United States District Court, N.D. Iowa, Western Division
R. READE JUDGE
matter before the court is Plaintiff Black Soil Dairy,
LLC's (“Black Soil”) “Motion to Strike
Affidavit of Dr. Julian Olson DVM and Supporting Documents
Relied Upon by Defendant [Land O'Lakes] in Support of its
Motion for Summary Judgment . . . and Motion to Exclude
Expert” (“Motion”) (docket no. 49).
RELEVANT PROCEDURAL HISTORY
August 15, 2017, Black Soil filed a “Petition and Jury
Demand” (“Petition”) (docket no. 2) in the
Iowa District Court for Sioux County, Iowa. In the Petition,
Black Soil asserts three claims against Defendant Land
O'Lakes, Inc. (“Land
O'Lakes”): (1) Count I alleges that Land O'Lakes
was negligent in a number of respects related to a milk
replacement delivered to Black Soil; (2) Count II alleges
that Land O'Lakes breached an implied warranty of fitness
regarding the milk replacement; and (3) Count III alleges
that Land O'Lakes breached its voluntarily assumed
duties. See Petition at 3-5. On September 19, 2017,
Land O'Lakes filed an Answer (docket no. 5). On October
13, 2017, Land O'Lakes filed a Notice of Removal (docket
no. 1), bringing the case before the court.
December 6, 2017, United States Chief Magistrate Judge C.J.
Williams adopted the parties' proposed
deadlines. See December 6, 2017 Minute Entry (docket
no. 14). In relevant part, the parties' deadlines were as
follows: Black Soil's expert witness disclosure deadline
was March 9, 2018, Land O'Lakes's expert witness
disclosure deadline was May 9, 2018, Black Soil's
rebuttal expert witness disclosure deadline was June, 11,
2018, and the dispositive motions deadline was August 10,
2018. See Scheduling Order (docket no. 15) at 1.
March 9, 2018, Black Soil filed the Designation of Experts
(docket no. 21), which designated Daniel E. Little as an
expert witness. See Designation of Experts at 1.
Black Soil failed to provide Dr. Little's written report
by the March 9, 2018 deadline. See generally Id. On
March 21, 2018, twelve days after the deadline, Black Soil
filed a Motion to Extend Expert Deadline (docket no. 24),
seeking “an additional 120 days to produce expert's
reports.” Motion to Extend Expert Deadline at 4. Black
Soil “offer[ed] no explanation for why it did not bring
the . . . motion prior to the expiration of the expert
witness deadline.” April 11, 2018 Order (docket no. 37)
at 4 (noting that Black Soil “would have become aware
of its inability to calculate damages prior to the expiration
of the deadline and . . . could have moved to extend the
deadline before the deadline had expired” but did not
do so (emphasis omitted)).
Judge Williams granted the Motion to Extend Expert Deadline
and set July 9, 2018, as Black Soil's expert witness
disclosure deadline, August 24, 2018, as the dispositive
motions deadline, September 10, 2018, as Land O'
Lakes's expert witness disclosure deadline and October
10, 2018, as Black Soil's rebuttal expert witness
disclosure deadline and the discovery deadline. Id.
Judge Williams noted that setting the dispositive motions
deadline prior to Land O'Lakes's expert witness
disclosure deadline was unusual, but found it acceptable
because the court was “not willing to prejudice [Land
O'Lakes]” by granting Black Soil's Motion to
Extend Expert Deadline. Id. at 4-5. Judge Williams
further provided, “Should the setting of
defendant['s] expert deadline prior to the dispositive
motions deadline prove prejudicial to any party, that party
may petition the [c]ourt at a later date to file a
dispositive motion following the expiration of the
dispositive motions deadline.” Id. at 5.
Neither party filed such a motion.
August 16, 2018, Land O'Lakes filed the Motion for
Summary Judgment (docket no. 42). On August 23, 2018, Land
O'Lakes filed a Motion to Exclude Plaintiff's Expert
(docket no. 44). On September 4, 2018, Black Soil filed the
Motion. On September 5, 2018, Land O'Lakes filed a
Resistance (docket no. 51). Neither party has requested oral
argument and the court finds that oral argument is
unnecessary. The matter is fully submitted and ready for
Motion, Black Soil asserts that Land O'Lakes
“submitted an [a]ffidavit of Julian
(“Skip”) Olson” in support of its Motion
for Summary Judgment and Motion to Exclude Plaintiff's
Expert and that the affidavit “contains numerous expert
opinions that were not previously disclosed by [Land
O'Lakes].” Motion at 1. Black Soil also contends
that the affidavit of Dr. Olson should be stricken because
Land O'Lakes “did not identify Dr. Olson as an
expert in response to discovery requests” and the
affidavit “relies upon hearsay statements.” Brief
in Support of Motion (docket no. 49-1) at 3. The court shall
address each argument in turn.
Failure to Disclose
Soil argues that Dr. Olson's affidavit “should be
stricken for failure to disclose and/or supplement expert
opinions as required by Rules 26(a)(2)(B)(i) and (e).”
Id. at 3.
Rule of Civil Procedure 26 provides that “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.” Fed.R.Civ.P. 26(a)(2)(A).
The disclosure of expert testimony “must be accompanied
by a written report-prepared and signed by the
witness.” Fed.R.Civ.P. 26(a)(2)(B). “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). Parties
must supplement expert disclosures as required by the Federal
Rules. See Fed. R. Civ. P. 26(e) (providing when a
party must supplement an expert disclosure). “If a
party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the ...