Stuhlmacher et al v. Home Depot USA Inc The et al

Filing 40

OPINION AND ORDER granting 34 Motion to Strike Plaintiffs Supplemental Expert Witness Report and Bar Testimony. Dispositive motions to be filed by 12/21/2012,. Signed by Magistrate Judge Andrew P Rodovich on 11/19/12. (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
KURT STUHLMACHER,
KELLY STUHLMACHER,

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Plaintiffs
v.
THE HOME DEPOT USA, INC.,;
TRICAM INDUSTRIES, INC.,
Defendants

CIVIL NO. 2:10 cv 467

OPINION AND ORDER
This matter is before the court on the Motion to Strike
Plaintiffs’ Supplemental Expert Witness Report and Bar Testimony
[DE 34] filed by the defendants, Home Depot USA, Inc. and Tricam
Industries, Inc., on August 6, 2012.

For the reasons set forth

below, the motion is GRANTED.
Background
This matter arises from injuries the plaintiff, Kurt Stuhlmacher, suffered when he fell from a ladder manufactured and sold
by the defendants.

The court held a Rule 16 preliminary pretrial

conference on September 2, 2011.

At the conference, the court

established March 16, 2012, as the deadline for the plaintiffs to
serve their expert witness disclosures and reports, and May 2,
2012, for the defendants to serve their expert reports.

Discov-

ery was set to close on May 31, 2012, but was extended until July
2, 2012.

After receiving an extension of time, the plaintiffs

served their expert disclosures and reports on March 23, 2012.
The plaintiffs identified Dr. Thomas F. Conry, Laurence Adan
Levine, M.D., Donald W. Kucharzyk, D.O., and Jill Adams as their
experts.
In his report, Dr. Conry hypothesized that the ladder had a
manufacturing defect because the rivets used to fasten the
spreader bar bracket to the right rear rail of the ladder did not
have an annular lip on the underside of the heads and the rivet
head diameters were too narrow.

The rivet head size and shape

resulted in the rivets being forced into the rails, cracking
them, and as a result, the bracket/rail connection was weakened
and failed when Stuhlmacher stood on the ladder.

The defendants

deposed Dr. Conry regarding his opinions on April 9, 2012.
The following month, the defendants disclosed their expert
witness and delivered a copy of his report to the plaintiffs.
The plaintiffs took his deposition and a week later, on July 10,
2012, they e-mailed a Supplemental Expert Witness Report of
Thomas F. Conry to the defendants.

In his supplemental report,

Dr. Conry stated that the ladder was defective because the rivets
at issue were too long, causing the partial failure of the
bracket/leg connection.

The defendants have moved to strike Dr.

Conry’s supplemental report, arguing that it is untimely and not

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contemplated by the Federal Rules of Civil Procedure or the
court’s scheduling order.

The plaintiffs oppose this motion.
Discussion

Federal Rule of Civil Procedure 26(a)(2)(D) states that a
party must make expert disclosures "at the time and in the
sequence that the court orders."

If the court does not set a

date, the parties must make their expert disclosures at least 90
days before trial or "if the evidence is intended solely to
contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30
days after the other party's disclosure."

Rule 26(a)(2)(D)(ii).

The parties have a duty to supplement any incorrect or incomplete
information that was provided in an expert’s report or deposition.

Rule 26(e)(2).

Any supplemental information must be

disclosed by the time the party’s pretrial disclosures are due.
Rule 26(e)(2).
The court treats new information separately from supplemental information.

Trinity Homes, LLC v. Ohio Casualty Insurance

Co. Group, 2011 WL 2261297, *3 (S.D. Ind. June 8, 2011); Carter
v. Finely Hospital, 2003 WL 22232844, *2 (N.D. Ill. Sept. 22,
2003).

"It is disingenuous to argue that the duty to supplement

under Rule 26(e)(1) can be used as a vehicle to disclose entirely
new expert opinions after the deadline established by the court

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under Rule 26(a)(2)(c).

This is particularly true where, as

here, the materials on which the new expert opinions are based
were available to the Defendant prior to Plaintiff deposing her
expert witness."

Carter, 2003 WL 22232844 at *2.

"[A]n expert

report that discloses new opinions is in no way a mere supplement
to a prior report."

Trinity, 2011 WL 2261297 at *3.

New opin-

ions advanced after the court ordered deadline are a violation of
the scheduling order.

Carter, 2003 WL 22232844 at *2.

Federal Rule of Civil Procedure 37(c)(1) states that a party
who fails to disclose information required by Rule 26(a)(2) or
26(e)(1) is prohibited from using the evidence at trial unless
such failure was harmless or justified.

The burden to show that

the reports were supplements rather than new reports, or that
late disclosure of a new expert opinion was substantially justified or harmless, is on the party who either missed the deadline
or is seeking to supplement the report.
at *3.

Trinity, 2011 WL 2261297

The court must consider the following four factors when

determining whether the untimely disclosure is harmless and
deciding whether to prohibit late disclosure: "(1) the prejudice
or surprise to the party against whom the evidence is offered;
(2) the availability of the party to cure the prejudice; (3) the
likelihood of disruption at trial; and (4) the bad faith or
willfulness involved in not disclosing the evidence at an earlier

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date."

Trinity, 2011 WL 2261297 at *4; Carter, 2003 WL 22232844

at *2 (quoting David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th
Cir. 2003)).
The parties dispute whether the information contained in Dr.
Conry’s supplemental report constituted a new opinion.

It was

Dr. Conry’s opinion throughout the course of litigation that the
ladder was not built according to the design specifications.

In

his initial report, Dr. Conry stated that the rivets used on the
ladder were inconsistent with the design because they did not
have an annular lip on the underside of the heads and the rivet
head diameters were too narrow.

The plaintiffs argue that Dr.

Conry’s supplemental report simply adds a third dimension – that
the rivets also were incorrect because they were not the size
called for in the design.

The plaintiffs believe that Dr.

Conry’s opinion has not changed because he continues to maintain
that the ladder broke because the incorrect rivets were used, and
that his opinion as to the size of the rivets simply is a third
dimension to his earlier report.
Although Dr. Conry maintains that the incorrect rivets were
used in his supplemental report, he has now advanced the theory
that the rivets were wrong for a new reason, their size.

Al-

though Rule 26(e) "does not itself define the word 'supplement'
except in terms of requiring a timely supplement to fix a discov-

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ery response that is incorrect or incomplete in a material
respect, common sense suggests (and numerous decisions confirm)
that an expert report that discloses new opinions is in no way a
mere supplement to a prior report."

Trinity, 2011 WL 2261297 at

*3 (citing Barlow v. General Motors Corp., 595 F.Supp.2d 929,
935-36 (S.D. Ind. 2009); In re Ready–Mixed Concrete Antitrust

Litigation, 261 F.R.D. 154, 159 (S.D. Ind. 2009); Welch v. Eli
Lilly & Co., 2009 WL 700199, *4 (S.D. Ind. March 16, 2009);
Allgood v. General Motors Corp., 2007 WL 647496, *3 (S.D. Ind.
Feb. 2, 2007)).

Dr. Conry’s report does not correct or enhance

his pre-existing theory.

Rather, it puts forth a new potential

cause for the incident.

The information on which Dr. Conry based

his opinion was available prior to the defendants deposing him,
and the plaintiffs have given no explanation for the late addition to the report.

A litigant cannot use a supplemental report

to "sandbag one’s opponent with claims and issues which should
have been included in the expert witness’ report."

In re Ready-

Mixed Concrete, 261 F.R.D. at 159.
Having established that Dr. Conry’s supplemental report
contains new opinions, the court must consider whether the
untimely disclosure was substantially justified or harmless.

The

court set the expert disclosure deadlines so that the plaintiffs
first had to disclose their experts on March 23, 2012, and the

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defendants on May 9, 2012.

The plaintiffs waited until after the

defendants disclosed their expert, and after they took the
defendants’ expert's deposition to "supplement" their own expert
report to contradict the defense expert’s opinion.

This tactic

undermines the court’s authority to set forth the deadlines and
order of production.

See Rule 26(a)(2)(D) (explaining that

expert disclosures must be made at the time in the sequence
ordered by the court).

The plaintiffs are attempting to circum-

vent the court’s order by supplying a new expert report after the
defendants and after the deadline established by the court.

The

supplemental report was designed to contradict the defendants’
expert’s opinion with information that was available to the
plaintiffs’ expert at the time of his original report.

The only

argument the plaintiffs have advanced is that the supplemental
report was timely and considered by the Federal Rules of Civil
Procedure.

However, not only was Dr. Conry’s supplemental report

a new report rather than a supplemental report, but neither the
federal rules nor the court’s scheduling order provided for the
submission of new or supplemental expert reports.

The plaintiffs

have failed to point to any justification for submitting this
additional theory after the deadline and after the defendants’
expert gave his opinion.

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When determining whether an untimely expert report is
harmless, the court must weigh the potential prejudice to the
defendants, the ability to cure the prejudice, the likelihood of
disruption at trial, and the bad faith on not disclosing the
information earlier.

David, 324 F.3d at 857.

The plaintiffs

provided their supplemental report after the defendants took Dr.
Conry’s deposition and after the close of discovery.

It would be

prejudicial to the defendants to allow Dr. Conry’s supplemental
report to stand without affording them an opportunity to conduct
discovery and re-opening discovery would delay the resolution of
this motion.

"[T]he court has the obligation and the right to

enforce adherence to its case management plans to ensure the
just, speedy, and inexpensive determination of matters brought
before it."

Trinity, 2011 WL 2261297 at *5.

"A schedule may be

modified only for good cause and with the judge's consent."
Federal Rule of Civil Procedure 16.
Although this matter is not yet set for trial, re-opening
discovery would cause further delay and push back the dispositive
motion deadline.

Altering the case management deadlines at this

point is not warranted in light of the plaintiffs’ failure to
provide any justification for not disclosing Dr. Conry’s opinion
within the time set by the court even though

that information

was available to Dr. Conry at the time he gave his original

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opinion.

Because of this, the potential prejudice to the defen-

dants is great, weighing in favor of striking Dr. Conry’s supplemental opinion.
Additionally, the Trinity court found bad faith where the
party attempting to introduce a new expert opinion did not seek
leave to serve the untimely expert report and attempted to
disguise what was clearly a new opinion as a supplemental report.

Trinity, 2011 WL 2261297 at *5.

Here, the plaintiffs made an

identical error and attempted to introduce a new opinion as a
supplemental report without leave of court, providing another
justification for striking Dr. Conry’s supplemental expert
opinion.
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Based on the foregoing, the Motion to Strike Plaintiffs’
Supplemental Expert Witness Report and Bar Testimony [DE 34]
filed by the defendants, Home Depot USA, Inc. and Tricam Industries, Inc., on August 6, 2012, is GRANTED.

The court DIRECTS

that dispositive motions are due on or before December 21, 2012.
ENTERED this 19th day of November, 2012.

s/ ANDREW P. RODOVICH
United States Magistrate Judge

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