United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge.
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.
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.
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.
following facts are undisputed except where noted.
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.
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
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.
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.
Holiday Acres' motion to strike
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.
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).
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.
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.
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)).
case, Dilley did not meet the second requirement under Rule
26(a)(2)(C). Here is what Dilley disclosed as to her ten
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).
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.
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.
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.
The equine immunity statute
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)). ...