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Vanderberg v. Petco Animal Supplies Stores, Inc.

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

July 14, 2017

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

          ORDER

          Leonard T. Strand, Chief Judge.

         I. INTRODUCTION

         Plaintiff Timothy Vanderberg (Vanderberg) has filed a motion (Doc. No. 36) for reconsideration of my order (Doc. No. 34) on defendant's motion (Doc. No. 31) for sanctions and motion (Doc. No. 25) for summary judgment. I granted both motions due to the combination of (1) Vanderberg's failure to timely designate expert witnesses in accordance with Federal Rule of Civil Procedure 26(a)(2)(C) and (2) the necessity of expert opinion evidence to demonstrate a genuine issue of material fact as to the causation element of his claims. Defendant Petco Animal Supplies Stores, Inc. (Petco) has filed a resistance (Doc. No. 37) and Vanderberg has filed a reply (Doc. No. 38), with an attached medical causation opinion from Dr. Petsche.

         II. DISCUSSION

         Vanderberg asks me to reconsider my ruling on Petco's motion for sanctions and motion for summary judgment based on Petco's failure to comply with Federal Rule of Civil Procedure 37(a)(1) and Local Rule 37(a)(1). He states that three weeks before the discovery deadline, he communicated to Petco's counsel that Dr. Petsche would testify regarding his treatment of plaintiff. He states Petco's counsel made no effort to meet and confer to determine the scope of Dr. Petsche's testimony or schedule his deposition prior to the discovery deadline or prior to filing their motions for summary judgment and sanctions. He argues that Dr. Petsche's surgical reports and the IME doctor's reports (produced after the discovery deadline) establish causation and defendant should not be rewarded for engaging in “gotcha” litigation by failing to comply with rule requirements. Plaintiff has also provided a recent medical causation opinion from Dr. Petsche dated June 29, 2017, which states:

Timothy Vanderberg is a patient of mine who has undergone treatment for multiple medical conditions brought on by a work injury. It is my medical opinion that both knees, both shoulders and the left elbow conditions were brought on by the work injury that occurred at Petco on 06/07/2015. These injuries occurred while working on an outside scissors lift that malfunctioned.

Doc. No. 38-1.

         Petco argues that Vanderberg's arguments mirror those put forth in his resistance to the motion for sanctions and therefore, do not provide a basis for me to overturn my decision. It also argues that Federal Rule of Civil Procedure 37(a)(1) applies only to motions to compel discovery and that a party is not required to confer with opposing counsel when seeking to exclude evidence under Rule 37(c) for failure to comply with Rules 26(a) and 26(e). Moreover, Petco argues that sanctions under Rule 37(c) are “self-executing, ” such that exclusion of undisclosed information is “automatic” when a Rule 26(a) violation occurs. See Doc. No. 37 at 3 (citing Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008) and 1st Source Bank v. First Resource Fed. Credit Union, 167 F.R.D. 61, 64 (N.D. Ind. 1996)). Petco argues that Local Rule 37.1 is similarly applicable only to discovery motions (such as a motion to compel) and not motions to exclude evidence pursuant to Rule 37(c)(1) under the Federal Rules of Civil Procedure. Petco contends that even though it was not required to confer with Vanderberg's counsel, it did ask Vanderberg if he intended to disclose any expert witnesses. Vanderberg stated he did not. It argues it was under no obligation to further advise Vanderberg's counsel regarding his expert disclosure obligations.

         Vanderberg does not cite any authority concerning the procedural basis for his motion for reconsideration. Motions for reconsideration are typically addressed under Rule 59(e) or 60(b). Rule 59(e) provides, “[a] motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.” Under Rule 60(b), I may provide relief from a final judgment for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it ...

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