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Johnson v. Norfolk Southern Railway Co.

United States District Court, N.D. Indiana, South Bend Division

June 15, 2015



JON E. DEGUILIO, District Judge.

This case arises from injuries sustained by Plaintiff James Johnson while working for Defendant Norfolk Southern Railway Company ("Norfolk Southern") at the Elkhart Yard rail facility in Elkhart County, Indiana. Mr. Johnson alleges that Norfolk Southern is liable for his injuries under the Federal Employers Liability Act, 45 U.S.C. §§ 51-60. Now before the Court is Norfolk Southern's Motion to Exclude Expert Opinions of Plaintiff's Medical Providers ("Motion to Exclude") [DE 53.] Mr. Johnson filed a response to Norfolk Southern's motion on February 2, 2015 [DE 59], to which Norfolk Southern replied [DE 60.] For the reasons stated below, the Motion to Exclude is GRANTED on the grounds that the parties have essentially stipulated to the allowable testimony of the four witnesses presently at issue.

I. Factual Background

Mr. Johnson filed a complaint against Norfolk Southern on February 24, 2012 [DE 1.] In short, Mr. Johnson alleges that he slipped on an unstable ballast while working for Norfolk Southern, causing a severe injury to his ankle[1] [DE 1 at ¶¶ 5, 8.] After Norfolk Southern answered the complaint [DE 5], the parties conferred as required by Federal Rule of Civil Procedure 26(f) and developed a proposed discovery plan [DE 11.] The Court adopted that discovery plan on April 11, 2012 [DE 12.] Consistent with the parties' discovery plan, the Court established the following deadlines: "The serving of reports from retained experts under Rule 26(a)(2) are due from plaintiff(s) by September 28, 2012" and "The last date for the completion of all discovery is December 28, 2012." [DE 12 at 1 (emphasis in original).]

On January 3, 2013, a bright line order was entered, terminating the referral to Magistrate Judge Nuechterlein since discovery had closed [DE 15.] Norfolk Southern then filed a motion to dismiss for lack of prosecution, claiming that Mr. Johnson had wholly failed to engage in discovery [DE 16.] In response, Mr. Johnson filed a motion to reopen discovery for 120 days [DE 17.] The Court granted the motion to reopen discovery, re-referred all non-dispositive matters to Magistrate Judge Nuechterlein, and afforded the parties until May 31, 2013, to complete discovery [DE 18.] When the Court reopened discovery, Mr. Johnson did not explicitly request and the Court did not explicitly grant any extension for the disclosure of experts. After the Court extended discovery, Norfolk Southern withdrew its motion to dismiss for lack of prosecution [DE 19] and Mr. Johnson did engage in certain discovery [DE 25 at 2.]

On the afternoon of May 31, 2013-the day on which discovery was to re-close-Mr. Johnson's attorney, Mr. Milo Lundblad, served Norfolk Southern with a document labeled PLAINTIFF'S RULE 26(a)(2)(C) DISCLOSURES [DE 25-1.] The disclosures included five purported expert witnesses. Four of those witnesses are medical professionals who treated Mr. Johnson following his injury, Dr. Craig Erekson, Rocco Sarli, Dawn Webbe, and Dr. William Buckley (referred to collectively as the "Treating Medical Witnesses")[2]; the fifth witness is a retained expert, J.P. Purswell, who intended to provide an opinion regarding Norfolk Southern's liability for Mr. Johnson's injuries as caused by the condition of the Elkhart Yard. Also on May 31, Mr. Johnson produced a report of Mr. Purswell's opinion to the defense [DE 25-2.] Upon motion by the defense, the Court struck the expert disclosure and report of retained expert Mr. Purswell due to its untimely disclosure, but declined to strike the disclosures of the four Treating Medical Witnesses because the record failed to establish whether these witnesses were previously disclosed to Norfolk Southern so as to permit the parties sufficient time to complete discovery in the time allotted by the Court [DE 42 at 6.] Because the decision with respect to the Treating Medical Witnesses was without prejudice, Norfolk Southern renewed its request by filing the present Motion to Exclude the opinions of Mr. Johnson's non-retained Treating Medical Witnesses.

II. Discussion

The disclosure of expert witnesses is governed by Rule 26 of the Federal Rules of Civil Procedure. Pursuant to Rule 26(a)(2)(B), retained expert witnesses must provide a written report containing:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at ...

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