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Friday, August 23, 2019

Suit against Pier 1 over customer's alleged falling chair injury may be headed to mediation

By Karen Kidd | Nov 17, 2017

BENTON – A woman's lawsuit against Pier 1 Imports over injuries she allegedly suffered after a chair fell on her during a 2014 visit to one of the retail chain's locations may be headed toward settlement, according to a recent order.

Counsel for plaintiff Wendy Walden, Kenneth Beljanski of Brown & Brown in Fairview Heights, and Pier 1 Imports attorneys at Goldberg Segalla in St. Louis indicated during a hearing Nov. 7 before Magistrate Judge Reona J. Daly that they were working on scheduling mediation, according to a minute entry for the proceeding hearing.

"They may contact the court if they need assistance," the minute entry said.

The move toward private mediation came the day after U.S. District Judge Nancy J. Rosenstengel signed an order granting a defense motion to strike expert testimony. Testimony by Walden's physicians that express an expert opinion under federal rules of evidence is to be excluded in the case and the plaintiff's physicians would be allowed to testify only as fact witnesses, according to the order.

Walden filed suit against Pier 1 last fall claiming she was  injured when a chair fell on her on Dec. 7, 2014. Walden alleges the injuries she suffers resulted from Pier 1's negligence. 

The retail chain raised 13 affirmative defenses, including failure to state a claim, comparative fault, assumption of the risk, and statute of limitations, according to Rosenstengel's order.

The defense motion to strike expert testimony arose from a pretrial conference before the court Oct. 27 when plaintiff's counsel referred to discovery materials as part of his argument that the experts had been properly disclosed, according to Rosenstengel's order. Pier 1 counsel alleged that the plaintiff had not disclosed any of her trial witnesses as experts or provided any reports issued by experts, which they claimed was a violation of federal rules of civil procedures.

Plaintiff's counsel admitted he had not filed a notice pursuant to one of those rules but maintained the medical records of all treating physicians were provided to Pier 1 during discovery, according to the order. Plaintiff's counsel also argued that the treating physicians had been identified as possible witnesses in interrogatory answers, according to the order.

Rosenstengel gave plaintiff's counsel about a week to submit supplemental materials, which were considered before she issued her decision granting the defense motion to strike. In that order, the judge said the plaintiff's failure to disclose the treating physicians as experts had not been substantially justified.

"The court is not insensitive to the fact that counsel for the plaintiff does not regularly practice in federal court," Rosenstengel said in the order. "The Federal Rules of Civil Procedure and the Federal Rules of Evidence, however, are not unfamiliar to most attorneys. It is not unreasonable for the court to expect counsel to review and comply with both the federal and local rules."

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U.S. District Court for the Southern District of Illinois