Hudgins v. Vermeer Manufacturing Co.

240 F.R.D. 682, 67 Fed. R. Serv. 3d 622, 2007 U.S. Dist. LEXIS 17050, 2007 WL 609216
CourtDistrict Court, E.D. Oklahoma
DecidedFebruary 27, 2007
DocketNo. 06-CIV-291-RAW
StatusPublished
Cited by2 cases

This text of 240 F.R.D. 682 (Hudgins v. Vermeer Manufacturing Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hudgins v. Vermeer Manufacturing Co., 240 F.R.D. 682, 67 Fed. R. Serv. 3d 622, 2007 U.S. Dist. LEXIS 17050, 2007 WL 609216 (E.D. Okla. 2007).

Opinion

ORDER

WHITE, District Judge.

Before the Court is Defendant’s Motion to Strike Plaintiffs’ Life Care Plan Expert and Damages Evidence [Docket No. 39]. This case was originally filed on July 25, 2006 regarding injuries sustained by the Plaintiff while using a hay baler manufactured by Defendant.

Defendant alleges that Plaintiffs failed to timely disclose an expert witness, Tanya Owen, and that the late disclosure of Owen’s expert report was not harmless or justified. Plaintiffs claim that the Defendant has not been prejudiced or surprised by the late disclosure and that any error was harmless.

Facts

The following is a list of relevant dates and deadlines in this matter, obtained by a review of the court file and/or the Scheduling Order entered in this matter on October 20, 2006 [Docket No. 23]:

10/18/2006 Date agreed to by the parties as the deadline for expert disclosures

10/18/2006 Plaintiffs’ expert report by Thomas Berry submitted to Defendant

10/30/2006 Plaintiffs’ Supplemental Rule 26 Disclosures filed, indicating $748,000.00 in damages for future medical costs

12/05/2006 Deadline for witness and exhibit lists

12/05/2006 Deadline to submit expert report pursuant to Rule 26 (90 days prior to scheduled trial date)

12/07/2006 Plaintiffs’ witness and exhibit lists filed, indicating “Lifeeare planner; not yet selected.”

01/19/2007 Discovery cutoff 01/26/2007 Deadline for motions in limine and Daubert issues to be filed

01/26/2007 Plaintiffs’ expert Tanya Owen’s “tentative” draft expert report submitted to Defendant indicating $1,249,067.86 in damages for future medical costs

02/08/2007 Plaintiffs’ expert Owen’s final expert report submitted to Defendant indi[684]*684eating $1,672,336.37 in damages for future medical costs

02/15/2007 Pretrial Conference

3/05/2007 Trial date

Federal Rule of Civil Procedure 26(a)(2)(C) provides that “in the absence of other directions from the court or stipulation by the parties,” expert disclosures shall be made at least 90 days before the trial date. Plaintiffs do not dispute the parties agreed to submit expert reports on October 18, 2006, and Plaintiffs, indeed, submitted their expert report by Thomas Berry on that date.

The current dispute developed, however, with the expert report of Tanya Owen. Defendant first learned of the possibility of another expert in this matter when Plaintiffs submitted their witness and exhibit lists on December 7, 2006. In that witness list, Plaintiffs stated “Lifecare planner; not yet selected.” Indeed, Plaintiffs state that Owen was not even retained until January 2, 2007. Over one month after filing the witness and exhibit list, Owen’s “tentative” draft report was submitted to Defendant on January 26, 2007; the final report was not submitted until two months after the witness and exhibit list was filed, on February 8, 2007. The final report was submitted to Defendant less than one month from the scheduled trial date.

Discussion

1. Woodworker’s Factors

Rule 37 of the Federal Rules of Civil Procedure provides as follows:

A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.

Federal Rules of Civil Procedure Rule 37(c)(1). The Court has broad discretion to determine whether a Rule 26 violation is justified or harmless. Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir.1999). Woodworker’s also provides four factors that a court should consider in making its determination:

(1) the prejudice or surprise to the party against whom the testimony is offered;
(2) the ability of the party to cure the prejudice;
(3) the extent to which introducing such testimony would disrupt the trial; and
(4) the moving party’s bad faith or willfulness.

Id., at 993. Further, a “district court need not make explicit findings concerning the existence of a substantial justification or the harmlessness of a failure to disclose.” quoting United States v. $9,041,598.68, 163 F.3d 238, 252 (5th Cir.1998), Id., at 993.

Plaintiffs’ final expert report by Owen was not provided to Defendant until less than one month from trial. The report was submitted after the discovery deadline, preventing Defendant from deposing the witness. Further, the final report was submitted on the same date as the deadline to file motions in limine or Daubert issues.

In their October 2006 disclosures, Plaintiffs claimed damages for future medical expenses in the amount of $748,000, yet the damages claimed in the final expert report more than doubled those previously claimed, and now total $1.67 million. Additionally, Plaintiffs’ final expert report claimed damages for the following categories that were never mentioned in the October 2006 disclosures: support care, computer/office adaptive devices, adaptive clothing, travel expenses, and exercise equipment. Additionally, the final expert report lists damages for an Intrathecal infusion pump, but Plaintiffs argue that Defendant was aware of this additional medical procedure.

While Plaintiffs’ counsel argues that they offered the expert’s deposition after the discovery cutoff and prior to the date of trial, this would not have cured the Defendant being unable to timely file a motion in limine or brief any Daubert issues. Clearly, the Defendant was prejudiced by the increased amount of damages claimed by the Plaintiffs and by the additional categories of damages. This prejudice could not be cured under the circumstances.

This Court has considered a continuance of the trial of this matter, in order to cure any [685]*685prejudice to the Defendant. The Court notes with interest, however, that Plaintiffs themselves never requested a continuance of the deadline to submit expert reports, even though they were over three months late in doing so. As noted in Barrett v. Atlantic Richfield Co., 95 F.3d 375 (5th Cir.1996), “a continuance does not, in and of itself, deter future dilatory behavior, nor serve to enforce local rules or court imposed scheduling orders.” Id, at 382.

Further, other courts have found that a party ignoring the schedule set by the court is not harmless.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
240 F.R.D. 682, 67 Fed. R. Serv. 3d 622, 2007 U.S. Dist. LEXIS 17050, 2007 WL 609216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hudgins-v-vermeer-manufacturing-co-oked-2007.