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BENEDETTI v. SOO LINE RAILROAD COMPANY

September 28, 2004.

JOHN BENEDETTI, Plaintiff,
v.
SOO LINE RAILROAD COMPANY, d/b/a CP RAIL SYSTEM, Defendant.



The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge

MEMORANDUM OPINION

This matter is before the court on Defendant Soo Line Railroad Company d/b/a Canadian Pacific Railway Company's ("Soo Line") motion to strike and on the Soo Line's motion for summary judgment. For the reasons stated below, we grant the motion to strike and we deny the motion for summary judgment.

BACKGROUND

  Benedetti began working for Soo Line in 1971 as a conductor. Benedetti became aware in 1990 that he suffered from polycystic kidney disease, a disorder that gradually gets worse over time, eventually leading to renal failure. According to his specialist, Dr. Kittaka ("Kittaka"), patients with this disease are more prone to losing and wasting salt and water. If they do not keep up their fluid and salt intake, they are more likely to get dehydrated. On September 17, 2000, Benedetti injured his eye while working in Soo Line's Bensenville yard. On September 18, 2000, Benedetti was treated by a physician for the injury and on September 19, 2000, Benedetti was hospitalized for a corneal abrasion and pneumonia. His physician, Dr. Jentel ("Jentel"), released him back to work after one week, with no further restrictions. On September 29, 2000, Benedetti returned to work and provided Soo Line with a release from his physician and the required paperwork to begin working again. Benedetti worked on September 30, 2000, and October 1, 2000. Benedetti claims that he went to work on October 2, 2000, and he was assigned to work with an engineer named Steve Sanchez ("Sanchez"). According to Benedetti, Sanchez noticed that Benedetti looked gaunt, had black circles under his eyes, and that he seemed "spacey" and could not remember his assignment for the day, but Sanchez did not report his concerns regarding Benedetti to management at Soo Line. (Opp. Mot. 2).

  On October 3, 2000, Benedetti reported to work again around 7:30 A.M. Benedetti claims that he did paperwork and at approximately 8:30 A.M. Sanchez found Benedetti doing the paperwork. According to Benedetti, Sanchez thought that Benedetti looked to be in a worse condition than on October 2, 2000, and Sanchez informed company officer Robert Denny of his concerns. After speaking with Benedetti, company officers determined that he should be transported to Concentra Medical Center ("Center") for drug and alcohol testing by James Vakoc, the Road Foreman of Engines. Benedetti claims that he was examined by a Dr. Bridgeforth ("Bridgeforth") at the Center and that Bridgeforth was not given any information from Soo Line regarding the reason for Benedetti's visit to the center. Benedetti claims that Bridgeforth was not made aware of Benedetti's kidney condition at the time of the examination.

  Following the visit to the Center, Benedetti was transported back to Soo Line's Bensenville yard by Vakoc. Even though the treating doctor found Benedetti fit to return to work, Soo Line did not allow Benedetti to continue working that day. Benedetti claims that he was offered a ride home by Vakoc, but refused and drove himself home. When Benedetti returned home, his condition deteriorated and he was taken by his wife to a hospital. He was diagnosed with chronic renal failure and acute renal failure caused by dehydration. After being administered intravenous fluids, Benedetti's kidney condition improved, but he remained hospitalized for three days. On October 1, 2003, Benedetti filed a complaint against Soo Line under the Federal Employers' Liability Act, ("FELA"), 45 U.S.C. § 51 et seq., alleging that Soo Line failed to provide a safe workplace for Benedetti.

  LEGAL STANDARD

  Summary judgment is appropriate when the record reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R. Civ. P. 56(c). In seeking a grant of summary judgment the moving party must identify "those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed.R. Civ. P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp, 475 U.S. 574, 586 (1986). Rather, a genuine issue of material facts exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences that favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).

  DISCUSSION

  I. Motion to Strike

  Soo Line has filed a motion to strike Plaintiff's Exhibit W, the report of Dr. Edward Bleier ("Bleier"), which was first disclosed to Soo Line in Benedetti's Statement of Material Facts and in Benedetti's Response to Soo Line's Motion for Summary Judgment. Soo Line claims that at the beginning of discovery it sent interrogatories to Benedetti seeking disclosure of any expert witnesses. According to Soo Line, Benedetti responded, "[a]t this time, I have not yet decided on expert witnesses, however, I reserve the right to supplement my response in the future." Upon an agreed motion by both parties to extend the discovery period, we granted an extension of discovery from March 3, 2004 to April 5, 2004. Benedetti did not disclose Bleier prior to April 5, 2004. Benedetti claims that he produced Bleier as quickly as possible. The parties apparently agreed on their own to conduct two additional depositions on April 20, 2004, and Benedetti claims that he decided to disclose Bleier in light of the deposition testimony. However, Benedetti never sought another discovery extension beyond April 5, 2004, and we never granted such an extension. Thus, any revelations that stemmed from such unauthorized discovery were not in accordance with the court's schedule for the case. Benedetti also claims that he can still disclose expert witnesses because we have not set dates for a "Final Pretrial Order; final list of witnesses; list of Exhibits to be used at trial of this matter; or, Motions in Limine." (Ans. 8-9). There was no misunderstanding about the deadline set by the court and that the court deadlines applied to fact and expert discovery. A court's order must be read utilizing common sense. Clearly if a party intends to call an individual as a witness the identity of that witness must be disclosed during discovery to allow the opposing party to depose the individual and conduct other discovery regarding the individual. Benedetti inadvertently affirms this point when he asserts that the court has not yet set a "final" witness list. While it is true that a party need not call all of his anticipated witnesses at trial, that does not mean that the party can spring unknown witnesses on the opposing side at trial. Trial by surprise is no longer part of our jurisprudence. Salado by Salado v. General Motors Corp, 150 F.3d 735, 742 n. 6 (7th Cir. 1998) (stating that an expert report must be detailed and complete so that "opposing counsel is not forced to depose an expert in order to avoid ambush at trial; and moreover the report must be sufficiently complete so as to shorten or decrease the need for expert depositions and thus to conserve resources.").

  We stated specifically in our minute order issued on February 25, 2004, that "[a]ll discovery is to be noticed in time to be completed by 04/05/04." Thus, based on our minute order and what was stated by the court orally at status hearings, both fact and expert discovery needed to be completed by that date. We also specified that dispositive motions had to be filed by May 5, 2004. Thus, since fact and expert discovery had to be completed by April 5 and since dispositive motions had to be filed by May 5, it is clear that all experts needed to be disclosed in time for the opposing side to conduct discovery regarding the expert and consider the expert and his report when filing a dispositive motion. See Musser v. Gentiva Health Servs., 356 F.3d 751, 757-58 (7th Cir. 2004) (stating that "[f]ormal disclosure of experts is not pointless . . . [because] countermeasures that could have been taken that are not applicable to fact witnesses, such as attempting to disqualify the expert testimony on grounds set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), retaining rebuttal experts, and holding additional depositions to retrieve the information not available because of the absence of a report."); Parker v. Freightliner Corp., 940 F.2d 1019, 1025 (7th Cir. 1991) (holding that district court did not abuse its discretion in striking expert testimony because of non-compliance with court's discovery schedule and stating that "`[a] district court is not required to fire a warning shot."). Benedetti did not make his disclosure by April 5 and thus he did not comply with our discovery schedule or with Federal Rule of Civil Procedure 26(a)(2)(C) which states that expert and expert report "disclosures shall be made at the times and in the sequence directed by the court." Fed.R. Civ. P. 26(a)(2)(C). Soo Line sent discovery requests to Benedetti on November 21, 2003, requesting information concerning expert witnesses and the bases for the expert's opinions. Benedetti did not respond to the interrogatories with information regarding Bleier until after the close of discovery.

  In addition to disclosing Bleier in an untimely fashion, Benedetti failed to provide an expert report as is required by Federal Rule of Civil Procedure 26(a)(2)(B), which states as follows:
(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
Fed.R. Civ. P. 26(a)(2)(B). Failure to comply with Rule 26(a)(2)(B) results in exclusion that is "automatic and mandatory unless the sanctioned party can show that its violation of Rule 26(a) was either justified or harmless." Salgado by Salgado v. GMC, 150 F.3d 735, 742 (7th Cir. 1998).

  In Benedetti's answer to Soo Line's Motion to Strike, Benedetti does not try to justify his noncompliance with Rule 26, or explain why his violation was harmless. We cannot find that such an untimely disclosure is harmless or justified. Instead, Benedetti focuses mainly on Bleier's qualifications and attempts to show Bleier's qualifications by presenting new information that was not included in Bleier's report. Pursuant to Rule 26(a)(2)(B) Bleier must include with his report "the data or other information considered by the witness in forming the opinions . . . [and] any exhibits to be used as a summary of or support for the opinions. . . ." Bleier did not do so in the instant action. Neither has Bleier indicated "the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding ...


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