Meinert et al v. United States Steel Corporation et al

Filing 184

OPINION AND ORDER DENYING 178 MOTION for Leave to Disclose Additional Expert (RENEWED MOTION) filed by Praxair Inc. Signed by Magistrate Judge Andrew P Rodovich on 6/28/18. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
NICHOLAS MEINERT and
NICOLE MEINERT, Individually and
as Husband and Wife,

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Plaintiffs,
v.
PRAXAIR, INC. a/k/a PRAXAIR
DISTRIBUTION, INC., et al.,
Defendants.

Case No. 2:12-cv-92

OPINION AND ORDER

This matter is before the court on the Renewed Motion for Leave to Disclose Additional
Expert [DE 178] filed by the defendant, Praxair Distribution, Inc., on March 13, 2018. For the
following reasons, the motion is DENIED.
Background
This matter arose from an injury that the plaintiff, Nicholas Meinert, sustained on June 9,
2011. Meinert was attempting to move a steel cart containing 12 argon cylinders when it fell on
his leg. The plaintiffs have alleged that the caster assembly on the cart failed. On January 30,
2012, the plaintiffs filed a state court complaint against the defendants. The matter was removed
to this court on March 2, 2012.
Praxair has filed a renewed motion requesting leave to identify Thomas Eager as an
additional liability expert, instanter, to discuss the issues of failure analysis. Praxair previously
filed a request to add an additional expert to discuss failure analysis with the court on June 2,
2017. [DE 156]. Praxair argued that the issue of failure analysis was discussed by plaintiffs’
expert, Charles Roberts, at his deposition but was not described fully in his written Rule 26

report. The court denied that motion on July 18, 2017, finding that allowing Praxair to add an
expert so late in discovery would prejudice the plaintiffs and further push back the discovery and
dispositive motion deadlines. [DE 158]. Also, Praxair failed to indicate what testimony Roberts
gave that substantiated a need for an additional expert. Praxair subsequently filed a motion
requesting that the court reconsider its order denying Praxair’s request to disclose an additional
expert, which the court also denied. [DE 161, 175].
At the status conference held on October 25, 2017, the court extended the discovery
deadline to February 28, 2018. The discovery deadline now has passed, and neither party
requested an extension. Praxair has filed this renewed motion seeking leave to identify Thomas
Eager as an additional liability expert to rebut the opinions and testimony provided by plaintiffs’
expert, Robert Dines. The plaintiffs filed a response in opposition on April 5, 2018, and Praxair
filed a reply on April 16, 2018.
Discussion
Federal Rule of Civil Procedure 26(a) states that “a party must disclose to the other
parties the identity of any witness it may use at trial . . .” The disclosure must be made “at the
times and in the sequence that the court orders.” Federal Rule of Civil Procedure 26(a)(2)(D).
Additionally, Rule 26 requires a party to supplement any disclosures in a timely manner if the
party learns the disclosure is incomplete or incorrect in a material respect and if the additional or
corrective information has not otherwise been disclosed to the other parties. Federal Rule of
Civil Procedure 26(e)(1)(A).
Federal Rule of Civil Procedure 37(c)(1) states that a party who fails to disclose
information as 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

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expert opinion was substantially justified or harmless is on the party who missed the deadline.   
Trinity Homes, LLC v. Ohio Casualty Insurance Co. Group, 2011 WL 2261297, *3 (S.D. Ind.
June 8, 2011). In Banister v. Burton, 636 F.3d 828, 833 (7th Cir. 2011), the Seventh Circuit
held that the district court “need not make explicit findings regarding a justification or the
harmlessness of the Rule 26 violation, but . . . the following factors should guide the district
court's discretion: (1) the prejudice or surprise to the party against whom the evidence is offered;
(2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and
(4) the bad faith or willfulness involved in not disclosing the evidence at an earlier date.”
A schedule shall not be modified except upon a showing of good cause and by leave of
the court. Federal Rule of Civil Procedure 16(b)(4). 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).
Praxair has requested leave to disclose Eager as an additional expert to address issues of
failure analysis concerning the weld on the subject cart and caster. This request comes over
three years after the disclosure deadline. Praxair contends that the late disclosure is justified
because plaintiffs’ expert, Robert Dines, at his deposition was unable to provide support for the
conclusions that were provided in his report. According to Praxair, Dines’ deposition revealed
his opinions to be vague, confusing, incomplete, and unsupported. In particular, Praxair has
suggested that Dines does not know the strength of the weld or force that allegedly caused the
first fracture; that Dines did not do the necessary calculations to determine that force; and that
Dines does not know the force or load that caused the second fracture.

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Thus, Praxair has argued that at trial it will need the expert testimony of Eager to respond
to Dines’ opinions and to prevent those opinions from confusing the jury. Praxair further has
maintained that the theory of liability that Dines will present at trial only became evident after
his deposition and was not clear from his written report. To rebut this new theory of liability,
Praxair has claimed that the testimony of its additional expert is necessary. Finally, Praxair has
suggested that the late disclosure would not delay discovery since a trial date has not been set.
The plaintiffs have indicated that Praxair’s Rule 26(a)(2) expert, Jason Hertzberg, already
has addressed the issue of failure analysis. They have noted that Hertzberg attended the initial
inspection of the cart and caster in February of 2013 and the testing of the caster in November of
2013. Praxair has argued that while Hertzberg was at the initial testing he was only there to
evaluate the integrity and composition of components, rather than for failure analysis purposes.
The plaintiffs contend that Praxair’s disclosure of Eager would be prejudicial and create further
delay by having to combat a new expert this late in the litigation. The plaintiffs also contend that
an additional expert would require them to reevaluate Praxair’s defenses and the issues that
previously were raised in numerous depositions.
The court finds that the late disclosure of Praxair’s new expert neither is harmless nor
justified. This determination is at the discretion of the district court. See David v. Caterpillar,
Inc., 324 F.3d 851, 857 (7th Cir. 2003). At this point in the proceedings, Praxair’s untimely
disclosure would delay the scheduling of a trial date. Contrary to Praxair’s contention, the lack
of a trial date is not adequate reason for a failure to comply with discovery deadlines. See Hard
Surface Solutions, Inc. v. Sherwin-Williams Co., 271 F.R.D. 612, 617 (N.D. Ill. 2010) (“It is
not answer to say the trial date has not been set.”). Moreover, the court already has found that
the addition of a new expert sufficiently late in the discovery period would be prejudicial to the

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plaintiffs and result in delay. It is not merely late in discovery, but in fact the discovery deadline
has passed. Therefore, the court would have to reopen discovery, permitting further delay. See
Finwall v. City of Chicago, 239 F.R.D. 494, 501 (N.D. Ill. 2006) (“Late disclosure is not
harmless within the meaning of Rule 37 simply because there is time to reopen discovery.”).
Praxair did not request an extension for additional discovery to accommodate its expert
disclosure. Therefore, Praxair’s ability to cure the prejudice is limited because the deadline has
passed.
Next, in determining whether a late disclosure is justified, the question is “not the
usefulness of the late-disclosed expert’s opinion but rather whether the party’s failure to timely
disclose that opinion is justified.” G & S Metal Consultants, Inc. v. Cont'l Cas. Co., 2013 WL
6047574, at *4 (N.D. Ind. Nov. 15, 2013). Praxair contends that Eager’s expert opinion will be
necessary to clarify any confusion created by Dines’ testimony at trial. Praxair has failed to
address why, assuming Dines’ opinions are incomplete and unsupported, this issue cannot be
argued in the appropriate Daubert motion challenging the admissibility of Dines’ opinion or
during cross-examination. Further, Praxair has failed to explain why Hertzberg, whose
professional background is in failure analysis, is inadequate to testify on the failure analysis
issues. The court reminds Praxair that it carries these burdens as the party who missed the
deadline. See Trinity Homes, LLC, 2011 WL 2261297, *3.
The court also finds that Praxair has provided inadequate support for its contention that
the plaintiffs’ theory of liability only became evident after Dines’ deposition. Praxair concedes
that Dines’ report indicated that the initial fracture was due to an overload condition and that the
second fracture distorted the caster base plate and dislocated the caster bracket. Praxair has not
pointed to any new opinions that were elicited by Dines at his deposition. The plaintiffs have

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indicated that the claims against Praxair include that Praxair “failed to inspect the caster prior to
it being sent to the plaintiff’s employer thereby not catching the initial damage and allowing a
dangerous product out of their facility.” Thus, as argued by the plaintiffs, Praxair’s request to
disclose Eager because he has calculated the amount of force required to cause the initial fracture
to the weld is irrelevant. Additionally, Praxair has not presented to the court any new testimony
from Dines that would justify disclosing an additional expert.
The court is interested in the expeditious resolution of this matter. At this point in the
proceedings, leave to add an additional expert will prejudice the plaintiffs. Also, considering
that discovery is closed Praxair’s ability to cure the prejudice is limited and will disrupt the
scheduling of a trial date. Therefore, the court finds that Praxair has not provided substantial
justification to disclose an additional expert.
Based on the foregoing reasons, the Renewed Motion for Leave to Disclose Additional
Expert [DE 178] is DENIED.
ENTERED this 28th day of June, 2018.
/s/ Andrew P. Rodovich
United States Magistrate Judge

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