The opinion of the court was delivered by: Leon Jordan United States District Judge
This civil action is before the court for consideration of "Defendant's Motion for Summary Judgment" [doc. 9]. Plaintiff has filed a response in opposition to the motion [doc. 11]. Defendant has submitted a reply [doc. 13]. The court has determined that oral argument is unnecessary, and the motion is ripe for the court's consideration.
The court will also consider "Defendant's Motion to Strike Plaintiffs' 'Response to Defendant's Reply to Plaintiffs' Response to Motions for Summary Judgment of Defendant'" [doc. 15] that is currently pending.
Plaintiffs allege that on February 18, 2007, they were shopping in the Wal-Mart store in Oak Ridge, Tennessee when plaintiff, Gloria Larson, slipped on spilled furniture polish. Gloria Larson alleges that she sustained physical injuries that include vertigo and headaches. Plaintiff Steven A. Larson, Gloria Larson's husband, claims that as a result of his wife's injuries, he has been deprived of her consortium.
II. Summary Judgment Standard
Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party may discharge its burden by demonstrating that the non-moving party has failed to establish an essential element of that party's case for which he or she bears the ultimate burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party need not support its motion with affidavits or other materials negating the opponent's claim. Id. at 323. Although the moving party has the initial burden, that burden may be discharged by a "showing" to the district court that there is an absence of evidence in support of the non- moving party's case. Id. at 325 (emphasis in original).
After the moving party has carried its initial burden of showing that there are no genuine issues of material fact in dispute, the burden shifts to the non-moving party to present specific facts demonstrating that there is a genuine issue for trial. Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). "The 'mere possibility' of a factual dispute is not enough." Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992) (citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)). In order to defeat the motion for summary judgment, the non-moving party must present probative evidence that supports its complaint. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). The non-moving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor. Id. at 255. The court determines whether the evidence requires submission to a jury or whether one party must prevail as a matter of law because the issue is so one-sided. Id. at 251-52.
III. Defendant's Motion to Strike
Before proceeding with its analysis ofthe summary judgment motion, the court must first consider the motion to strike filed by defendant [doc. 15]. In that motion, defendant seeks to strike plaintiffs' "Response to Defendant's Reply to Plaintiffs' Response to Motion for Summary Judgment of Defendant" [doc. 14]. Attached to plaintiffs' response at issue is the affidavit of Dr. Daniel Lenior in which Dr. Lenior authenticates the medical records included with plaintiffs' original response to defendant's summary judgment motion. In the affidavit Dr. Lenior also opines regarding causation of Gloria Larson's injuries and states "within a reasonable degree of medical certainty" that the plaintiff, Gloria Larson, will remain symptomatic for many years and perhaps the remainder of her life.
Defendant argues that the affidavit should have been filed with plaintiffs' original response because the medical records included in the response were only accompanied by a hearsay letter from Dr. Lenior in which he did not express his opinion regarding causation within a reasonable degree of medical certainty. Defendant also contends that plaintiffs' additional response with the affidavit was improperly filed without permission under the court's local rules and on that basis should be stricken.
Though not referenced in defendant's motion, motions to strike are governed by Federal Rule of Civil Procedure 12(f), which provides that a court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. 12(f) (emphasis added). Rule 7(a) defines a "pleading" as: