Martin v. Icon Health & Fitness, Inc.

Filing 17

ORDER deferring ruling on 11 Motion to Continue Trial. The court will grant plaintiff a continuance, described more fully below, if the plaintiff will agree to reimburse defendant for the reasonable attorneys fees it incurred in researching, drafting, and filing its motion for summary judgment, document no. 15. Plaintiff has five days from the date of this order to notify the court, and defendant, of its election. So Ordered by Magistrate Judge Landya B. McCafferty.(kad)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

James Martin
v.

Civil No. 11-cv-304-LM

Icon Health & Fitness, Inc.

O R D E R
Before the court is plaintiff's motion to reopen discovery
and continue the trial so that he can secure an expert witness
on the issue of causation.

Defendant objects to the

continuance, arguing that plaintiff's need for the continuance
is caused solely by his untimely recognition of his need for an
expert on causation.
This is a products liability case which plaintiff alleges
that a part on his Nordic Track Revitalize 2.0 Inversion System
("Revitalize 2.0"), which was manufactured by defendant, was
defectively designed.

Plaintiff claims that while he was

exercising on the Revitalize 2.0 the part broke and caused him
to fall and suffer injuries.

At some point following

plaintiff's fall, defendant issued a voluntary recall of the
same part that is at issue in this lawsuit.
Plaintiff's expert disclosure deadline was February 1,
2012.

Plaintiff disclosed only one expert, and that expert did

not provide an opinion on causation.

Plaintiff did not retain

an expert on causation despite the fact that, in defendant's
December 2011 answers to interrogatories, defendant placed
plaintiff on notice that causation was disputed.
Mot. to Preclude Ex. 4 (doc. no. 14-5), at 2.

See Def.'s

It was not until

March 30, 2012, when defendant supplied plaintiff with its
expert disclosure (disputing causation) that plaintiff
apparently became aware of the need to secure his own causation
expert.
On April 26, 2012, plaintiff filed supplemental answers to
interrogatories, in which he disputed numerous assertions in
defendant's expert report.

As an engineer and physics teacher,

plaintiff asserts that he has the expertise to rebut defendant's
causation expert.

Plaintiff characterizes his supplemental

answers as "expert rebuttal" evidence.
16), at 2.

See Pl's Obj. (doc. no.

Plaintiff's attempt to use himself as a "rebuttal

expert" under these circumstances might work had he made an
initial disclosure that he was acting as plaintiff's expert on
causation.

Plaintiff had notice that defendant was disputing

causation prior to his initial disclosure deadline.

By labeling

his supplemental answers as "expert rebuttal," plaintiff is
attempting to circumvent the deadline for initial disclosures.

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Plaintiff’s failure to disclose an expert on the issue of
causation leaves him in an awkward spot, as defendant well
understands.

Defendant has, in fact, filed a motion for summary

judgment, arguing that under New Hampshire products-liability
law, expert testimony on causation is required.
objection is not due until June 28, 2012.
July 1, 2012.

Plaintiff’s

Discovery closes on

It is in this context that plaintiff has moved

for a continuance.
Plainly, plaintiff has painted himself into a corner.

That

said, the court of appeals for this circuit, has repeatedly
expressed its “preference for disposing of a case on the
merits.”

Vásquez-Rijos v. Anhang, 654 F.3d 122, 127 (1st Cir.

2011) (affirming dismissal of case for failure to comply with
discovery deadlines) (citation omitted); see also Indigo Am.
Inc. v. Big Impressions, LLC, 597 F.3d 1, 6 (1st Cir. 2010)
(noting court’s “preference for resolving disputes on the
merits” when vacating default judgment) (citation omitted).
While this case does not involve dismissal as a sanction or
default judgment, a resolution of the motion to continue in
defendant's favor may, as a practical matter, lead to judgment
for defendant.

The court is mindful that with the exception of

plaintiff's failure to realize the need for a causation expert,
there is no evidence that plaintiff has been dilatory with

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respect to his discovery obligations.

This is not a case where

discovery has closed and trial is imminent.

At the same time,

however, the court is sympathetic to defendant, who has
litigated in complete good faith and has complied with all
relevant deadlines when filing what might well be a meritorious
motion for summary judgment.
All that being said, the court offers plaintiff the
following way out of the corner into which he has painted
himself.

The court will grant plaintiff a continuance,

described more fully below, if the plaintiff will agree to
reimburse defendant for the reasonable attorneys’ fees it
incurred in researching, drafting, and filing its motion for
summary judgment, document no. 15.

Plaintiff has five days from

the date of this order to notify the court, and defendant, of
its election.
In the event plaintiff elects to pay defendant’s reasonable
attorneys’ fees, this case will be continued, subject to the
following deadlines:

plaintiff must disclose to defendant

within sixty days of the date of this order (on or before August
10, 2013) its causation expert and that expert's report in
accordance with the requirements in Rule 26(a)(2)(B).

Summary

judgment motions shall be filed on or before September 26, 2012.
Challenges to expert testimony are due on or before December 10,

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2012.

Trial is scheduled to occur during the two-week period

beginning January 23, 2013.
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge
June 11, 2012
cc:

John K. Bosen, Esq.
Ralph Suozzo, Esq.

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