HIGGINS et al v. KOCH DEVELOPMENT CORPORATION

Filing 63

ORDER denying 57 Motion to Strike. Signed by Magistrate Judge William G. Hussmann, Jr., on 10/29/2012. (NRN)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
KENT HIGGINS and
JENNIFER HIGGINS, Individually and as
Parents and Natural Guardians, and Next
Friend on behalf of AH and NH, Minors, and
JOHN TAYLOR and SARAH TAYLOR,
Individually and as Parents and Natural
Guardians, and Next Friend on behalf of JT,
A Minor, and RACHEL TAYLOR,
Plaintiffs,
v.
KOCH DEVELOPMENT
CORPORATION d/b/a
Holiday World & Splashin’ Safari,
Defendant.

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3:11-cv-81-RLY-WGH

ORDER ON DEFENDANTS’ MOTION TO STRIKE
This matter is before the Honorable William G. Hussmann, Jr., United
States Magistrate Judge, on Defendant’s Motion to Strike (I) Expert Anthony
Margherita, M.D., (II) Kent Higgins’ Wage Loss and Future Impaired Earnings
Capacity Claims, (III) Rachel Taylor’s Future Impaired Earnings Capacity Claim,
and (IV) Sarah Taylor’s Future Impaired Earning Capacity Claim as Untimely,
filed October 2, 2012. (Docket No. 57). Plaintiffs’ Response was filed on October
16, 2012 (Docket No. 60), and Defendant’s Reply was filed on October 23, 2012.
(Docket No. 62).

The Magistrate Judge, being duly advised, now DENIES the Motion to
Strike.
In this case, Defendant is not contesting liability, and the issue before the
court is one of damages. Although three of the Plaintiffs have belatedly filed
disclosures of experts on the issue of their future wage losses, the
representations in the Plaintiffs’ Response amount to good cause for the belated
filings. It is the Magistrate Judge’s belief that when in doubt, resolution based
upon the merits of the claims is preferable to striking testimony and claims
unless they are raised immediately before trial. The Plaintiffs’ late disclosures will
result in a continuance of the trial from February 19, 2013, to Monday, August
5, 2013. Any prejudice to the Defendant by the late disclosures is removed by the
continuance of the trial date.
Therefore, the Motion to Strike is DENIED.
SO ORDERED the 29th day of October, 2012.

__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana

Electronic copies to:
Leonard P. Cervantes
CERVANTES AND ASSOCIATES
[e-mail]
James B. Godbold
KIGHTLINGER & GRAY
[e-mail]

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Krystal M. Lechner
KIGHTLINGER & GRAY
[e-mail]
John Malec
MARTIN, MALEC & LEOPOLD
[e-mail]
Kase L. Stiefvater
KIGHTLINGER & GRAY
[e-mail]
Joseph A. Terry
CERVANTES AND ASSOCIATES
[e-mail]
Brent R. Weil
KIGHTLINGER & GRAY
[e-mail]

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