Spano et al v. Boeing Company, The et al

Filing 362

ORDER. Defendants' request for production of Plaintiffs' expert reports 356 is DENIED. Signed by Magistrate Judge Donald G. Wilkerson on 10/13/2011. (hbs)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GARY SPANO, et al.,
Plaintiffs,
v.
THE BOEING COMPANY, et al.,
Defendants.

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Case No. 3:06-cv-743-DRH-DGW

ORDER

Now pending before the Court is Defendants’ Memorandum in Support of Motion to Compel
Production of Plaintiffs’ Expert Reports (Doc. 356). Defendants request that the Court order Plaintiffs
to produce opinions rendered by experts Al Otto and Dr. Pomerantz in other, similar cases filed by
counsel for Plaintiffs. For the reasons set forth below the request is DENIED.
BACKGROUND
The Court previously determined that the opinions expressed by Defendants’ expert, Dr. Turki,
in other cases, were relevant and therefore discoverable by the Plaintiffs. Defendants now argue that
they are similarly entitled to the opinions expressed by Plaintiffs’ experts in other cases to determine
whether expert Otto used the same methodology in other cases and whether he “has offered consistent
opinions.” In support, Defendants argue that Plaintiffs “opened the door to this form of discovery”
(Doc. 356).
In response, Plaintiffs argue that they already produced other expert opinions of Dr. Pomerantz
regarding class certification. Plaintiffs further argue that other opinions of Dr. Pomerantz and Dr. Otto
as to the merits of the case are not relevant and therefore not discoverable under Fed. R. Civ. P. 26.

Plaintiffs also argue that Defendants’ request is too broad in that it asks for all opinions expressed by the
experts in other cases, whereas Plaintiffs’ request for expert opinions from Defendants was limited to
four specific cases. Plaintiffs finally argue that Defendants’ request comes too late because discovery
on the merits is closed (Doc. 355).
ANALYSIS
The Court enjoys broad discretion in managing discovery. See Crawford v. Countrywide Home
Loans, Inc., 647 F.3d 642, 649 (7th Cir. 2011). Rule 26 requires the Court to limit the frequency or
extent of discovery if it determines that “the party seeking discovery has had ample opportunity to obtain
the information by discovery in the action.” Fed. R. Civ. P. 26(b)(2)(C)(ii).
The Court finds Plaintiffs’ arguments more persuasive. The timeline of the discovery requests
is especially telling. Plaintiffs requested the opinions of Dr. Turki in the four other cases for the purpose
of preparing for their deposition of Dr. Turki. Plaintiffs’ requests for opinions of Dr. Turki were made
August 23, 2011; Dr. Turki’s deposition was scheduled for September 13, 2011. In the broader context
of the case, Plaintiffs’ request for reports and the deposition of Dr. Turki occurred before the deadlines
for Defendants’ to produce expert reports, to hold expert depositions, and before the deadline for
Plaintiffs to file a reply to the motion for class certification (See briefing schedule, Doc. 333).
Presumably, the information obtained in the deposition of Dr. Turki informed Plaintiffs’ reply.
In contrast, Defendants’ request for other expert reports from Dr. Pomerantz and Mr. Otto come
after the depositions of these experts have already occurred and after Defendants filed their response in
opposition to the motion for class certification. Neither party indicates that deposition of any expert has
yet to occur. The motion for class certification has been fully-briefed. The Court’s briefing schedule
does not provide for Defendants to file a sur-reply (Doc. 333). Regardless, the Court’s Local Rules
prohibit sur-replies. See SDIL-LR 7.1(c) (“Under no circumstances will sur-reply briefs be accepted.”).
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The Court believes Defendants had ample opportunity to seek other opinions of Dr. Pomerantz
and Mr. Otto in a timely manner before discovery was closed and the motions were fully briefed. The
Court finds it is simply too late in the case for additional discovery. Moreover, Defendants have not
demonstrated, nor does the Court perceive, any prejudice that would result from the denial of
Defendants’ request.1 Accordingly, the Defendants’ request for the opinions of experts Pomerantz and
Otto in other cases is DENIED.
IT IS SO ORDERED.
DATED: October 13, 2011

DONALD G. WILKERSON
United States Magistrate Judge

1

The Court is fully aware of its prior decision, based on Brown v. Overhead Door Corporation, 2008 WL 1924885 (N.D. Ill.
Apr. 29, 2008), finding relevant and discoverable expert reports from other cases, but finds that potential relevance of the
reports does not overcome the untimeliness of the request.

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