United States District Court, S.D. West Virginia
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR. SENIOR UNITED STATES DISTRICT JUDGE.
are defendant Lowe's Home Centers, LLC's (Lowe's)
motions for partial summary judgment as to punitive damages
and future damages, each filed February 11, 2019.
September 13, 2017, plaintiff Christopher Billings, a West
Virginia resident and delivery driver for Wood Plus Hardwood
Flooring, LLC, was working as a vendor in Lowe's
Fayetteville, West Virginia location. Compl., ECF No. 1, at
¶¶ 1, 6, 8. Lowe's is a limited liability
company which is principally located in North Carolina.
Id. ¶ 3.
date, plaintiff arrived at Lowe's in Fayetteville, West
Virginia to pick up merchandise that was to be returned to
Wood Plus. Pl.'s Dep., ECF No. 57-5, at p. 86. A
Lowe's employee, Otis Underwood, offered to shift the
load already in plaintiff's truck so that Wood Plus's
merchandise could be loaded. Underwood Dep., ECF No. 57-3, at
p. 131-32. Mr. Underwood checked out a Moffett forklift,
which he then used to shift the load on plaintiff's
truck. Id. at 131-33. While operating the forklift,
Mr. Underwood ran over the plaintiff's foot. Id.
Underwood stated that plaintiff moved into the line of travel
of the forklift before he had time to react and prevent the
wheel from rolling onto the plaintiff's foot.
Id. at 134. Mr. Underwood also claimed that
plaintiff told him after the incident that plaintiff thought
it was more his own fault than Mr. Underwood's.
Id. While plaintiff disagreed with this particular
portion of Mr. Underwood's testimony, he did note that
they both should have been more careful. Pl.'s Dep., ECF
No. 57-5, at 87. This opinion was seconded by plaintiff's
expert, Nick Barta, who stated that he “wouldn't
have done what either of those people did, ” referring
to Mr. Underwood and plaintiff's actions that led to the
plaintiff's foot being run over. Barta Dep., ECF No.
72-5, at p. 38.
the incident, the plaintiff did not fill out an incident
report with Lowe's, although Mr. Underwood and plaintiff
disagree as to whether Mr. Underwood offered the plaintiff
that opportunity. Pl.'s Dep., ECF No. 57-5, at p. 87;
Underwood Dep., ECF No. 57-3, at p. 50. Mr. Underwood never
reported the incident to Lowe's. Underwood Dep., ECF No.
57-3, at p. 50. Resultant of his failure to report the
incident, Mr. Underwood's employment was terminated after
plaintiff filed a report with Lowe's over the telephone a
week later, on September 20, 2017. Pl.'s Dep., ECF No.
57-5, at p. 93-94; Underwood Dep., ECF No. 57-3, at p. 50.
time of the incident, Mr. Underwood had been an employee of
Lowe's for over seven years and had worked in several
different capacities. Underwood Dep., ECF No. 57-3, at p. 13.
Mr. Underwood was at the time of the accident employed as a
return to manufacturers (“RTM”) clerk.
Id. Over the course of his employment, Mr. Underwood
had undergone extensive training on various power equipment
including training on the Moffett in 2013, training on a
counterbalance forklift in 2017 and powered equipment
trainings in 2014 and 2017. See Underwood's Learning
History, ECF No. 57-8. The Moffett forklift is a truck
mounted forklift which differs from the counterbalance
forklift in the sense that the Moffett has a reach mechanism,
may be loaded onto a truck, and can be used on uneven
terrain. It also appears that there is no meaningful
distinction between how the Moffett and counterbalance
forklifts are operated on a flat surface. See Barta Dep., ECF
No. 57-12, at p. 19-20; 115-16 (noting that “the basic
operating procedures of a forklift are pretty
similar”); McNeeley Dep. 57-10, at p. 55.
Underwood noted that he was also tasked with training other
employees on the use of several pieces of power equipment,
including the Moffett. Underwood's Dep., ECF No. 57-3, at
p. 39-40. Mr. Underwood's supervisor, however, stated
that to the best of his knowledge, Mr. Underwood was not
asked to train anyone on the Moffett, but rather “was
the trainer for our in-house power equipment; again, the
counter-balance forklift, the narrow-aisle reach truck and
the order picker.” McNeeley Dep., ECF No. 57-10, at 34.
undisputed that, on the date of the incident, Mr. Underwood
was not certified to operate the Moffett. RTM clerks were not
expected to ever operate the Moffett forklift, and therefore,
Lowe's did not require RTM clerks to receive training or
recertification on its operation. Wysong Dep., ECF No. 57-11,
at 55-56. Specifically, Mr. Underwood's supervisor stated
that “based off of his job description, I would not
expect him to be on the Moffett” and that to the best
of his knowledge, he had never seen or heard of Mr. Underwood
operating the Moffett. McNeeley Dep., ECF No. 57-10, at p.
34-35. Van Wysong, Lowe's Rule 30(b)(6) representative,
however, was “absolutely” sure that Mr. Underwood
“understood all the safety features and how to operate
that piece of equipment.” Wysong Dep., ECF No. 72-3, at
has a “Truck Loading and Unloading Safety Policy”
which applies to all employees operating power equipment. ECF
No. 66-5, Ex. E, at 1. The policy states that power equipment
operators must maintain a minimum distance of twenty feet
from other people and ensure that truck drivers do not
perform any truck preparation within twenty feet of an active
unload area. Id. at 2. The equipment operator must
also communicate these expectations to the truck driver.
he was unable to recite the precise distance at which an
equipment operator must remain from another person, Mr.
Underwood did state his belief that Lowe's had a ten-foot
policy. Underwood Dep., ECF No. 72-6, at p. 81-83. Mr.
Underwood did admit, however, that he did not tell plaintiff
to back away from the forklift while his truck was being
loaded. Id. at p. 83-84.
initiated this action in this court on January 12, 2018
pursuant to the court's diversity jurisdiction. See 28
U.S.C. § 1332. In the plaintiff's complaint, he
asserts a single cause of action for negligence. Plaintiff
claims he is entitled to future damages that have become
necessary as a result of his injury. Compl., ECF No. 1, at 3.
He also asserts a claim for punitive damages by stating:
“Defendant Lowe's actions, through its failure to
properly train its employees, including the safety
coordinator operating the forklift at Lowe's where this
incident occurred, was done in a wanton, willful, and/or
reckless fashion, warranting the award of punitive damages to
the Plaintiff.” Id. at ¶ 16.
February 11, 2019, Lowe's filed its motion for partial
summary judgment as to future damages. ECF No. 59. Lowe's
contends in this motion that it is entitled to summary
judgment because plaintiff has provided neither an expert
opinion that states with “reasonable certainty”
that plaintiff will require any future medical treatment, nor
“an expert that can testify about future lost wages,
future lost earning capacity, or about any permanency related
to his claimed injury.” Lowe's Mot., ECF No. 59, at
plaintiff's response in opposition to Lowe's motion
for partial summary judgment, he argues that none of
plaintiff's medical records suggest that his injury was
not genuine, and that the only “outstanding issue had
been for doctors to diagnose Plaintiff's chronic
condition, which has not [sic, now] been done with the
records and report of Dr. Schopf. Dr. Schopf has opined that
Plaintiff's [Complex Regional Pain Syndrome] CRPS is
permanent and will impact him in the future.” Pl.'s
Resp., ECF No. 69, at 7-8. Plaintiff further notes that his
expert witness, Dr. Davis, has prepared a supplemental report
incorporating Dr. Schopf's medical diagnosis of injury
and its impact on plaintiff's future activities.
Id. at 8. The plaintiff sought, on February 25,
2019, to introduce the testimony and report of Dr. Robert
Schopf after the expiration of the expert disclosure,
discovery and dispositive motions deadlines. ECF No. 71.
beyond the expert disclosure deadline, the plaintiff moved,
on March 6, 2019, to disclose Mr. Dan Selby, an economics
expert who would testify as to the amount of future damages
based on Dr. Davis's supplemental report. ECF No. 80, at
3-4. By companion order this day entered, the court precluded
the use of Dr. Schopf's medical records or reports.
Accordingly, the ...