Tuttle et al v. Steris Corporation

Filing 75

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the defendants motion to bar the testimony and opinions of plaintiffs expert, Neil C. Peters [Doc. # 32 ] is granted. IT IS FURTHER ORDERED that defendants motion to strike the experts supplemental report [Doc. # 46 ] is granted in part and denied in part. IT IS FURTHER ORDERED that defendants motion for summary judgment[Doc. # 34 ] is granted. Signed by District Judge Carol E. Jackson on 3/20/14. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
CHERIE TUTTLE and DWIGHT TUTTLE,
Plaintiffs,
vs.
STERIS CORPORATION,
Defendant.

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No. 4:12-CV-1487 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the motions filed by defendant to exclude the
testimony of plaintiffs’ expert, Neil Peters, and to strike Peters’ supplemental report.
Defendant has also filed a motion for summary judgment. Plaintiffs have filed
responses in opposition, and the issues are fully briefed.
I.

Background

Plaintiff Cherie Tuttle (Tuttle) was employed as a nurse at St. John’s Mercy
Hospital in St. Louis, Missouri where she alleges that she sustained serious bodily
injuries from slipping and falling on diluted LpH®se One-Step Germicidal Detergent
(LpH detergent) that had leaked from a dispensing container onto the floor of a
storeroom. Tuttle asserts claims of strict liability product defect, strict liability failure
to warn, and negligence against Steris Corporation (Steris), the manufacturer and
distributer of LpH detergent. Her husband, plaintiff Dwight Tuttle, seeks damages
based on loss of consortium.
LpH detergent is a pesticide used for disinfecting and deodorizing washable, nonporous surfaces. LpH detergent is registered with the Environmental Protection Agency
(EPA) under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C.
§ 136, et seq. LpH detergent is sold in a concentrated form to be diluted with water

by the consumer and placed into a dispensing container. The concentrated LpH
detergent is sold in a bottle with an affixed product label, a secondary label for the
consumer to place on a dispensing container, material safety data sheets (MSDS), and
a wall card. [Doc. ##33-1, 33-2, 33-3, 33-4]. The secondary label instructs users to
“[r]ead LpH se concentrate product label and MSDS for safe handling precautions and
proper use instructions.” [Doc. # 33-2]. The MSDS instructs users that “[s]pills should
be contained and may be cautiously neutralized with sodium bicarbonate, or absorbed
on appropriate material and placed in a container for disposal.” [Doc. #33-4]. The
dispensing container associated with Tuttle’s fall was not manufactured by Steris, but
it bore Steris’ secondary label. [Doc. #50, ¶¶ 13-14].
Plaintiffs retained Peters as their liability expert to testify about the adequacy of
the warnings and labeling on the LpH detergent. On May 1, 2013, Peters submitted
an expert report on the issue of “whether or not any design, instructional or
manufacturing aspects of a container of [LpH detergent] . . . caused or contributed to
cause the injuries sustained by Ms. Cherie Tuttle.” [Doc. #33-9, at 2]. Peters opined
that the labeling on the LpH detergent was defective. At the end of the report, Peters
stated that he intended to perform “coefficient of friction testing with exemplar floor
surfaces” and that a supplemental report analyzing the results of that testing would be
forthcoming. Coefficient of friction testing determines whether a surface is more or less
prone to slips and falls when a particular liquid is present.
Defendant moves to bar the testimony of Peters, arguing that he is not qualified
to provide opinions on pesticide labeling. Plaintiffs filed a memorandum in opposition
and attached Peters’ two-part supplemental report. [Doc. #43-2]. Part One contains
the results of the coefficient of friction testing and Part Two contains Peters’ response
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to defendant’s motion to bar. Defendant filed a motion to strike the supplemental
report, arguing that it improperly raises new evidence and opinions that should have
been presented in the original report. Defendant also filed a motion for summary
judgment.
II.

Neil Peters’ Expert Report
A.

Motion to Exclude Expert Report

The admission of expert testimony in federal courts is governed by Fed.R.Evid.
702, which provides:
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.
(emphasis added).
District courts act as gatekeepers, ensuring that expert testimony is “not only
relevant, but reliable.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589
(1993). District courts have “broad discretion” in determining whether an expert's
testimony is admissible. Weisgram v. Marley Co., 169 F.3d 514, 518 (8th Cir.1999).
“[I]t is the responsibility of the trial judge to determine whether a particular expert has
sufficient specialized knowledge to assist jurors in deciding the specific issues in the
case.” Prosser v. Nagaldinne, 4:09-CV-2117-JAR (E.D. Mo. Jan. 18, 2013) (quoting
Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d 706, 715
(8th Cir. 2001)). “The overarching goal of Daubert’s gatekeeping requirement is to
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ensure that an expert ‘employs in the courtroom the same level of intellectual rigor
that characterizes the practice of an expert in the relevant field.’” Sciele Pharma, Inc.
v. Brookstone Phamaceuticals, 2011 WL 3844891, *6 (N.D. Ga. Aug. 30, 2011)
(quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999)). “[I]f a trial
court allows an expert to testify beyond her expertise it failed to perform its
gatekeeping function under the Daubert case.” Marquardt v. Joseph, 1999 WL 196569,
*1 (6th Cir. 1999).
In his expert report, Peters reviewed the language of the LpH detergent’s
product label, secondary label, MSDS, and wall card. Doc. #33, Ex.9 at 6-9. Peters
concluded that the detergent’s labeling was defective because it did not provide
warnings regarding the potential hazards of the release of the product on flooring and
did not provide guidance on how to avoid the hazard subsequent to being released. Id.
at 11. Peters opined that Steris “should have placed an additional label or modified its
existing label to include additional information.”
In his deposition, Peters testified that he is currently employed as a fire origin
and cause investigator and evidence supervisor at MK & Associates, LLC and has held
these position since July 2006. See Doc. #33, Ex. 8, at pp. 6-9. In these roles, Peters
“[i]nvestigates vehicular, building, and mechanical fires for origination and causation;
maintains chain of custody and records of all incoming and outgoing evidence; designs
and performs tests, builds courtroom exhibits and models and conducts research.” See
Peters’ Resume, Doc. #33, Ex. 7. Peters testified that he “does not recall” but does
“not think” he has ever been the lead investigator in a case where he evaluated the
adequacy of a warning on a product. Doc. #33. Ex. 8, at 16:3-6.
Peters testified that he is also currently employed as an inspector for Archway
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Inspections, a home and commercial building inspection company, and has held this
position since January 2006. Id. at 18:7-19; Doc. #33, Ex. 7. Peters explained that
Archway is an offshoot of MK & Associates and that both companies operate out of the
same location. Id. at 18:7-25; 19:13. Peters stated that because of the recession,
Archway had not performed an inspection since 2008 or 2009. Id. at 18:7-19; 20-1222. Peters further acknowledged that his position as an inspector is not relevant to his
qualifications in providing opinions in the instant case. Id. at 21:1-21.
From February 2002 to July 2006, Peters worked as an assistant fire investigator
and evidence technician at Seanne, Kelsey & Associates. Doc. #33, Ex. 7. Peters
explained that prior to May 2006, MK & Associates operated under the name Seanne,
Kelsey & Associates, but that the two firms were essentially the same company. Doc.
#33, Ex. 8, 7:10-25; 8:1-4. His job duties at Seanne, Kelsey & Associates consisted
of assisting in the investigation of fires for origination and causation, maintaining chain
of custody and records of all incoming and outgoing evidence, designing and
performing tests, building courtroom exhibits and models, and conducting research.
Doc. #33, Ex. 7.
From October 2000 to November 2001, Peters worked as a lab technician. Id.;
Doc. #33, Ex. 8, at 20:23-25; 21:1. Peters acknowledged that this position is not
relevant to his qualifications in providing opinions in the instant case. Id. at 21:1-21.
Peters further testified to being a Certified Fire Investigator with the
International Association of Arson Investigators, a Certified Fire Investigator with the
Missouri Division of Fire Safety, and a Certified Fire and Explosion Investigator with the
National Association of Fire Investigators. Id. at 24:4-24. Peters stated that as part
of these certifications, he was not required to evaluate product labels or slip and fall
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hazards. Id. at 26:8-12. Peters testified that although he is a safety consultant with
the Missouri Division of Labor Standards he has not performed any inspections in that
role. Id. at 26:16-25 ; 27:1-8. Peters testified that he understands the issues involved
when encountering hazardous materials due to his certification in Hazardous Materials
Incident Response: Operations Level. Id. at 31:6-25.
Peters further testified that he could not remember whether he ever evaluated
the origin of a leak, that he is not a human factors engineer, and that he has not taken
any courses or training in human factors as they relate to warning labels and how
people react to warnings. Id. at pp. 37-40.

However, Peters stated that he has

attended OSHA conferences that deal with warnings on job sites and whether adequate
signage alerted the person to the danger involved, but he was not sure if he attended
a class on product labels and how they pertain to slip and fall accidents. Id. at pp. 4142. Peters testified that he has never designed or drafted a product label; has no
training or experience in formulating cleaning detergents or pesticides; has no training
or experience in formulating products regulated by the Food and Drug Administration
(FDA) or the EPA; and does not have any experience with FIFRA. Id. at pp. 42-44, 84.
Based on the foregoing, the Court finds that Peters is not qualified to render an
expert opinion on whether the labeling that accompanied the LpH detergent was
defective. “A putative expert must have ‘specialized knowledge’—which can be based
on ‘practical experience as well as academic training and credentials’—on the topic to
which he seeks to testify.” Pennsylvania Trust Co. v. Dorel Juvenile Group, Inc., 851
F.Supp.2d 831, 835 (E.D. Pa. Aug. 25, 2011). Nowhere in his report, deposition, or
resume does Peters provide any educational or work experience reflecting specialized
knowledge in the field of product warnings or labeling.
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Peters is a fire origin and cause investigator and evidence supervisor, who holds
various certifications in fire investigation, an undergraduate degree in biology, and an
associate’s degree in fire protection technology. See Peters’ Resume, Doc. #33, Ex. 7.
The majority of his technical training involves fire safety, property inspections, and fire
investigation. His education and experience do not confer any expertise in analyzing
product labels for detergents or pesticides in the context of slip and falls. Peters has
not designed or drafted product labels in any professional capacity, and he admits
being unfamiliar with product labeling governed by the FDA and EPA. See
Lemmermann v. Blue Cross Blue Shield of Wis., 713 F. Supp.2d 791, 800 (E.D. Wis.
May 18, 2010) (“While Mr. Schuck’s education and job experience reflects considerable
expertise in environmental engineering and superior knowledge of the field of
chemistry, it shows no similar expertise in the area of warnings.”); McCullock v. H.B.
Fuller Co., 981 F.2d 656, 657 (2d Cir. 1992) (“The adequacy of the warning labels was
at issue, and Woolley is not an expert in that field because he lacks training or
experience in . . . the design of warning labels.”).
“[F]or an expert witness to be qualified based on experience, that experience
must bear a close relationship to the expert’s opinion.” Schmidt v. City of Bella Villa,
557 F.3d 564, 571 (8th Cir. 2009). Peters admitted that he could not recall ever
serving as a lead investigator in a case in which he evaluated the adequacy of a
warning on a product and he is not a human factors expert or an engineer.
Furthermore, there is nothing in his deposition or report that provides a sufficient link
between his professional experience and the opinions in his report. The only link
Peters could provide is that “using the scientific method in investigating a fire is the
same as investigating another type of accident.” Doc. #33, Ex. 8, at 26:1-7; see Lift
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Truck Lease & Service, Inc. v. Nissan Forklift Corp., Case. No. 4:12-cv-153-CAS (E.D.
Mo. June 21, 2013) (court found that the experience of the proffered expert did not
bear a close enough relationship to his opinion to provide a sufficient basis for the
opinion); compare to In re Levaquin Products Liability Litigation, 2010 WL 8399948,
*7 (D.Minn. Nov. 12, 2010) (expert was qualified to provide opinion on medication
labeling because of her long experience in the pharmaceutical industry, which included
drafting product labels).
Because of Peters’ lack of expertise and knowledge, the Court finds that he is
not qualified to testify on whether a warning would have prevented Tuttle’s injuries or
on the adequacy on the LpH detergent. See Lemmermann, 713 F. Supp. 2d at 801
(citing United States v. Hall, 93 F.3d 1337, 1343 (7th Cir. 1996)) (“As a result, the
court can only conclude with respect to the issue of failure to warn that the witness is
only testifying on the basis of lay opinion, and his testimony is accordingly
inadmissable.”). Accordingly, the expert report submitted by Peters, dated May 1,
2013, is stricken from the record.
B.

Motion to Strike Peters’ Supplemental Report

The Court has further examined Peters’ supplemental report and concludes that
Part One of the report is intended to present the results of the coefficient of friction
testing and not whether the LpH labeling is defective. Thus, part one of Peters’
supplemental report will not be stricken from the record as it pertains to the specific
results of the testing. The Court reiterates that any opinions by Peters regarding how
these results should affect product labeling is not permitted for the same reasons as
stated above.
However, the Court will strike the second section of the supplemental report,
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titled “Part Two: Responses to Steris Corporation’s Motion to Bar.” Doc. #52-2, at 115. Peters’ personal responses to defendant’s motion is not appropriate in an expert
report. Furthermore, the same information found in Part Two was included within
plaintiffs’ memorandum in opposition to defendant’s motion to bar, which the Court
considered in its determination that Peters is not qualified to offer testimony regarding
the labeling of pesticides.
III.

Summary Judgment
A.

Legal Standard

Rule 56(a) of the Federal Rules of Civil Procedure provides that summary
judgment shall be entered if the moving party shows “that there is no genuine dispute
as to any material fact and the movant is entitled to a judgment as a matter of law.”
In ruling on a motion for summary judgment the court is required to view the facts in
the light most favorable to the non-moving party and must give that party the benefit
of all reasonable inferences to be drawn from the underlying facts. AgriStor Leasing
v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving party bears the burden of
showing both the absence of a genuine issue of material fact and its entitlement to
judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986);
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
Once the moving party has met its burden, the non-moving party may not rest on the
allegations of his pleadings but must set forth specific facts, by affidavit or other
evidence, showing that a genuine issue of material fact exists. United of Omaha Life
Ins. Co. v. Honea, 458 F.3d 788, 791 (8th Cir. 2006) (quoting Fed. R. Civ. P. 56(e)).
Rule 56 “mandates the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing sufficient to establish
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the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corporation v. Catrett, 477 U.S. 317, 322
(1986).
B.

Discussion
1.

Preemption

As a preliminary matter, defendant argues that plaintiffs’ claims are preempted
by FIFRA. Defendant bases this argument on a statement that Peters made in his
expert report suggesting that defendant should have used the signal word “WARNING”
in its labeling. Defendant argues that because this opinion contradicts the EPA’s
instruction that pesticides, such as the LpH detergent, use the signal word “DANGER,”
FIFRA preemption applies. The Court rejects this argument for two reasons: (1)
Peters’ testimony regarding the adequacy of defendant’s labeling has been excluded;
and (2) plaintiffs have not made the argument that the LpH detergent was defective
as a result of the use of the word “DANGER” or that the labeling should have included
language inconsistent with the EPA’s requirements.
2.

Strict Liability and Negligent Failure to Warn

This is a diversity action in which Missouri law applies. HealthEast Bethesda
Hosp. v. United Commercial Travelers of Am., 596 F.3d 986, 987 (8th Cir. 2010) (in
a diversity action, the court applies the substantive law of the forum state). Under
Missouri law, in order to prevail on a strict liability failure to warn theory, plaintiff must
show: “(1) defendant sold the product in question in the ordinary course of business;
(2) the product was unreasonably dangerous at the time of sale when used as
reasonably anticipated without knowledge of its characteristics; (3) defendant did not
give adequate warning of the danger; (4) the product was used in a reasonably
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anticipated manner; and (5) plaintiff was damaged as a direct result of the product
being sold without an adequate warning.” American Automobile Ins. Co. v. Omega
Flex, Inc., 4:11-CV-305-AGF (June 11, 2013) (emphasis added) (quoting Cole v.
Goodyear Tire & Rubber Co., 967 S.W.2d 176, 183 (Mo. Ct. App. 1998)).
“In addition, there are two distinct causation requirements for a failure to warn
claim: ‘(1) the product for which there was no warning must have caused plaintiff’s
injuries; and (2) plaintiff must show a warning would have altered [her] behavior.’” Id.
(quoting Cole, 967 S.W.2d at 184); see also Moore v. Ford, 332 S.W.3d 749, 762 (Mo.
2011) (“plaintiffs must show that a warning would have altered the behavior of the
individuals involved in the accident.”) (emphasis added). Under Missouri law, there is
a presumption that a warning, if given, would be heeded. Arnold v. Ingersoll-Rand
Co., 834 S.W.2d 192, 194 (Mo. 1992). “Summary judgment properly is entered if
either causation element is lacking.” Id. (citing Mothershead v. Greenbriar Country
Club, Inc., 994 S.W.2d 80, 89 (Mo. Ct. App. 1999)). A plaintiff must establish causation
in all product liability claims regardless of whether they are premised on strict liability
or negligence. Chism v. W.R. Grace & Co., 158 F.3d 988 (8th Cir. 1998) (citing Zafft
v. Eli Lilly & Co., 676 S.W.2d 241, 244 (Mo. 1984)).
The Court finds that Tuttle has failed to provide sufficient evidence that she was
damaged as a direct result of the sale of LpH detergent without an adequate warning
or that an additional warning would have altered her behavior.

See Arnold, 834

S.W.2d at 194 (plaintiff “fail[s] to present any evidence suggesting that a warning
would have imparted additional information. Absent such a showing, the presumption
that a warning would be heeded is not applicable.”).
Tuttle testified in her deposition that she used LpH detergent “on probably every
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shift,” but admitted that she never read the label affixed to the dispensing container.
Doc. #33, Ex. 6, Pl.’s Dep., at 36:11-15; 40:15-16; 41:11-23; 86:13-17. In fact, she
could not recall ever using the dispensing container because a patient care tech would
usually dispense the diluted detergent into spray bottles for her use. Id. at 41:11-25;
42:1-24; 47:8-18. Tuttle testified that because she never read any of the labels
associated with LpH detergent prior to her injuries, she would not have known whether
there was a slip and fall warning. Id. at 87:22-25; 88:1. She admits that “[i]f the
[d]ispensing [c]ontainer [l]abel had contained a warning about slipping on liquids or
leaks from the container, [she] would not have known about the warning because she
did not read the [label] until after her accident.” Doc. #50, ¶ 30.
This evidence shows that the inclusion of additional warnings regarding the
potential slip and fall hazards associated with diluted LpH detergent would not have
altered Tuttle’s behavior or prevented her injuries. See Arnold, 834 S.W.2d at 194;
Johnson v. Medtronic, Inc., 365 S.W.3d 226, 232-233 (Mo. App. 2012) (The adequacy
of the instructions accompanying the product made no difference in the outcome
because those materials were not read prior to the injury). Furthermore, Tuttle has not
presented any testimony or evidence showing that an additional warning would have
altered any other individual’s behavior in this case — i.e. affect the way in which
hospital employees stored the LpH detergent. Accordingly, Tuttle has not met her
burden of proof on the element of causation1 and defendant is entitled to judgment as
a matter of law as to the strict liability and negligent failure to warn claims.

1

Because Tuttle has failed to establish the element of causation, it is
unnecessary to address defendant’s argument that it does not have a duty to warn
of the “common knowledge” risk of slipping and falling on a wet floor.
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3.

Strict Liability and Negligent Product Defect

A manufacturer is liable under a strict liability product defect claim “if the
product was in an unreasonably dangerous defective condition when put to a
reasonably anticipated use, and the plaintiff was damaged as a direct result of such
defective condition as existed when the product was sold.” Richcreek v. General
Mottors Corp., 908 S.W.2d 772, 775 (Mo. App. Aug. 29, 1995) (emphasis added).
The product defect claim in the instant case includes the following allegations:
(1) the LpH detergent “as diluted would leak from the dispensing container and onto
the floor even when prepared as directed;” (2) “did not contain any components that
would prevent it from leaking from the dispensing container;” (3) “created an
extremely dangerous slippery substance which was not apparent and/or perceptible
from its appearance as a diluted solution;” and (4) “would create a dangerous and
hazardous slippery condition on floors which was not apparent and/or perceptible from
its appearance as a diluted solution.” Doc. #5, Pl.’s Comp., at ¶ 13.
Tuttle does not present any arguments or support showing that a genuine issue
of material fact exists as to the substance of this product defect claim. In response to
the instant motion, Tuttle does not even address her allegation that diluted LpH
detergent is defective because of its ability to leak out of a dispensing container. It is
likely that she abandoned this claim due to the fact that all liquids have the potential
to leak. Additionally, Tuttle’s allegation that diluted LpH detergent is not apparent on
a floor is contradicted by her deposition testimony. Tuttle testified that after she fell
she looked at the floor and could see a spill and was able to describe it as a “large spill”
that was probably a couple of feet wide. Doc. #33, Ex. 6, Pl.’s Dep., at 30:13-16;
32:8-13; 33:1-10. In response to number 22 of defendant’s statement of
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uncontroverted facts,. Tuttle admitted that although the diluted solution did not
contrast with the floor, it would have been obvious to her had she looked down. Doc.
#50, at ¶ 22.
The only mention of the product defect allegation in Tuttle’s briefing is in the
context of defendant’s alleged failure to include an adequate warning. See Doc. #49,
Pl.’s Response, at p. 4 (“The lack of an adequate warning in itself renders a product
defective or unreasonably dangerous within the meaning of Missouri products liability
law.”). However, what Tuttle misses is that the lack of an adequate warning renders
a product defective only “when the product is inherently dangerous” and plaintiffs have
“the burden of proof to show that ‘the product was defective at the time it entered into
the stream of commerce[.]’” See Duke v. Gulf & Western Mfg. Co., 660 S.W.2d 404,
418 (Mo. App. 1983); Boyer v. Bandag, Inc., 943 S.W.2d 760 (763 (Mo. App. 1997).
Thus, Tuttle must provide some evidence that the LpH detergent was defective at the
time it was sold.
Because the Court has excluded the testimony of Tuttle’s expert as to the
adequacy of defendant’s labeling and because plaintiff has not provided any additional
evidence demonstrating that the detergent was defective, the burden of proof cannot
be met. See Arnold v. Amada North American, Inc., 2008 WL 3411789, *9 (E.D. Mo.
Aug. 8, 2008) (citing Shaffer v. Amada America, Inc., 335 F.Supp.2d 992 (8th Cir.
2003)) (the Eighth Circuit has upheld district court decisions to grant summary
judgment in product liability cases finding that once a plaintiff’s expert is dismissed,
plaintiff was unable to show that the product at issue was in an unreasonably defective
condition when sold.).
Furthermore, similar to failure to warn claims, causation must be established.
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A plaintiff must prove that “the defect in the product or the negligence of the
manufacturer was the proximate cause of the injuries sustained by plaintiff.” Dunn v.
Nexgrill Industries, Inc., 2009 WL 1774327, *2 (E.D.Mo. June 23, 2009). As previously
discussed, plaintiff has failed to show that defendant’s alleged failure to warn was the
probable cause of plaintiff’s injuries. Accordingly, defendant is entitled to judgment as
a matter of law as to plaintiffs’ strict liability and negligent product defect claims.
4.

Loss of Support, Services, & Consortium

Claims that are derivative of the cause of action must fail as a matter of law
inasmuch as the claims are contingent upon the success of the injured spouse’s action
— i.e. claims for loss of consortium and loss of household services. See Pippin v. HillRom, 4:08-CV-263-TIA (E.D. Mo. Mar. 18, 2009). “Missouri has consistently followed
the well-established rule that . . . if the spouse has no valid claim for personal injuries,
the plaintiff cannot recover special damages flowing therefrom.” Id. (emphasis added)
(citing Wright v. Barr, 62 S.W.3d 509, 537 (Mo. Ct. App. 2001)) (“A claim for loss of
consortium is derivative of the injured spouse’s claim, which means ‘the defendant
must be proved to have caused the original injury, which in turn caused the spouse to
suffer.’”). Because Dwight Tuttle’s claims are “a derivative cause of action, [they] must
fail as a matter of law.” Id.
***
For the above stated reasons,
IT IS HEREBY ORDERED that the defendant’s motion to bar the testimony and
opinions of plaintiffs’ expert, Neil C. Peters [Doc. #32] is granted.
IT IS FURTHER ORDERED that defendant’s motion to strike the expert’s
supplemental report [Doc. #46] is granted in part and denied in part.
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IT IS FURTHER ORDERED that defendant’s motion for summary judgment
[Doc. #34] is granted.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 20th day of March, 2014.

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