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Gecker v. Menard, Inc.

United States District Court, N.D. Illinois, Eastern Division

September 3, 2019

FRANCIS GECKER, solely as Chapter 7 Trustee for CYNTHIA COLLINS Plaintiff,
MENARD, INC. a/k/a MENARDS Defendant.



         This case is before the Court on Defendant's Motion to Strike Plaintiff's Rule 26(a)(2)(C) Expert Disclosure of Dr. Harold Rees and Limit His Testimony [ECF No. 137');">137]. For the reasons discussed below, Defendant's Motion is granted in part and denied in part.


         Plaintiff alleges she was injured when a shopping cart made contact with her hip outside of a Menards home improvement store in 2014. While the fact that a cart struck Plaintiff is not in dispute, the parties disagree as to the nature, cause, and extent of Plaintiff's injuries, including whether a right hip replacement performed by Dr. Harold Rees, M.D., about five years after the accident was causally related to it.

         Defendant deposed Dr. Rees in April of 2019. Months after that deposition, Plaintiff served a delayed disclosure for Dr. Rees under Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure. That disclosure stated Dr. Rees would give expert testimony at trial both as Plaintiff's treating physician and with respect to the cause of Plaintiff's right hip injury. Defendant now asks that Plaintiff's Rule 26(a)(2)(C) disclosure be stricken as untimely and because it is not consistent with Dr. Rees's deposition testimony. It is not clear what Defendant hopes to accomplish by striking the Rule 26(a)(2)(C) disclosure, as Dr. Rees has been deposed and Defendant does not seek to bar Dr. Rees from testifying at trial. Defendant also challenges the substantive admissibility of Dr. Rees's causation testimony under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). The Court addresses Defendant's arguments in turn.


         I. Plaintiff's Rule 26(a)(2)(C) Disclosures

         Pursuant to the discovery schedule set by the Court and agreed upon by the parties, Plaintiff was to make her Rule 26(a)(2) disclosures by March 27, 2019. With respect to Dr. Rees, Plaintiff did not do so. Yet Defendant went forward with Dr. Rees's deposition on April 2, 2019, despite not having received the Rule 26(a)(2)(C) disclosure of Dr. Rees's opinions and the basis for them. On July 16, 2019, more than three months after Defendant deposed Dr. Rees, Plaintiff served her Rule 26(a)(2)(C) disclosure. Defendant now complains that Plaintiff's disclosure does not conform to Dr. Rees's prior deposition testimony in some respects and asks that the disclosure be stricken.

         Neither party disputes that Plaintiff's Rule 26(a)(2)(C) disclosure regarding Dr. Rees was untimely. That disclosure was not only produced after the Court's deadline, but after Dr. Rees had been deposed. The question for the Court is what consequence, if any, is appropriate for that untimely disclosure where Defendant had a right to insist on receiving the disclosure before Dr. Rees's deposition, pursuant to the Court's scheduling order, but chose not to do so. While Defendant says Plaintiff's late Rule 26(a)(2) disclosure for Dr. Rees conflicts with his prior deposition testimony, it is not clear to the Court there is a material conflict between the two. But the Court need not resolve that issue to rule on Defendant's Motion. Further, even if any conflict exists, that certainly is a risk of which Defendant was aware when it chose to proceed with Dr. Rees's deposition having not received the Rule 26(a)(2)(C) disclosure it was entitled to receive before taking the deposition.

         Under Federal Rule of Civil Procedure 37(c), “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or harmless.” The Seventh Circuit has likewise affirmed that the exclusion of non-disclosed evidence is automatic and mandatory under Rule 37(c)(1) unless the nondisclosure was justified or harmless. Finley v. Marathon Oil Co., 1225');">75 F.3d 1225, 1230 (7th Cir. 1996). In assessing the harmlessness of a Rule 26 violation, courts are to consider “(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.” Westefer v. Snyder, 422 F.3d 570, 585 n. 21 (7th Cir.2005) (citing David v. Caterpillar, Inc., 24 F.3d 851');">324 F.3d 851, 857 (7th Cir. 2003)).

         The purpose of the Rule 26 expert disclosure requirements is to prevent surprise or prejudice to the opposing party. Sherrod v. Lingle, 223 F.3d 605');">223 F.3d 605, 613 (7th Cir. 2000) (expert discovery rules “are designed to aid the court in its fact-finding mission by allowing both sides to prepare their cases adequately and efficiently and to prevent the tactic of surprise from affecting the outcome of the case”). Here, Defendant does not argue that it was surprised by anything Dr. Rees said in his deposition, suggesting instead that it was surprised by the later served Rule 26(a)(2)(C) disclosure. Yet this supposed surprise ultimately is harmless under the circumstances of this case, especially in terms of Defendant's ability to prepare for trial.

         Based on the deposition transcript, Defendant had received all relevant reports and medical records, including Dr. Rees's curriculum vitae, prior to deposing Dr. Rees. Even without the proper Rule 26 disclosure, the transcript also shows Defendant was aware Dr. Rees performed Plaintiff's right hip replacement and that he had formed an opinion as to the likely cause of her injury based on his treatment and the patient's medical history provided to him. Defendant also had already retained a rebuttal expert, Dr. William J. Hopkinson, [1" name="FN1" id= "FN1">1] to respond to Dr. Rees' anticipated causation opinion. With all the above information in hand, Defendant then took Dr. Rees's deposition on April 2, 2019. Therefore, in this case, the late Rule 26 disclosure did not cause Defendant to “miss its opportunity to disqualify the expert, retain rebuttal experts, or hold depositions for an expert.” Tribble v. Evangelides, 670 F.3d 753, 759-60 (7th Cir. 2012). In fact, through Dr. Rees's deposition, Defendant arguably learned more information than it would have received in a typical Rule 26(a)(2)(C) disclosure about the basis and scope of Dr. Rees' expert opinion. Plaintiff's failure to provide a timely Rule 26 disclosure for Dr. Rees, therefore, has not stymied Defendant's ability to mount a defense to Plaintiff's claims in this case. All parties are on notice as to the anticipated subject matter and scope of Dr. Rees's potential trial testimony, making Plaintiff's failure to timely disclose under Rule 26 harmless in this particular instance.

         Other courts agree that untimely Rule 26 disclosures may be harmless where the opposing party had an opportunity to depose the expert or was otherwise aware of the substance of the expert's opinion. See generally, Banister v. Burton, 28');">636 F.3d 828, 833-34 (7th Cir. 2011) (“even if a report was necessary under [Rule 26(a)(2)(B)], the failure to file one was clearly harmless because [plaintiff] wasn't surprised by the doctor's testimony-he heard it before in the state trial. Also, [plaintiff] provides no evidence that the failure to file the report was in bad faith.”); Spearman Indus. v. St. Paul Fire & Marine Ins. Co., 138 F.Supp.2d 1088');">138 F.Supp.2d 1088, 1094 (N.D. Ill. 2001) (where plaintiff failed to serve an expert report under Rule 26 for one of its experts, the violation was harmless because plaintiff previously disclosed the expert's existence, there was no evidence of plaintiff's bad faith in failing to serve the report, defendant neither objected to having not received the Rule 26 disclosures nor filed a Rule 37 motion to exclude the expert's testimony, and defendant deposed the expert prior to trial).

         Similarly, in Kondragunta v. Ace Doran Hauling & Rigging Co.,2013 WL 1189493 (N.D.Ga. 2013), the plaintiff's failure to make appropriate Rule 26(a)(2)(C) disclosures was harmless where the names of the experts and general subject matter of their testimony previously had been disclosed to the defendants. In declining to strike the experts' testimony, the court focused, in part, on the fact that the defendants “had the ability to complain, and thereby cure this surprise, prior to the expiration of expert discovery, by advising plaintiff that his disclosures did not comply with the rule and by requesting more specific disclosures” but did not do so. Id. at *8. Here, Defendant knew Plaintiff had not made her Rule 26(a)(2)(C) disclosure for Dr. Rees and, as in Kondragunta, never moved to force Plaintiff to do so, either before or ...

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