United States District Court, N.D. Indiana, Hammond Division
NICHOLAS MEINERT and NICOLE MEINERT, Individually and as Husband and Wife, Plaintiffs,
PRAXAIR, INC. a/k/a PRAXAIR DISTRIBUTION, INC., et al., Defendants.
OPINION AND ORDER
P. Rodovich United States Magistrate Judge
matter is before the court on the Motion for Leave to
Disclose Additional Expert [DE 156] filed by the defendant,
Praxair Distribution, Inc., on June 2, 2017. For the
following reasons, the motion is DENIED.
matter arose from an injury that the plaintiff, Nicholas
Meinert, sustained on June 9, 2011. Meinert was attempting to
move a steel cart containing 12 argon cylinders when it fell
on his leg. The plaintiffs have alleged that the caster
assembly on the cart failed. On January 30, 2012, the
plaintiffs filed a state court complaint against the
defendants. The matter was removed to this court on March 2,
to the court's order the parties timely disclosed their
expert witnesses and reports. On August 15, 2016, the
defendants filed a Joint Motion to Designate Sur Rebuttal
Experts [DE 119]. The court found that due to Meinert's
change in employment, the defendants had demonstrated good
cause to designate an economist and orthopedic surgeon as
additional experts after the disclosure deadline. On February
14, 2017, the court also granted the plaintiffs leave to add
a vocational economist and for the defendants to disclose a
rebuttal vocational economist.
has requested leave to identify an additional expert,
instanter, regarding issues of failure analysis. On
June 15, 2017, the plaintiffs filed an Objection to Praxair
Distribution, Inc.'s Motion for Leave to Disclose
Additional Expert [DE 157]. Praxair has not filed a reply,
and the time to do so has passed.
Rule of Civil Procedure 26(a) states that “a party must
disclose to the other parties the identity of any witness it
may use at trial . . . .” The disclosure must be made
“at the time and in the sequence that the court
orders.” Federal Rule of Civil Procedure 26(a)(2)(D).
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).
Rule of Civil Procedure 37(c)(1) states that a party who
fails to disclose information required by Rule 26(a)(2) or
26(e)(1) is prohibited from using the evidence at trial
unless such failure was harmless or justified. The burden to
show that late disclosure of a new expert opinion was
substantially justified or harmless is on the party who
missed the deadline. Trinity Homes, LLC v. Ohio Casualty
Insurance Co. Group, 2011 WL 2261297, *3. In
Banister v. Burton, 636 F.3d 828, 833 (7th Cir.
2011), the Seventh Circuit stated that the district court
“need not make explicit findings regarding a
justification or the harmlessness of the Rule 26 violation,
but ... the following factors should guide the district
court's discretion: (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.” See also Westefer v. Snyder, 422 F.3d
570, 585 n. 21 (7th Cir. 2005) (citing David v.
Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)).
has requested leave to disclose an additional expert to
address issues of failure analysis related to the weld on the
subject cart and caster. Praxair has indicated that failure
analysis was discussed by plaintiffs' reconstruction and
failure analysis expert, Dr. Charles Roberts, at his
deposition on August 24, 2016. Because of Dr. Roberts'
testimony and discovery that has occurred in the past several
months, Praxair has argued that it should have an opportunity
to address the issues of failure analysis with an expert
witness. Also, Praxair contends that since the initial expert
disclosure deadline circumstances have changed. Praxair has
indicated that those changes include clarification of the
plaintiffs' theory of liability, the dismissal of
co-defendant Weldcoa, and further investigation and analysis
plaintiffs contend that Praxair has addressed the issue of
failure analysis with its Rule 26(a)(2) expert, Jason
Hertzberg. The plaintiffs indicated that Hertzberg attended
the initial inspection of the cart and caster in February of
2013 and the testing of the caster in November of 2013. In
January of 2015, Hertzberg's expert report was disclosed.
Praxair has not disputed the plaintiffs' contention.
Also, the plaintiffs have argued that the addition of a new
expert will cause delay by having to review the new material
to see if supplementation is needed or possibly necessitating
a need for an additional expert. Also, the plaintiffs have
indicated that it would be prejudicial to be required to
address a new expert this late in litigation.
court finds that the late disclosure of Praxair's new
expert is neither justified nor harmless under all the
circumstances. The determination whether a Rule 26(a)
violation is justified or harmless is left to the discretion
of the district court. See David, 324 F.3d at 857.
Praxair's deadline to disclose liability and medical
expert witnesses was January 30, 2015. On May 27, 2016, the
court granted certain extensions on behalf of the defendants.
Specifically, the defendants were given until August 15,
2016, to file a motion for leave to identify additional
experts. The court has allowed the addition of expert
witnesses for both parties. However, the parties had
indicated a change in circumstance to justify the request.
schedule shall not be modified except upon a showing of good
cause and by leave of the court. Federal Rule of Civil
Procedure 16(b)(4). 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. 1995).
has argued that it has demonstrated good cause to alter the
expert disclosure deadline because Dr. Roberts'
deposition and the dismissal of Weldcoa occurred after the
initial expert disclosure deadline had passed. However,
Praxair has not indicated specifically what testimony Dr.
Roberts gave that substantiated a need for an additional
expert. Also, Weldcoa was dismissed from this matter on
October 3, 2016. Praxair has not offered any explanation for
its delay in requesting an additional expert. Praxair has
indicated that this matter is not yet set for trial, but
meeting discovery dates is the precondition to setting a
trial date. The lack of a trial date is not a good reason for
failing to comply with ...