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HDI-Gerling America Insurance C. v. Contract Welding & Mechanical

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

September 27, 2017

HDI-GERLING AMERICA INSURANCE CO., et al., Plaintiffs,
v.
CONTRACT WELDING & MECHANICAL, Defendant. VINCIT COMPANY, LLC, Plaintiff,
v.
MARK DRUIVENGA, d/b/a/ CONTRACT WELDING & MECHANICAL, Defendant. MARK DRUIVENGA, d/b/a CONTRACT WELDING & MECHANICAL, Third-Party Plaintiff,
v.
HILLSHIRE BRANDS CO., Third-Party Defendant.

          ORDER

          C.J. Williams, Chief United States Magistrate Judge Northern District of Iowa

         I. INTRODUCTION

         This case is before the Court on third-party defendant Hillshire Brands Co.'s (“Hillshire”) Motion to Strike Third-Party Plaintiff's Expert Witness (Doc. 63), [1] and on third-party plaintiff Mark Druivenga d/b/a Contract Welding & Mechanical's (“Druivenga”) Motion for Extension of Deadline to Provide Expert Witness Disclosures (Doc. 73).

         Hillshire filed its motion to strike on August 4, 2017, Contract Welding timely filed a resistance on August 18, 2017, (Doc. 70), and Hillshire timely filed a reply on August 24, 2017 (Doc. 72). Contract Welding filed its motion for extension of time on August 24, 2017, and Hillshire timely filed a reply on August 29, 2017 (Doc. 79). This Court heard oral argument on both motions on September 25, 2017.

         For the following reasons, Hillshire's Motion to Strike Third-Party Plaintiff's Expert Witness (Doc. 63) is granted, and Contract Welding's Motion for Extension of Deadline to Provide Expert Witness Disclosures is denied (Doc. 73). The factual bases for the two motions at issue are intertwined and will be treated as such.

         II. FACTUAL AND PROCEDURAL HISTORY

         On March 22, 2014, a fire broke out at a Hillshire plant, damaging the facility and shutting down operations for an extended period of time. Druivenga had been performing welding work at the plant on the day of the fire, though Druivenga's role in causing the fire, if any, is contested. The instant litigation was filed as a result of the fire and Druivenga ultimately brought a third-party complaint against Hillshire asserting his own damages as a result of the fire. (Doc. 37).

         Hillshire filed its motion to strike Lawrence Harden, CPA as Druivenga's expert witness on the issue of damages and, in support, argues that Druivenga has failed to “serve[ ] any report or disclosure that provides Mr. Harden's opinions or the basis for those opinions.” (Doc. 63, at 2). Further, Hillshire argues that if Mr. Harden is permitted to serve as an expert, Hillshire will be prejudiced, as trial is currently scheduled for November 13, 2017, Hillshire has not had the opportunity to depose Mr. Harden, [2]and the report that has been provided to Hillshire is grossly insufficient. The Court-imposed deadline for Druivenga's expert witness disclosures was March 31, 2017. (Doc. 15).

         In response to Hillshire's motion to strike, Druivenga filed his motion for extension of time. In support thereof, Druivenga states that on June 6, 2017, Druivenga informed Hillshire via email that Druivenga intended to present Mr. Harden as his expert witness on Druivenga's damages. (Doc. 73, at 2). Druivenga did not provide Mr. Harden's expert witness report at the time of this notice and only provided the report days before the September 25, 2017, hearing, citing “delays occasioned first by Druivenga's difficulties in working with his own tax and accounting firm, and then by a very serious health scare that Druivenga experienced during the summer, requiring hospitalization.” (Id.). It is apparent that certain information pertaining to Druivenga's finances would prove necessary in Mr. Harden's attempts to calculate Druivenga's damages. Druivenga does not present any other reason for the delay in disclosing the full breadth of the required expert witness information beyond those reasons recounted above.

         III. APPLICABLE LAW

         Federal Rule of Civil Procedure 16 requires the Court to issue a scheduling order that includes certain deadlines, including the deadlines for completing discovery. The Rule 16 scheduling order may be modified only for good cause. Fed.R.Civ.P. 16(b)(4); Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir. 2008).

         Federal Rule of Civil Procedure 26(a)(2)(B) provides that expert witnesses must provide a written report containing: 1) “a complete statement of all opinions the witness will express and the basis and reasons for them;” 2) “the facts or data considered by the witness in forming them;” 3) “any exhibits that will be used to summarize or support them;” 4) “the witness's qualifications, including a list of all publications authored in the previous 10 years;” 5) “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 6) “a statement of the compensation to be paid for the study and testimony in the case.” “A party must make these disclosures at the times and in the sequence that the court orders.” Fed.R.Civ.P. 26(a)(2)(D). A late disclosure of an expert opinion can be “equivalent to failure to disclose.” Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1008 (8th Cir. 1998) (“failure to disclose in a timely manner is equivalent to failure to disclose, ” citing Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 284 (8th Cir. 1995) (“In prior cases, [the Eighth Circuit Court of Appeals has] upheld rulings by district courts precluding experts from testifying when those experts were not timely disclosed pursuant to pretrial orders and local rules.”)).

         When a party fails to provide the information or the identity of an expert witness in compliance with Rule 26(a), the Court has wide discretion to fashion a remedy or sanction under Rule 37(c) that is appropriate under the circumstances. These sanctions can include the exclusion of testimony on undisclosed opinions at trial. See Fed. R. Civ. P. 37(c)(1). These sanctions do not apply, however, if “the failure was substantially justified or is harmless.” Id. See, e.g., Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008) (the district court did not abuse its discretion in excluding expert witness testimony supplemented fewer than three weeks prior to trial because, in relevant part, the late disclosure was neither substantially justified nor harmless, and “a continuance would have postponed a much-delayed trial”); Williams v. TESCO Servs., Inc., 719 F.3d 968, 976 (8th Cir. 2013) (finding no “clear and prejudicial abuse of discretion” in the district court's decision to strike an expert's second report, which was disclosed after the close of both discovery and the summary judgment record, because that report “materially alter[ed], [rather than] merely clarif[ied]” the expert's original report and deposition testimony). Importantly, “the exclusion of evidence is a harsh penalty [for non-compliance with discovery disclosure deadlines] and should be used sparingly.” Wegener, 527 F.3d at 692. But see Sylla-Sawdon, 47 F.3d at 285 (holding that a trial court has great discretion in determining whether to exclude expert testimony that is not disclosed in compliance with the Court's scheduling order).

         IV. ...


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