The opinion of the court was delivered by: Richard Mills, U.S. District Judge
This is a personal injury case, wherein the Plaintiff alleges that she was injured while operating a machine manufactured and sold by the Defendant. The Plaintiff asserts claims for strict liability and negligence arising from that incident. Pending before the Court are several motions to strike filed by the Plaintiff.
Plaintiff Kimberly Wallis has moved to strike Exhibits A and C filed with the response brief by Defendant Townsend Vision, Inc., to Plaintiff's motion for partial summary judgment on the issue of assumption of risk. The Plaintiff states that Exhibit A is an excerpt of the Defendant's retained expert with a one-sentence opinion on the Plaintiff's training.*fn1 She claims that the Exhibit is not admissible because Defendant has failed to lay a proper foundation.
The Defendant notes that Exhibit A is an excerpt of the Rule 26 expert witness disclosure for its expert, Dan McCausland. In his report, Mr. McCausland states that the Plaintiff was a "trained and performance qualified butt-skinner operator."*fn2 The complaint alleges that the Plaintiff was employed by Cargill Meat Solutions Corporation, "which was engaged in the business of skinning and processing por[k] for sale to the distributor and retailer."
The Defendant contends that, although Mr. McCausland's report itself would not be admissible into evidence at trial, these facts would be admissible if offered by Defendant through its expert. It further notes that Mr. McCausland confirmed these facts in his sworn deposition testimony, which is attached to the response. Citing Rules 702 and 703 of the Federal Rules of Evidence, the Defendant notes that an expert witness may testify about his fact investigation and the results of that investigation, to the extent that such matters are relevant and reliable. The Defendant asserts that, because the excerpt includes "facts that would be admissible into evidence," see Fed. R. Civ. P. 56(e)(1), the Plaintiff's motion should be denied.*fn3 The Court will DENY the motion to strike as to Exhibit A.
Exhibit C consists of excerpts of the Plaintiff's deposition testimony in a separate case. Because the excerpts are from a deposition in a different case with different parties and issues, the Plaintiff alleges that the Exhibit is not admissible pursuant to Fed. R. Civ. P. 32(a)(8).*fn4
The Defendant notes that Exhibit C includes excerpts from the Plaintiff's deposition testimony in a Title VII employment lawsuit filed in this Court that arises out of the same incident. Thus, "[s]he has effectively admitted to the same facts in her deposition" in this case. Consequently, the Defendant says that it would be entitled, at trial, to obtain this testimony from the Plaintiff or, alternatively, to impeach her with prior statements if her trial testimony is significantly different.
Rule 32(a)(8) does not state that a deposition taken in an earlier action can only be used if the subject matter and parties are the same. Moreover, it states that an earlier deposition may be used as allowed by the Rules of Evidence. Because it is possible that the previous statements may be admissible under another rule, the Court will DENY the motion to strike Exhibit C.
The Plaintiff also moves to strike Exhibits A, B, C and D filed in support of the Defendant's response to the Plaintiff's motion for partial summary judgment regarding the issue of failure to mitigate damages. In support of the motion, the Plaintiff notes that Exhibit A includes four pages of assorted medical documents which allegedly pertain to her. However, no affidavit or deposition has been filed which lays a foundation for these documents.
The Defendant alleges that Exhibit A consists of medical records of various health care providers for the Plaintiff, showing that Dr. Greene released her to return to work light duty on October 5, 2005. It states that the Plaintiff has no contrary evidence. Moreover, Dr. Michael Beatty has testified that Plaintiff left the care of Dr. Greene because she disagreed with his advice to return to work at light duty. The Defendant further contends that this information is included within medical records either produced by the Plaintiff and her counsel, or the health care providers themselves. Additionally, this information is contained within sworn depositions taken in this case. Accordingly, the Defendant asserts that these matters are "facts that would be admissible in evidence," see Fed. R. Civ. P. 56(e)(1), and are relevant to the Plaintiff's failure to mitigate damages.
It appears that all of this information was produced by the Plaintiff. The Defendant notes that the records bear Bates numbers put on the documents by Plaintiff's counsel or his staff. Because there does not at this time appear to be any basis for doubting the authenticity of these medical records, the Court will DENY the motion to strike as to Exhibit A.
The Plaintiff further states that Exhibits B and C are unsupported reports of Dr. Wayne Stillings. No affidavit or deposition has been filed which establishes that these are indeed Dr. Stillings's records. Moreover, any deposition concerning these records was taken in another case and is not admissible evidence under Rule 32(a)(8). Exhibit D is a deposition of Dr. Stillings taken in the other case involving the Plaintiff. Because the Defendant was not a party to that case and because the subject ...