The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on plaintiff Robert Darnell's motion to strike defendant Hoelscher Inc.'s expert Darrell Hoelscher (Doc. 32) and on Hoelscher Inc.'s motion to strike Darnell's experts Dr. Lane Hudgins and Mark Ezra (Doc. 34). The Court also considers Darnell's motion to strike Hoelscher Inc.'s expert Dale Gumz (Doc. 42) and the motions in limine filed by both parties (Docs. 43-56 & 58-59).
This case arose after William Darnell, the plaintiff's decedent, died while operating the Hoelscher Model 1000 Hay Accumulator with serial number #04816 ("the Accumulator"), a piece of farm equipment designed, manufactured and distributed by defendant Hoelscher. The plaintiff believes that, since it left Hoelscher's control, the Accumulator was defective because it was unreasonably dangerous in a number of specific ways. The plaintiff believes that, as a result of the defects, the Accumulator jammed, then moved without activation and injured the decedent, ultimately causing his death.
The case arrived before this Court by a convoluted path. It began in state court and was removed on the basis of original diversity jurisdiction. When the plaintiff added a non-diverse defendant, the Court remanded the case to state court, but when that defendant settled with the plaintiff, Hoelscher Inc. again removed the case. At that point, the matter had been set for trial in state court three months later and a hearing date had been set to address expert witness issues. After the second removal, this Court did all it could to expedite the resolution of this matter in accordance with the plaintiff's desire for a speedy trial. In fact, it ordered the parties to contact the magistrate judge assigned to this case for a status conference to facilitate the expeditious disposition of this case.
The parties did so, but neither mentioned unresolved issues regarding opinion witnesses or asked for briefing deadlines on motions to strike such witnesses. Instead, they waited less than a month before trial to file the pending motions. This kind of gamesmanship is unacceptable. It renders more difficult the orderly resolution of the issues and causes the Court to prioritize matters in this case before those in other cases that have been pending longer solely so this case may proceed to trial on its scheduled date. In the future, the parties and counsel involved in this case would be well-advised to alert the Court in a timely manner to issues it expects to arise, especially when the Court instructs the parties to work with the Court to facilitate the expeditious disposition of cases. However, because both parties engaged in this conduct and because resolution of the pending matters is necessary for the trial to proceed, the Court turns now to each motion in turn.
II. Darnell's Motion to Strike (Doc. 32)
Darnell asks the Court to exclude the testimony of Hoelscher Inc.'s expert witness Darrell Hoelscher, the owner of Hoelscher Inc. and one knowledgeable about the testing, manufacturing, quality control, marketing, advertizing and warnings related to the Accumulator, because Hoelscher did not provide an expert report as required by Federal Rule of Civil Procedure 26(a). It is clear that Hoelscher was identified as a witness in June 2009 and as an opinion witness in March 2011, and that Darnell deposed him in November 2009.
Darnell complains that he has not been allowed to redepose Hoelscher since his disclosure as an opinion witness. This matter should have been raised in a discovery motion earlier in this case. It is too late to raise it now.
Darnell also complains that Hoelscher has not produced an expert report under Rule 26(a). However, Rule 26(a)(2)(B) only requires a written expert report "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." Hoelscher falls into neither of these categories, so he was not required to produce a report.
For these reasons, the Court will deny Darnell's motion (Doc. 32).
III. Hoelscher Inc.'s Motion to Strike (Doc. 34)
Hoelscher Inc. asks the Court to exclude the testimony of Darnell's experts Dr. Lane Hudgins and Mark Ezra on the grounds that they are inadmissible under Federal Rule of Evidence 702 as well as Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny. In Daubert, the Supreme Court held that Federal Rule of Evidence 702 did not incorporate the "general acceptance" test set forth in Frye v. United States, 54 App. D.C. 46 (D.C. Cir. 1923). Instead, the Court held that Rule 702 required district judges to be gatekeepers for proposed scientific evidence. Daubert, 509 U.S. at 589; see also General Elec. v. Joiner, 522 U.S. 136, 142 (1997). For scientific evidence to be admissible, the Court found, a district court must find it both relevant and reliable; it must be scientific knowledge grounded "in the methods and procedures of science" and consist of more than "subjective belief or unsupported speculation." Daubert, 509 U.S. at 589-90.
In 2000, Rule 702 was amended in response to Daubert. United States v. Conn, 297 F.3d 548, 555 (7th Cir. 2002). In its ...