Olson v. Montana Rail Link, Inc.

227 F.R.D. 550, 2005 U.S. Dist. LEXIS 8061, 2005 WL 1037116
CourtDistrict Court, D. Montana
DecidedMay 4, 2005
DocketNo. CV 03-107-M-DWM
StatusPublished
Cited by4 cases

This text of 227 F.R.D. 550 (Olson v. Montana Rail Link, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Montana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Olson v. Montana Rail Link, Inc., 227 F.R.D. 550, 2005 U.S. Dist. LEXIS 8061, 2005 WL 1037116 (D. Mont. 2005).

Opinion

ORDER

MOLLOY, Chief Judge.

I. Introduction

Before the Court are Plaintiff Olson’s objections to Magistrate Judge Leif B. Erickson’s Order on discovery motions, dated January 10, 2005. Plaintiff Olson asks the Court to reverse or modify Judge Erickson’s rulings in several respects. Relevant for the purposes of this Order are Olson’s objections seeking reversal of Judge Erickson’s rulings declining to impose sanctions for MRL’s alleged failure to timely provide the data underlying the expert report of Dr. Robert Piziali and denying Plaintiffs motion to exclude the testimony of expert Gary Wolf.1 Because MRL has toyed with the Federal Rules of Civil Procedure and this court’s orders regarding expert disclosures, Olson’s motions are granted as set forth below.

II. Factual Background

Olson is an MRL employee bringing this FELA ease to recover for an injury that allegedly developed through cumulative traumatic stresses Olson suffered during his years of employment at MRL. Olson contends that his injury is the product of the aggregate effects of minor injuries sustained in eight different activities he performed during the course of his employment. This litigation has been plagued by discovery discord, culminating in multiple discovery motions filed by each side.

Olson requested an order compelling MRL to disclose all documentation relating to cumulative stress injuries as well as the acute injuries Olson alleges combined to cause his cumulative injury. MRL refused to provide the acute injury reports sought by the Plaintiff. MRL, in turn, requested all documents in Olson’s or Olson’s counsel’s possession relating to the incidents, equipment or work areas at issue in the case. This kind of tactical gamesmanship has no place in either the quest for truth or in the policy of the Federal Rules of Civil Procedure promoting a just, speedy and inexpensive resolution of civil law suits. See Rule 1, Fed.R.Civ.P. Olson refused to produce all responsive ma[551]*551terial on the ground that some of it was privileged material relating to Olson’s counsel’s representation of other clients. Judge Erickson addressed the discovery issues, as well as the parties’ motions in limine, in a 52-page Order dated January 10, 2005.

Among the motions addressed by Judge Erickson were Olson’s motion for sanctions against MRL for failing to timely disclose the expert report of Dr. Robert Piziali and Olson’s motion to motion to exclude the testimony of MRL’s railroad operations and workplace safety expert Gary Wolf. Judge Erickson declined to impose sanctions in relation to the Piziali disclosure and denied the motion to exclude expert Gary Wolf, and Olson now objects.

III. Analysis

A. Olson’s Motion to Exclude MRL’s Expert Dr. Piziali

Judge Erickson declined to rule on Olson’s motion to exclude or limit the testimony of MRL’s expert Dr. Robert Piziali as a sanction for MRL’s late disclosure of the data underlying Dr. Piziali’s expert report. Dr. Piziali is MRL’s expert on the effects of shock, vibration and physical activities. MRL disclosed his expert report on August 31, 2004. The report filed on that date is incomplete. The report contained opinions based on testing performed by Dr. Piziali and/or his associates, including locomotive vibration testing and an inspection of Plaitniffs manual tasks. While conducting the vibration testing, Dr. Piziali collected “acceleration data.” Piziali Report at 4. During the inspection of Olson’s manual tasks, Dr. Piziali recorded body postures and techniques and documented dimensions and weights of equipment. Id. at 5.

None of the data collected during Dr. Piziali’s testing and inspections were included with his expert disclosure provided on August 31, 2004, the deadline for such disclosures. On September 23, 2004, after Olson made a written request for the data underlying Dr. Piziali’s report, MRL furnished to Olson what MRL characterizes as “a printout of all data that had been printed as of that date by Dr. Piziali and his staff, as well as a CD2 containing all of the captured vibration data.” This half-hearted response was not only inadequate, but it was also a further demonstration of MRL’s practice here of “gaming the rules.” It was not until November 16, 2004, just two days before Dr. Piziali’s deposition and two and a half months after the expert disclosure deadline, that MRL had an epiphany and provided for the first time (1) handwritten notes taken during the vibration testing; (2) all measurements and calculations done and photographs taken in conjunction with Dr. Piziali’s inspection of Olson’s work activities; and (3) computer calculations and computer generated graphics applying the data and photographs relating to the inspection of Olson’s work activities. The timing of this response and production of information fit the MRL’s strategy of gaming the rules to a tee.

Olson advances two arguments for limitation or exclusion of Dr. Piziali’s testimony. First, Olson contends that MRL violated Judge Erickson’s July 2, 2004 Order requiring MRL to fully respond to Olson’s discovery requests for “all documents generated ... in connection with any investigation;” “all statements, reports or records obtained by [MRL] from any person;” and “any photographs or other pictorial representations.” See 7/2/04 Order p. 33. Judge Erickson ordered the production of any responsive information no later than July 31, 2004. Id. at 1. Olson argues that MRL violated that Order by failing to produce Dr. Piziali’s data on July 31, 2004, despite the fact that the expert disclosure deadline was not until August 31, 2004. See 7/2/04 Order p. 39. Judge Erickson noted that Olson cited “no authority for his argument that Defendant was obligated to produce the work of its experts before the expert disclosure deadline,” and ruled that “[MRL’s] failure to do so was not a violation of this Court’s July 2, 2004 discovery order.” 1/10 Order p. 11. I believe Judge Erickson correctly resolved this first argument.

Olson’ second basis for seeking limitation or exclusion of Dr. Piziali’s testimony is MRL’s failure to disclose the data underlying Piziali’s report by the August 31, 2004 deadline. Here Olson has it right. Judge Erickson acknowledged that the disclosure was [552]*552untimely but refrained from imposing sanctions, writing, “[I]f the Defendant has not yet produced all of the data and other information relied on by Dr. Piziali, it must do so immediately. If it appears that all of the data and information relied upon by Dr. Piziali has not been disclosed then the trial court will have the option of reopening discovery or striking Dr. Piziali as a witness.” 1/10 Order p. 43.

In responding to Olson’s objections, MRL focuses its argument on Olson’s contention that it should have disclosed the data by July 31, 2004, as required by Judge Erickson’s July 2, 2004 discovery Order. MRL makes no effort to justify its failure to meet the August 31, 2004 expert disclosure deadline as require by the Rules.

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Bluebook (online)
227 F.R.D. 550, 2005 U.S. Dist. LEXIS 8061, 2005 WL 1037116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olson-v-montana-rail-link-inc-mtd-2005.