Maxson v. Calder Brothers Corporation

Filing 35

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that Plaintiff's motion to exclude is DENIED, except with respect to supplemental materials not disclosed as part of the June 29, 2015 production and in Gary Hutters supplemental report. (Doc. No. [2 9].) IT IS FURTHER ORDERED that Plaintiff shall notify the Court, within ten days of this Memorandum and Order, whether he wishes to re-depose Gary Hutter. If he does wish to do so, Defendant shall make Hutter available for the new deposition withi n 28 days of this Memorandum and Order, with Defendant bearing the reasonable costs incurred by Plaintiff in connection therewith. IT IS FURTHER ORDERED that if the parties believe this Order requires modification of the current Case Management Orde r (CMO), the parties must confer in good faith, and within ten days of Plaintiffs above notification, submit a joint proposed modification of the CMO. ( Response to Court due by 9/24/2015.) Signed by District Judge Audrey G. Fleissig on 9/14/2015. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DANIEL MAXSON,
Plaintiff,
v.
CALDER BROTHERS CORPORATION,
Defendant.

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No. 4:14CV01360 AGF

MEMORANDUM AND ORDER

Plaintiff in this products liability action is a mechanic who was injured while
“troubleshooting” an asphalt paver that was designed, manufactured, and sold by
Defendant Calder Brothers Corp. The matter is now before the Court on Plaintiff’s motion
to exclude all codes and similar materials not made part of the initial expert report of
Defendant’s engineering expert Gary Hutter, Ph.D. For the reasons set forth below, this
motion will be substantially denied, but Plaintiff will be afforded the opportunity to redepose Hutter, with Defendant bearing the costs and fees of doing so.
BACKGROUND
The complaint alleges that on December 16, 2009, Maxson’s right foot fell into an
opening between two metal foot rests on the subject paver machine and was caught in the
machine’s moving hydraulic auger. As a result, Plaintiff suffered serious and permanent
injuries to his right foot and toes. Plaintiff asserted that the paver was defective and
unreasonably dangerous at the time of its original design, manufacture, and sale by
Defendant. He seeks damages under theories of strict liability and negligence. The record
shows that the accident occurred while Plaintiff was “troubleshooting” the paver to

determine why the hydraulic auger was not operating. While Plaintiff was manipulating
the wiring, a loose or broken wire made a connection and the auger kicked on. Plaintiff’s
foot was then caught and sucked into an augur. (Pl.’s Compl., Doc. No. 28 at 2.)
Defendant filed an affirmative defense of comparative fault. Trial is set for December 14,
2015.
In Hutter’s report dated May 16, 2015, he opined that the accident was not the
result of any defective or unreasonably dangerous design of the paver, but rather was the
result of Plaintiff’s failure to provide maintenance in a manner consistent with reasonable
maintenance practices in the industry and required by the Occupational Safety and Health
Administration (“OSHA”) and the American National Standards Institute (“ANSI”).
Hutter stated that in reaching his opinions, he relied on his expertise and the following
documents: the depositions taken in this case, including but not limited to, those of
Plaintiff, the two principals of Defendant, Plaintiff’s expert Ken Blundell, and Plaintiff’s
son, and all exhibits to those depositions; photographs of the paver in question and of other
pavers; “OSHA and ANSI regulations and industry criteria”; “various interpretations of
OSHA and ANSI regulations and criteria”; the Army Corps of Engineers’ guide for
paving; and “the safety literature.” (Doc. No. 30-1 at 1-5.)
At his video deposition on June 8, 2015, Hutter identified and disclosed for the first
time voluminous safety literature and materials that further supported his opinions but that
had not been previously disclosed. Hutter testified the additional materials were the result
of his continued research over the weekend prior to the video deposition. Defendant
asserts that it was not aware of these additional materials prior to the deposition. The
materials included, for example, selected pages from an OSHA website, pages from a book
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entitled “Industrial Hazard and Safety Handbook” and from various manufacturers’
brochures and manuals, letters of interpretation from OSHA concerning lock out/tag out
safety procedures, and additional photographs of other pavers. (Doc. No. 30-2.) On June
29, 2015, one day before the deadline for completing expert depositions, and for the filing
of motions for summary judgment and Daubert motions, Defendant provided Plaintiff with
all these materials.
Plaintiff filed the present motion on June 30, 2015, seeking to preclude Hutter from
using or discussing at trial these late-disclosed materials as supporting his opinions.
Plaintiff argues that Defendant has violated Federal Rule of Civil Procedure 26(a)(2)(B) by
not providing the materials along with Hutter’s May 16, 2015 report, and that as Plaintiff’s
counsel was not able to review any of these materials prior to, or during, the depositions,
counsel was not able to intelligently question Hutter about them. Thus, Plaintiff argues,
permitting Hutter to use or discuss them would be “extremely prejudicial” to Plaintiff.
Plaintiff asserts, “It seems the distinct purpose in failing to disclose these materials was to
unfairly surprise and prejudice Plaintiff, and prevent Plaintiff’s counsel from thoroughly
questioning Defendant’s expert and challenging his opinions.” (Doc. No. 30 at 7.)
Defendant responded on July 13, 2015, submitting with its response a supplemental
report by Hutter dated July 9, 2015. This report supplemented the May 16, 2015 report by
referring and attaching some of the materials Hutter disclosed during his deposition.
Hutter’s opinions remained the same. Hutter stated that he believed “many of these items
were implicit” in the list of materials set forth in his prior report. Defendant maintains
that it did not violate Rule 26(a)(2)(B) because Hutter’s report was timely supplemented,
and the information that Hutter disclosed in his deposition which was not attached to his
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original report “consists of additional information in [the] subject areas” listed in the initial
report. (Doc. No. 32 at 1-2). Defendant points out that none of the newly-disclosed
materials altered Hutter’s opinions in any way. Defendant states that it has no objection to
striking from Hutter’s opinions any materials not attached to the July 9, 2015 report.
DISCUSSION
The Court believes that Defendant failed to comply with Rule 26(a)(2)(B) by not
identifying until Hutter’s deposition, materials Hutter relied on in forming his expert
opinions, and by not disclosing those materials until after Hutter’s deposition. But the
record does not support Plaintiff’s assertion that the late disclosure was made intentionally
as part of an effort unfairly to surprise Plaintiff. Furthermore, the Court does not believe
that the only appropriate sanction is the one advocated by Plaintiff, namely, not permitting
Hutter the use of the late-disclosed materials at trial. Indeed, Rule 37 contemplates “other
appropriate sanctions,” including “requiring payment of reasonable expenses, including
attorney’s fees, caused by the failure” to comply with Rule 26(a). Fed. R. Civ. P. 37(c)(1).
Here the Court believes that the appropriate course of action is to limit any
supplemental report to those materials that were both disclosed in the June 29, 2015
supplemental production and also contained in the July 9, 2015 supplemental report. Any
materials either not disclosed prior to or as part of the June 29 production or not contained
in the supplemental report shall be excluded. Thus, if the supplemental expert report relied
on any additional materials not provided as part of the June 29, 2015 disclosure, the report
must be amended to delete those additional materials. Further Plaintiff will be permitted
the opportunity to re-depose Hutter (in person or by video, at Plaintiff’s option), with
Defendant bearing Plaintiff’s expenses and attorney’s fees for doing so.
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CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion to exclude is DENIED, except
with respect to supplemental materials not disclosed as part of the June 29, 2015
production and in Gary Hutter’s supplemental report. (Doc. No. 29.)
IT IS FURTHER ORDERED that Plaintiff shall notify the Court, within ten days
of this Memorandum and Order, whether he wishes to re-depose Gary Hutter. If he does
wish to do so, Defendant shall make Hutter available for the new deposition within 28
days of this Memorandum and Order, with Defendant bearing the reasonable costs
incurred by Plaintiff in connection therewith.
IT IS FURTHER ORDERED that if the parties believe this Order requires
modification of the current Case Management Order (“CMO”), the parties must confer in
good faith, and within ten days of Plaintiff’s above notification, submit a joint proposed
modification of the CMO.

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AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 14th day of September, 2015.

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