The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge
The parties have consented to have this case heard to judgment by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and the District Judge has referred the case to me. Now before the Court is the Defendant's motion for summary judgment (#34). The motion is fully briefed and I have carefully considered the arguments and evidence submitted by the parties. For the following reasons, the motion is GRANTED IN PART AND DENIED IN PART.
SUMMARY JUDGMENT GENERALLY
In Celotex v. Catrett, 477 U.S. 317 (1986), the Supreme Court interpreted Rule 56 as mandating the entry of summary judgment against a party when, "after adequate time for discovery and upon motion" the party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial." Id. at 322. The moving party need not "negate the elements of the non-moving party's case;" it is sufficient to show that the non-moving party lacks necessary evidence as to any essential element. Lujan v. Nat'l Wildlife Fed., 497 U.S. 871, 885 (1990).
MATERIAL UNDISPUTED FACTS
In his complaint, Plaintiff alleges that Honda designed and manufactured a TRX 400 all terrain vehicle ("ATV") purchased by the Plaintiff new in 2004. Plaintiff "experienced problems with the transmission slipping and losing power." A warranty repair on the ATV's tie rods was performed by Midwest Performance in July 2005. Midwest Performance performed another repair for problems with the engine cutting out in November 2005; this was diagnosed by the mechanics as a transmission problem. The accident occurred on September 3, 2006, when Plaintiff was driving the ATV up a 45 degree incline; the power cut out, causing the ATV to flip over backward on top of Plaintiff. (Complaint ¶13). Following the accident, on September 6, 2006 Midwest Performance performed a warranty repair of the clutch.
According to the complaint, the ATV was in an unreasonably dangerous condition when it left the control of Honda and when it was purchased by Christensen "in that the engine, clutch, and transmission would lose power without any prior indication of any performance problem." (Complaint, ¶ 15). Alternatively, Plaintiff alleges that Midwest Performance negligently repaired the ATV on Nov. 10, 2005.
After the complaint was served on Defendant, defense counsel for Honda entered an appearance and an answer. On February 4, 2009, a Rule 16 scheduling conference was held. The parties submitted an Agreed Rule 16(f) Discovery Plan. In that Plan, the parties agreed that both parties would make Rule 26(a) initial disclosures by April 1, 2009. The Plan also provided that Plaintiff would disclose his experts by December 2, 2009; and that Plaintiff's experts would be deposed by February 3, 2010. Those dates were followed by similar obligations for Defendant and then a close of all discovery on June 4, 2010. The Plan also included the following paragraphs:
4. The parties ask the Court to include the following additional provisions in the Rule 16 Order: * * * * *
B. Treating physicians, psychologists, other health care providers, and actor/viewer experts (non-retained experts) such as police officers or mechanics not specifically retained to give testimony at trial are not the subject of expert witness disclosure under Rule 26(a)(2).
C. the identity of any treating physician, psychologist, health care providers, and other actor/viewer experts shall be disclosed along with the expertise and any records including reports prepared by the witness in his or her treatment or conduct of business shall be produced.
The Court approved the Discovery Plan at the February Rule 16 conference.
Ten months later, on December 15, 2009, the Court granted Defendant's motion to substitute counsel. Original counsel's participation in the case was terminated, and new counsel entered an appearance.
As of February 1, 2010, Plaintiff had not formally served Rule 26(a) initial disclosures; he asserts that he provided answers to interrogatories and a document request that "contained all of the information required to be disclosed by Rule 26(a) initial disclosures." That is not quite accurate. The answers to interrogatories (appended to Defendant's Reply) list the names of 6 people who "witnessed the occurrence set forth in the Complaint" and who were at the scene at the time of, immediately prior to, or immediately after the occurrence, in addition to the medical ...