Meinert et al v. United States Steel Corporation et al

Filing 142

ORDER GRANTING 123 Motion to Strike Plaintiffs' Untimely Expert Report ; DENYING 135 Motion for Leave to Identify Additional Experts. Signed by Magistrate Judge Andrew P Rodovich on 11/28/2016. (jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

NICHOLAS MEINERT and NICOLE MEINERT, )
Individually and as Husband and Wife,
)
)
Plaintiffs,
)
)
v.
)
)
PRAXAIR, INC. a/k/a PRAXAIR
)
DISTRIBUTION, INC., et al.,
)
)
Defendants.
)

2:12-cv-92

OPINION AND ORDER
This matter is before the court on the Joint Motion to Strike Plaintiffs’ Untimely Expert
Report [DE 123] filed by the defendants, Praxair Distribution, Inc. and Albion Industries, on
September 7, 2016, and the Motion for Leave to Identify Additional Experts [DE 135] filed by
the plaintiffs, Nicholas and Nicole Meinert, individually and as husband and wife, on October
17, 2016. For the following reasons, the Joint Motion to Strike Plaintiffs’ Untimely Expert
Report [DE 123] is GRANTED, and the Motion for Leave to Identify Additional Experts [DE
135] is DENIED.
Background
This case arose from an injury sustained by the plaintiff, Nicholas Meinert, on June 9,
2011. Pursuant to a court order on May 2, 2014, the court extended the expert disclosure
deadlines to August 1, 2014 for the plaintiffs and October 5, 2014 for the defendants. On August
1, 2014, the plaintiffs served three expert reports and identified numerous medical providers as
expert witnesses.

Again pursuant to a court order on October 2, 2014, the court ordered the plaintiffs to
disclose supplemental expert witnesses by December 1, 2014. The plaintiffs indicated that they
disclosed the reports of three treating physicians. The defendants did not disclose any medical
experts or damage witnesses by their January 30, 2015 deadline.
On January 1, 2015, after the plaintiffs’ expert disclosure deadline, Nicholas Meinert
changed jobs due to the injuries he sustained. On March 2, 2016, the parties appeared for a
status conference. At the status conference, the defendants advised that the court that they
needed additional sur-rebuttal defense experts since the plaintiffs had communicated new
information regarding Nicholas Meinert’s employment status and damages had not been
disclosed in discovery. The court extended certain deadlines, specifically, the defendants to file
motion for leave to identify additional experts by May 31, 2016. On May 27, 2016, the deadline
was extended until August 15, 2016.
On August, 15, 2016, the defendants filed the Motion to Designate Sur-Rebuttal Experts
[DE 119]. In that motion, the defendants requested an economist, orthopedic surgeon, and a
vocational rehabilitation expert to respond to Meinert’s change in employment. On August 22,
2016, the plaintiffs filed an objection to the defendants’ motion. The defendants’ Reply
withdrew their request for a vocational rehabilitation expert. On September 2, 2016, in
anticipation of the court’s ruling on the Motion to Designate Sur-Rebuttal Experts, the plaintiffs
disclosed the report of David Gibson, a vocational rehabilitation expert. The defendants filed the
Motion to Strike Plaintiffs’ Untimely Expert Report [DE 123] on September 7, 2016.
The court granted the defendants’ Motion to Designate Sur-Rebuttal Experts [DE 119],
which allowed the defendants to disclose reports from an economist and orthopedic surgeon.
The plaintiffs’ filed the Motion for Leave to Identify Additional Experts [DE 135] on October

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17, 2016. The defendants filed a Response in Opposition [DE 137], and the plaintiffs filed a
Reply [DE 139].
Discussion
The court has vast discretion in the oversight and scheduling of discovery under the
Federal Rules of Civil Procedure. Cf. Crawford–El v. Britton, 523 U.S. 574, 598 (1998);
Semien v. Life Insurance Co. of N.A., 436 F.3d 805, 813 (7th Cir. 2006). Discretion denotes the
absence of a hard and fast rule. Langnes v. Green, 282 U.S. 531, 541 (1931); Rogers v.
Loether, 467 F.2d 1110, 1111–12 (7th Cir. 1972); Lee v. Chicago Youth Centers, 2015 WL
468879, at *2 (N.D. Ill. 2015). Under this standard, a court must act “with regard to what is right
and equitable under the circumstances and the law, and directed by the reason and conscience of
the judge to a just result.” Langnes, 282 U.S. at 541. An abuse of discretion occurs when no
reasonable person could agree with the district court's decision. Adams v. City of Indianapolis,
742 F.3d 720, 727 (7th Cir. 2014); Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 953 (7th
Cir. 2013).
Federal Rule of Civil Procedure 16(b)(4) provides that a schedule shall not be modified
except upon a showing of good cause and by leave of the court. Good cause sufficient for
altering discovery deadlines is demonstrated when a party shows that, “despite their diligence,
the established timetable could not be met.” Tschantz v. McCann, 160 F.R.D. 568, 571 (N.D.
Ind. 1995).
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 late disclosure of a new
expert opinion was substantially justified or harmless is on the party who missed the deadline.   

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Trinity Homes, LLC v. Ohio Casualty Insurance Co. Group,, 2011 WL 2261297, *3. 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 date.” Trinity, 2011 WL 2261297, *4; Carter v. Finely
Hospital, 2003 WL 22232844 at *2 (quoting David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th
Cir. 2003)).
The plaintiffs, after initially serving their expert report to the defendants, have requested
the court to grant leave to identify additional experts, including David Gibson. The plaintiffs
contend that Nicholas Meinert’s change in employment triggered a need for a vocational rehab
expert, which occurred after the plaintiffs’ initial expert disclosure deadline, along with the
defendants being allowed to disclose additional experts. The plaintiffs argue that they have
demonstrated good cause sufficient for altering the discovery deadline.
The plaintiffs indicated to the defendants during phone calls and the March 2, 2016,
status conference that they had no objection to both parties being allowed a vocational rehab
expert, but objected to adding medical experts. The plaintiffs were forced to object to the
Motion to Designate Sur-Rebuttal Experts [DE 119] because the defendants chose not to agree to
the addition of the vocational rehab experts for both parties. Therefore, plaintiffs contend in an
effort to avoid delay they hired their own vocational rehab expert.
The defendants have argued that in the interest of fairness the plaintiffs should not be
allowed to add additional expert witnesses. The plaintiffs served a report of their own purported
vocational rehab expert years after the deadline and after objecting to the defendants’ motion

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requesting leave to disclose a vocational rehab expert. The defendants indicated that Meinert
changed jobs on January 1, 2015, therefore, the plaintiffs have failed to explain why they waited
months to serve Gibson’s expert report.
The defendants argued that they will be unfairly prejudiced if the court allows the
plaintiffs to identify additional experts beyond Gibson. However, the plaintiffs are not seeking
an open-ended request. Rather, the plaintiffs are concerned about the need to add an economist
and to supplement any orthopedic opinions necessary in response to the defense’s new experts,
along with Gibson’s report.
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 in not disclosing the information earlier. David, 324 F.3d at
857. The court finds bad faith where the plaintiffs initially attempted to disclose a new expert
opinion without leave of the court.   See Trinity, 2011 WL 2261297 at *5.  The plaintiffs served
Gibson’s report on September 2, 2016, after the initial expert disclosure deadline, without leave,
and after objecting to the defendants’ request for a vocational rehab expert. It would be
prejudicial to allow Gibson’s expert report to stand without allowing the defendants to depose
this new expert and possibly disclose their own vocational rehab expert.
The plaintiffs have indicated that no trial date has been set. However, the fact no date has
been set does not render the late disclosure harmless. Physicians Healthsource, Inc. v. Alma
Lasers, Inc., 2014 WL 6561781, at *3 (N.D. Ill. 2014). The plaintiffs have failed to provide
substantial justification for why they waited months after Meinert changed jobs and only after
the defendants requested a vocational rehab expert to serve Gibson’s report. The court finds that
the plaintiffs have failed to meet the burden that the disclosure of Gibson was justified or

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harmless. See Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996). The plaintiffs
have not offered good cause for altering the discovery deadline.
Based on the foregoing reasons, the Joint Motion to Strike Plaintiffs’ Untimely Expert
Report [DE 123] is GRANTED, and the Motion for Leave to Identify Additional Experts [DE
135] is DENIED.
ENTERED this 28th day of November, 2016.

/s/ Andrew P. Rodovich
United States Magistrate Judge

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