DiLuzio v. The Village of Yorkville, Ohio et al

Filing 117

OPINION AND ORDER plaintiffs motion, doc. no. 53 , is GRANTED. Defendant Nemeths motion to strike, doc. no. 45 , is DENIED. Signed by Magistrate Judge Norah McCann King on 7/02/13. (rew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ANGELO L. DiLUZIO,
Plaintiff,
vs.

Civil Action 2:11-cv-1102
Judge Watson
Magistrate Judge King

THE VILLAGE OF YORKVILLE,
OHIO, et al.,
Defendants.
OPINION AND ORDER
This is a civil rights action under 42 U.S.C. § 1983 based, in
part, on events related to a fire at, and the subsequent demolition
of, the southernmost building in a three-building structure in
Yorkville, Ohio, that is owned by plaintiff.

This matter is before

the Court on the motion of defendant Greg Nemeth to strike the expert
report of plaintiff’s rebuttal expert, Eric Drozdowski.
Strike, Doc. No. 45.

Motion to

Plaintiff opposes the Motion to Strike.

Plaintiff’s Memorandum Contra Motion to Strike (“Plaintiff’s
Response”), Doc. No. 47. Defendant Nemeth has filed a reply. Reply to
Memorandum Contra Defendant’s Motion to Strike (“Defendant Nemeth’s
Reply”), Doc. No. 48.
After the Motion to Strike was fully briefed, plaintiff filed
Plaintiff’s Motion for Leave to Disclose Rebuttal Expert Eric
Drozdowski after the Date Established in the Scheduling Order
(“Plaintiff’s Motion”), Doc. No. 53.

Defendant Nemeth has filed a

response to Plaintiff’s Motion, Defendant Nemeth’s Response, Doc. No.

56, as have defendants The Village of Yorkville, Ohio, Mayor John
DeFilippo, and Fire Chief Klubert (collectively the “Village
defendants”), The Village Defendants’ Response, Doc. No. 83.
Plaintiff has not filed a reply.
Motion to Strike is DENIED.
I.

For the reasons that follow, the

Plaintiff’s Motion is GRANTED.

Background
The Court issued a scheduling order in this action requiring that

the reports of primary experts be produced by January 23, 2013 and the
reports of rebuttal experts be produced by February 25, 2013.
Preliminary Pretrial Order, Doc. No. 15; Order, Doc. No. 32.

On

January 23, 2013, the Village defendants produced, inter alia, an
expert report authored by Robert Copp.
pp. 1-2.

Plaintiff’s Motion, Exhibit A,

On February 6, 19, and 27, 2013, the Village defendants

supplemented Robert Copp’s report with information about documents
reviewed by Robert Copp in preparing his report and cases in which he
had testified.

Plaintiff’s Response, Exhibit A, pp. 1-4; Plaintiff’s

Motion, Exhibit A, p. 3.

On February 27, 2013, Robert Copp prepared,

and the Village defendants produced, a Supplemental Report of Findings
“to include the testimony history of Robert Copp and the basis of
report that includes documents inventoried and reviewed.
of the original report [were not changed].”

The opinions

Defendant Nemeth’s Reply,

Exhibit A, pp. 35-37.
Robert Copp’s report indicates that he was retained to “review[]
evidential documents and render[] an opinion for any improper
direction of firefighters by Fire Chief Klubert in [this action].”
Id.

The report contains the following findings and conclusions:

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1. Fire Department responded to a report of a structure
fire at 103 Williams St. Yorkville, Ohio.
2. Fire Chief
Command.

Klubert

responded

and

initiated

Incident

3. Chief Klubert recognized conditions of a basement fire
not improving and changed from an offensive suppression
attack to a defensive suppression attack.
4. Chief Klubert and other Chief Fire Officers continued to
monitor defensive fire suppression operations.
5. Chief Klubert and other Chief Fire Officers observed
signs of potential structural collapse and ordered the
portion of the structure weakened by the blaze to be
torn down.
6. Chief Klubert and other Chief Fire Officers conducted
fire suppression activities consistent with recognized
suppression activities.
Id. at p. 38.
Plaintiff retained Eric Drozdowski of S.E.A., Ltd., on February
28, 2013 to “examine file materials and, if possible, render a
professional opinion as to whether the fire caused sufficient damage
to the structures such that immediate demolition of the south building
was necessary.”

Drozdowski Report, attached to Motion to Strike as

Exhibit A, at p. 4.

Eric Drozdowski’s report contains the following

findings and conclusions:
Significant damage to the south building as a direct result
of the fire was limited to the roof structure and secondfloor ceiling.
The exterior masonry walls of the south building did not
appear to sustain significant structural damage due to the
fire.
Following the fire and preceding the demolition, the south
building did not appear to pose an immediate danger to the
general public.
Although wisps of smoke were observed emanating from some
of the south building mortar joints near the roof line

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during the occurrence of the fire, this only establishes
that there were some small voids and cracks near the top of
the wall of sufficient size to allow the smoke to permeate,
not that a significant portion of the wall had sustained
damage due to the fire.
Most, if not all, of the cracking above the south building
second-story openings appears to be consistent with longterm settlement of the building. Furthermore, the building
owner reported that all of the cracking in the exterior
masonry was present before the occurrence of the fire.
Similar cracking was noted on portions of the north
building, which was unaffected by the fire.
Significant damage to the middle building roof occurred as
a result of the fire, which left at least a portion of the
masonry walls in that area inadequately supported; however,
the middle building was not demolished following the fire.
Id.
II.

Standard
The Motion to Strike takes the position that Eric Drozdowski’s

report is untimely because it was not produced until March 12, 2013,
i.e., 15 days after the deadline set in the Court’s Preliminary
Pretrial Order for the production of rebuttal expert reports; the
motion also takes the position that Eric Drozdowski is a primary
expert whom plaintiff improperly characterizes as a rebuttal expert.
Plaintiff’s Response and Plaintiff’s Motion take the position that
Eric Drozdowski is properly characterized as a rebuttal expert because
his report is responsive to Robert Copp’s report.

Plaintiff also

argues that there is good cause to permit the late production of Eric
Drozdowski’s rebuttal report because Robert Copp’s primary expert
report was deficient under Fed. R. Civ. P. 26 until it was
supplemented on February 27, 2013.

The motions presently before the

Court both address, albeit in different fashions, whether plaintiff

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properly produced Eric Drozdowski’s report beyond the time permitted
in the Court’s scheduling order.
Rule 16(b) of the Federal Rules of Civil Procedure requires that
the Court, in each civil action not exempt from the operation of the
rule, enter a scheduling order, which may, inter alia, establish the
dates by which expert disclosures must be made pursuant to Fed. R.
Civ. P. 26(a)(2).

Fed. R. Civ. P. 16(b)(3)(B)(i).

The rule further

provides that “[a] schedule may be modified only for good cause and
with the judge’s consent.”

Fed. R. Civ. P. 16(b)(4).

See also S.D.

Ohio Civ. R. 16.2 (“[T]he Magistrate Judge is empowered
to . . . modify scheduling orders upon a showing of good cause.”).
“‘The primary measure of Rule 16’s ‘good cause’ standard is the moving
party’s diligence in attempting to meet the case management order’s
requirements.’”

Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir.

2002) (quoting Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir.
2001)).

“A district court should also consider possible prejudice to

the party opposing the modification.”

Andretti v. Borla Performance

Indus., Inc., 426 F.3d 824, 830 (6th Cir. 2005) (citing Inge, 281 F.3d
at 625).

The focus is, however, “primarily upon the diligence of the

movant; the absence of prejudice to the opposing party is not
equivalent to a showing of good cause.”

Ortiz v. Karnes, 2:06-cv-562,

2010 WL 2991501, at *1 (S.D. Ohio July 26, 2010) (citing Tschantz v.
McCann, 160 F.R.D. 568, 571 (N.D. Ind. 1995)).

Whether to grant leave

under Rule 16(b) falls within the district court’s discretion.
v. Daeschner, 349 F.3d 888, 909 (6th Cir. 2003).

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Leary

III. Discussion
Plaintiff’s Motion seeks leave to produce the report of Eric
Drozdowski, as a rebuttal expert, beyond the date established in the
Court’s scheduling order.

Plaintiff’s Motion, p. 1.

Plaintiff argues

that good cause exists to permit late disclosure because, on the date
rebuttal expert reports were due, plaintiff’s counsel had not yet
received the information missing from Robert Copp’s primary expert
report.

Id. at p. 2.

Plaintiff’s counsel represents that he delayed

retaining Eric Drozdowski as a rebuttal expert because he “should have
[had] all of the Defendants’ expert disclosures before presenting the
issues to [the] rebuttal expert.”

Id.

Defendants argue that Robert Copp’s incomplete disclosure and
late supplement of his report does not excuse plaintiff’s late
rebuttal disclosure because the conclusions in Robert Copp’s report
were not changed by the supplementation.

Defendant Nemeth’s Reply,

pp. 1-2; The Yorkville Defendants’ Response, pp. 2-5.

Moreover,

defendants argue, Eric Drozdowski’s report is not responsive to Robert
Copp’s report; it is actually a late primary expert report or a late
rebuttal to defendant Nemeth’s primary expert Mark Kilgore, who opined
that “the danger was imminent, requiring immediate demolition.”
Defendant Nemeth’s Reply, pp. 2-4.
Response, pp. 2-5.

See also The Yorkville Defendants’

Specifically, defendants argue that Eric Copp’s

conclusions and report address the appropriateness of the firefighting
operations; the report did not address whether the building posed an
immediate danger requiring demolition.

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Defendant Nemeth’s Reply, p.

2; The Yorkville Defendants’ Response, pp. 2-5.

Eric Drozdowski’s

report, defendant Nemeth argues, does not rebut Eric Copp’s report
because “Mr. Copp gave no opinion on immediacy.”

Defendant Nemeth’s

Reply, pp. 3-4.
It is not disputed that plaintiff failed to disclose Eric
Drozdowski as a rebuttal expert by the February 25, 2013 deadline.
See Plaintiff’s Response, p. 5.

However, this Court concludes that

plaintiff was justified in waiting until Robert Copp’s report was
complete to retain a rebuttal expert. Robert Copp’s report was
supplemented on a number of occasions, see Plaintiff’s Response,
Exhibit A, pp. 1-4; Plaintiff’s Motion, Exhibit A, p. 3, most recently
on February 27, 2013, i.e., 33 days beyond the date that primary
expert reports were due.

See Plaintiff’s Response, Exhibit A, pp. 1-

4; Plaintiff’s Motion, Exhibit A, p. 3.

Plaintiff retained Eric

Drozdowski as a rebuttal expert the next day, and produced Eric
Drozdowski’s report to defendants on the day that the report was
finalized.

See Drozdowski Report, p. 4; Defendant Nemeth’s Reply,

Exhibit A, pp. 35-37.

Plaintiff was not dilatory in this regard.

Furthermore, Eric Drozdowski’s report is unquestionably responsive to
at least some of the opinions articulated by Robert Copp.

Although

Eric Drozdowski rendered an opinion on the need for immediate
demolition of the south building, his conclusions also address some of
the same issues raised in Robert Copp’s report.

The Court therefore

concludes that plaintiff has established good cause for the timing of
his production of the Eric Dorzdowski report.

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Having found good cause, the Court must now consider the issue of
prejudice to the defendants.
Inc., 426 F.3d at 830.

Andretti v. Borla Performance Indus.,

Defendant Nemeth complains that plaintiff now

has two primary experts on a single issue and defendants have no
opportunity to obtain a second expert opinion. Defendant Nemeth’s
Response, pp. 1-2. Defendants do not contend that any issue remains
unaddressed; a complaint based merely on the number of experts
addressing any particular issue is simply not persuasive.
Accordingly, the Court concludes that plaintiff has demonstrated
good cause to modify the scheduling order and that defendants will not
be unduly prejudiced by that modification.
No. 53, is therefore GRANTED.

Plaintiff’s Motion, Doc.

Defendant Nemeth’s Motion to Strike,

Doc. No. 45, is therefore DENIED.

July 2, 2013

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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