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 Renewed Motion for Leave to
Disclose Additional Expert [DE 178] filed by the defendant,
Praxair Distribution, Inc., on March 13, 2018. For the
following reasons, the motion is DENIED.
This 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,
has filed a renewed motion requesting leave to identify
Thomas Eager as an additional liability expert,
instanter, to discuss the issues of failure
analysis. Praxair previously filed a request to add an
additional expert to discuss failure analysis with the court
on June 2, 2017. [DE 156]. Praxair argued that the issue of
failure analysis was discussed by plaintiffs' expert,
Charles Roberts, at his deposition but was not described
fully in his written Rule 26 report. The court denied that
motion on July 18, 2017, finding that allowing Praxair to add
an expert so late in discovery would prejudice the plaintiffs
and further push back the discovery and dispositive motion
deadlines. [DE 158]. Also, Praxair failed to indicate what
testimony Roberts gave that substantiated a need for an
additional expert. Praxair subsequently filed a motion
requesting that the court reconsider its order denying
Praxair's request to disclose an additional expert, which
the court also denied. [DE 161, 175].
status conference held on October 25, 2017, the court
extended the discovery deadline to February 28, 2018. The
discovery deadline now has passed, and neither party
requested an extension. Praxair has filed this renewed motion
seeking leave to identify Thomas Eager as an additional
liability expert to rebut the opinions and testimony provided
by plaintiffs' expert, Robert Dines. The plaintiffs filed
a response in opposition on April 5, 2018, and Praxair filed
a reply on April 16, 2018.
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 times 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
Rule of Civil Procedure 37(c)(1) states that a party
who fails to disclose information as 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 (S.D. Ind. June
8, 2011). In Banister v. Burton, 636 F.3d 828, 833
(7th Cir. 2011), the Seventh Circuit held 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
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 requested leave to disclose Eager as an additional expert
to address issues of failure analysis concerning the weld on
the subject cart and caster. This request comes over three
years after the disclosure deadline. Praxair contends that
the late disclosure is justified because plaintiffs'
expert, Robert Dines, at his deposition was unable to provide
support for the conclusions that were provided in his report.
According to Praxair, Dines' deposition revealed his
opinions to be vague, confusing, incomplete, and unsupported.
In particular, Praxair has suggested that Dines does not know
the strength of the weld or force that allegedly caused the
first fracture; that Dines did not do the necessary
calculations to determine that force; and that Dines does not
know the force or load that caused the second fracture.
Praxair has argued that at trial it will need the expert
testimony of Eager to respond to Dines' opinions and to
prevent those opinions from confusing the jury. Praxair
further has maintained that the theory of liability that
Dines will present at trial only became evident after his
deposition and was not clear from his written report. To
rebut this new theory of liability, Praxair has claimed that
the testimony of its additional expert is necessary. Finally,
Praxair has suggested that the late disclosure would not
delay discovery since a trial date has not been set.
plaintiffs have indicated that Praxair's Rule 26(a)(2)
expert, Jason Hertzberg, already has addressed the issue of
failure analysis. They have noted 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. Praxair
has argued that while Hertzberg was at the initial testing he
was only there to evaluate the integrity and composition of
components, rather than for failure analysis purposes. The
plaintiffs contend that Praxair's disclosure of Eager
would be prejudicial and create further delay by having to
combat a new expert this late in the litigation. The
plaintiffs also contend that an additional expert would
require them to reevaluate Praxair's defenses and the
issues that previously were raised in numerous depositions.
court finds that the late disclosure of Praxair's new
expert neither is harmless nor justified. This determination
is at the discretion of the district court. See David v.
Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003). At
this point in the proceedings, Praxair's untimely
disclosure would delay the scheduling of a trial date.
Contrary to Praxair's contention, the lack of a trial
date is not adequate reason for a failure to comply with
discovery deadlines. See Hard Surface Solutions, Inc. v.
Sherwin-Williams Co., 271 F.R.D. 612, 617 (N.D. Ill.
2010) (“It is not answer to say the trial date has not
been set.”). Moreover, the court already has found that
the addition of a new expert sufficiently late in the
discovery period would be prejudicial to the plaintiffs and
result in delay. It is not merely late in discovery, but in
fact the discovery deadline has passed. Therefore, the court
would have to reopen discovery, permitting further delay.
See Finwall v. City of Chicago, 239 F.R.D. 494, 501
(N.D. Ill. 2006) (“Late disclosure is not harmless
within the meaning of Rule 37 simply because there is time to
reopen discovery.”). Praxair did not request an
extension for additional discovery to accommodate its expert
disclosure. Therefore, Praxair's ability to cure the
prejudice is limited because the deadline has passed.
in determining whether a late disclosure is justified, the
question is “not the usefulness of the late-disclosed
expert's opinion but rather whether the party's
failure to timely disclose that opinion is justified.”
G & S Metal Consultants, Inc. v. Cont'l Cas.
Co., 2013 WL 6047574, at *4 (N.D. Ind. Nov. 15, 2013).
Praxair contends that Eager's expert opinion will be
necessary to clarify any confusion created by Dines'
testimony at trial. Praxair has failed to address why,
assuming Dines' opinions are incomplete and unsupported,
this issue cannot be argued in the appropriate
Daubert motion challenging the admissibility of
Dines' opinion or during cross-examination. Further,
Praxair has failed to explain why Hertzberg, whose
professional background is in ...