Free Reply to Response to Motion - District Court of Arizona - Arizona

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FENNEMORE CRAIG, P.C. William L. Thorpe (No. 005641) Sal J. Rivera (No. 016728) Melissa W. Rawlinson (No. 021285) 3003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Telephone: (602) 916-5000 [email protected] [email protected] [email protected] Attorneys for BNSF

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Steven Schrum, Plaintiff, v. The Burlington Northern Santa Fe Railway Company, (Oral Argument Requested) Defendant. The Burlington Northern Santa Fe Railway Company, a corporation, Third Party Plaintiff v. Chemical Lime Company of Arizona, a corporation; ABC Corporations I-IV, fictitious corporations, Third Party Defendants No. CIV04-619-PHX-RCB REPLY IN SUPPORT OF BNSF' S MOTION TO STRIKE PLAINTIFF' S UNTIMELY DISCLOSED EXPERT OPINION

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Plaintiff' response confirms that the Court should grant BNSF' motion to strike s s plaintiff' untimely supplemental expert opinion (the "Motion"). s First, courts have

rejected plaintiff' contention that Rule 26(e) permits a party to ignore a Court-ordered s

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deadline and disclose new expert opinions up until 30 days before trial. Second, plaintiff does not provide "substantial justification" for his untimely disclosure of Burg' s supplemental opinion. Consequently, the Court should strike Burg' untimely opinion s pursuant to Rule 37(c)(1), Fed. R. Civ. P. A. Rule 26(e) does not excuse plaintiff' untimely disclosure. s

Plaintiff does not dispute that he disclosed Burg' supplemental expert opinion s approximately one year after the Court ordered him to do so. Similarly, plaintiff does not suggest that he had good cause for failing to comply with the Court' deadline. Instead, s plaintiff suggests that Rule 26(e) justified his untimely disclosure. Courts have

specifically rejected this argument in situations like the one presented in this case. See e.g., Byther v. City of Mobile, 2005 WL 1588223, *1 (S.D. Ala. June 17, 2005)(striking supplemental expert report disclosed for the first time on the morning of expert' s deposition); Carter v. The Finely Hospital, 2003 WL 22232844, *1 (N.D. Ill. Sept. 22, 2003)(granting motion to strike expert affidavit disclosed after discovery deadline but before pretrial disclosures were due); Beller v. U.S., 221 F.R.D. 689 (D.N.M. 2003)(finding good cause to strike supplemental expert report filed after disclosure deadline).1 Indeed, "[w]hile Rule 26(e) requires a party to supplement or correct

disclosure upon information later acquired, that provision does not license parties to freely circumvent deadlines established in the Court's scheduling orders." Byther, at *1. As the Beller court noted: To rule otherwise would create a system where preliminary reports could be followed by supplementary reports and there would be no finality to expert reports, as each side, in order to buttress its case or position, could "supplement" existing reports and modify opinions previously given. This practice would surely circumvent the full disclosure requirement implicit in Rule 26 and would interfere with the Court' s ability to set case management deadlines, because new reports and opinions would warrant further consultation with one' s
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Courtesy copies of these cases are attached to the Court' copy of this reply. s Document 96 - 2 -Filed 03/20/2006

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own expert and virtually require new rounds of depositions. That process would hinder rather than facilitate settlement and the final disposition of the case. Id. at 696; see also Carter, 2003 WL 22232844 at * 2. Byther is instructive here. In Byther, plaintiff supplemented his expert' report at s the beginning of his expert' deposition, which occurred approximately four months after s the Court' expert disclosure deadline. s Like here, defendants moved to strike the

supplemental report, and the Court granted the motion. Citing Beller with approval, the court concluded that plaintiff' disclosure was untimely and was not excused by Rule s 26(e). In reaching its conclusion, the court relied on the fact that even though defendants deposed the expert, defendants were not able to question the expert on the untimelydisclosed new report. The Court also concluded that the four-month delay prejudiced defendants and unduly delayed the case.2 In Carter, the defendant disclosed supplemental expert opinions after the close of discovery. The court granted plaintiff' motion to strike the supplemental opinions. Like s Byther, the court rejected defendants' argument that Rule 26(e) gave them the right to disclose expert opinions up until the date that final pretrial disclosures were due. Instead, the Court noted that "Rule 26(e)(1) imposes a duty to supplement their disclosures to reveal incomplete or incorrect information to an opposing party, not a right to extend discovery deadlines." Id. at *2 (citing Salgado v. General Motors Corp., 150 F.3d 735, 742 n. 6 (7th Cir. 1998) (emphasis in original). The court concluded that it is

"disingenuous to argue that the duty to supplement under Rule 26(e)(1) can be used as a vehicle to disclose entirely new expert opinions after the [expert disclosure] deadline established by the court under Rule 26(a)(2)(C)." Courts have pointedly rejected plaintiff' argument that Rule 26(e) gave him the s right to disclose Burg' new opinion nearly one year after the expert disclosure deadline. s
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In this case, plaintiff waited nearly one year rather than four months to disclose the supplemental opinion.

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Instead, Rule 26(e) imposed on plaintiff the duty to supplement his expert report in a timely manner. Plaintiff failed to do this. Moreover, plaintiff' argument that he had until s the pretrial disclosure deadline to disclose Burg' supplemental opinion contravenes Rule s 26(a) which requires parties to comply with Court-ordered disclosure deadlines. See Rule 26(a), Fed. R. Civ. P.; see also, Carter at *2. Plaintiff did not comply with the Court' s deadline and he did not timely supplement his expert' report. Rule 26(e) does not excuse s plaintiff' actions. This Court should follow the Byther, Carter, and Beller holdings and s reject plaintiff' argument that his disclosure was timely under Rule 26(e). s B. Exclusion of Burg' untimely opinion is mandatory under Rule 37(c). s

Rule 26(a) requires that a party disclose expert witness reports within the time period set by the Court. See Rule 26(a), Fed. R. Civ. P.; see also Carter, at *2. Rule 37 provides that information that is not timely disclosed shall be excluded unless there is "substantial justification" for the untimely disclosure. See Rule 37, Fed. R. Civ. P.; see also Carter, at *2. There is absolutely no justification, let alone "substantial justification" for plaintiff' failure to timely disclose Burg' supplemental opinion. s s Indeed, plaintiff does not even attempt to explain why he waited nearly a year and until the morning of Burg' deposition to disclose the supplemental opinion. BNSF gave s plaintiff numerous opportunities to supplement Burg' report. s Yet, plaintiff never

supplemented the report, and affirmatively represented that Burg would not offer any opinions that were not in his report. (Exhibit 7 to BNSF' Motion to Strike Untimely s Expert Opinion.) Clearly, plaintiff had sufficient time and opportunity to disclose the opinion before Burg' deposition but he failed to do so. Plaintiff' untimely disclosure of s s Burg' supplemental opinion is not "substantially" justified. Pursuant to Rule 37, Fed. R. s Civ. P., the Court should strike this opinion. C. Plaintiff' response to the Motion was not timely. s

BNSF filed the underlying Motion on January 12, 2006. Responses to the Motion
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were due on January 30, 2006. See Local Rule 7.2(c) and Rule 6(e), Fed. R. Civ. P. Plaintiff did not file his response until March 8, 2006. Plaintiff did not request or receive additional time to respond to BNSF' Motion.3 Similarly, while plaintiff filed a Rule s 56(f) response to BNSF' separate Motion for Summary Judgment, the 56(f) response is s not an appropriate response to BNSF' Motion to Strike. s response to the Motion was untimely. Rule 7.2(i) provides that failure to file a timely response, or any other such noncompliance, "may be deemed a consent to the denial or granting of the motion..." See also Stone v. Baum, 409 F. Supp. 2d 1164, 1180 (D. Ariz. 2005) (recognizing rule). Accordingly, the Court should strike plaintiff' response and grant BNSF' Motion. s s Conclusion Based on the foregoing, BNSF respectfully requests that the Court grant its Motion to Strike Mr. Burg' untimely disclosed expert opinion. s DATED this 20th day of March, 2006. FENNEMORE CRAIG, P.C. Accordingly, plaintiff' s

By s/Melissa W. Rawlinson Sal J. Rivera William L. Thorpe Melissa W. Rawlinson Attorneys for BNSF

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Yet again, plaintiff seems inclined to set his own deadlines.

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CERTIFICATE OF SERVICE I hereby certify that on March 20, 2006, I electronically transmitted the attached document to the Clerk' Office using the CM/ECF System for s filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: George T. Brugess Hoey & Farina, P.C. 542 S. Dearborn, Suite 200 Chicago, IL 60605 Attorneys for Plaintiff Charles D. Onofry ReNae A. Nachman Schneider & Onofry, P.C. 3101 N. Central Ave., Ste. 600 Phoenix, AZ 85012 Attorneys for Third-Party Defendant Chemical Lime I hereby certify that on March 20, 2006, I served the attached document by facsimile and U.S. mail on the following, who are not registered participants of the CM/ECF System: William D. Black One East Camelback Road Suite 630 Phoenix, Arizona 85012-1658

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