United States District Court, N.D. Indiana, LaFayette Division
BALL CORPORATION, an Indiana Corporation and FACTORY MUTUAL INSURANCE COMPANY, a Rhode Island Corporation, as subrogee, Plaintiffs,
AIR TECH OF MICHIGAN, INC., a Michigan corporation, Defendant.
OPINION AND ORDER
P. RODOVICH UNITED STATES MAGISTRATE JUDGE.
matter is before the court on the Motion for Extension of
Time to Submit Rule 26(a)(2) Report [DE 16], the Amended
Motion for Enlargement of Time to Submit Rule 26(a)(2) Report
[DE 20] filed by the plaintiffs, Ball Corporation and Factory
Mutual Insurance Company, as subrogee, on May 30, 2017 and
June 5, 2017, respectively, and the Motion to Set Aside
Defendant's Deadline to Depose Plaintiff's Rule
26(a)(2)(B) Witnesses [DE 23] filed by the defendant, Air
Tech of Michigan, Inc., on June 15, 2017. For the following
reasons, the Motion for Extension of Time to Submit Rule
26(a)(2) Report [DE 16] is DENIED as MOOT, the Amended Motion
for Enlargement of Time to Submit Rule 26(a)(2) Report [DE
20] is GRANTED, and the Motion to Set Aside Defendant's
Deadline to Depose Plaintiff's Rule 26(a)(2)(B) Witnesses
[DE 23] is GRANTED.
matter arose from a fire that occurred at a can manufacturing
plant owned by the plaintiff, Ball Corporation, and that was
insured by the plaintiff, Factory Mutual Insurance Company.
The plaintiffs have alleged that the defendant, Air Tech, who
was hired as an independent contractor to clean ovens and
other fixtures, caused the fire and thus is liable for the
damages sustained to the plant and consequential damages
relating to business interruption losses.
parties attended the Rule 16 Preliminary Pretrial Conference
on September 30, 2016. The Report of the Parties'
Planning Meeting was approved, and the following deadlines
were set: both parties to comply with Rule 26(a)(2)(C) by
April 28, 2017; plaintiffs' expert witness disclosures
and reports to be delivered by May 29, 2017; depositions of
plaintiffs' Rule 26(a)(2)(B) witnesses by June 30, 2017;
defendant's expert witness disclosures and reports to be
delivered by July 31, 2017; and all discovery to be completed
by December 29, 2017.
30, 2017, the plaintiffs filed the Motion for Extension of
Time to Submit Rule 26(a)(2) Report [DE 16] requesting a 60
day extension to submit the expert report of Scott
Howell. On June 5, 2017, the defendant filed a
Response in Opposition [DE 18]. The plaintiffs subsequently
filed the Amended Motion for Enlargement of Time to Submit
Rule 26(a)(2) Report [DE 20], which reduced the requested
extension from 60 days to 14 days.
to Federal Rule of Civil Procedure 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
provide 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)). Unless otherwise stipulated or
ordered by the court, if a witness is not required to provide
a written report, the party's disclosure must state the
subject matter of the witness' expected testimony and a
summary of the facts and opinions the witness is expected to
testify. Federal Rule of Civil Procedure 26(a)(2)(C).
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 consequence of non-compliance with Rule 26(a)(2)(B)
is “exclusion of an expert's testimony . . .
‘unless the failure was substantially justified or is
harmless.'” Meyers, 619 F.3d at 734
(citing Gicla v. United States, 572 F.3d 407, 410
(7th Cir. 2009) (quoting Federal Rule of Civil Procedure
plaintiffs designated Peter Hagen and Scott Howell as expert
witnesses. On May 30, 2017, Hagen's expert report was
timely produced. The plaintiffs have requested additional
time to submit Howell's expert report because no fact
depositions have been taken. The plaintiffs indicated that
for Howell to formulate his opinion on the cause and origin
of the fire he needed additional time to review testimony
from witnesses and defendant's employees who serviced the
oven immediately prior to the fire. After a conversation with
defendant's counsel, in an effort to address
counsel's concerns regarding plaintiffs' request for
a 60 day extension, the plaintiffs amended the request to 14
defendant has argued that the plaintiffs have not established
good cause to extend the expert report disclosure deadline.
The defendant indicated that the plaintiffs received written
discovery on February 16, 2017, which identified the
employees who may have relevant knowledge. Therefore, the
defendant contends that the plaintiffs had time to complete
the requested depositions prior to the May 30, 2017, expert
court has discretion to determine the appropriate sanction
for the failure to disclose or supplement an expert report.
See Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d
748, 763 (7th Cir. 2010). “A district court need not
make explicit findings concerning the existence of a
substantial justification or the harmlessness of a failure to
disclose.” Woodworker's Supply, Inc. v.
Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th
Cir.1999); David v. Caterpillar, Inc., 324 F.3d 851,
857 (7th Cir. 2003). A district court's discretion under
Rules 26(a) and 37(c)(1) is guided by four factors:
“(1) the prejudice or surprise to the party against
whom the evidence is offered; (2) the ability of the party to
cure the prejudice; (3) the likelihood of disruption to the
trial; and (4) the bad faith or willfulness involved in not
disclosing the evidence at an earlier date.” David
v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)
(internal citations omitted).
plaintiffs have indicated that during the briefing of the
plaintiffs' motion and the amended motion, Howell was
provided documents that were produced recently during
discovery and information from other available witnesses.
Howell has reviewed the additional information and completed
his Rule 26(a)(2) report. The court finds that the additional
time given to the plaintiffs to submit Howell's expert
report was harmless and the defendant was not prejudiced by
the delay in a way that cannot be repaired.
defendant has indicated that the plaintiffs in addition to
their Rule 26(a)(2)(B) disclosures also provided Rule
26(a)(2)(C) disclosures. The defendant has argued that the
Rule 26(a)(2)(C) disclosures were untimely. The deadline to
disclose Rule 26(a)(2)(C) expert witnesses, per the parties
approved Report, was April 28, 2017. The plaintiffs contend
that the Rule 26(a)(2)(C) witnesses were disclosed ...