PIERCE v. BLITZ U.S.A. INC. et al

Filing 130

ORDER On Pending Motions - Plaintiff's motion to strike the affidavits and preclude the testimony of Raboin and Adams [Dkt. 94 ] is GRANTED IN PART and DENIED IN PART. Western's motion to strike the supplemental expert disclosure of Glen Stevick [Dkt. 98 ] is DENIED. Western's motion for summary judgment [Dkt. 89 ] is DENIED, without prejudice to its resubmission consistent with the further order of the Court. Plaintiff's motion to supplement Plaintiff's response t o Defendant's summary judgment motion [Dkt. 104 ] is DENIED AS MOOT. Western's motion to exclude the testimony of Plaintiff's designated experts Glen Stevick and Bryan Durig [Dkt. 109 ] is DENIED, without prejudice to its resubmission consistent with the further order of the Court. **SEE ORDER**. Signed by Judge Jane Magnus-Stinson on 2/8/2013. (JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MARY JO PIERCE,
Plaintiff,
vs.
BLITZ U.S.A. INC.,
WESTERN INDUSTRIES, INC.,
Defendants.

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) NO. 1:11-cv-01022-JMS-MJD
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ORDER ON PENDING MOTIONS
This matter comes before the Court on multiple pending
motions.

Because the motions are all interrelated and are not

susceptible to resolution in isolation, they will all be
considered together and addressed herein.
A.

Plaintiff's Motion Regarding the Testimony of Ronald Raboin
and Matthew Adams [Dkt. 94]
In filing its motion for summary judgment, Defendant Western

Industries, Inc. ("Western") relied in part upon the verified
declarations of Ronald Raboin [Dkt. 91-7] and Matthew Adams [Dkt.
91-8].

Plaintiff contends that Western failed to disclose Raboin

and Adams as relevant witnesses in its Rule 26(a) initial
disclosures and subsequently failed to timely supplement those
disclosures once Raboin and Adams had been identified as
potential witnesses in this matter.

Fed. R. Civ. P.

26(a)(1)(A)(I) & (e)(1)(A); Dkt. 94 at 2.
Rule 26(a)(1) provides in relevant part that "a party must,

without awaiting a discovery request, provide to the other
parties . . . (1) the name and, if known, the address and
telephone number of each individual likely to have discoverable
information--along with the subjects of that information--that
the disclosing party may use to support its claims or defenses
. . . .”

Fed. R. Civ. P. 26(a)(1)(A)(I).

Rule 26(e) provides in

relevant part that "[a] party who has made a disclosure under
Rule 26(a)(1) . . . must supplement or correct its disclosure or
response . . . (A) in a timely manner if the party learns that in
some material respect the disclosure or response is incomplete or
incorrect, and if the additional or corrective information has
not otherwise been made known to the other parties during the
discovery process or in writing . . . .”

Fed. R. Civ. P.

(e)(1)(A).
Western's suggestions that it complied with the requirements
of Rules 26(a) and (e) are unpersuasive.

First, Western attempts

to rely upon two extremely broad categorical designations in its
preliminary witness list.

Dkt. 52 ¶¶ 5, 10.

Those paragraphs of

Western's witness list neither identified any "individuals" nor
identified the "subjects" of the discoverable information upon
which Western might rely.

Consequently, Western's preliminary

witness list failed to adequately identify Raboin or Adams as
witnesses in this matter.
Second, Western claims that it retained Raboin as a
consulting witness and was therefore shielded from having to

disclose his identity.

Western is correct that Rule 26(b)(4)(D)

generally shields discovery of a consulting expert.
P. 26(b)(4)(D).

Fed. R. Civ.

However, Western does not offer Raboin as an

expert; rather, he is offered by Western as a fact witness.

See

Dkt. 91-7 ¶ 4 ("Based on my employment and experience with
Western Industries, I have personal knowledge of the issues
discussed herein.") (emphasis added).

Rule 26(b)(4)(D) cannot be

used to hide relevant fact witnesses from disclosure until it is
too late in the process for an opposing party to respond thereto.
Fed. R. Civ. P. 26 advisory committee’s note (“It should be noted
that the subdivision [Fed. R. Civ. P. 26(b)(4)] does not address
itself to the expert whose information was not acquired in
preparation for trial but rather because he was an actor or
viewer with respect to transactions or occurrences that are part
of the subject matter of the lawsuit.

Such an expert should be

treated as an ordinary witness.”).
Third, while it is unclear from the documents exactly when
Western knew that it would be offering the testimony of Adams in
support of its motion for summary judgment, it is clear that such
knowledge was in Western's possession at least 30 days prior to
its filing the motion for summary judgment.

[Dkt. 99 at 8.]

Western provides no explanation as to why it did not then amend
its Rule 26(a) disclosures and immediately produce a copy of the

nonparty affidavit to Plaintiff upon its receipt.1
Rule 26(a)(1) mandates the disclosure of the identity and
contact information (if available) of every individual upon whom
a party intends to rely to support a claim or defense, along with
a description of the subjects upon which that individual may
testify.

Fed. R. Civ. P. 26(a)(1)(A)(I).

Rule 26(e) mandates

timely supplementation of that information, in a discovery
response or otherwise in writing, when a party determines the
prior disclosure to be incomplete or incorrect (such as when a
new witness is identified for use in the proceeding).
Civ. P. (e)(1)(A).
requirements.

Fed. R.

Western did not comply with these

Accordingly, Plaintiff's motion to strike the

affidavits and preclude the testimony of Raboin and Adams [Dkt.
94] will be GRANTED IN PART and DENIED IN PART.

Plaintiff will

be given time to conduct discovery of the affiants identified
herein.

Plaintiff's alternative motion requesting an enlargement

of time to respond to Western's motion for summary judgment [Dkt.
94] is DENIED AS MOOT.

The Court further orders all parties to

provide complete and fully updated Rule 26(a)(1) disclosures on
or before March 1, 2013.

1

While not dispositive of the motion, the Court notes that,
had Western made timely disclosure of Raboin and Adams, the
parties and the court would have had an opportunity to address
the instant issue prior to the filing of Western’s motion for
summary judgment.

B.

Defendant's Motion to Strike Belated Expert Notice [Dkt. 98]
Next, Western moves to strike the supplemental disclosure of

additional opinions by Plaintiff's expert Glen Stevick.
98.]

[Dkt.

In support of this motion, Western argues that Plaintiff

has been aware of the fact that it needed to establish the
identity of the product at issue in this case since the outset of
the case and yet failed to identify a product identification
expert by the court ordered deadlines.

[Dkt. 99 at 2-5.]

Plaintiff does not contest that product identification was an
element of this case from the outset; rather, Plaintiff argues
that Stevick's testimony is specifically offered to rebut the
testimony of Raboin and Adams, which witnesses the Court has
already found that Western failed to timely and properly
disclose.

[Dkt. 100 at 2-6.]

Incongruously, Western seeks to

strictly enforce disclosure requirements against Plaintiff while
failing to strictly comply with disclosure requirements itself.
Such will not stand.

Accordingly, Western's motion to strike the

supplemental expert disclosure of Glen Stevick is DENIED.

C.

Effect of Rulings on Case Management Deadlines
In light of the rulings in this Order, revised deadlines for

the completion of discovery and related issues need to be
established.

Accordingly, the Magistrate Judge is directed to

schedule a pretrial conference with the parties for the purpose
of establishing revised case management deadlines as necessitated

by this Order.
D.

Defendant's Motion for Summary Judgment and Related Briefing
In support of its motion to strike the supplemental opinions

of Plaintiff's expert Glen Stevick, Western argued that it would
be prejudicial to allow "new" evidence to be added to the case
while Western's motion for summary judgment is pending.
at 5.]

[Dkt. 99

Additionally, the multiple post-summary judgment briefing

discovery issues that have arisen, which have necessitated the
reopening of discovery discussed above, threaten to plague the
pending summary judgment motion with multiple supplemental
filings and the confusion and inconsistencies that can result
therefrom.

In light of these concerns, and in the interests of

judicial economy, the Court will deny the pending summary
judgment motion without prejudice to its refiling consistent with
the revised case management schedule to be issued by the Court.
Accordingly, Western's motion for summary judgment [Dkt. 89] is
hereby DENIED, without prejudice to its resubmission consistent
with the further order of the Court.

Additionally, Plaintiff's

motion to supplement Plaintiff's response to Defendant's summary
judgment motion [Dkt. 104] is DENIED AS MOOT.

E.

Western's Motion to Exclude the Testimony of Glen Stevick
and Bryan Durig
Also pending before the Court is Western's motion to exclude

the testimony of Plaintiff's designated experts Glen Stevick and

Bryan Durig.

[Dkt. 109.]

In light of the above rulings, it

appears to the Court that this motion is premature; particularly
in light of the fact that Mr. Stevick has revised his opinions in
this matter, which could give rise to different or additional
bases upon which Western may seek his exclusion.

Again, in order

to avoid supplemental filings in light of the decisions herein,
in the interests of judicial economy, the Court will deny
Western's motion to exclude the testimony of Plaintiff's
designated experts Glen Stevick and Bryan Durig without prejudice
to its refiling consistent with the revised case management
schedule to be issued by the Court.

Accordingly, Western's

motion to exclude the testimony of Plaintiff's designated experts
Glen Stevick and Bryan Durig [Dkt. 109] is hereby DENIED, without
prejudice to its resubmission consistent with the further order
of the Court.
F. Conclusion
The original case management plan in this case presented a
workable schedule for the pre-trial preparation of the case, but
its success depended on the parties’ compliance with the
deadlines contained therein.

The Court should not be placed in

the position of sorting through piecemeal briefing because the
parties have not complied with both the schedule they originally
crafted, and the Federal Rules of Civil Procedure. It is time to
regroup and reorganize for the orderly presentation of the case
to the Court.

To that end, and in light of the findings herein, the Court
rules as follows:
1.

Plaintiff's motion to strike the affidavits and

preclude the testimony of Raboin and Adams [Dkt. 94] is GRANTED
IN PART and DENIED IN PART.

Plaintiff will be given time to

conduct discovery of the affiants identified herein.

Plaintiff's

alternative motion requesting an enlargement of time to respond
to Western's motion for summary judgment [Dkt. 94] is DENIED AS
Once that discovery is completed, and if a renewed motion

MOOT.

for summary judgment is filed, testimony of Raboin and Adams will
be allowed.
2.

Western's motion to strike the supplemental expert

disclosure of Glen Stevick [Dkt. 98] is DENIED.
3.

Western's motion for summary judgment [Dkt. 89] is

DENIED, without prejudice to its resubmission consistent with the
further order of the Court.
4.

Plaintiff's motion to supplement Plaintiff's response

to Defendant's summary judgment motion [Dkt. 104] is DENIED AS
MOOT.
5.

Western's motion to exclude the testimony of

Plaintiff's designated experts Glen Stevick and Bryan Durig [Dkt.
109] is DENIED, without prejudice to its resubmission consistent
with the further order of the Court.
02/08/2013
So Ordered.

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Dated:

Distribution:
All Electronically Registered Counsel