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REICHNER v. K-MART CORPORATION

December 15, 2005.

FELICIA REICHNER, a minor, by MAYNA SWINEHART, guardian, Plaintiffs
v.
K-MART CORPORATION AND SISTER SISTER, INC., Defendants.



The opinion of the court was delivered by: JAMES MUNLEY, District Judge

MEMORANDUM

Before the court for disposition are several motions in limine regarding expert witness testimony filed by the defendants in the instant action. The matters have been fully briefed and argued.*fn1 For the reasons that follow, the motions will be denied.

Background

  The minor plaintiff, Mayna Swinehart, was injured when her clothing caught fire. The instant lawsuit was filed to recover for her injuries. The plaintiff asserts that the clothing was unreasonably dangerous in its flammability and its lack of warning.

  Plaintiff intends to call two expert witnesses in the trial of this case, Jeffrey O. Stull and Kenneth Laughery. The defendants have moved to preclude these witnesses from testifying, challenging their qualifications and the reliability of their opinions. Defendant Kmart also seeks to preclude a supplemental report authored by Stull. We shall address this motion first.

  Jurisdiction

  This Court has jurisdiction pursuant to the diversity jurisdiction statute, 28 U.S.C. § 1332. The plaintiffs are citizens of the Commonwealth of Pennsylvania. Defendant Kmart is a Michigan corporation with a principal place of business in Michigan, and Defendant Sister-Sister is a New York Corporation with a principal place of business in New York. Because we are sitting in diversity, the substantive law of Pennsylvania shall apply to the instant case. Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)).

  Discussion

  I. Motion to exclude supplemental report

  Before addressing the merits of the motions to exclude the witness's testimony, we will address Kmart's motion to exclude the supplemental report of Jeffrey O. Stull. Kmart asserts that this report was submitted prejudicially late in November of 2005, approximately a year and a half past the deadline for submitting expert reports. We will deny the defendant's motion.

  Although, the deadline for submitting expert reports was May 15, 2004 (Doc. 44), the defendants will not be prejudiced by the supplemental report. The new report merely expands upon or provides support for the first report. For instance, the first report indicated that loose dangling fabric ties will ignite when exposed to open flame. The supplemental report provides the results of testing to support that finding.

  Moreover, Stull explains in the supplemental report that it was submitted late, at least partially, because he has been suffering from advanced esophegeal cancer and had undergone extensive chemotherapy, radiation therapy and surgery. (Stull's Supplemental Report, Ex. A, to Kmart's motion (Doc. 120)). In light of the reason for the last submission, and the fact that the supplemental report merely expands upon the first report, we find that it need not be precluded and will deny Kmart's motion.

  II. Motion to exclude Jeffrey Stull's testimony

  Plaintiff intends to call Jeffrey O. Stull as an expert in the field of combustible fabrics, their degree of flame spread and extinguishment, and appropriate label practices for apparel. (Stull's Report, Ex. A, to ...


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