Dooley v. CSX Transportation, Inc.

Filing 80

MEMORANDUM OPINION AND ORDER denying defendants' 64 MOTION to strike the report and testimony of David Kenny; directing that plaintiff make arrangements to have David Kenny available promptly upon defendants' request or notice to tak e his deposition; defendants are given leave to seek a further modification of the scheduling order to permit the orderly preparation for, and deposition of, David Kenny, as well as a rebuttal expert; any such request should be made no later than 7 days from the entry of this order. Signed by Judge John T. Copenhaver, Jr. on 6/29/2012. (cc: attys; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
W. THOMAS DOOLEY,
Plaintiff,
v.

Civil Action No. 2:11-cv-0263

CSX TRANSPORTATION, INC.,
Defendant and
Third-Party Plaintiff,
v.
LIZ’S COMMERCIAL CLEANING,
Third-Party Defendant.

MEMORANDUM OPINION AND ORDER

Pending is the motion of CSX Transportation, Inc.
(―CSX‖) and Liz’s Commercial Cleaning (―Commercial Cleaning‖)
(collectively, ―defendants‖) to strike the report and testimony
of David Kenny, filed April 10, 2012.

I.

This action arises from plaintiff’s alleged fall at
CSX’s South Charleston yard office on November 17, 2010.
Plaintiff’s original complaint, filed March 30, 2011, in the
United States District Court for the Eastern District of

Pennsylvania, alleged a claim against CSX for failure to
maintain a safe workplace.
court on April 20, 2011.

The case was transferred to this
On June 13, 2011, the court entered a

scheduling order that, among other things, set the expert
disclosure deadline for the party bearing the burden of proof
for November 14, 2011.

The expert disclosure deadlines for the

opposing party and for rebuttal purposes were set for December
14, 2011, and December 30, 2011, respectively.

CSX subsequently

filed a third-party complaint against Commercial Cleaning on
June 23, 2011.

Dooley then filed an amended complaint on June

27, 2011, asserting a negligence claim against Commercial
Cleaning.

Pursuant to a joint motion to amend the scheduling
order, the court, by order entered February 1, 2012, extended
the deposition and close of discovery deadline and all other
then-remaining unexpired deadlines.

(See Docket No. 49).

The

expert disclosure deadlines set forth above were not extended.
Furthermore, the court noted in its order that ―[w]ith the
exception of [these] modifications, the requirements and
directives of the original scheduling order shall remain in full
force and effect.‖ (Id.).

The pending motion to strike was filed on April 10,
2012.

Defendants contend that plaintiff did not comply with its
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obligation to disclose its experts.

They note that, in fact,

plaintiff never filed any formal expert witness disclosure
whatsoever.

It was only through other mechanisms of discovery

that defendants were able to identify plaintiff’s expert
witnesses.

(Mem. at 2 (―Plaintiff’s discovery responses

identified his treating physician, Dr. Michael Grefer, a
vocational expert, Deborah Frost, and an economist, Dr.
Cobb.‖)).

However, plaintiff never identified, formally or

otherwise, an expert on workplace safety or liability.

At 4:51

p.m. on March 30, 2012, three days prior to the close of
discovery and five months after the expiration of the deadline
to do so, plaintiff emailed the movants a 17-page ―supplemental
expert witness disclosure.‖

(Id.).

This disclosure included a

report prepared by David Kenny, AIA, MCRB, a previously
undisclosed workplace safety expert.

Kenny’s report (the ―Kenny

Report‖) addresses the adequacy of signage and precautions taken
by CSX and Commercial Cleaning and the role these alleged
inadequacies played in plaintiff’s incident.

II.

A.

Governing Standard

Federal Rule of Civil Procedure 26(a)(2)(A) requires a
party to disclose ―the identity of any witness it may use at
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trial to present evidence under Federal Rule of Evidence 702,
703, or 705.‖

Fed. R. Civ. Pro. 26(a)(2)(A).1

―A party must

make these disclosures at the times and in the sequence that the
court orders.‖

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

There is also

the obligation to ―timely‖ supplement Rule 26(a) disclosures and
interrogatory responses.

1

See Fed. R. Civ. Pro. 26(e).

The rule further provides as follows:

Unless otherwise stipulated or ordered by the court,
this disclosure must be accompanied by a written
report—prepared and signed by the witness—if the
witness is one retained or specially employed to
provide expert testimony in the case or one whose
duties as the party’s employee regularly involve
giving expert testimony. The report must contain:
(i)

a complete statement of all opinions the witness
will express and the basis and reasons for them;

(ii) the facts or data considered by the witness in
forming them;
(iii) any exhibits that will be used to summarize or
support them;
(iv) the witness's qualifications, including a list of
all publications authored in the previous 10
years;
(v)

a list of all other cases in which, during the
previous 4 years, the witness testified as an
expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for
the study and testimony in the case.
Fed. R. Civ. Pro. 26(a)(2)(B).
4

The failure to make the required disclosures or
supplementation may result in significant repercussions pursuant
to Rule 37(c)(1):
If a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is
not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified
or is harmless. . . .
Fed. R. Civ. Proc. 37(c)(1).

A district court has ―broad

discretion to determine whether a disclosure of evidence is
substantially justified or harmless.‖

Southern States Rack and

Fixture v. Sherwin–Williams Co., 318 F.3d 592, 597 (4th Cir.
2003).

Harmlessness or substantial justification under Rule
37(c)(1) are ascertained by examining four factors, as restated
recently by our court of appeals:
(1) the surprise to the party against whom the
witness was to have testified; (2) the ability of
the party to cure that surprise; (3) the extent
to which allowing the testimony would disrupt the
trial; (4) the explanation for the party's
failure to name the witness before trial; and (5)
the importance of the testimony.
Hoyle v. Freightliner, LLC, 650 F.3d 321, 329-30 (4th Cir. 2011)
(quoting Southern States, 318 F.3d at 596 (internal quotation
marks omitted)).

The court of appeals has ―not required

[district] courts to expressly consider each factor when
evaluating discovery violations.‖
5

See id.; Carr v. Deeds, 453

F.3d 593, 604 (4th Cir. 2006).

Additionally, the Rule 37(c)(1)

―sanction of exclusion . . . does not require a finding of bad
faith or callous disregard of the discovery rules.‖

B.

Id.

Analysis

Defendants assert that they did not anticipate the
Kenny Report or any testimony to be offered by a liability
expert.

Consequently, they did not identify or retain any

responsive expert.

Because of the tardiness of plaintiff’s

disclosure, defendants claim that they cannot retain a rebuttal
expert to address Kenny’s opinions and have no opportunity to
depose him.

Plaintiff responds that the court’s scheduling

orders were ambiguous inasmuch as Commercial Cleaning was not
joined in the case until after the court entered its initial
scheduling order, and that eight of the nine depositions were
not taken until four months after the plaintiff’s expert
disclosure deadline of November 14, 2011.

Plaintiff’s

assertions are not persuasive.

As set by the court’s scheduling order, plaintiff was
required to disclose his experts by November 14, 2011, which he
plainly failed to do.

Moreover, Dooley never sought extension

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of this particular deadline.2

Thus, the March 30, 2012,

disclosure of the Kenny Report is untimely.

Plaintiff’s

proffered explanation -- that the expert disclosure date was
―ambiguous in light of the facts of this case‖ -- is wholly
unsupported in view of the plain language of the governing
scheduling order.3

Turning to the issue of surprise, plaintiff does not
dispute that he failed to disclose the Kenny Report, Kenny’s
name, or even an intention to retain a workplace safety or
liability expert prior to March 30, 2012, and nothing indicates
that defendants anticipated this late rising disclosure.

Thus,

the element of surprise counsels in favor of the movants.

Despite plaintiff’s clear lack of attentiveness to the
court’s expert disclosure deadline, and in view of the
importance of the Kenny Report to plaintiff’s case, the court
2

Plaintiff complains that he believed he had asked the
court to extend the expert disclosure deadline when he joined
the joint motion to amend the scheduling order, filed January
31, 2012. (See Joint Motion, docket 48). The joint motion
requested the extension of ―all deadlines‖ by 120 days. (See
id. at 1-2). By order entered February 1, 2012, the court
extended the deposition and close of discovery deadline and all
other then-remaining deadlines. Notably, the order did not
extend plaintiff’s long-expired expert disclosure deadline.
3

Dooley claims that the alleged ambiguity arose, in part,
from the fact that Commercial Cleaning entered the case after
entry of the original scheduling order. He does not specify how
this fact impacted his disclosure obligation deadline or his
failure to seek timely relief from it.
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finds that the better course is to permit the disclosure and
grant defendants an opportunity to cure.

Such a result also

obviates any concern that allowing the evidence would disrupt
the trial.

With the admonition to plaintiff’s counsel that he

must strictly adhere to all court-imposed deadlines in the
future, defendants’ motion to strike is denied.

III.

To the extent that this determination imposes a
hardship on defendants, they are given leave to seek a further
modification of the scheduling order to permit the orderly
preparation for, and deposition of, David Kenny, as well as a
rebuttal expert.

Any such request should be made no later than

seven days from the entry of this order.

Accordingly, the court ORDERS that defendants’ motion
to strike be, and it hereby is, denied.

It is further ORDERED

that plaintiff make arrangements to have David Kenny available
promptly upon defendants’ request or notice to take his
deposition.

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The Clerk is directed to forward copies of this
written opinion and order to all counsel of record and any
unrepresented parties.
DATE: June 29, 2012
John T. Copenhaver, Jr.
United States District Judge

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