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Fulton v. Theradyne Corp.

March 12, 2007


The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge


This matter is before the court on Defendant Kurt Manufacturing Company, Inc.'s ("KMC") motion for summary judgment and motion to bar expert testimony. This matter is also before the court on Plaintiff's motion for leave to disclose an expert. For the reasons stated below, we grant KMC's motion for summary judgment, grant KMC's motion to bar, and deny Plaintiff's motion for leave to disclose an expert.


Plaintiff alleges that Noreen Fulton ("Fulton") resided at Holland Home nursing home and used a walker ("Walker") designed and manufactured by KMC and Defendant Theradyne Corporation ("Theradyne") to move around the nursing home. Plaintiff contends that on December 24, 2003, Fulton fell against the Walker and was "snagged upon a sharp edge of said walker . . . causing a[n] avulsion of the skin of her arm. . . ." (Compl. Par. 5). Fulton was allegedly found "bleeding profusely in her room, with her arm impaled on the basket hook." (Ans. 7). Fulton allegedly needed surgery after the accident, suffered a heart attack as a result, and on March 28, 2004, Fulton allegedly died "as a result of said injuries. . . ." (Compl. Par. 8); (Ans. 7). Plaintiff, acting in the capacity of the executor of Fulton's estate, brought the instant action in state court alleging that the Walker was defective in regards to its design and manufacture. Plaintiff included in the complaint a strict products liability claim and a negligence claim under the Wrongful Death Act, 740 ILCS 180/1 et seq., (Counts I and III) and a strict products liability claim and a negligence claim under the Illinois Survival Act, 755 ILCS 5/27-6, (Counts II and IV). Defendants removed this action to federal court and on April 13, 2006, we granted Plaintiff's motion to voluntarily dismiss all claims brought against Theradyne. KMC now moves for summary judgment and to bar the testimony of Plaintiff's expert. Plaintiff moves for leave to disclose his expert.


Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, 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., Ltd. 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 Trans. Co., 212 F.3d 969, 972 (7th Cir. 2000).


I. Motion to Bar Plaintiff's Expert and Motion for Leave to Disclose Expert

KMC moves to bar the Plaintiff's proposed expert, Robert Jay Block ("Block"), from testifying because Plaintiff failed to disclose the expert in a timely fashion and Plaintiff moves for leave to disclose his expert at this juncture. Federal Rule of Civil Procedure 26(a) ("Rule 26(a)") provides that a party is required to "disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence" and that the disclosure must "be accompanied by a written report prepared and signed by the witness." Fed. R. Civ. P. 26(a)(2). The expert disclosures "shall be made at the times and in the sequence directed by the court." Id. A court can bar a party from presenting an expert due to failure to comply with Rule 26(a). See Salgado by Salgado v. General Motors Corp., 150 F.3d 735, 743 (7th Cir. 1998)(holding that the district court did not abuse its discretion by barring expert testimony because the plaintiff violated Rule 26); See Scaggs v. Consolidated Rail Corp., 6 F.3d 1290, 1295 (7th Cir. 1993)(holding that barring of plaintiff's expert who was disclosed as a witness, but with no report, just two days before the close of discovery was not an abuse of discretion). Plaintiff admits that he did not disclose his expert by the court November 29, 2006 deadline, but contends that his untimely disclosure was justified and harmless. A party can be barred from producing information not disclosed in accordance with Rule 26(a) and "[t]his sanction is 'automatic and mandatory unless the sanctioned party can show that its violation of Rule 26(a) was either justified or harmless.'" Keach v. U.S. Trust Co.,419 F.3d 626, 639 (7th Cir. 2005)(quoting Salgado, 150 F.3d at 742).

A. Whether Untimely Disclosure was Justified

Plaintiff argues that his untimely disclosure of Block was justified because Block could not create his expert report until he reviewed the deposition transcripts of individuals involved in the manufacture and design of the Walker. Plaintiff claims that KMC "refused to produce Robert Paquin, Jan Cervenka, and Kern Walker, current and former employees of both Theradyne and [KMC] for their depositions until after the November 29, 2006, deadline for [P]laintiff's expert disclosure." (Ans. 2). Plaintiff claims that "[p]ursuant to agreement of the parties," the above witnesses were to be deposed on January 9, 2007 and January 10, 2007, but that KMC never presented the witnesses for depositions on those dates. Plaintiff argues that his failure to disclose Block in a timely fashion is justified because his counsel was merely being cooperative with opposing counsel and was "misled" by opposing counsel. (Ans. 3).

KMC disagrees with Plaintiff's contention that KMC's counsel misled Plaintiff in regards to discovery. The issue of the timeliness of Block's disclosure was brought before this court on KMC's motion to bar and thus KMC disputes Plaintiff's assertion of some implied agreement between the parties regarding Block. KMC also objects to Plaintiff's assertion that KMC understood that it was required to produce the requested witnesses. KMC states that, although Plaintiff indicated his desire to depose the witnesses, Plaintiff never pursued his requests or moved to compel the depositions. KMC is correct that if Plaintiff believed that it was improperly being denied discovery, then Plaintiff should have filed a motion to compel. Yet, Plaintiff filed no motion to compel and provides no reason for that failure. When discovery closed, pursuant to the court schedule, KMC was entirely justified in believing that it was not required to produce the witnesses. KMC also correctly points out that nothing prevented Plaintiff from at least disclosing Block by the disclosure deadline and later supplementing his expert report if additional depositions needed to be taken. Nevertheless, Plaintiff took no such action. Only after KMC filed its motion for summary judgment indicating that Plaintiff cannot prevail in this case due to the lack of an expert did Plaintiff file his instant motion seeking leave to disclose his expert.

This case is similar to Mannoia v. Farrow, 2007 WL 397497 (7th Cir. 2007) in which the plaintiff "did not disclose his expert witness within the time-frame provided in the district court's . . . order" and the district court ended up striking the expert's affidavits and related arguments by the plaintiff. Id. at *3. The plaintiff argued, as does Plaintiff in the instant action, that there were special reasons that his disclosure was not made until after the court's deadline. In Mannoia, the plaintiff contended that "he was unable to retain an expert until after the close of discovery when the deposition transcripts were prepared. . . ." Id. The plaintiff in Mannoia also "did not disclose the expert testimony as required by Federal Rule of Civil Procedure 26(a)(2), but waited until after [the defendant] filed his summary judgment motion," just as Plaintiff has done in the instant action. Id. The Seventh Circuit affirmed the district court stating that if the plaintiff needed additional time to disclose the expert, "it was his duty to seek relief from the court." Id.

In the instant action, the court granted the parties one extension of the discovery deadlines in this case and the parties were provided with eight months to complete discovery, which was ample time considering the facts in this case. We also set the expert disclosure deadline five months ahead of time and thus gave Plaintiff ample warning of the court's deadline. On December 18, 2006, and January 18, 2007, the court also made it clear that there was not a sufficient reason to ...

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