United States District Court, E.D. Wisconsin
STACI L. RUDERSDORF, Plaintiff,
FIRST CHOICE LOGISTICS, INC., ACE AMERICAN INSURANCE COMPANY, and KURT W. SERAMA, d/b/a KWS TRANSPORT, Defendants.
Stadtmueller U.S. District Judge
January 9, 2017, Plaintiff filed an expedited motion to amend
the trial scheduling order in this case in order to permit
her to designate an expert and serve the expert's report.
(Docket #30). Defendants oppose the motion and have moved to
strike the designation. (Docket #33 and #36). For the reasons
explained below, the Court will allow Plaintiff's recent
expert designation to stand.
Court entered a trial scheduling order on October 31, 2016.
(Docket #22). The order set the deadlines of moment to the
Court, including the dispositive motion deadline, the trial
date, and various pretrial deadlines. It did not set a cutoff
date for the designation of experts or disclosure of expert
reports. In the Court's experience, these and other
discovery-related deadlines are best left to the cooperative
coordination of counsel.
to Defendants, counsel informally agreed to several relevant
deadlines. (Docket #34 at 2). Plaintiff's initial
disclosures and expert designations pursuant to Federal Rule
of Civil Procedure 26(a) would be made by November 15, 2016.
Id. Defendants' disclosures would be due on
January 10, 2017. Id. On November 14, 2016,
Plaintiff made her initial disclosures and identified several
experts. Id. However, she did not identify any
expert on the matter of future wage loss. Id.
Moreover, she suggested in several subsequent responses to
discovery requests that she was not seeking future lost wages
“at [that] time.” See Id. at 2-3.
during her deposition on December 19, 2016, Plaintiff
testified that she sought damages for future loss of earning
capacity. Id. at 3. Plaintiff's counsel
immediately sought to consult with and obtain an expert
report from a vocational expert, who would opine on the
nature of Plaintiff's injury and the limitations on her
future earning capacity. See Id. Plaintiff disclosed
the report of that expert, Ms. Karrie Grady
(“Grady”), on January 6, 2017. Id.
sides agree that Plaintiff's late disclosure of Grady and
her report violated her duty to disclose expert testimony
under Rule 26(a)(2). See Fed. R. Civ. P. 26(a)(2)(D)
(providing that parties can stipulate to an expert disclosure
deadline). Thus, her expert designation and report cannot be
permitted unless Plaintiff satisfies Rule 37(c)(1), which
provides that “[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 is
harmless.” Fed. R. Civ. 37(c)(1); Salgado v. Gen.
Motors Corp., 150 F.3d 735, 742 (7th Cir. 1998). The
district court exercises broad discretion in making that
determination, but the Court of Appeals has identified the
following pertinent factors: (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. David v. Caterpillar, Inc., 324 F.3d
851, 857 (7th Cir. 2003).
acknowledges in her motion that her disclosure is late under
the parties' own agreed-upon deadlines. (Docket #30 at
2). She justifies the late disclosure because “her new
business did not take off as hoped, ” requiring her to
evaluate her ability to do other work in light of her
injuries. Id. Grady's report addresses matters
related to the wage loss attributable to Plaintiff's
injuries and her prospects for future employment.
Id. Further, Plaintiff claims that there is no
prejudice against Defendants stemming from her late
disclosure since they “have been made aware of [her]
medical records and ongoing wage loss” and they can
depose Grady if they choose. Id. at 2-3. She also
highlights the importance of Grady's report since, in her
view, “the primary issue for trial” is her
damages, including lost future wages. Id. at 2.
contend that the late disclosure of Grady is not justified.
(Docket #34 at 5). According to Defendants, Plaintiff should
have known by the time she filed her initial disclosures in
November 2016 that she would potentially claim lost future
wages as an element of damages. Id. Thus, she should
have taken steps to prepare to present such evidence,
including identifying an appropriate expert and timely
disclosing the expert's report. Id. Defendant
claim that they suffered prejudice as a result of the late
disclosure, noting that the new claim for future wage loss
came only a few days before Defendants had to provide their
own expert disclosures. Id. at 7-8. Defendants state
that because of Grady, they will have to take unanticipated,
additional expert discovery which may disturb the Court's
trial date. Id. at 8. Defendants request that the
Court strike Grady as an expert and bar Plaintiff from
presenting her future wage loss claim. Id. at 9.
Court, considering the stage of the case, the parties'
progress in discovery thus far, and the circumstances
presented, finds that Plaintiff's late disclosure of
Grady and her report was harmless. First, although Defendants
complain that Plaintiff's claim of future wage loss was
unknown to them prior to her December 2016 deposition,
Plaintiff's complaint itself identifies future lost wages
as an element of her damages. (Docket #1 ¶¶ 21,
35). Thus, Defendants have been on notice of the claim since
the onset of the lawsuit.
the late disclosure of Grady, while inconsistent with the
parties' agreed deadlines, will not create lasting
prejudice nor disrupt the Court's schedule. Grady is
available for deposition, and Defendants have not shown that
they will be unable to depose her well in advance trial,
which is set to occur in May 2017. Because substantial time
remains before the trial date, the Court does foresee that
disruption to its existing schedule is likely. Moreover,
Defendants will, of course, be permitted to designate their
own expert on the topic of future lost wages so that the
issue can be fairly and fully developed. The timing of that
designation will be left to the collaborative efforts of the
although Plaintiff's failure to earlier disclose Grady
could be attributed to a lack of due care, the Court does not
find it was the result of bad faith or willfulness.
Plaintiff's reliance on the prospects of her small
business may have been ill-advised as a matter of trial
strategy, but her late disclosure was made soon after she
learned that the business would fail, and within the time
remaining for discovery. As a result, the Court determines
that Plaintiff's violation of the parties' agreed
expert disclosure deadline was harmless, and it will not
strike the designation of Grady or Plaintiff's claim for
future lost wages.
IT IS ORDERED that Plaintiff's motion to amend the trial
scheduling order (Docket #30) be and the same is hereby
GRANTED as stated herein; and IT IS ORDERED that
Defendants' motion to strike Plaintiff's expert
designation and to bar ...