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Mlsna v. Union Pacific Railroad Co.

United States District Court, W.D. Wisconsin

January 24, 2019

MARK MLSNA, Plaintiff,
v.
UNION PACIFIC RAILROAD CO., Defendant.

          OPINION AND ORDER

          WILLIAM M. CONLEY, JUDGE

         In this lawsuit, plaintiff Mark Mlsna contends that defendant Union Pacific Railroad violated the Americans with Disabilities Act by declining to recertify him as a train conductor in early 2015. Presently before the court are: (1) defendant's motion to strike plaintiff's expert witnesses identified as falling under Rule 26(a)(2)(C), having failed to produce written expert reports (dkt. #25); and (2) plaintiff's motion to strike defendant's experts for failure to comply with Rule 26(a)(2)(B) disclosure requirements (dkt. #35). In light of the impending dispositive motions deadline, the court ordered expedited briefing and held a telephonic motion hearing on January 24, 2019, at which counsel for both sides appeared. This opinion serves to memorialize the court's rulings.

         I. Defendant's Motion to Strike (dkt. #25)

         On October 19, 2018, plaintiff's counsel took the deposition of John Holland, Union Pacific's in-house doctor who was ultimately responsible for rejecting plaintiff's proposed accommodation. (Dkt. #34 at 3.) During his deposition, Holland explained that he rejected plaintiff's suggested earplugs accommodation in part on the advice of a Union Pacific industrial hygienist who told him that the noise-reduction rating (NRR) could not be obtained for custom-fit devices. (Id.) Mlsna's counsel reached out to E.A.R., Inc. about Holland's statements within a week of receiving the Holland deposition transcript.[1] (Id.) The E.A.R., Inc. employees told plaintiff's counsel that E.A.R., Inc.'s custom-fit devices do have noise-reduction ratings and that other ways exist to test its ability to dampen sound.

         The next day, November 14, 2018, plaintiff's counsel informed defense counsel of the conversation and believed that the employee of E.A.R., Inc. “and a coworker he identified need to be disclosed.” (Id.; dkt. #26-1 at 1.) Attached to that email, is a document titled “Plaintiff's Rule 26(a)(2)(C) Disclosures, ” which state that “[e]mployees of EAR Inc., including Andrew Gordon and Garry Gordon, are expected to offer opinions regarding whether their company's products would have allowed Mlsna to perform his job's essential functions.” (Dkt. #26-1 at 3 (capitalization altered).)[2] Likewise, the disclosure summarizes their expected testimony as being “based upon the details of all analyses, appraisals, assessments, evaluations, reviews, studies and tests of their company's productions that would have allowed Mlsna to perform his job's essential functions.” (Id.)

         Defendant seeks to preclude these experts from testifying because plaintiff refused to provide expert reports and thereby failed to comply with the expert disclosure rules under Rule 26(a)(2)(B). (Dkt. #25 at 4.)[3] Not surprisingly, plaintiff opposes this motion, contending that E.A.R., Inc. employees are “hybrid fact-and-expert witnesses who need not provide a report” because plaintiff: (1) “has neither offered to compensate E.A.R., Inc.'s employees for their testimony nor provided them any materials to review”; and (2) has “[m]erely asked them about the specifications of the devices they manufacture.” (Dkt. #34 at 2-3.) Plaintiff explains that the E.A.R., Inc. employees know about NRRs and other ways of measuring sound dampening from their work manufacturing custom-fit devices, making them “fact witnesses who happen to be experts.” (Id. at 5.)

         Rule 26(a)(2)(B) requires that expert disclosure “be accompanied by a written report . . . if the witness is one retained or specially employed to provide expert testimony” and specifies exactly what must be included within that report. Fed.R.Civ.P. 26(a)(2)(B). Experts who fall outside Rule 26(a)(2)(B) are subject to the more lenient disclosure obligations of Rule 26(a)(2)(C) as they need only disclose: “(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.” Fed.R.Civ.P. 26(a)(2)(C). As this court has previously explained, “the report requirement does not turn on whether the expert agrees to offer his or her services without compensation” but “rather, the application of Rule 26(a)(2)(B) depends on the expert's relationship to the issues in the lawsuit and whether his or her relationship developed prior to the commencement of the lawsuit.” Brainstorm Interactive, Inc. v. School Specialty, Inc., No. 14-cv-50-wmc, 2014 WL 5817327, at *3 (W.D. Wis. Nov. 10, 2014) (Conley, J.). Union Pacific argues that nothing shows that the Gordons “have lay knowledge of the facts underlying the issues in this case or had any pre-existing relationship with Plaintiff.” (Dkt. #25 at 8.) However, that is not the end of the inquiry. As noted, plaintiff contends these experts have relevant information from their work for E.A.R., Inc. (Dkt. #34 at 5.)

         Where an expert witness has “formed his opinions in the normal course of his work, ” instead of being “asked to reach an opinion in connection with specific litigation, ” the expert is not subject to Rule 26(a)(2)(B). B.H. ex rel. Holder v. Gold Fields Mining Co., No. 04-cv-0564-CVE-PJC, 2007 WL 128224, at *3 (N.D. Okla. Jan. 11, 2007) (cited by Brainstorm, 2014 WL 5817327, at *3); see also Ind. Airport Auth. v. Travelers Prop. Cas. Co. of Am., 849 F.3d 355, 370-71 (7th Cir. 2017) (explaining that expert reports under Rule 26(a)(2)(B) were not required for hybrid fact/expert witnesses because witnesses were testifying to their personal knowledge through work on project); Lamphear v. Spoden, No. 17-cv-651-jdp, 2018 U.S. Dist. LEXIS 121173, at *3-*4 (W.D. Wis. July 18, 2018) (holding that hybrid witnesses were not subject to Rule 26(a)(2)(B) “[a]s long as [they] are only providing expert opinions that they formed during their prior involvement with [plaintiff] and the facts of this case”). This court recognized this in Brainstorm, noting that two of the challenged experts “appear[ed] to [have] knowledge separate from this litigation, ” making those experts as to those “few topics” not “retained” under Rule 26(a)(2)(B). 2014 WL 5817327, at *3.

         Accordingly, plaintiff's experts Andrew and Garry Gordon may testify to their personal knowledge of E.A.R., Inc.'s analyses of the earplugs -- basically, any information that they acquired in the regular performance of their duties for E.A.R., Inc. -- but that is all.[4] They may not testify to any opinions reached for the first time at the prompting of plaintiff's counsel or in conjunction with this lawsuit, including whether an accommodation using E.A.R., Inc.'s earplugs would in fact satisfy defendant's requirements when it comes to plaintiff's condition in particular. Plaintiff represents that this will not be a problem. (See dkt. #34 at 5 (explaining that E.A.R., Inc. employees were not asked to review anything).)

         As Union Pacific also argues, it “has no way of knowing what testimony the E.A.R. employees will provide.” (Dkt. #25 at 9.) Part of that blame falls on Union Pacific for sitting on its concerns for nearly two months after first learning of plaintiff's intent to call the Gordons, both in (1) failing to depose them and (2) not raising this issue with the court earlier. That said, Union Pacific would have an uphill battle at summary judgment if it has no way to predict the evidence plaintiff may rely on in opposition since plaintiff's Rule 26(a)(2)(C) disclosure only details that the Gordons “are expected to testify based upon the details of all analyses, appraisals, assessments, evaluations, reviews, studies and tests of their company's productions that would have allowed Mlsna to perform his job's essential functions.” (Dkt. #26-1 at 3.) Accordingly, Union Pacific may have two weeks to depose the Gordons. Additionally, plaintiff's counsel is to provide a summary of all opinions they expect to elicit from the Gordons at least five days before those depositions. See B.H. ex rel. Holder, 2007 WL 128224, at *4-*5 (concluding that expert who was not subject to the requirements of Rule 26(a)(2)(B) should still “submit an expert report disclosing the substance of his expert opinions that he intends to give at trial”); Fed.R.Civ.P. 1 (rules are to be administered “to secure the just, speedy, and inexpensive determination of every action”). At summary judgment and, if necessary, trial, the Gordons will be limited to the opinions disclosed in this summary.

         The court has already told the parties that the June trial date is not moving and that there is no slack in the trial schedule with the summary judgment deadline on February 1. (Dkt. #22.) The dispositive motions deadline, however, must move to permit this additional discovery. Accordingly, the pretrial schedule is revised as follows:

• Gordons Deposition Deadline: February 7, 2019[5]
• Dispositive Motions Deadline: February ...

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