Butler v. Cavanaugh et al.

Filing 209

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant/Cross Claimant Kevin Cavanaugh's ("Cavanaugh") Motion for Leave to File Sur-reply (Doc. 199 ) is GRANTED. IT IS FURTHER ORDERED that Cavanaughs Motion for Leave to File Ke vin Johnson's Affidavit and Full Deposition Transcript (Doc. 200 ) is GRANTED. IT IS FURTHER ORDERED that Defendant Cody McKee's Motion to Strike (Doc. 203 ) and Defendants PAM Transport, Inc., McKee, and Wade McClure's ("McClure") Motion to Strike (Doc. 204 ) are DENIED. Signed by District Judge John A. Ross on 5/28/15. (JWD)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
VERONICA BUTLER,
Wife of Anthony Butler, Deceased,
Plaintiff,
vs.
KEVIN J. CAVANAUGH et al.,
Defendants.

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Case No. 4:14-CV-00094-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendant/Cross Claimant Kevin Cavanaugh’s
(“Cavanaugh”) Motion for Leave to File Sur-reply (Doc. 199), Cavanaugh’s Motion for Leave to
File Kevin Johnson’s Affidavit and Full Deposition Transcript (Doc. 200), Defendant Cody
McKee’s (“McKee”) Motion to Strike (Doc. 203), and Defendants PAM Transport, Inc. (“PAM
Transport”), McKee, and Wade McClure’s (“McClure”) Motion to Strike (Doc. 204). The
Motions are ready for disposition. For the following reasons, Cavanaugh’s Motion for Leave to
file Sur-reply will be GRANTED, Cavanaugh’s Motion for Leave to File Kevin Johnson’s
Affidavit and Full Deposition Transcript will be GRANTED, McKee’s Motion to Strike will be
DENIED, and PAM Transport, McKee, and McClure’s Motion to Strike will be DENIED.
Motion for Leave to File Sur-reply
In his Motion for Leave to File Sur-reply (Doc. 199), Cavanaugh requests leave to file a
sur-reply in opposition to Defendants Furex, Inc. and Ivan Chepynets’ Motion to Exclude the
Expert Testimony of Kevin Johnson. He further indicates that his sur-reply would also constitute
a sur-reply to Defendants Pam Transport, McKee, and McClure’s Motion to Exclude the
Opinions of Kevin Johnson and Notice of Joinder in Defendants Furex, Inc. and Ivan Chepynets’

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Motion to Exclude Expert Testimony of Kevin Johnson (Doc. 163). In support of his motion,
Cavanaugh asserts that Defendants make new arguments which were not addressed in their
original motion. He further argues that in his Suggestions in Opposition, he sought to reserve the
right to ask this Court for leave to supplement his suggestions after the transcript of Mark Erza,
Defendant Furex, Inc’s expert witness, was available and that the last defense expert, William
Hampton, was not deposed until April 9, 2015. The other Defendants jointly respond, asserting
that no new arguments were presented in their joint reply memorandum. They also argue that the
testimonies of Mark Ezra and William Hampton have no bearing on whether Mr. Johnson’s
opinions should be excluded at trial. Upon consideration, the Court will allow Cavanaugh to file
his sur-reply.
Motion for Leave to File Kevin Johnson’s Affidavit and Full Deposition Transcript
Cavanaugh also filed a Motion for Leave to File Kevin Johnson’s Affidavit and Full
Deposition Transcript (Doc. 200). Cavanaugh argues that the Court should consider Mr.
Johnson’s report in regard to the motion for summary judgment. Neither Plaintiff nor the other
Defendants responded to Cavanaugh’s Motion. Without commenting on the merits of the Parties’
respective arguments regarding either the admissibility of Mr. Johnson’s testimony or what, if
any, weight the Court will give it during the summary judgment phase, in the interest of a full
and fair review, the Court will allow Cavanaugh to file Mr. Johnson’s affidavit, report, and full
deposition transcript.
Motions to Strike
Also pending before the Court is McKee’s Motion to Strike (Doc. 203) and PAM
Transport, McKee, and McClure’s Motion to Strike (Doc. 204). These Defendants seek to strike
Plaintiff’s Supplemental Case Citations in response to their respective motions (Docs. 197, 198).
In support of their motions, Defendants McKee, PAM Transport, and McClure assert that the
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filings are akin to sur-replys and Plaintiff did not seek the required leave from the Court.
Although Plaintiff did not seek leave from the Court to file her Supplemental Case Citations, the
Court will review the case. Further, to the extent that these Defendants’ Motions include merit
based arguments against the application of the case to the present matter, the Court will also
review those arguments.
Accordingly,
IT IS HEREBY ORDERED that Defendant/Cross Claimant Kevin Cavanaugh’s
(“Cavanaugh”) Motion for Leave to File Sur-reply (Doc. 199) is GRANTED.
IT IS FURTHER ORDERED that Cavanaugh’s Motion for Leave to File Kevin
Johnson’s Affidavit and Full Deposition Transcript (Doc. 200) is GRANTED.
IT IS FURTHER ORDERED that Defendant Cody McKee’s Motion to Strike (Doc.
203) and Defendants PAM Transport, Inc., McKee, and Wade McClure’s (“McClure”) Motion to
Strike (Doc. 204) are DENIED.

Dated this 28th day of May, 2015.

_______________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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