United States District Court, N.D. Indiana, Hammond Division
NICHOLAS MEINERT and NICOLE MEINERT, Individually and as Husband and Wife, Plaintiffs,
PRAXAIR INC, et al., Defendants.
OPINION AND ORDER
P. Rodovich, United States Magistrate Judge.
matter is before the court on the Motion to Designate
Sur-Rebuttal Experts [DE 119] filed by the defendants,
Praxair, et al., on August 15, 2016. For the
following reasons, the motion is GRANTED.
case arose from an injury that occurred on June 9, 2011 on
the premises of United States Steel Corporation. The
plaintiffs, Nicholas and Nicole Meinert, have alleged that
Nicholas Meinert (Meinert) suffered injuries to his leg as a
result of an accident. The plaintiffs filed the complaint on
January 30, 2012. Throughout this matter, the court has
granted multiple extensions of time to the parties.
March 2, 2016, a status conference was held, and the court
set a deadline that the defendants file a motion for leave to
identify additional experts by May 31, 2016. On May 26, 2016,
the defendants filed a Motion for Extension of Certain
Deadlines [DE 117]. The court granted the motion and ordered
that the defendant file a motion for leave to designate
additional experts by August 15, 2016. On August 15, 2016,
the defendants filed a Joint Motion to Designate Sur-Rebuttal
Experts [DE 119], and the plaintiffs objected to such request
on August 22, 2016. The defendants filed the Reply to
Plaintiffs' Objection [DE 120] on August 29, 2016.
proper function of rebuttal evidence is to contradict,
impeach, or defuse the impact of the evidence offered by an
adverse party.” Peals v. Terre Haute Police
Dept., 535 F.3d 621, 630 (7th Cir. 2008) (quoting
U.S. v. Grintjes, 237 F.3d 876, 879 (7th Cir.
2001)). Great deference is accorded to the discretion and
judgment of the trial court when granting or denying
party's motion for rebuttal or surrebuttal testimony.
Federal Rules Evidence Rule 611(a), 28 U.S.C.A.
court has vast discretion in the oversight and scheduling of
discovery under the Federal Rules of Civil Procedure. Cf.
Crawford-El v. Britton, 523 U.S. 574, 598 (1998);
Semien v. Life Insurance Co. of N.A., 436 F.3d 805,
813 (7th Cir. 2006). Discretion denotes the absence of a hard
and fast rule. Langnes v. Green, 282 U.S. 531, 541
(1931); Rogers v. Loether, 467 F.2d 1110, 1111-12
(7th Cir. 1972); Lee v. Chicago Youth Centers, 2015
WL 468879, at *2 (N.D. Ill., 2015). Under this standard, a
court must act “with regard to what is right and
equitable under the circumstances and the law, and directed
by the reason and conscience of the judge to a just
result.” Langnes, 282 U.S. at 541. An abuse of
discretion occurs when no reasonable person could agree with
the district court's decision. Adams v. City of
Indianapolis, 742 F.3d 720, 727 (7th Cir. 2014);
Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939,
953 (7th Cir. 2013).
Rule of Civil Procedure 16(b)(4) provides that a schedule
shall not be modified except upon a showing of good cause and
by leave of the court. Campania Mgmt. Co., Inc. v. Rooks,
Pitts & Poust, 290 F.3d 843, 851 (7th Cir. 2002).
Good cause sufficient for altering discovery deadlines is
demonstrated when a party shows that, “despite their
diligence, the established timetable could not be met.”
Tschantz v. McCann, 160 F.R.D. 568, 571 (N.D. Ind.
to Rule 26(a)(2)(A) parties must disclose the identity of any
witness who may present evidence under Federal Rule of
Evidence 702, 703, or 705. Rule 26(a)(2) splits expert
witnesses into two categories: retained or specially employed
expert witnesses and other expert witnesses. Federal Rule of
Civil Procedure 26(a)(2)(B) and (C). A retained or specially
employed expert witness must disclose a written report
prepared and signed by the witness. Federal Rule of Civil
Procedure 26(a)(2)(B); see Banister v. Burton, 636
F.3d 828, 833 (7th Cir. 2011) (“[O]nly those witnesses
‘retained or specially employed to provide expert
testimony' must submit an expert report complying with
Rule 26(a)(2)(B).” (citing Musser v. Gentiva Health
Servs., 356 F.3d 751, 756-57 (7th Cir. 2004)).
Additionally, Rule 26 requires a party to supplement any
disclosures in a timely manner if the party learns the
disclosure is incomplete or incorrect in a material respect
and if the additional or corrective information has not
otherwise been disclosed to the other parties. Federal Rule
of Civil Procedure 26(e)(1)(A).
expert report serves the purpose of putting the opposing
party on notice of the expert's proposed testimony, so
the opposing party may form an appropriate response.
Meyers v. National R.R. Passenger Corp.,
619 F.3d 729, 734 (7th Cir. 2010); Musser, 356 F.3d
at 757- 58. The admissibility of expert evidence is governed
by Federal Rule of Evidence 702, Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d
469 (1993), and its progeny. Winters v. FruCon Inc.,
498 F.3d 734, 741 (7th Cir. 2007). Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if: (a) the expert's scientific,
technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or
data; (c) the testimony is the product of reliable principles
and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence. Federal Rule of Evidence 403.
defendants are requesting to designate two sur-rebuttal
experts. The defendants claim that at the mediation on
October 21, 2015, Meinert indicated for the first time that
his injuries from the accident have prohibited him from
working in his prior profession as a Boilermaker. The
defendants discovered that Meinert was employed at Kat's
Sod Farm. Also, the defendants claim that the testimony of
the plaintiffs, at their June 29, 2016 and July 28, 2016
depositions, established the need for the additional experts
to testify regarding Meinert's ability to work as a
Boilermaker and the alleged lost income claim. At the
deposition, the defendants learned about the differences in
employee benefits, hourly rates, and number of hours worked