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Vanderberg v. Petco Animal Supplies Stores, Inc.

United States District Court, N.D. Iowa, Western Division

June 22, 2017

TIMOTHY VANDERBERG, Plaintiff,
v.
PETCO ANIMAL SUPPLIES STORES, INC., d/b/a Pet Food Warehouse, d/b/a Petco, Defendant.

          MEMORANDUM OPINION AND ORDER

          LEONARD T. STRAND, CHIEF JUDGE

         I. INTRODUCTION

         This 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. 7(c).

         II. RELEVANT FACTS

         The 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.

         When 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 level.[1]

         Prior 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 positioned it.

         When 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.

         Vanderberg 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.

         Vanderberg 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' compensation.

         At the 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.

         III. PROCEDURAL HISTORY

         Vanderberg 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.[2] 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.

         IV. ANALYSIS

         A. Motion for Sanctions

         Petco 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, [3] and opinions expressed by Nikhil Verma, M.D., in recently produced independent medical examination (IME) reports, [4] to 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.[5] Even in this reply, Vanderberg's counsel did not state that the physicians would testify as to causation.[6]

         1. Applicable Standards

         Federal Rule of Civil Procedure 26(a)(2) states as follows, in relevant part:

(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 705.
(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 them;
(iii) any exhibits that will be used to summarize or support them;
(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 deposition; and
(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 Rule 26(a)(2)(C).

         2. The Parties' Positions

         Here, 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.[7] Indeed, as of ...


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