Hulec v. J.H. Bennett & Company, Inc. et al

Filing 89

Opinion and Order signed by Judge James S. Gwin on 8/19/14 denying Defendant Bennett's 73 motion to exclude any expert report or testimony by Dr. Konieczny. This resolution of Bennett's motion moots Hulec's 79 motion to strike Bennett's reply brief, or in the alternative, for leave to file a sur-reply brief. Accordingly, that motion is also denied. (S,HR)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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MEGHAN HULEC,
:
:
Plaintiff-Counterclaim
Defendant,
:
:
vs.
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:
J.H. BENNETT & COMPANY, INC.,
:
:
Defendant,
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:
and
:
:
STEPHEN MUELLAUER,
:
:
Defendant-Counterclaim
:
Plaintiff.
:
:
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CASE NO. 1:14-CV-00492
:

OPINION & ORDER
[Resolving Docs. 73, 79]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Defendant J.H. Bennett & Company, Inc. (Bennett) files a motion to “Exclude Any Expert
Report and Testimony of Untimely Identified Plaintiff’s Expert Dr. J. Joseph Konieczny.”1/ Plaintiff
Meghan Hulec opposes the motion. Among other arguments, Plaintiff Hulec argues that admission
of the expert testimony would not unfairly prejudice Bennett.2/ Defendant Bennett has filed a reply,3/
and Hulec has filed a motion to strike the reply or in the alternative for leave to file a sur-reply.4/
For the reasons stated below, the Court DENIES the motion to exclude the report and
testimony and DENIES as moot Hulec’s motion to strike the reply or for leave to file a sur-reply.

1/

Doc. 73.

2/

Doc. 76.

3/

Doc. 78.

4/

Doc. 79.

Case No. 1:14-CV-00492
Gwin, J.
I
In a previous order, the Court required Plaintiff to identify her expert or experts by May 19,
2014.5/ That order specified that “‘[i]dentify’ means to provide the expert’s name and curriculum
vitae.” The order separately required the parties to exchange expert reports at least 90 days before
the trial date.6/ Because trial is set for November 17, 2014, expert reports must be exchanged by
August 19, 2014.
On May 16, 2014, Plaintiff Hulec notified Defendants of her intent to use Dr. Randall S.
Baenen as an expert and stated that Dr. Baenen’s CV “will be supplemented.”7/ But Defendant
Bennett claims, and Hulec does not contest, that Hulec did not provide Dr. Baenen’s CV by the May
19 deadline.8/
Then, on July 24, 2014, Hulec notified Bennett that “[d]ue to the lack of Dr. Baenen’s
availability to serve as Meghan Hulec’s medical expert, we have elected to hire another expert, Dr.
J. Joseph Konieczny.”9/ Hulec also provided Dr. Konieczny’s CV to Defendants on July 24, 2014.10/
The Court finds cases reviewing the exclusion of late expert reports under Rule 37
instructive. In those cases, courts have considered several factors in deciding whether to exclude
untimely expert reports including “whether the party’s failure to cooperate in discovery is due to
wilfulness, bad faith, or fault,” and whether the adversary was prejudiced by any failure to cooperate

5/

Doc. 17.

6/

Id.

7/

Doc. 76-1.

8/

Doc. 78.

9/

Doc. 73-2.

10/

Id.

Case No. 1:14-CV-00492
Gwin, J.
in discovery.11/
In this case, Dr. Baenen became unavailable. Nothing suggests Dr. Baenen’s unavailability
was foreseeable. And nothing suggests Plaintiff Hulec is at fault for Dr. Baenen’s unavailability or
for intentional dely in identifying Dr. Konieczny. Although Hulec failed to provide Dr. Baenen’s
curriculum vitae prior to the May 19 deadline, nothing shows that Hulec acted in bad faith.
Moreover, Bennett does not show that Hulec’s late identification of Dr. Konieczny will
unfairly prejudice it.12/ Even without a curriculum vitae attached, Plaintiff’s May 16 letter put
Bennett on notice that a medical expert might be called. And because expert reports are not due until
August 19, Bennett will have adequate time to review Dr. Konieczny’s report. The absence of both
prejudice and evidence of bad faith outweighs any fault on Plaintiff’s part that may be present in this
case.
The Court therefore DENIES Defendant Bennett’s motion to exclude any expert report or
testimony by Dr. Konieczny. This resolution of Bennett’s motion moots Hulec’s motion to strike
Bennett’s reply brief or in the alternative for leave to file a sur-reply brief. Accordingly, that motion
is also DENIED.

IT IS SO ORDERED
Dated: August 19, 2014

11/

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

See, e.g., Stamtec, Inc. v. Anson, 195 F. App’x 473, 479 (6th Cir. 2006).

12/

See Doc. 73-1.