Evans et al v. Dart Transit Company et al

Filing 93

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 74 MOTION Bar Expert Opinions and Testimony from Being Offered by Defendants filed by Sheri Evans, Michael R Evans, 85 MOTION to Take Deposition from Michael Evans filed by Jack R Webster, Dart Transit Company, and 81 MOTION to Modify Scheduling Order filed by Jack R Webster, Dart Transit Company. The deadline for Defendants to disclose medical expert witness(es) solely on the issue of Mr. Eva ns March 9, 2015 diagnosis of CRPS/RSDS by Dr. Teodori, including its impact on Mr. Evans ability to work, is extended to May 27, 2015. The deadline for Plaintiffs to serve an expert rebuttal report is set for June 24, 2015. The deadline to complete expert discovery on this limited issue is extended to July 8, 2015. The deadline to file Daubert Motions is July 22,2015, with responses due August 5, 2015, and replies due August 12, 2015. The discovery deadline is extended to June 10, 2015, solely to allow Defendants to re-depose Mr. Evans on the limited issues of his March 9, 2015 diagnosis of CRPS/RSDS by Dr. Teodori and the recent revelation that he is no longer able to work as a produce manager at Ultra Foods. Defendants are barred from using the expert witness reports servedon March 23, 2015, and March 30, 2015. Signed by Magistrate Judge Paul R Cherry on 5/14/15. (kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
MICHAEL R. EVANS and SHERI EVANS,
Plaintiffs,
v.
DART TRANSIT COMPANY and
JACK R. WEBSTER,
Defendants.

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CAUSE NO.: 2:12-CV-186-JVB-PRC

OPINION AND ORDER
This matter is before the Court on Plaintiffs’ Motion to Bar Expert Testimony [DE 74], filed
by Plaintiffs Michael R. Evans and Sheri Evans on February 28, 2015; Defendants’ Motion for
Modification of the Scheduling Order [DE 81], filed by Defendants Dart Transit Company and Jack
R. Webster on March 18, 2015; and Defendants’ Motion for Leave to Re-Depose Plaintiff, Michael
Evans [DE 85], filed by Defendants on April 13, 2015. All three motions are ripe for ruling.
BACKGROUND
On May 7, 2012, Plaintiffs Michael R. Evans and Sheri Evans filed a Complaint against
Defendants Dart Transit Company and Jack R. Webster arising out of an incident that occurred on
March 21, 2012, between Mr. Evans, who was driving a motorcycle, and Mr. Webster, who was
driving a tractor-trailer displayed with Defendant Dart Transit Company’s logo. On July 12, 2012,
the Court issued a scheduling order, which included a discovery deadline of May 17, 2013, a
deadline for Plaintiffs’ expert witness disclosures and reports of February 15, 2013, and a deadline
for Defendants’ expert witness disclosures and reports of March 15, 2013.
On February 28, 2013, the Court extended the deadlines for Plaintiffs’ expert disclosures and
reports to July 31, 2013, and Defendants’ expert witness disclosures and reports to August 30, 2013.
On July 12, 2013, the Court granted Plaintiffs’ request for an extension to disclose expert reports

to October 1, 2013. Defendants’ deadline was not extended. Defendants did not serve Plaintiffs with
any Rule 26(a)(2) expert disclosures by their August 30, 2013 deadline. On October 1, 2013,
Plaintiffs disclosed their retained experts and produced their reports. On November 13, 2013, the
Court extended the discovery deadline to December 31, 2013, on Defendants’ motion.
On December 30, 2013, the day before the close of discovery, Defendants took the Plaintiffs’
depositions. At his deposition, Mr. Evans testified that his injuries were not resolved and that they
were still producing pain, especially in his neck. Defendants did not request the deposition of any
treating physician, did not depose Plaintiffs’ experts, and did not seek medical records through
subpoena or the authorizations executed by Plaintiffs. In contrast, on twelve occasions during this
litigation, Plaintiffs provided Defendants with supplements regarding ongoing medical treatment
pursuant to Federal Rule of Civil Procedure 26(e).
In January 2014, on referral from Dr. Thompkins, Mr. Evans’ neurosurgeon at Lakeshore
Bone & Joint Institute, Mr. Evans began treatment with Dr. Cristea, a neurologist at the
Neurological Institute and Specialty Centers; that treatment continues today.
In November 2014, Judge Springmann ordered a trial setting of June 9, 2015, with the final
pretrial conference set for May 22, 2015.
On January 20, 2015, Plaintiffs took the Rule 30(b)(6) deposition of the Dart Transit
representative. The delay in taking the deposition was caused by Defendants.
On February 5, 2015, and February 26, 2015, Plaintiffs served Rule 26(e) supplements.
On February 28, 2015, Plaintiffs preemptively filed the instant Motion to Bar Expert
Testimony under Federal Rule of Civil Procedure 37(c). Plaintiffs ask the Court to bar Defendants
from presenting any expert testimony, whether from retained experts or otherwise, at the trial in this

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matter because Defendants failed to make expert witness disclosures by their August 30, 2013
deadline.
On March 3, 2015, new counsel entered their appearances for Defendants, and on March 4,
2015, Defendants’ former attorney withdrew his appearance.
On March 11, 2015, Plaintiffs again supplemented their discovery disclosures, informing
Defendants of a March 9, 2015 diagnosis of Complex Regional Pain Syndrome (CRPS)/Reflex
Sympathetic Dystrophy Syndrome (RSDS). Plaintiffs represent that, after several rounds of testing
and conservative treatment, on March 9, 2015, Dr. Teodori, also at the Neurological Institute,
formally made the diagnosis.1 In correspondence dated March 12, 2015, Plaintiffs’ counsel
summarized the conventional treatment for CRPS, including recent studies that support spinal cord
stimulation as a preferred treatment modality. The correspondence indicates that spinal cord
stimulation involves a major surgical procedure costing approximately $80,000, which must be
repeated every three to five years. Counsel also estimates that Mr. Evans’ pain medication costs
approximately $200 per month and that he has approximately four to five medical management visits
per year.
On March 18, 2015, Defendants filed the instant Motion for Modification of the Scheduling
Order. Defendants ask the Court for the opportunity to disclose and use expert witnesses at trial,
seeking leave to disclose a medical expert to “counter the changing conditions and diagnoses of Mr.
Evans” and a motorcycle operations expert to address liability. In addition, Defendants seek leave
to redepose Mr. Evans in relation to the recent diagnosis of CRPS/RSDS.

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Dr. Teodori’s report has not been submitted to the Court. In support of the response in opposition to the
Motion to Exclude, Defendants include an email from Plaintiffs’ counsel that describes the diagnosis of Dr. Teodori as
“CRPS/RSD.” In their brief, Defendants identify the diagnosis as Reflex Sympathetic Dystrophy Syndrome (RSDS).
In their reply brief, Plaintiffs identify the new diagnosis as Complex Regional Pain Syndrome (CRPS).

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On March 23, 2015, without leave of Court, Defendants disclosed a medical expert.
Similarly, on March 30, 2015, without leave of Court, Defendants disclosed a liability expert.
Defendants represent that, on April 2, 2015, Plaintiffs’ counsel revealed that Mr. Evans is
no longer capable of working in his employment as a produce manager at Ultra Foods, allegedly as
a result of his changing medical condition. Defendants further represent that this statement comes
two and half years after Mr. Evans returned to full-time employment after the March 2012 incident.
On April 3, 2015, Defendants filed the instant Motion for Leave to Re-Depose Plaintiff,
Michael Evans.
On April 30, 2015, Judge Springmann vacated the trial setting on the Court’s own motion,
referred this matter to the undersigned Magistrate Judge to resolve all non-dispositive motions, and
transferred the case to Judge Joseph S. Van Bokkelen. On May 7, 2015, Judge Van Bokkelen set this
matter for a jury trial for September 9, 2015, with a final pretrial conference on August 6, 2015.
ANALYSIS
Federal Rule of Civil Procedure 26(a)(2) requires the disclosure of any expert witness that
may be called to testify at trial. Rule 26(a)(2)(B) requires that the party serve the expert’s written
report. Finally, Rule 26(a)(2)(D) requires that the disclosures under 26(a)(2)(B) must be made at the
time and in the sequence ordered by the Court. In this case, the deadline for Defendants’ expert
witness disclosures and reports was August 30, 2013.
The Court begins by considering Defendants’ Motion for Modification of the Scheduling
Order. Under Federal Rule of Civil Procedure 16(b)(4), a party must show “good cause” for the
modification of a court’s scheduling order. Similarly, Federal Rule of Civil Procedure 6(b)(1)(B)
requires a showing of “good cause” to extend a deadline before it expires. See Adams v. City of

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Indianapolis, 742 F.3d 720, 734 (7th Cir. 2014). The good cause standard focuses on the diligence
of the party seeking the extension of time, requiring a showing that, despite the party’s diligence,
the time table could not reasonably have been met. Smith v. Howe Military Sch., No. 3:96-cv-790,
1997 WL 662506, at *1 (N.D. Ind. Oct. 20, 1997); Tschantz v. McCann, 160 F.R.D. 568, 571 (N.D.
Ind. 1995).
However, when the motion to extend is filed after the deadline expires, the moving party
must make a showing of “excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B); see also Adams, 742 F.3d
at 734. The United States Supreme Court held that the analysis of “excusable neglect” is an equitable
consideration, which should account for the circumstances surrounding the belated filing, including
“the danger of prejudice to the [non-movant], the length of the delay and its potential impact on the
judicial proceedings, the reasons for the delay, including whether it was within the reasonable
control of the movant, and whether the movant acted within good faith.” Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993) (citation omitted); see also Robb v. Norfolk
& Western Ry. Co., 122 F.3d 354, 359 (7th Cir. 1997). Further, the United States Court of Appeals
for the Seventh Circuit found that “inattentiveness to the litigation is not excusable” and that
“[m]issing a filing deadline because of slumber is fatal.” Matter of Plunkett, 82 F.3d 738, 742 (7th
Cir. 1996).
As for Defendants’ request to disclose a liability expert, Defendants have offered no
explanation why such an expert could not have been disclosed prior to the August 30, 2013 deadline,
much less attempted to show either good cause or excusable neglect for the extension of the expert
disclosure deadline for a liability expert. The failure of Defendants, until the recent appearance of
new counsel, to diligently pursue discovery is apparent from the record of discovery motions, court

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orders, and sanctions in this case. And, the appearance of new counsel is not a justification for
reopening discovery that could have been performed by prior counsel. Burton v. Gray, No. 3:11-cv26, 2012WL 279643, at *2 (N.D. Ind. Jan. 30, 2012) (“There is no principle that each new attorney
for a litigant must have an independent opportunity to conduct discovery.” (quoting Carson v.
Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996))). Accordingly, the Court denies
Defendants’ request to extend the expert disclosure deadline to disclose a liability expert.
The Court next considers Defendants’ request to disclose a medical expert. Defendants again
do not attempt to show good cause or excusable neglect for not disclosing a medical expert prior to
the August 30, 2013 deadline based on the discovery conducted at that point. Similarly, Defendants
do not offer an explanation for why they did not seek an extension of the expert witness disclosure
deadline for the eighteen and a half months between August 30, 2013, and March 18, 2015, given
Plaintiffs’ Rule 26(e) supplements regarding Mr. Evans’ ongoing medical treatment.
However, the Court finds that Defendants have shown good cause for requesting an
extension of the expert witness disclosure deadline solely as to Mr. Evans’s recent March 9, 2015
diagnosis of CRPS/RSDS by Dr. Teodori. No amount of diligence on the part of Defendants could
have discovered the diagnosis until it was disclosed on March 11, 2015. Similarly, Defendants have
shown excusable neglect: Defendants would be prejudiced without an ability to conduct discovery
on this new diagnosis, Defendants requested the expert discovery within a short time after the
disclosure was made by Plaintiffs; and the delay was outside the control of Defendants. Accordingly,
the Court grants Defendants’ Motion for Modification of the Scheduling Order solely to allow
Defendants to disclose medical expert witnesses on the issue of the March 9, 2015 diagnosis of
CRPS/RSDS by Dr. Teodori, including its impact on Mr. Evans’ ability to work. The Court clarifies

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that Defendants are not granted leave to disclose medical expert witnesses on the entire course of
Mr. Evans’ treatment.
Finally, the Court finds that Defendants have shown good cause and excusable neglect for
an extension of the discovery deadline solely to redepose Mr. Evans only on the issues of his recent
diagnosis of CRPS/RSDS and the disclosure that he is no longer able to work in his employment at
Ultra Foods. Defendants have not shown good cause to reopen Mr. Evans deposition on any other
ground. Therefore, the Court grants Defendants’ Motion for Modification of the Scheduling Order
to extend the discovery deadline solely for this limited purpose.
Next, the Court turns to Plaintiffs’ Motion to Bar Expert Testimony, which was filed before
Defendants filed their Motion for Modification of the Scheduling Order, before the March 9, 2015
diagnosis of CRPS/RSDS, and before Defendants indicated their desire to disclose expert witnesses.
Federal Rule of Civil Procedure 37(c)(1) provides that a party who fails to disclose information
required by Rule 26(a)(2) “is not allowed to use that information or witness to supply evidence on
a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.
R. Civ. P. 37(c)(1). “Failure to comply with the disclosure requirements of Rule 26(a) results in
automatic and mandatory exclusion of the proffered witness ‘unless the failure was substantially
justified or is harmless.’” Novak v. Bd. of Trs. of S. Ill. Univ., 777 F.3d 966, 972 (7th Cir. 2015)
(quoting Fed. R. Civ. P. 37(c)(1)). This determination is in the broad discretion of the court.
Alexander v. Mount Sinai Hosp. Med. Ctr., 484 F.3d 889, 901-02 (7th Cir. 2007).
Because the Court has extended the deadline for limited medical expert witness disclosures
regarding the March 9, 2015 diagnosis, Rule 37(c)(1) is inapplicable as to those disclosures, and the
Court denies Plaintiffs’ Motion to Bar Expert Testimony to the extent the Court grants Defendants’

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Motion for Modification of the Scheduling Order to disclose expert witnesses.
Conversely, the Court grants Plaintiffs’ Motion to Bar Expert Testimony to the extent the
Court denies Defendants’ Motion for Modification of the Scheduling Order because the failure to
disclose any other medical expert witness, liability expert witness, or non-retained expert by the
August 30, 2013 deadline is not substantially justified or harmless.
Defendants have made no attempt to argue that their delay in identifying medical expert
witnesses (other than the narrow exception identified by the Court) or liability expert witnesses is
substantially justified. Thus, the Court turns to the question of whether the delay is harmless and
finds that it is not, having considered several factors including prejudice or surprise, the ability to
cure the prejudice, the likelihood of disruption of the trial, and the bad faith or willfulness involved
in not disclosing the evidence at an earlier date. See Tribble v. Evangelides, 670 F.3d 753, 760 (7th
Cir. 2012).
Because the trial in this case was reset on the Court’s own motion, additional time has
recently been made available that was not available during the course of briefing the instant motions.
This additional time allows for the limited medical expert witness discovery related to the March
9, 2015 diagnosis. But, Plaintiffs would be prejudiced if the Court were to allow the disclosure of
other medical experts and liability experts requested by Defendants. Even though the trial has been
reset, the final pretrial conference is still less than three months away. Plaintiffs, who were diligent
throughout the discovery process and who have continued to make Rule 26(e) supplemental
disclosures, would be prejudiced in planning their strategy for trial. Along with the additional
discovery Plaintiffs will now have to do on the limited medical expert the Court is allowing,
Plaintiffs would have to undertake significant additional discovery for the other expert witnesses

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sought by Defendants. Plaintiffs have been waiting for three years for a resolution to this case. Any
prejudice to Defendants is of their own making based on their conduct during discovery. As noted
earlier, Defendants conducted very little discovery, choosing not to depose any of Mr. Evans’
treating physicians/therapists or to seek medical records notwithstanding the authorizations provided
by Plaintiffs.
Any prejudice to Defendants regarding the March 9, 2015 diagnosis has been cured by
allowing the limited medical expert witness disclosure. Contrary to Defendants’ suggestion that
Plaintiffs should somehow be penalized for continuing to supplement Plaintiffs’ discovery responses
with Mr. Evans’ ongoing medical treatment, Plaintiffs supplementation shows an understanding of
and compliance with the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 26(e).
Because the Court is barring Defendants from using any expert testimony other than the
medical expert testimony on the narrow issue of the recent March 9, 2015 diagnosis, Defendants are
barred from using the expert reports served on Plaintiffs on March 23, 2015 and March 30, 2015.
Finally, the Court considers Defendants’ Motion to Re-Depose Mr. Evans. Federal Rule of
Civil Procedure 30 provides that a party must obtain leave of court to take the deposition if the
deponent has already been deposed in the case. Fed. R. Civ. P. 30(a)(2)(A)(ii). However, the Court
must grant leave to the extent consistent with Federal Rule of Civil Procedure 26(b)(2), which
requires the Court to limit the frequency or extent of discovery otherwise allowed by the rules if the
Court determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be
obtained from some other source that is more convenient, less burdensome, or less
expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information
by discovery in the action; or
(iii) the burden or expense of the proposed discovery outweighs its likely benefit,
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considering the needs of the case, the amount in controversy, the parties’ resources,
the importance of the issues at stake in the action, and the importance of the
discovery in resolving the issues.
Fed. R. Civ. P. 26(b)(2)(C).
In this case, the Court grants Defendants’ request to redepose Mr. Evans but only on the
limited issues of his recent March 9, 2015 diagnosis of CRPS/RSDS and his ability to continue in
his employment at Ultra Foods. To the extent Defendants are requesting to reopen Mr. Evans’
deposition without restriction, the Court denies the motion. For example, Defendants may not
depose Mr. Evans on topics covered in his initial deposition, on issues related to liability, on the
events of the occurrence, or on his ongoing medical treatment up to the time of the new diagnosis.
These topics are cumulative or duplicative, or Defendants had an opportunity to obtain the
information during discovery but chose not to.
CONCLUSION
Based on the foregoing, the Court hereby GRANTS in part and DENIES in part Plaintiffs’
Motion to Bar Expert Testimony [DE 74], GRANTS in part and DENIES in Part Defendants’
Motion for Modification of the Scheduling Order [DE 81], and GRANTS in part and DENIES in
part Defendants’ Motion for Leave to Re-Depose Plaintiff, Michael Evans [DE 85].
The Court ORDERS that the deadline for Defendants to disclose medical expert witness(es)
solely on the issue of Mr. Evans’ March 9, 2015 diagnosis of CRPS/RSDS by Dr. Teodori, including
its impact on Mr. Evans’ ability to work, is extended to May 27, 2015. The deadline for Plaintiffs
to serve an expert rebuttal report is set for June 24, 2015. The deadline to complete expert discovery
on this limited issue is extended to July 8, 2015. The deadline to file Daubert Motions is July 22,
2015, with responses due August 5, 2015, and replies due August 12, 2015.

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The Court ORDERS that the discovery deadline is extended to June 10, 2015, solely to
allow Defendants to re-depose Mr. Evans on the limited issues of his March 9, 2015 diagnosis of
CRPS/RSDS by Dr. Teodori and the recent revelation that he is no longer able to work as a produce
manager at Ultra Foods.
The Court ORDERS that Defendants are barred from using the expert witness reports served
on March 23, 2015, and March 30, 2015.
So ORDERED this 14th day of May, 2015.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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