Kochera v. Foster Wheeler, LLC

Filing 194

MEMORANDUM AND ORDER regarding discovery dispute conference on 2/19/15. Signed by Magistrate Judge Stephen C. Williams on 2/23/15. (amv)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANDREW V. KOCHERA, JR.,
Plaintiff,
vs.
BUFFALO PUMPS, INC., et al.,
Defendants.

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Case No. 14-cv-29-SMY-SCW

MEMORANDUM AND ORDER
WILLIAMS, Magistrate Judge:
On February 19, 2015, the Court held a hearing regarding certain discovery disputes of the
parties. The following memorializes the Court’s findings and rulings at that hearing:
A.

Late Disclosure of Supplemental Expert Reports – Dr. Vuskovich
Plaintiff initially disclosed Dr. Vuskovich’s report on August 25, 2014. Dr. Vuskovich sat for

a deposition two months later on October 27, 2014. Defendants disclosed their expert reports on
December 2, 2014. On January 30, 2015, Plaintiff then disclosed a supplemental report of Dr.
Vuskovich.

Defendants now object that Dr. Vuskovich changed his opinions and reviewed

additional documentation in the supplemental report.

He also offered rebuttal to matters in

Defendants’ expert reports. Any rebuttal reports were due within 30 days after the expert reports
were disclosed pursuant to Fed. R. Civ. P. 26(a)(2)(D), which in this case would mean that rebuttal
reports were due on January 2, 2015. Defendants request that the supplemental report of Dr.
Vuskovich be stricken.
Rule 26(e) allows for supplementation to correct reports or to disclose brand new information.
It does not permit the parties to create their own deadlines for the disclosure of substantive

information. The deadline to disclose expert reports was August 22, 2014. Dr. Vuskovich was
deposed in October. The supplemental reports offer materially differently opinions from both the
initial report and Dr. Vuskovich’s deposition. They were disclosed on January 30, 2015, the last day
of the discovery period. Plaintiff made no effort to tell the Defendants or the Court that he was
attempting to supplement the reports or that he needed more time to do so.
The Court cannot say that the conduct here represents bad faith, but this practice certainly
invites bad faith in the future. At the very least, this issue should be brought to other parties and the
court in advance. The Court does not find that this omission was harmless because discovery is
closed and Defendants cannot take steps, like re-deposing the expert, to minimize the prejudice at this
time. The new opinions in the supplemental report are substantial opinions. They are extremely
prejudicial and the Court declines to re-open discovery. That leaves the Defendants unable to react.
The supplemental report has new opinions that are material, prejudicial and not substantially justified.
Fed. R. Civ. P. 37; David v. Caterpillar Inc., 324 F.3d 851, 857 (7th Cir. 2002).

The

supplemental report is STRICKEN.
B.

Failure to Respond to Requests for Admissions
Defendant GE submitted requests to admit prior to the close of discovery on December 31,

2014. (Doc. 175). Plaintiff filed no response until after Defendants filed a motion to deem to
admissions admitted. (Doc. 180). The Court declines to deem the admissions admitted at this time.
But the answers to the requests to admit are patently insufficient. The purpose of requests to admit
are to narrow the issues. Plaintiff may not direct the parties to seek the information in publically
available documents or in the case record. Plaintiff has five days to submit proper responses.
Responses due February 24, 2015.
C.
Dr. Vuskovich’s testimony regarding the pulmonary function test as supportive of his
previously disclosed opinion.
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Parties may submit briefs on this issue of no more than four single-spaced pages. Defendants
may submit a joint brief across all four cases. Briefs due no later than Thursday February 25, 2015.
The Court sets another discovery dispute conference on 2/26/15 at 3:45. Dispositive motions and
Daubert motions remain suspended in all cases.
IT IS SO ORDERED.
DATED: February 23, 2015.
/s/ Stephen C. Williams
STEPHEN C. WILLIAMS
United States Magistrate Judge

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