Muscatell v. John Deere Construction and Forestry Company et al

Filing 42

ORDER by Judge James Ware denying 30 Motion to Exclude; Modifying Schedule (jwlc2, COURT STAFF) (Filed on 3/26/2009)

1 2 3 4 5 6 7 8 9 10 Steve Muscatell, v. Plaintiff, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION NO. C 08-00361 JW ORDER DENYING DEFENDANT PAPE' MACHINERY, INC.'S MOTION TO EXCLUDE ALL TRIAL TESTIMONY OFFERED BY PLAINTIFF'S UNDISCLOSED EXPERTS, AND TO BAR FURTHER EXPERT DISCLOSURE; MODIFYING SCHEDULING ORDER

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

John Deere Construction and Forestry Company, et al., Defendants. /

Presently before the Court is Defendant Pape' Machinery, Inc.'s ("Pape'") Motion to Exclude All Trial Testimony Offered by Plaintiff's Undisclosed Experts, and to Bar Further Expert Disclosures.1 Pape' seeks to prevent Plaintiff from introducing at trial the testimony of experts that Plaintiff has not yet disclosed and from disclosing any further experts or expert reports. The Court finds it appropriate to take the matter under submission without oral argument. See Civ. L.R. 7-1(b). Based on the papers submitted to date, the Court DENIES Defendant Pape's Motion. A. Background On October 9, 2007, Plaintiff filed this action in the Superior Court of the State of California for the County of Santa Cruz, alleging products liability for injuries suffered by Plaintiff's use of

(Pape' Machinery, Inc.'s Motion to Exclude All Trial Testimony Offered by Plaintiff's Undisclosed Experts, and to Bar Further Expert Disclosures, hereafter, "Motion," Docket Item No. 30.) Defendant John Deere Construction & Forestry Company has joined in Pape's motion. (Joinder in Pape' Machinery, Inc's Motion to Exclude All Trial Testimony Offered by Plaintiff's Undisclosed Experts, and to Bar Further Expert Disclosure by Plaintiff, Docket Item No. 35.)

1

1 2 3 4 5 6 7 8 9 10

machinery sold by Defendants. (See Notice of Removal, Ex. A, Docket Item No. 1.) On January 17, 2008, Defendant John Deere Construction & Forestry Company removed this action to federal court under 28 U.S.C. § 1332. (See Notice of Removal, Docket Item No. 1.) On May 7, 2008, the Court issued a Scheduling Order ("May 2008 Scheduling Order") setting the close of all discovery as March 2, 2009. (May 7, 2008 Scheduling Order at 1, hereafter, "May 2008 Scheduling Order," Docket item No. 19.) The May 2008 Scheduling Order also required the parties to disclose the "name, address, qualifications, résumé and written report" of their experts, pursuant to Fed. R. Civ. P. 26, 63 days before the close of discovery­i.e., December 29, 2008. (May 2008 Scheduling Order at 3.) On January 12, 2009, the parties provided their expert disclosures.2 (Motion at 3.) Plaintiff only disclosed the identity of his treating physicians and provided no expert reports.3 On January 16, 2009, Plaintiff filed a Supplemental Disclosure of Experts, which stated that Plaintiff has retained experts on this case, but cannot offer any experts opinions or reports at this time because the defendants have not produced . . . the test data on the machine that was done by John Deere at the time of protocol testing or at the time of production. . . . [Plaintiff's] experts feel they cannot give an opinion on this case until the test data is produced by John Deere and/or Pape' Machinery . . . . (Gilbert Decl., Ex. F.) On January 22, 2009, the Court issued a Preliminary Pretrial Conference Scheduling Order ("January 2009 Scheduling Order") setting the trial in this action to begin September 22, 2009. (January 22, 2009 Preliminary Pretrial Conference Scheduling Order, hereafter, "January 2009 Scheduling Order," Docket Item No.34.) B. Discussion Defendant Pape' contends that Plaintiff should be precluded from introducing the testimony of currently undisclosed experts and any further experts and expert reports because Plaintiff did not The Court notes that each of the parties failed to provide expert disclosures by the deadline set in the Court's May 2008 Scheduling Order. (Declaration of Harry C. Gilbert in Support of Pape' Machinery, Inc's Motion to Exclude All Trial Testimony Offered by Plaintiff's Undisclosed Experts, and to Bar Further Expert Disclosures, Ex. A, hereafter, "Gilbert Decl.," Docket Item No. 31.) 2
3 2

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 9 10

comply with the Court's May 2008 Scheduling Order. In addition, Defendant contend that Plaintiff can develop his own test data regarding the machinery at issue. (Motion at 4-5.) Plaintiff contends that he can provide the necessary disclosures by April 2, 2009.4 Under Fed. R. Civ. P. 26(a)(2)(C), expert testimony must be disclosed to all parties "at least 90 days before the date set for trial or for the case to be ready for trial." However, the court can set a different date for disclosure. Fed. R. Civ. P. 26(a)(2)(C). Once a schedule has been set by a court, it may modify its schedule for "good cause." Fed. R. Civ. P. 16(b)(4). In this case, all parties failed to provide their expert disclosures in accordance with the May 2008 Scheduling Order, which required all expert disclosures to be exchanged by December 29, 2009. The parties did not exchange their disclosures until January 12, 2009. (See Motion at 3.) Furthermore, the trial in this matter is not set to begin until September 22, 2009. In light of the six months that remain until trial and Defendant's own tardy disclosure, the Court finds that Defendant has failed to show any prejudice that would result from allowing the parties to conduct limited further discovery with respect to expert disclosure. In contrast, Plaintiff may be prejudiced if he is unable to disclose and ultimately offer the testimony of experts in support of his case. Thus, the Court finds good cause exists for allowing Plaintiff additional time to provide the expert disclosures required under Fed. R. Civ. P. 26(a)(2). Accordingly, the Court DENIES Defendant Pape's Motion to Exclude All Trial Testimony Offered by Plaintiff's Undisclosed Experts, and to Bar Further Expert Disclosures. C. Conclusion The Court orders as follows: (1) The Court DENIES Defendant Pape's Motion to Exclude All Trial Testimony Offered by Plaintiff's Undisclosed Experts, and to Bar Further Expert Disclosures. (2) Any party wishing to present expert witness testimony with respect to a claim or a

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

(Declaration of John C. Stein in Opposition to Pape' Machinery, Inc.'s Motion to Exclude All Trial Testimony Offered by Plaintiff's Undisclosed Experts, and to Bar Further Expert Disclosures, hereafter, "Stein Decl.," Docket Item No. 36.) 3

4

1 2 3 4 5 6 7 8 9 10

defense shall lodge with the Court and serve on all other parties the name, address, qualifications, résumé and a written report which complies with Fed. R. Civ. P. 26(a)(2)(B) on or before April 2, 2009. (3) Discovery shall remain open until June 1, 2009 for the limited purpose of deposing newly disclosed experts.

Dated: March 26, 2009

JAMES WARE United States District Judge

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

1 2 3 4 5 6 7 8 9 10

THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO: Harry C. Gilbert [e-mail] John Charles Stein [e-mail] Rebekka R. Martorano [e-mail] Timothy John Ryan [e-mail]

Dated: March 26, 2009

Richard W. Wieking, Clerk By: /s/ JW Chambers Elizabeth Garcia Courtroom Deputy

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28