United States District Court, C.D. Illinois, Urbana Division
OPINION AND ORDER
DAVID G. BERNTHAL, Magistrate Judge.
This is an insurance subrogation action seeking property damages arising out of a fire at a Champaign, Illinois residence on August 2, 2009. Plaintiff claims that Defendant's negligence caused the fire and resulting property damage when it installed a cardboard/paper type air filter into the metal frame of an electronic air cleaner. On August 15, 2014, Plaintiff filed a Motion to Extend Discovery (# 38), to which Defendant objected (# 40). On September 2, 2014, Defendant filed a Motion to Strike Plaintiff's Supplemental Expert Report of August 6, 2014 (# 39), to which Plaintiff also objected (# 47). The Court has carefully considered the arguments advanced by both parties and, for the reasons stated below, GRANTS Plaintiff's Motion to Extend Discovery (# 38) and DENIES Defendant's Motion to Strike (# 39).
On November 1, 2012, this Court entered a discovery order (#10), which set a June 19, 2013, deadline for Plaintiff to disclose experts and provide expert reports and an August 2, 2013, deadline for Defendant to do the same. Discovery was to close on October 25, 2013. The Parties filed a Joint Motion to Extend Discovery Schedule (# 18) on April 4, 2013, which the Court granted, setting Plaintiff's expert disclosure deadline to September 20, 2013, Defendant's to November 4, 2013, and the completion of discovery to January 27, 2014. The Parties again asked for an extension to this schedule (# 28), and Plaintiff's expert disclosure deadline was moved to December 19, 2013, Defendant's to February 3, 2014, and discovery was set to close by April 28, 2014. Plaintiff disclosed its expert, Mr. Gary Woodall, prior to December 19, 2013, and provided Defendant with Mr. Woodall's "Final Report, " dated December 17, 2013.
On March 13, 2014, the parties again requested an extension of the discovery deadlines (# 36), and Defendant's expert disclosure deadline was pushed back to June 1, 2014 and the deadline for the completion of discovery was set to July 15, 2014. Defendant conducted a deposition of Plaintiff's expert, Woodall, on March 24, 2014. On May 5, 2014, Defendant sought Plaintiff's agreement to an additional inspection of the artifacts from the fire scene. The artifacts were inspected on May 16, 2014, and Mr. Woodall was present, in addition to Defendant's representatives. Then, on June 6, 2014, Defendant filed a motion for extension of time to complete discovery (# 37), which Plaintiff did not oppose. Defendant's expert disclosure deadline was again extended, to June 30, 2014, and discovery was set to close on August 15, 2014. Defendant made its expert disclosures on June 30, 2014, and offered its experts for deposition on August 5 and August 13, 2014. On August 11, 2014, Plaintiff delivered Mr. Woodall's Supplemental Expert Witness Disclosure, dated August 6.
Two discovery motions are before the Court and will be addressed in this Opinion. Plaintiff has moved to extend the discovery schedule again, requesting an additional 45 days to complete expert witness discovery and for a 30-day period after that to disclose and examine rebuttal expert testimony. Defendant, meanwhile, seeks to strike, in its entirety, Mr. Woodall's Supplemental Expert Witness Disclosure, arguing that, insofar as the Disclosure is, in fact, rebuttal testimony, it is untimely, and insofar as it supplements Mr. Woodall's previous report, it is improper. The Court will address each of these motions in turn.
Motion to Strike (# 39)
As previously mentioned, Plaintiff's Expert, Gary Woodall, studied the fire scene and reviewed statements from witnesses, which resulted in a report, dated December 17, 2013. In this report, Woodall concluded that the residential fire originated in the filter box supporting the furnace. He determined that the cause of the fire was "the application of 8150 Volts DC to the cardboard filter box of the passive filter installed by Chief Bauer Heating and Air Conditioning, " when the cardboard absorbed sufficient moisture to allow "the voltage to arc track across the surface and eventually ignite the cardboard material." Woodall also noted that the power supply for the electronic filter was "found to be wired in with the furnace power and the switch was found in the ON' position, " though the air filter was a "passive" filter, meaning that no electricity was needed for its proper operation.
At his March 24, 2014, deposition, Mr. Woodall testified that he had not seen any signs of damage to the electrical conductors that were within or attached to the air cleaner and that his conclusion that the high voltage EAC contact was attached to an energized wire was an "educated guess." In the supplemental report, dated August 6, 2014, Woodall notes that he is offering this addendum to his initial report, after participating in the May 16, 2014, joint evidence study and after reviewing Defendant's experts' reports as well as the transcript of his own deposition. Woodall references portions of his deposition and provides additional materials collected in the May joint evidence study to support his conclusions. Woodall then describes additional information that he gathered regarding the model of the air filter, and explains the relevance.
Defendant raises three specific areas of concern. First, Defendant objects to Woodall's inclusion of dust accumulation as a factor which, in addition to the absorbed moisture previously identified, contributed to the arc tracking. Defendant notes that, in the December 2013 report, Woodall did not mention dust accumulation anywhere on the cardboard filter and, in his deposition, Woodall stated that the air filter was intended to filter out particulates, including dust, but did not provide any claim or opinion that the filter frame accumulated dust. Second, Defendant objects to Woodall's inclusion of previously un-identified sources of moisture within the house that could have contributed to the alleged moisture build-up. Third, Defendant objects to additional evidence included in the supplemental report that supports Woodall's previous "educated guess" that the high-voltage contacts were connected to the EAC frame and energized.
Defendant advances two arguments as to why the supplemental report should be stricken. First, Defendant argues that the report is, at least partially, rebuttal testimony, meant to contradict testimony presented by Defendant's experts and, as such, is untimely. Second, Defendant argues that the rest of the supplemental report consists of new findings and materials that are improperly introduced at this stage of the litigation.
Defendant argues that, to the extent that the supplemental report attempts to contradict or rebut Defendant's expert reports, it is untimely under Federal Rule of Civil Procedure 26(a)(2)(D)(ii). This Rule provides that, absent a stipulation or court order, such disclosures must be made "within 30 days after the other party's disclosure." Since Defendant's expert disclosures were made on June 30, the August 11 tender of the August 6 supplemental report was untimely. The Court, however, notes that Defendant made its most recent request for an extension of its own deadlines for disclosure five days after it was required to make these disclosures. By agreeing to the extension, Plaintiff offered Defendant a courtesy which the Court concludes is only ...