United States District Court, N.D. Iowa, Western Division
MEMORANDUM OPINION AND ORDER
LEONARD T. STRAND, CHIEF JUDGE
case is before me on two motions by defendant Petco Animal
Supplies Stores, Inc. (Petco). The first is a motion (Doc.
No. 25) for summary judgment and the second is a motion (Doc.
No. 31) for sanctions against plaintiff Timothy Vanderberg
(Vanderberg). Vanderberg has filed a resistance to each
motion (Doc. Nos. 27, 32) and Petco has filed replies (Doc.
Nos. 30, 33). The parties have requested oral argument, but I
find that it is not necessary. See N.D. Ia. L.R.
following facts are undisputed except where otherwise noted:
On June 7, 2015, Vanderberg was working as a semi-truck
driver for J.B. Hunt. That day, he was scheduled to make a
delivery to a Petco store in Sioux City, Iowa. Vanderberg had
previously made approximately ten deliveries to this store.
Each time Vanderberg made a delivery to this store, he
operated the store's hydraulic lift without incident. The
hydraulic lift is raised and lowered using a control valve
handle that causes the automatic folding ramp to hinge down
to a horizontal position as the ramp raises until it meets
with the edge of the automatic folding ramp overlapping the
back of a trailer.
fully opened and elevated, the hydraulic lift allows a driver
to roll a pallet jack onto the platform. The driver then uses
the control valve handle to lower the platform while the
automatic folding ramp retracts and hinges up to a vertical
position and the platform lowers to ground
to Vanderberg's delivery on June 7, 2015, the assistant
store manager of the Petco store, William Hinkel, conducted a
walk-around inspection of the hydraulic lift and saw no
visible signs of any operating issues. He plugged the
hydraulic lift into the electrical outlet and moved it up and
down several times using the control valve handle. Each time
he let go of the control valve handle, the handle remained in
the neutral position and the ramp remained where Hinkel had
Vanderberg arrived for the delivery, he unloaded
approximately six pallets from the trailer into the store,
using the hydraulic lift without incident. Vanderberg did not
look behind himself when stepping onto the hydraulic lift
from the truck after unloading the first two pallets because
he instinctively knew where he was inside the trailer in
relation to the lift and felt he did not need to look. The
lift operated normally and the control valve handle remained
in the neutral position when released. In preparing to load
the seventh pallet, Vanderberg maneuvered the pallet jack
onto the lift while the lift was at ground level. He then
raised the hydraulic lift using the control valve handle to
meet the back of the trailer and pushed the pallet jack into
the trailer. He walked approximately 16 feet into the trailer
to load the next pallet. After loading the pallet, he walked
backwards, facing away from the hydraulic lift. He did not
look behind him at any time before stepping back with his
right leg onto what he thought was the automatic folding
ramp, where he had last positioned the lift. Vanderberg fell
over the raised edge of the automatic folding ramp and to the
bottom of the partially-retracted lift. He stood up and saw
that the edge of the automatic folding ramp was raised
approximately 12 to 18 inches above the trailer floor where
he had last positioned it. He examined the hydraulic lift and
concluded it was functioning properly, so he finished
unloading the trailer. His only visible injuries consisted of
slight horizontal linear scratches on the back of his calves
and a swollen ankle that caused him to limp. He experienced
pain on the right side of his body, but was able to finish
unloading the trailer.
then continued on to a Petco store in Sioux Falls, South
Dakota, approximately 90 minutes away. There, he unloaded the
remainder of the trailer. He then slept for 10 to 12 hours in
the sleeping compartment of his truck and drove to Joliet,
Illinois, the next day. Vanderberg worked for two and a half
more days loading, driving and unloading one and possibly two
trailers of pallets at other Petco locations before he
complained of pain to his supervisor.
saw a physician on June 12, 2015. He complained of right knee
pain, right foot pain and pain in both shoulders. He
underwent physical therapy during June and July of 2015 to
address these symptoms. On July 20 or 21, 2015, diagnostic
testing revealed a severe rotator cuff tear in the right
shoulder, a severe bicep tear on the right arm and a severe
rotator cuff tear and a bony chip on the left shoulder. All
treatment related to these injuries was covered by
workers' compensation. In December 2015, Vanderberg
complained of pain in his left knee, for which he received
surgery. This procedure was not covered by workers'
time of his June 7, 2015, accident, Vanderberg was considered
obese. His prior medical history consists of a surgical
repair to his right knee in 2010 after suffering a workplace
injury and a history of arthritis and degenerative joint
disease in both knees.
commenced this action on March 8, 2016, by filing a two-count
complaint (Doc. No. 2) against Petco. Vanderberg invoked the
court's diversity jurisdiction and asserted claims of
negligence (Count I) and premises liability (Count II). Petco
filed an answer and third party complaint (Doc. No. 4) on
April 11, 2016, in which it denied liability and raised
certain defenses. Pursuant to an amended scheduling order
(Doc. No. 22), Vanderberg's deadline for disclosing
expert witnesses expired October 31, 2016, and discovery
closed on February 17, 2017. Trial is scheduled to begin
August 21, 2017. Doc. No. 10.
Motion for Sanctions
argues I should impose sanctions on Vanderberg for failing to
disclose expert witnesses timely pursuant to Federal Rule of
Civil Procedure 26(a)(2)(C). As noted above, Vanderberg's
expert disclosure deadline was October 31, 2016, and
discovery closed on February 17, 2017. Petco filed its motion
for summary judgment on March 17, 2017, based primarily on a
lack of causation evidence. In his resistance, Vanderberg
indicates that he relies on medical records from Timothy
Petsche, M.D., his treating orthopedic surgeon,
opinions expressed by Nikhil Verma, M.D., in recently
produced independent medical examination (IME) reports,
raise a jury question on the issue of causation. Petco states
it had no knowledge that Vanderberg intended to have these
physicians testify as to causation. Petco notes that in
January 2017, it asked Vanderberg whether he intended to
present any expert evidence. Vanderberg's counsel replied
as follows on January 26, 2017:
We do not have any retained experts on liability or damages.
We expect the treating physicians and surgeons will testify
as to their diagnosis treatment, prognosis, functional
impairment and future medical care for Tim Vanderberg. If it
is Petco's position that treating physicians must be
identified through expert witness certification, please
advise and we can take the matter up with the court.
Doc. No. 30-3 at 4. Even in this reply, Vanderberg's
counsel did not state that the physicians would testify as to
Rule of Civil Procedure 26(a)(2) states as follows, in
(2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures
required by Rule 26(a)(1), a party must disclose to the other
parties the identity of any witness it may use at trial to
present evidence under Federal Rule of Evidence 702, 703, or
(B) Witnesses Who Must Provide a Written Report.
Unless otherwise stipulated or ordered by the court, this
disclosure must be accompanied by a written report-prepared
and signed by the witness-if the witness is one retained or
specially employed to provide expert testimony in the case or
one whose duties as the party's employee regularly
involve giving expert testimony. The report must contain:
(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
(iii) any exhibits that will be used to summarize or support
(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 trial or by
(vi) a statement of the compensation to be paid for the study
and testimony in the case.
(C) Witnesses Who Do Not Provide a Written Report.
Unless otherwise stipulated or ordered by the court, if the
witness is not required to provide a written report, this
disclosure must state:
(i) the subject matter on which the witness is expected
to present evidence under Federal Rule of Evidence 702, 703,
or 705; and
(ii) a summary of the facts and opinions to which the
witness is expected to testify.
(D) Time to Disclose Expert Testimony. A party must
make these disclosures at the times and in the sequence that
the court orders. . . .
Fed. R. Civ. P. 26(a)(2). Thus, if a witness is
“retained or specially employed to provide expert
testimony in the case, ” the party relying on that
witness must provide a report in compliance with Rule
26(a)(2)(B). If expert testimony will be offered by a witness
who is not “retained or specially employed to provide
expert testimony in the case, ” the party relying on
that witness must provide a disclosure in compliance with
The Parties' Positions
there seems to be no dispute that neither Dr. Petsche nor Dr.
Verma has been “retained or specially employed to
provide expert testimony in the case.” Thus, the
written report requirements of Rule 26(a)(2)(B) do not apply.
However, Petco contends that the causation evidence
Vanderberg intends to present through Dr. Petsche and Dr.
Verma is expert opinion evidence that should have been
disclosed pursuant to Rule 26(a)(2)(C). If Petco is correct,
then on or before October 31, 2016, Vanderberg should have
disclosed both (1) the subject matter on which each witness
is expected to present expert evidence and (2) a summary of
the facts and opinions to which the witness is expected to
testify. Vanderberg did not do so. Indeed, as of ...