practice under the former rule.” Sierra Club, 73 F.3d
pretrial disclosures under Rule 26(a)(3) are due.” FED. R. CIV. P. 26(e)(2). While Rule
26(a)(3) provides that pretrial disclosures must be made at least thirty days before
trial, it adds the following caveat: “[u]nless the court orders otherwise . . . .” FED. R.
CIV. P. 26(a)(3). Local Rule 26 provides that a “party is under a duty to supplement
disclosures at appropriate intervals under FED. R. CIV. P. 26(e) and in no event later
than the discovery deadline established by the case management order.” L.U.Civ.R.
26(a)(5) (emphasis added).
In summary, Plaintiff’s expert designations were due on or before January 13,
2017. See Amended Case Management Order, Walker v. Target Corp., No. 2:16-CV-42KS-MTP (S.D. Miss. Dec. 22, 2016), ECF No. 54. Any supplements to the designations
or expert reports were due on or before the discovery deadline of March 15, 2017,10
unless they were otherwise made known to the Defendants during discovery. FED. R.
CIV. P. 26(e)(1)-(2); L.U.Civ.R. 26(a)(5). Plaintiff first disclosed Sapp’s affidavit on May
18, 2017 – two months after the discovery deadline. Therefore, regardless of whether
the affidavit constitutes a true supplement or entirely new opinions previously
undisclosed,11 it was untimely.
The discovery deadline was extended only for the purpose of permitting
Defendant to depose Sapp and another expert. See Order, Walker v. Target Corp.,
No. 2:16-CV-42-KS-MTP (S.D. Miss. Mar. 9, 2017), ECF No. 66.
See, e.g. Harmon v. Ga. Gulf Lake Charles LLC, 476 F. App’x 31, 36 (5th
Cir. 2012) (explaining difference between supplement and new opinions previously
undisclosed); Elliot v. Amadas Indus., 796 F. Supp. 2d 796, 802-03 (S.D. Miss.
2011); Ishee v. Fannie Mae, No. 2:13-CV-234-KS-MTP, 2015 U.S. Dist. LEXIS 4918,
at *4-*6 (S.D. Miss. Jan. 5, 2015).
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 trial, unless the failure was
substantially justified or is harmless.” FED. R. CIV. P. 37(c)(1). When determining
whether to strike an expert’s testimony for a party’s failure to properly and timely
disclose required information, the Court considers the following factors:
the importance of the witnesses’ testimony;
the prejudice to the opposing party of allowing the witnesses to
the possibility of curing such prejudice by a continuance; and
the explanation, if any, for the party’s failure to comply with the
Sierra Club, 73 F.3d at 572 (citing Bradley v. United States, 866 F.2d 120, 125 (5th Cir.
1989)); see also Reliance Ins. Co., 110 F.3d at 257 (citing Geiserman v. MacDonald, 893
F.2d 787, 791 (5th Cir. 1990)).
The Court will assume for the purpose of addressing the current motion that the
affidavit and Sapp’s testimony contained therein are important. Plaintiff has provided
no explanation whatsoever for failing to disclose the information in the affidavit in a
timely manner. It would prejudice Defendant to admit such testimony or consider it
when addressing the parties’ motions insofar as Defendant had no opportunity to
depose Sapp after receiving notice of the proposed expert testimony therein. Moreover,
Defendant had no opportunity to obtain and disclose any counter-testimony from its
own experts. There is no time to cure the prejudice because the pretrial conference is
in two weeks. Therefore, the Court finds that the affidavit of Lacy Sapp must be
excluded from both trial and the Court’s consideration on summary judgment.
Moreover, Sapp may not provide any testimony – whether fact or opinion – contained
in the affidavit at trial, unless it was previously disclosed in her reports12 or
Plaintiffs have not directed the Court to any other evidence in the record which
creates a genuine dispute of material fact as to their claim that Mrs. Walker’s past and
future medical expenses for a spinal cord stimulator and radiofrequency ablation were
caused by the subject slip-and-fall. Accordingly, Plaintiffs failed to meet their burden
of “demonstrating by competent summary judgment proof that there is an issue of
material fact warranting trial” on this issue. In re La. Crawfish Producers, 852 F.3d
456, 462 (5th Cir. 2017).
For these reasons, the Court grants in part and denies in part Defendant’s
Motion for Partial Summary Judgment . Specifically, the Court denies the motion
as to Plaintiffs’ claim of lost wages and wage-earning capacity, but the Court grants
the motion as to Plaintiff’s claim of past and future medical expenses for a spinal cord
stimulator and radiofrequency ablation.
See Exhibit 1 to Response, Walker v. Target Corp., No. 2:16-CV-42-KS-MTP
(S.D. Miss. May 18, 2017), ECF No. 108-1; Exhibhit 2 to Response, Walker v. Target
Corp., No. 2:16-CV-42-KS-MTP (S.D. Miss. May 18, 2017), ECF No. 108-2.
See, e.g. Exhibits A-E to Motion to Strike, Walker v. Target Corp., No. 2:16CV-42-KS-MTP (S.D. Miss. Apr. 20, 2017), ECF Nos. 81-1, 81-2, 81-3, 81-4, 81-5.
SO ORDERED AND ADJUDGED, on this, the __7th__ day of July, 2017.
UNITED STATES DISTRICT JUDGE
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