Pike v. Trinity Industries, Inc. et al

Filing 131

ORDER denying (Doc. 122) Motion to Strike. Plaintiff's Supplemental Disclosures (Docs. 117 and 119) shall be STRICKEN from the Court's Docket in accordance with Local Rule 3.03. Defendants' Motion to Strike Plaintiff's Supplemental Disclosures (Doc. 122) is otherwise DENIED. Signed by Magistrate Judge Philip R. Lammens on 10/10/2013. (JWM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
CHARLES W. PIKE,
Plaintiff,
v.

Case No: 5:12-cv-146-Oc-UATCPRL

TRINITY INDUSTRIES, INC. and
TRINITY HIGHWAY PRODUCTS,
LLC
Defendants.

ORDER
This case comes before the Court for consideration of Defendants, Trinity Industries, Inc.
and Trinity Highway Products, LLC’s Motion to Strike Plaintiff’s Supplemental Rule 26
Disclosures (Doc. 122), to which Plaintiff has responded (Doc. 127).
I.

BACKGROUND

In this case, Plaintiff brings suit against Defendants under theories of product liability
arising from Defendants’ design and manufacture of guardrails sold for roadway and highway
safety. (Doc. 1). Pursuant to the Court’s Case Management and Scheduling Order (Doc. 24), the
original discovery deadline was May 20, 2013, and trial was set for the term commencing
October 7, 2013. In April 2013, the discovery deadlines were extended by the Court. (Doc. 99).
Plaintiff’s disclosures of expert reports were due June 3, 2013, Defendants’ disclosures of expert
reports were due July 1, 2013, the discovery deadline was set for July 25, 2013, and trial was
scheduled for the term commencing January 6, 2014. (Doc. 99). On September 9, 2013, the
Court entered an Amended Case Management and Scheduling Order (Doc. 128) extending the

deadline for dispositive motions and setting the case for trial during the term commencing April
7, 2014.
II,

DISCUSSION

In their motion, Defendants request that the Court strike Plaintiff’s Supplemental Rule 26
Disclosures that were served on August 2, 2013. (Doc. 117). The disclosures at issue consist of
230 photographs of “mismatched guardrails from around the country.” (Doc. 122, page 4).
Defendants complain that the photographs should be stricken because they were disclosed after
the Defendants’ expert deadline and the discovery cutoff.

Defendants contend that these

photographs are irrelevant, cannot be authenticated, and that there is no justification for
Plaintiff’s not disclosing them sooner. Defendants contend that they would be prejudiced if
Plaintiff is permitted to use these photographs because it will require their experts to reevaluate
the evidence.
In response, Plaintiff states that he disclosed the photographs on August 2, 2013, soon
after receiving them on July 18, 2013. (Doc. 127, ¶ 6). Plaintiff argues that the photographs
were disclosed in accordance with his duty to supplement under Rule 26(e)(1)(A) of the Federal
Rules of Civil Procedure. Plaintiff also notes that he provided the photographs several months in
advance of the deadline for pretrial disclosures under Rule 26(a)(3)(B), which provides that
“disclosures must be made at least 30 days before trial.” Plaintiff claims that serving his
supplemental disclosure eight (8) days after the discovery deadline has not resulted in any harm
to Defendants. Plaintiff also notes that the disclosure was made before the upcoming depositions
of Defendants’ warnings expert Jane Welch, Ph.D, and Plaintiff’s warnings expert, William
Kitzes.

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As an initial matter, the Court notes that Defendants’ motion lacks a certification
pursuant to Local Rule 3.01(g). Local Rule 3.01(g) requires a party, before filing any motion in
a civil case (with certain exceptions inapplicable here), to confer with counsel for the opposing
party in a good faith effort to resolve the issues raised by the motion. This failure alone is a
sufficient basis to deny Defendants’ motion.
To the extent that Plaintiff’s disclosure was beyond discovery deadlines, the Court finds
that Plaintiff’s actions were substantially justified or harmless.

See Murdick v Cantalina

Marketing Corp., 496 F.Supp.2d 1337, 1345 (M.D. Fla 2007). Indeed, the disclosures were
made soon after received by Plaintiff, in advance of key expert depositions, and months in
advance of trial. While the admissibility of photographs at trial is another matter entirely,
Plaintiff’s expert disclosures are not due to be stricken on the basis of untimeliness at this stage
in the proceedings.
The Court further notes, however, that Plaintiff has actually filed his Rule 26(a)(1)
Supplemental Disclosures (Doc. 117) and Second Supplemental Rule 26(a)(1) Disclosures (Doc.
119) with the Court. This practice is contrary to Local Rule 3.03. Such disclosures may not be
filed with the Court as a matter of course, as Plaintiff has done here. Rather, under Local Rule
3.03(d), they may only be filed later as necessary to the presentation of a motion or other
proceeding. Accordingly, the disclosures (Docs. 117 and 119) should be stricken from the
Court’s docket.
III.

CONCLUSION

For the reasons stated above, Plaintiff’s Supplemental Disclosures (Docs. 117 and 119)
shall be STRICKEN from the Court’s docket in accordance with Local Rule 3.03. Defendant’s
Motion to Strike Plaintiff’s Supplemental Rule 26 Disclosures (Doc. 122) is otherwise DENIED.

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DONE and ORDERED in Ocala, Flo
D
O
orida on October 9, 2013.
t

Copies fu
urnished to:
Counsel of Record
Unrepres
sented Partie
es

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