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Butler v. Home Depot U.S.A., Inc.

United States District Court, W.D. Louisiana, Lafayette Division

April 23, 2018





         Before the Court are Defendant Home Depot U.S.A., Inc.'s (“Home Depot”) “Motion in Limine” (Record Document 60) to exclude Plaintiff Alicia Butler's (“Butler”) purported expert, Raymond Green, C.P.A., and Home Depot's “Partial Motion for Summary Judgment” (Record Document 61) seeking to dismiss Butler's claims of past lost earnings and loss of future earning capacity. For the reasons contained herein, Home Depot's “Motion in Limine” and its “Partial Motion for Summary Judgment” are GRANTED.


         Butler alleges that on March 28, 2016 she was a customer at the Home Depot in Lafayette and, while checking out at a register, was struck by a wooden gate that was bumped by a forklift moving through the area, injuring her lower back, neck, and right shoulder. See Record Document 6 at 3. On September 26, 2016, Butler filed the instant lawsuit in the Fifteenth Judicial District Court for the Parish of Lafayette, alleging, among other things, a loss of past earnings as well as impairment of her ability to earn a living in the future. See id. at 4. On December 14, 2016, Home Depot timely removed the lawsuit to this Court, based upon diversity of citizenship. See Record Document 1.

         Since the accident, Butler's condition deteriorated. She has suffered a herniated cervical disc and a herniated lumbar disc, allegedly as a result of the aforementioned accident. See Record Document 56. These injuries required two surgeries: (1) an open L5-S1 discectomy and foraminotomy in June 2017 and (2) a C5-6 total disc replacement in August 2017. See Record Document 71-5. Butler is an attorney whose practice consists of approximately half public defender work and the remaining half divided among criminal defense, domestic disputes, and plaintiff personal injury matters. See Record Document 61-3 at 2-3.

         In an effort to support her lost wages and loss of future earning capacity claims, Butler provided a one paragraph report from her personal accountant of eight years, Raymond Green, C.P.A. (“Green”), on May 11, 2017. See Record Document 60-3. Butler provided no supporting documentation or data and no expert disclosures therewith; the report simply sets forth Green's status as a certified public accountant and his belief as to the extent of Butler's corporate losses in the year 2016. The entirety of Green's report reads as follows:

I am a Certified Public Accountant, licensed in the State of Louisiana. I have been an Accountant for a total of forty-eight (48) years. In addition, I have been the tax preparer for Alicia Johnson Butler, both personally and business, for approximately eight (8) years. After a thorough review of all business records and filings, it is my professional opinion that for the year of 2016, Ms. Butler took a loss, through both her personal and business tax filings. More specifically, the Corporate business losses total Eighty Thousand dollars ($80, 000), not including her personal tax returns.

Id. at 2. Additionally, Dr. John Sledge, a Board Certified Orthopedic Surgeon, testified at his deposition that Butler was having difficulty working, particularly that she was having trouble with her shoe wear. See Record Document 71-7 at 2. Also, Butler's treating orthopedic surgeon, Dr. Jason Cormier, testified that Butler's pain and surgeries, including the fact that she required pain medication, affected her work. See Record Document 71-10 at 2. He further stated he does not clear anyone to do anything while they are taking pain medication, “specifically when it's dealing with a high intensity job like being an attorney.” Id. But later admitted he gave Butler no work restrictions or limitations outside the typical postoperative recommendations. See Record Document 79 at 2. He also testified that he would not opine as to the anatomical impairment ratings or disability ratings. See id.

         Home Depot originally filed the instant motions on August 11, 2017, consistent with the Court's pretrial deadlines and scheduling order. See Record Documents 27 and 28. Subsequent to the filing, Butler moved on August 18, 2017 to continue trial due to her decision to undergo a cervical surgery. See Record Document 35. After a telephone conference on August 30, 2017, the Court granted the motion to continue. See Record Document 45. A new scheduling order was issued, with a deadline for Butler's expert disclosures and reports, pursuant to F.R.C.P. 26(a)(2)(B), on December 11, 2017. See Record Document 46. The scheduling order also set a new deadline for filing Daubert motions for March 12, 2018. See id. In accordance with the updated deadlines, Butler produced expert disclosures on November 27, 2017. See Record Document 60-4. The disclosures, with respect to Green, contain no new or additional documents. Instead, Butler reproduced the same May 11, 2017 report from Green consisting of one paragraph. See id. The remaining disclosures were select medical records from treating providers. See id.

         In response to the Court's order filed on March 2, 2018 (Record Document 58), Home Depot again filed its motion in limine and partial motion for summary judgment on March 12, 2018. See Record Documents 60 and 61. Butler has opposed each motion. See Record Documents 70 and 71. Home Depot, in turn, has replied. See Record Documents 75 and 76. Thus, the motions are ripe for decision.


         I. Home Depot's Motion in Limine

         Home Depot argues Green should be excluded as an expert because (1) his report cannot meet the standards of reliability and admissibility set forth in Daubert and its progeny and (2) Butler failed to comply with the Federal Rules of Civil Procedure regarding expert disclosures and the Court's scheduling order. See Record Document 60-1 at 3-7. Butler contends Daubert does not apply to the instant matter, and even if it does, Green's report is reliable, claiming Home Depot may attack Green's report at trial on cross-examination and in its argument. Further, Butler asserts an ...

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