Smetzer v. Newton et al

Filing 79

OPINION AND ORDER DEEMING MOOT plaintiff's 73 MOTION for Extension of Time; DENYING MOTION to Strike Expert Report filed by Nathan K Keever, Larry R Newton, Jr. Defendants are GRANTED to/including 8/7/12 to depose Dr. Hornaday. Dispositive motions deadline EXTENDED until 9/3/12. Signed by Magistrate Judge Roger B Cosbey on 6/7/12. (jcp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
MICHAEL N. SMETZER,
Plaintiff,
v.
LARRY R. NEWTON, JR.,
et al.,
Defendants,

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CAUSE NO. 1:10-CV-93

OPINION AND ORDER
I. INTRODUCTION
Plaintiff Michael Smetzer brought this 42 U.S.C. § 1983 civil rights action alleging that
Defendants failed to provide him adequate dental care while he was in their custody. Defendants
disclosed Dr. Mark Haggenjose as their expert, and he was deposed. Smetzer did not name an
initial expert, but disclosed Dr. Anthony Hornaday, D.D.S., as a rebuttal expert on June 4, 2012.
As discovery has closed, Defendants are unable to depose Dr. Hornaday.
This matter is now before the Court on Smetzer’s Motion for Extension of Time for
Filing Rebuttal Expert Disclosures (Docket # 73) and Defendants’ Motion to Strike Expert
Report (Docket # 76). Oral argument on both motions was heard and concluded on June 7,
2012. (Docket # 78.) For the following reasons, Smetzer’s motion for an extension of time will
be deemed MOOT, and Defendants’ motion to strike will be DENIED.
II. DISCUSSION
The parties dispute whether Federal Rule of Civil Procedure 26(a)(2)(D)(ii) applies to
Smetzer’s disclosure of Dr. Hornaday as a rebuttal expert. This Rule provides the following:
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A party must make these disclosures at the times and in the sequence that the court
orders. Absent a stipulation or a court order, the disclosures must be made . . . if the
evidence is intended solely to contradict or rebut evidence on the same subject
identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the
other party’s disclosure.
Fed. R. Civ. P. 26(a)(2)(D)(ii).
Smetzer argues that none of the Court’s scheduling orders, past or present, address a
deadline for rebuttal expert disclosure and that, as such, Rule 26(a)(2)(D)(ii) applies. On the
other hand, Defendants maintain that Smetzer is not permitted any expert and that allowing
Smetzer to disclose Dr. Hornaday after the scheduling order has run out is not a reasonable
construction of the Court’s order or Rule 26(a)(2)(D) and would reverse the order of proof.
A review of the Court’s past and current scheduling orders reveals that no deadline for
the submission of rebuttal expert disclosures was ever set. Although Defendants rely on Glenn
Constr. Co. v. Bell Aerospace Servs., Inc., No. 1:09-CV-250-MEF, 2011 WL 2118750, at *2
(M.D. Ala. May 27, 2011), for the proposition that the Rule 26(a)(2)(D) exception does not
apply where a court scheduling order is in place (Docket # 74 at ¶ 7), this authority is
unpersuasive.
As the Court interprets the Rule—and as the case law within this Circuit indicates—when
neither the Court nor the parties set a deadline for rebuttal expert reports, Rule 26(a)(2)(D)(ii)
applies, requiring a plaintiff to serve any rebuttal report no later than thirty days after the
defendant’s expert disclosures. See Larson v. Wis. Cent. Ltd., No. 10-C-446, 2012 WL 368379,
at *4 (E.D. Wis. Feb. 3, 2012) (finding that since the Court made no provision for serving
rebuttal reports, Rule 26(a)(2)(D)(ii)’s predecessor applied); McAtee v. Buca Rests., Inc., No.
1:10-cv-1090-SEB-DKL, 2011 WL 4861867, at *1 (S.D. Ind. Oct. 13, 2011) (holding that Rule

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26(a)(2)(D)(ii) applied when the parties’ Case Management Plan did not provide a deadline for
disclosing rebuttal expert witnesses); City of Gary v. Shafer, No. 2:07-CV-56-PRC, 2009 WL
1370997, at *3 (N.D. Ind. May 13, 2009); Aircraft Gear Corp. v. Marsh, No. 02 C 50338, 2004
WL 1899982, at *5 (N.D. Ill. Aug. 12, 2004). Thus, as no court order or stipulation addressed
the rebuttal export disclosure deadline, Rule 26(a)(2)(D)(ii) applies here. Defendant’s motion to
strike, which primarily argues the inapplicability of this Rule, will therefore be denied.
Since Rule 26(a)(2)(D)(ii) applies here, Smetzer had thirty days after Defendants served
Dr. Haggenjoses’s expert report via mail on May 1, 2012 (Docket # 73 at ¶ 1) to serve any
rebuttal report. Smetzer served Dr. Hornaday’s expert report on June 4, 2012 (Docket # 76 at ¶
2), which, after taking into account Rule 6(d)’s three-day mailing extension and Rule
6(a)(1)(C)’s computation rules, makes his rebuttal expert disclosure timely. Therefore,
Smetzer’s request for more time to file such disclosures is moot.
At the same time, although Smetzer can disclose Dr. Hornaday as a rebuttal expert, his
use of Dr. Hornaday solely as a rebuttal expert depends on whether his opinion is truly rebuttal.
See Larson, 2012 WL 368379, at *4 (noting that rebuttal report should be limited to
contradicting or rebutting evidence on same subject matter identified by another party and
cannot be used to advance new arguments or new evidence); Noffsinger v. Valspar Corp., No. 09
C 916, 2011 WL 9795, at *6-7 (N.D. Ill. Jan 3, 2011) (limiting a rebuttal expert’s opinion to his
critique of defendants’ experts’ opinions and striking parts of the report that went beyond the
scope of a proper rebuttal witness); see also Goodman v. Staples The Office Superstore, LLC,
644 F.3d 817, 827 (9th Cir. 2011) (finding that district court did not abuse its discretion in
precluding improperly disclosed experts from testifying in plaintiff’s case-in-chief, thereby

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allowing them only to testify on rebuttal); see generally McAtee, 2011 WL 4861867, at *2
(noting that the proper function of rebuttal evidence is to contradict, impeach, or defuse the
impact of the opponent’s evidence and that if testimony is offered only as additional support to
an argument made in a party’s case-in-chief, it cannot be considered rebuttal evidence (citations
omitted)). To that end, the Court grants Defendants to and including August 7, 2012, to depose
Dr. Hornaday. The dispositive motions deadline is extended until September 3, 2012.
III. CONCLUSION
For the foregoing reasons, Smetzer’s motion for extension of time (Docket # 73) is
deemed MOOT and Defendants’ Motion to Strike Expert Reports (Docket # 76) is DENIED.
Defendants are granted to and including August 7, 2012, to depose Dr. Hornaday. The
dispositive motions deadline is hereby extended until September 3, 2012.
SO ORDERED.
Entered this 7th day of June, 2012.
s/Roger B. Cosbey
Magistrate Judge
United States District Court

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