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Dilley v. Holiday Acres Properties, Inc.

United States District Court, W.D. Wisconsin

May 31, 2017

JUDY DILLEY, Plaintiff,
v.
HOLIDAY ACRES PROPERTIES, INC. and STEVE KRIER, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         Plaintiff Judy Dilley was injured when she fell from a horse provided by defendant Steve Krier's business, Holiday Stables, which is located on land owned by defendant Holiday Acres Properties, Inc. Dilley asserts claims against Holiday Acres and Krier, alleging that they failed to ensure her safety.

         Holiday Acres has filed three motions: (1) a motion to strike Dilley's experts, Dkt. 62; (2) a motion for summary judgment, Dkt. 40; and (3) a motion for a protective order, Dkt. 86. The court will grant the motion to strike. Dilley's retained expert is excluded because the expert's conclusory report does not establish the admissibility of her testimony under Federal Rule of Evidence 702. Dilley's medical experts are excluded because summaries of their opinions were not timely disclosed. The court will grant Holiday Acres' motion for summary judgment because Wisconsin's equine immunity statute bars Dilley's negligence claims against Holiday Acres. The court will defer ruling on the motion for a protective order.

         Krier, who appears pro se, has not moved for summary judgment. But evidence submitted by Dilley and Holiday Acres shows that the equine immunity statute applies to Krier as well. Accordingly, the court will order Dilley to explain why the court should not grant summary judgment to Krier as well.

         UNDISPUTED FACTS

         The following facts are undisputed except where noted.

         Holiday Acres runs a resort in northern Wisconsin. It also owns a parcel of land near the resort and a set of stables located on that land. Krier runs Holiday Stables, a business that gives horse-riding tours to its customers, using Holiday Acres' stables and horses leased from a third party.

         The accident happened during a horse-riding tour. Dilley rode a horse named Blue, and Nicole Kremsreiter, a tour guide who worked for Krier, rode a horse named Roany. Kremsreiter rode ahead of Dilley, and neither Krier nor any employee of Holiday Acres was present during the accident. Dilley fell from Blue and was injured. The parties dispute the precise cause of Dilley's fall. According to Dilley, Blue got close to Roany, Roany kicked Blue, and Blue to reared up, throwing Dilley backward. Dkt. 1, ¶ 19 and Dkt. 65, ¶ 63. Holiday Acres, on the other hand, states that Blue did not rear up, but was spooked by some other animal in the bush and stopped abruptly. Dkt. 39 (Kremsreiter Dep. 40:1-18) and Dkt. 65, ¶ 63. The precise cause of Dilley's fall is not material to the motions before the court, but for purposes of Holiday Acre's motion, the court will credit Dilley's version.

         Dilley contends that Holiday Acres and Krier acted negligently in various ways, and she adduces evidence relating to four issues: (1) whether Dilley was offered a helmet; (2) whether she received instructions on how to ride a horse; (3) whether Krier properly fit the stirrups on Blue; and (4) whether Kremsreiter ignored Dilley when Dilley said she could not keep a hold on the reigns. Dkt. 65, ¶ 53-55, 57-59. Some of the underlying facts are disputed, but again the court will credit Dilley's version of the facts. Dilley purports to raise other factual disputes relying on the report of her retained expert, Dkt. 55, but the court will strike that report, as discussed below.

         The court has subject matter jurisdiction on the basis of diversity under 28 U.S.C. § 1332. Dilley is a citizen of Illinois. Holiday Acres is a Wisconsin corporation with its principal place of business in Wisconsin. Krier is a citizen of Montana (because he is domiciled there, even though he resides in Wisconsin). So the parties are diverse. The amount in controversy exceeds $75, 000.

         ANALYSIS

         A. Holiday Acres' motion to strike

         Holiday Acres moves to strike Dilley's retained expert, Jan Dawson, who opined that Holiday Stables lacked various procedures that would have ensured Dilley's safety. Dkt. 62. Holiday Acres also moves to strike opinions of ten medical professionals who treated Dilley's injuries. Id. The court will grant both parts of the motion.

         Under Federal Rule of Evidence 702, an expert opinion is admissible only if: (1) the expert's “specialized knowledge will help the trier of fact to understand the evidence”; (2) “the testimony is based on sufficient facts or data”; (3) “the testimony is the product of reliable principles and methods”; and (4) “the expert has reliably applied the principles and methods to the facts of the case.” Fed.R.Evid. 702. An expert may not bypass these requirements by “offer[ing] credentials rather than analysis.” Minasian v. Standard Chartered Bank, PLC, 109 F.3d 1212, 1216 (7th Cir. 1997) (citations omitted).

         Dawson's opinion does not satisfy the second, third, or fourth requirements. Dawson's scanty three-page report does not identify any principle or method. Instead, she provides only her conclusory assertion that she looked through the parties' submissions in this case and found no evidence that Holiday Stables had procedures to ensure Dilley's safety. Without meaningful analysis, Dawson's report is merely her ipse dixit, which this court must exclude. See Wendler & Ezra, P.C. v. Am. Int'l Grp., Inc., 521 F.3d 790, 791 (7th Cir. 2008) (“We have said over and over that an expert's ipse dixit is inadmissible. ‘An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process.'” (quoting Mid-State Fertilizer Co. v. Exchange National Bank, 877 F.2d 1333, 1339 (7th Cir. 1989)). And the issue here is not whether Holiday Stables had procedures to ensure Dilley's safety, but whether the equine immunity statute applies. Dawson's report is inadmissible under the Federal Rules of Evidence.

         Dilley argues that Dawson's report is admissible, just as was the expert report in Mettler ex rel. Burnett v. Nellis, 2005 WI.App. 73, ¶ 11, 280 Wis.2d 753, 695 N.W.2d 861. But that case was decided under the Wisconsin rules of evidence applicable at the time. As the court of appeals put it, “opinion testimony by an expert witness is admissible at trial as long as the expert is qualified and has adequate foundation for the opinion.” Id. at ¶ 11. That is simply not the standard under the Federal Rules. And in 2011, after Mettler, Wisconsin amended Wis.Stat. § 907.02 to embrace the federal approach to expert evidence, so the Mettler decision is no longer good law.

         As for the opinions of the ten medical professionals, the court will exclude them under Federal Rule of Civil Procedure 26(a)(2)(C). Under Rule 26(a)(2), not all experts need to provide full written reports. Non-retained experts, like the medical providers in this case, need not provide full reports, but the party seeking to rely on those experts needs to disclose (1) “the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705”; and (2) “a summary of the facts and opinions to which the witness is expected to testify.” Fed.R.Civ.P. 26(a)(2)(C). Under Rule 37(c)(1), failure to comply with Rule 26(a) results in an “automatic and mandatory” exclusion unless the non-compliance is “justified or harmless.” Tribble v. Evangelides, 670 F.3d 753, 760 (7th Cir. 2012) (quoting Musser v. Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir. 2004)).

         In this case, Dilley did not meet the second requirement under Rule 26(a)(2)(C). Here is what Dilley disclosed as to her ten medical experts:

The subject matter for these witnesses' testimony will relate to medical and/or health care provided to Ms. Dilley, including but not limited to diagnosis, causation, treatment, prognosis, nature, extent and duration of the injury, past and future pain and suffering; past and future disability, including any work restrictions necessitated by the injury; necessity of medical treatment, past and future; and reasonableness and necessity of medical expenses; and any other matters set forth in the medical records produced to date and in their depositions.

Dkt. 51, at 1-2. This disclosure might satisfy the first requirement under Rule 26(a)(2)(C); it identifies the overall subject matter of the medical professionals' testimony. But it does not provide a summary of the facts and opinions about which they are expected to testify. Accordingly, Dilley's disclosure does not satisfy Rule 26(a)(2)(C).

         While Holiday Acres' motion to strike was pending, Dilley filed an amended disclosure of expert witnesses, Dkt. 68, which does provide summaries of facts and opinions for the ten medical professionals. But this disclosure came too late: the deadline for the disclosure of experts was October 17, 2016, Dkt. 20, at 2, and the new disclosure was served on February 20, 2017, Dkt. 68, at 5, while Holiday Acres' summary judgment was pending and after Holiday Acres moved to strike her medical experts.

         Dilley contends that any harm to Holiday Acres was “resolved” when the court adopted the parties' stipulation to extend the discovery deadline by a month. Dkt. 72, at 24-25. In that stipulation, the parties stated that one of the reasons for the extension was to allow Holiday Acres to “depose Dilley's medical providers.” Dkt. 69. But this stipulation does not establish that Dilley's failure to comply with Rule 26 was harmless. One extra month to depose ten medical experts (who are all out of Wisconsin) and to prepare rebuttal experts is hardly enough to make up for Dilley's delay in disclosing the required information.

         In sum, the court will grant Holiday Acres' motion to strike for the foregoing reasons. Ultimately, the court's decision to strike the medical experts has no real consequence because Dilley cannot establish defendants' liability.

         B. The equine immunity statute

         A district court must grant summary judgment when no genuine issue of a material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The court must view the evidence in the light most favorable to the nonmoving party, but “the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” Armato v. Grounds, 766 F.3d 713, 719 (7th Cir. 2014) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). ...


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