United States District Court, N.D. Iowa, Western Division
Leonard T. Strand, Chief Judge.
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.
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
Doc. No. 38-1.
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.
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
(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 ...