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Hess v. Ameristep

November 17, 2008

WILLIAM "LES" HESS, PLAINTIFF,
v.
AMERISTEP, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jeanne E. Scott United States District Judge

OPINION

JEANNE E. SCOTT, U.S. District Judge

This matter comes before the Court on the Defendants' following Motions (collectively Motions): Stokes Steel Treating Company's (Stokes Steel) Motion for Summary Judgment (d/e 56), Defendant Hindley Manufacturing Company's (Hindley) Motion to Bar Testimony and for Summary Judgment (d/e 59) (Hindley Motion), and Defendant Ameristep's Motion to Exclude Testimony (d/e 61) and Motion for Summary Judgment (d/e 60). Defendants Hindley and Ameristep seek to bar the supplemental opinions of Plaintiff William Hess' expert Mark Ezra.*fn1 For the reasons set forth below, the Motions are ALLOWED. Ezra's supplemental opinions are barred because Hess failed to provide a report setting forth those opinions as required by the Federal Rules of Civil Procedure and the Order of this Court. Without those opinions, Hess lacks sufficient evidence to establish his claim.

STATEMENT OF FACTS

On or about October 27, 2004, Hess went hunting. He started to climb a tree from which he would hunt. Hess used a "Heavy-Duty Step Up Tree Step" (Step) to climb the tree. The Step was a metal device designed to be screwed into the trunk of a tree. The end of the Step that protruded from the tree was designed to be used as a step to assist hunters to climb trees. Hess alleges that Defendants Hindley, Ameristep, and Stokes Steel (collectively the Defendants) were involved in the design, manufacture, and marketing of the Step. On or about October 27, 2004, the Step broke when Hess used the Step to climb the tree. Hess fell and was injured.*fn2

Hess brought this action in Illinois Circuit Court in Pike County, Illinois, alleging products liability claims against the Defendants. Hess alleged that the Step was unreasonably dangerous due to a defect that existed at the time that the Step left each Defendant's control. Amended Complaint (d/e 55), Count 1,¶¶ 3 & 4, Count 2, ¶¶ 3 & 4, Count 3, ¶¶ 3 & 4. The matter was then removed to this Court on diversity jurisdiction. Notice of Removal (d/e 1), at 2.

In discovery, Hess produced Ezra's expert report. Hindley Motion, Exhibit E, Expert Report of Mark Ezra, dated December 13, 2007 (Report). Ezra is a mechanical engineer. He opined that at the time the Step broke, the Step was: too brittle to be used . . . to assist hunters to climb trees. Further testing is needed to determine whether or not the choice of materials, the heat treatment, the method of manufacture, or all of these factors contributed or caused the brittle failure that caused injury to Mr. Hess.

Id., at 4. Ezra stated that he would supplement the Report after he completed further testing. Id.

The Defendants sought to take Ezra's deposition. On January 17, 2008, the Court issued a Protective Order and Modified Scheduling Order (d/e 43) (January 17 Order). The January 17 Order directed that Ezra's deposition would proceed on January 18, 2008, the date agreed upon by the parties. The January 17 Order further stated, in part:

2. Following Mr. Ezra's deposition, Plaintiff shall be allowed an additional 30 days to conduct the requested destructive testing on the tree step(s) at issue, and said testing shall be conducted in the presence of any counsel of record who wish to attend with their respective consulting experts.

3. Within 20 days from Plaintiff's destructive test, Plaintiff will produce Mr. Ezra's supplemental expert report, setting out all supplemental opinions that Mr. Ezra may add to prior testimony.

4. Within 15 days following service of Mr. Ezra's supplemental report, or on a date agreed by all Parties, Plaintiff will make Mr. Ezra available for a second deposition by the parties.

January 17 Order, at 1 ¶¶ 2-4. At the January 18, 2008, deposition, Ezra stated that he could not tell whether the Step had either a design defect or a manufacturing defect until he completed further testing. Memorandum of Law in Support of Ameristep's Motion to Exclude Testimony (d/e 62), Exhibit 1, Deposition of Mark Ezra on January 18, 2008, at 126-27, 132-33.

The additional tests were delayed until April 16, 2008. The test results were sent to all parties. Hess, however, did not provide the Defendants with a supplemental ...


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