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Ruddell v. Marathon Petroleum Co. LP

United States District Court, S.D. Illinois

April 25, 2017

RYAN RUDDELL, Plaintiff,


          NANCY J. ROSENSTENGEL United States District Judge.

         Plaintiff Ryan Ruddell filed this lawsuit pursuant to the Jones Act, 46 U.S.C. § 30104, alleging he sustained injuries on August 27, 2014, while employed by Defendant Marathon Petroleum Company LP (“MPC”) as a crew member aboard its vessel, the M/V Nashville (Doc. 1). Ruddell claims that inclement weather, including storm and lightning conditions, contributed to his injuries (Id.).

         The matter is now before the Court on the motions to strike the reports and bar the testimony of Ruddell's experts Robert B. Ancell, Ph.D., and Howard Altschule, filed by MPC (Docs. 35, 36). Ruddell also has filed a motion to strike the report and bar the testimony of Defendant's liability expert Kevin Mullen (Doc. 43).

         I. MPC's Motion to Strike the Report and Bar the Testimony of Ruddell's Expert Robert B. Ancell, Ph.D.

         The Court first addresses the motion to strike the report and bar the testimony of Ruddell's purported rebuttal expert, Robert B. Ancell, Ph.D. The scheduling order entered in this case, as amended by Magistrate Judge Donald G. Wilkerson on July 28, 2016, required Ruddell to disclose expert witnesses (other than those performing any physical examination pursuant to Rule 35) and produce a written Rule 26 expert report on or before October 15, 2016 (Doc. 25). MPC was to disclose its experts and produce written reports on or before December 16, 2016[1] (Id.). There was no provision in the scheduling order for the disclosure of rebuttal experts (Id.). Depositions of Plaintiff's experts were to be taken by December 16, 2016 (later extended by agreement of the parties to January 13, 2017), and discovery was to close on January 31, 2017 (Id.; Doc. 35, p. 1).

         On January 13, 2017, MPC served the report of its vocational expert, Scott Gould. On January 31, 2017, the period for discovery closed. Then, on February 7, 2017, Ruddell served MPC with an unsigned letter described by Ruddell as a reply to the expert report of MPC's retained vocational expert. The letter was prepared by Robert B. Ancell, Ph.D. (“Ancell Report”) (Doc. 35-1). Six days later, on February 13, 2017, Ruddell served MPC with additional materials, including a list of the trials in which Dr. Ancell has testified, his compensation and fees, and his resume (Doc. 35-2).

         MPC argues that the Ancell Report is untimely and should be stricken. MPC notes that while the report would be timely under Rule 26(a)(2)(D), which allows for disclosure of rebuttal experts within 30 days after the other party's disclosure, that rule only applies when there is no scheduling order in place requiring earlier disclosure. Furthermore, disclosure of a rebuttal expert made after the scheduling order's discovery deadline is untimely and subject to a motion to strike. Ruddell denies that the rebuttal expert disclosure deadline in Rule 26(a)(2)(D) only applies when there is no scheduling order in place requiring earlier disclosure and argues that the Ancell Report was timely.

         Pursuant to Rule 26(a)(2), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence and must make these disclosures at the times and in the sequence that the court orders. Fed.R.Civ.P. 26(a)(2)(D). Rule 26(a)(2)(B) requires expert witness disclosures to include, inter alia, a complete statement of all opinions the witness will express and the basis and reasons for them. Fed.R.Civ.P. 26(a)(2)(D). Rule 26(a)(2)(D) also requires that, absent a court order, disclosure must be made “(i) at least 90 days before the date set for trial or for the case to be ready for trial or (ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party's disclosure.” Fed.R.Civ.P. 26(a)(2)(D) (emphasis added).

         Where the Court's scheduling order is silent on the matter of rebuttal experts, rebuttal expert reports are due within 30 days of the other party's expert disclosures. Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996) (“The federal civil rules . . . require disclosure to one's opponent of expert testimony intended for use as rebuttal evidence within 30 days of the opponent's disclosure of his expert testimony, unless the district court otherwise directs or the parties otherwise stipulate.”); see also Frerck v. Pearson Educ., Inc., No. 11 C 5319, 2014 WL 477419, at *2 (N.D. Ill. Feb. 6, 2014); Custom Foam Works, Inc. v. Hydrotech Sys., Ltd., No. 09-CV-0710-MJR, 2011 WL 2161106, at *1 (S.D. Ill. June 1, 2011).

         Here, the Ancell Report was served on February 7, 2017, which was 25 days after MPC served its vocational expert's report. Thus, the rebuttal report was timely under Rule 26(a)(2)(D)(ii). MPC argues, however, that even if timely under Rule 26(a)(2)(D)(ii) applies, the Ancell Report was served after the close of discovery on January 31, 2017, and, thus, is still late and must be stricken.

         Under Rule 37(c)(1), a party that fails to identify a witness as required by Rule 26(a) or 26(e) is not allowed to use that witness to supply evidence at a trial “unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). The determination of whether a late expert witness disclosure should be allowed is entrusted to the district court. David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003). The Seventh Circuit has set forth four factors to guide the district court's analysis: (1) the prejudice or surprise to the party against whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing the evidence at an earlier date. Id.

         MPC argues that it would be unfairly prejudiced if Dr. Ancell is permitted to testify, because discovery has closed and it would be unable to take Dr. Ancell's deposition. MPC also contends that Ruddell knew MPC intended to deny his claim for future loss of earnings, loss of earning capacity, or significant vocational impairment, and Ruddell should have retained and disclosed a vocational expert as part of his case-in-chief.

         In response, Ruddell argues that the failure to serve the rebuttal report before the close of discovery was substantially justified because he was duped by MPC into believing that its vocational expert's involvement in the case was an attempt to get him back to work, not to evaluate him, as a testifying expert. Ruddell presents a number of emails, the earliest dated September 20, 2016, where counsel for MPC informs counsel for Ruddell that MPC arranged for him to be evaluated concerning his ability “to get back to work as soon as he can, ” and that MPC was willing to pay for Ruddell's vocational services so that he can re-enter the workforce. Counsel for MPC also asks at least twice in the emails whether Ruddell has met with “the vocational person” yet. It was not until January 13, 2017, that MPC disclosed that its “vocational person” was actually a vocational expert whose report MPC intended to use at trial. Ruddell asserts that these emails evidence his good cause for submitting the late report.

         Even if Ruddell was legitimately surprised by MPC's use of its vocational “person” as a testifying expert witness, he has failed to state any reason substantially justifying why he disregarded the discovery deadline in serving the late rebuttal report. Ruddell had 18 days between service of the expert report and the discovery cutoff to provide the rebuttal report, request an extension of the discovery period, or otherwise alert the Court to the issue. Ruddell did not do so, and now discovery has closed. The Seventh Circuit has made clear that “deadlines have meaning and consequences.” Spears v. City of Indianapolis, 74 F.3d 153, 158 (7th Cir. 1996) (“If the court allows litigants to continually ignore deadlines and seek neverending extensions without consequence, soon the court's scheduling orders would become meaningless.”); Parker v. Freightliner Corp., 940 F.2d 1019, 1024 (7th Cir. 1991) (discussing barring the use of expert testimony and stating that “[j]udges must be able to enforce deadlines.”). ...

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