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Black Soil Dairy, LLC v. Land O'Lakes, Inc.

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

October 1, 2018

BLACK SOIL DAIRY, LLC, Plaintiff,
v.
LAND O'LAKES, INC., Defendant.

          ORDER

          LINEA R. READE JUDGE

         I. INTRODUCTION

         The 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).

         II. RELEVANT PROCEDURAL HISTORY

         On 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]: (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.

         On December 6, 2017, United States Chief Magistrate Judge C.J. Williams[2] 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.

         On 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)).

         Nevertheless, 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.

         On 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 decision.

         III. ANALYSIS

         In the 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.

         A. Failure to Disclose

         Black 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.

         Federal 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 ...


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