Genesis Health Clubs, Inc. v. LED Solar & Light Company

Filing 43

ORDER granting 39 plaintiff's motion to designate non-retained expert witnesses out of time. Signed by Magistrate Judge James P. O'Hara on 1/24/2014. (mb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GENESIS HEALTH CLUBS, INC.,
Plaintiff,
v.

Case No. 13-1269-JWL

LED SOLAR & LIGHT COMPANY,
Defendant.

ORDER
This case involves a commercial dispute. The plaintiff, Genesis Health Clubs,
Inc., which operates a fitness club in Wichita, Kansas, purchased certain light-emitting
diode (“LED”) lamps from the defendant, LED Solar & Light Company. Plaintiff asserts
various contract-based claims.1 Defendant counterclaims that plaintiff failed to make
payments due under the purchase agreement.

This matter is currently before the

undersigned U.S. Magistrate Judge, James P. O’Hara, on plaintiff’s motion to designate
non-retained expert witnesses under Fed. R. Civ. P. 26(a)(2)(C) out of time (ECF doc.
39). For the reasons discussed below, plaintiff’s motion is granted.

1

More specifically, plaintiff first claims that defendant breached the parties’
contract by providing defective lighting that often did not work and did not provide the
energy savings guaranteed. Second, plaintiff claims that the lighting did not run of even
kind or quality and often did not work at all, constituting a breach in implied warranty of
merchantability. And third, plaintiff claims that defendant breached certain express
warranties.

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All experts must be disclosed under Fed. R. Civ. P. 26(a)(2)(A).2 For non-retained
experts, under Fed. R. Civ. P. 26(a)(2)(C), the disclosing party must provide: “(i) the
subject matter on which the witness is expected to present evidence under Federal Rule of
Evidence 702, 703 or 705; and (ii) a summary of the facts and opinions to which the
witness is expected to testify.3 “A party must make these disclosures at the time and in
the sequence that the court orders.”4 The court’s final scheduling order set plaintiff’s
expert disclosure deadline as October 18, 2013 (ECF doc. 12). Plaintiff did not serve
Rule 26(a)(2) disclosures for Mr. Chaffin and Mr. Troyer until they were attached as an
exhibit to the instant motion, which was filed on January 10, 2014.5
Fed. R. Civ. P. 6(b) provides: “When an act may or must be done within a
specified time, the court may, for good cause, extend the time … on motion after the time
has expired if the party failed to act because of excusable neglect.” A showing of “good
cause” requires a proffer of the reasons for the failure to meet the deadline. 6 Excusable
neglect is an elastic concept not limited to circumstances outside of the neglecting party’s

2

White v. Union Pac. R.R. Co., No. 09-1407, 2012 WL 380245, at *2 (D. Kan. Feb. 6,
2012).
3

Fed. R. Civ. P. 26(a)(2)(C).

4

Fed. R. Civ. P. 26(a)(2)(D).

5

ECF doc. 39, Exh. 1.

6

Burton v. R.J. Reynolds Tobacco Co., 203 F.R.D. 624, 629 (D. Kan. 2001).

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control.7 In determining whether neglect is excusable, the court should consider all of the
circumstances surrounding the omission, specifically including: (1) prejudice to the other
side, (2) the length and effect of any delay, (3) the reasons for the omission and whether
it was within the control of the party, and (4) whether the neglecting party acted in bad
faith.8
As stated above, the deadline for plaintiff to file expert disclosures was October
18, 2013. Plaintiff filed its motion on January 10, 2014. Plaintiff seeks to designate two
electricians, Joel Troyer and Roger Chaffin, as individuals who will be providing
testimony in this case. Plaintiff previously had identified these electricians in its Rule
26(a)(1) disclosures as having information regarding the installation of defendant’s
lighting in plaintiff’s facility. On November 12, 2013, defendant was also notified that
these individuals would be called as witnesses in plaintiff’s responses to defendant’s
interrogatories. In addition, plaintiff previously disclosed e-mails relating each of these
witnesses’ independent inspections of the wiring and fixtures at plaintiff’s facility.
Plaintiff contends that these two men are factual witnesses and the testimony they
will offer at trial relates to circumstances with which they had personal involvement.
However, plaintiff is asking the court for leave to file its expert disclosures out of time
7

Potter v. Health Care Auth., No. 03-1326, 2006 WL 580986, at *4 (D. Kan. Mar. 8,
2006) (citing Burton, 203 F.R.D. at 628 (citing Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P’ship, 507 U.S. 380, 392 (1993)).
8

Potter, 2006 WL 580986, at *4 (citing Pioneer, 507 U.S. at 395; Burton, 203 F.R.D.
at 628-29).
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“in an abundance of caution” because there remains a question as to whether or not their
testimony will come under the ambit of non-retained expert testimony.
As earlier indicated, the first factor to consider is the danger of prejudice to the
non-moving party.

Defendant asserts that it will be prejudiced if the court grants

plaintiff’s motion because defendant is currently preparing its summary judgment motion
and one of its bases for seeking summary judgment is plaintiff’s failure to identify an
expert. Defendant states it “has been busy researching and preparing its motion for
summary judgment. Now, instead of focusing on the summary judgment, defendant is
forced to prepare this memorandum.”9
Defendant also argues that there is “no substantial difference”10 between the facts
in this case and those addressed in Schneider v. CLAAS of Am., Inc.., No. 12-2235, 2013
WL 968986 (D. Kan. Mar. 12, 2013). In Schneider, the court denied a motion to amend
the scheduling order, in part, because of the potential prejudice to the defendant.11
However, the defendant in that case had already filed its summary judgment motion. The
court held it was highly prejudicial to defendant to allow plaintiff to “secure a ‘do-over’
after seeing defendant’s summary judgment motion,” especially when plaintiff delayed
his disclosure of expert witnesses “for strategic reasons.”12 Additionally, the plaintiff had
9

ECF doc. 41 at 5.

10

Id. at 5.

11

Schneider, 2013 WL 968986, at *3.

12

Id.

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lied to the court several times, including, in his initial motion and brief when he claimed
he could not meet the deadline because of his expert’s illness.13
Here, defendant is somewhat prejudiced in that counsel has already started
working on its summary judgment motion. But that motion has not been filed. Plaintiff
has not had access to defendant’s motion. This is not the situation where plaintiff seeks a
“do-over” after reviewing defendant’s arguments. Additionally, defendant has had notice
that these witnesses may be called to testify as fact witnesses for plaintiff. This is
certainly not the same as designating them as non-retained expert witnesses. However, it
lessens the surprise and prejudice to defendant.

Therefore, this factor weighs in

plaintiff’s favor.
As to the second factor, defendant asserts that the length of the delay here is long
and its impact on the proceedings is severe. Defendant quotes Henderson v. Nat’l R.R.
Passenger Corp., 412 F. App’x 74, 82-83 (10th Cir. 2011), where the court upheld the
lower court’s holding that allowing a supplemental expert report “just more than one
month before all dispositive motions were due would prejudice [the other party] and
disrupt the litigation.”14 However, that court emphasized the fact that defendants never
asked the court to extend the expert disclosure deadline and waited to supplement its
report until the same day defendant’s filed their summary judgment motion. Here,

13

Id. at *4.

14

ECF doc. 41 at 5.

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plaintiff is asking for an extension out of an “abundance of caution.”15 Defendants have
not filed their summary judgment motion yet. Dispositive and Daubert motions are not
due until February 3, 2014, and the trial is more than five months away.16 The length of
delay is not ideal but it is not so severe to find that plaintiff’s neglect was inexcusable.
Defendant asserts that the third factor weighs in its favor because the reason for
delay was completely under plaintiff’s control. The court tends to agree. If plaintiff was
truly acting out of an “abundance of caution,” it should have designated these two
witnesses before the October 18, 2013 deadline. Instead, plaintiff filed its motion almost
three months late and only after a discussion about witnesses during the final pretrial
conference. This factor weighs in defendant’s favor, but only slightly.
Finally, defendant asserts that plaintiff’s actions are not in good faith. Defendant
emphasizes the fact that plaintiff filed its motion after defendant shared one of its bases
for seeking summary judgment—plaintiff’s lack of expert testimony.

Additionally,

defendant states, “[m]ore importantly as to good faith, the proposed designation is still
insufficient.”17 This argument is not persuasive. Whether plaintiff’s proposed expert
designation is sufficient is not before the court.

Regardless, the foregoing fails to

establish plaintiff acted in bad faith. Plaintiff promptly filed this motion after a question

15

ECF doc. 39 at 3.

16

ECF doc. 12.

17

ECF doc. 41 at 6.

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arose during the final pretrial conference and did so out of an “abundance of caution.”
Plaintiff’s actions in this case do not support a finding of bad faith.
Having considered the parties’ arguments and concerns, the court hereby grants
plaintiff’s motion. However, the court makes no ruling as to whether plaintiff’s two
electrician witnesses qualify as retained experts and are therefore subject to the
requirements of Fed. R. Civ. P. 26(a)(2)(B). Nor does the court make any ruling whether
plaintiff’s non-retained expert disclosures are sufficient.

Defendant may certainly

address those issues, if necessary, in an appropriate motion in the future.
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to file expert
disclosures out of time (ECF doc. 39) is granted.

Plaintiff shall serve its expert

designations on or before January 27, 2014.
IT IS SO ORDERED.
Dated January 24, 2014, at Kansas City, Kansas.

s/ James P. O’Hara
James P. O’Hara
U. S. Magistrate Judge

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