304 F.R.D. 349
N.D.N.Y.2015Background
- Diversity product liability action against MTD Products, Inc. and Cub Cadet, LLC arising from a Cub Cadet riding mower incident.
- MTD moved for summary judgment and sought to preclude plaintiffs’ expert affidavit (Dkt. Nos. 29, 39, 43).
- Uniform Pretrial Scheduling Order set discovery to May 2, 2014 and required expert disclosures 30 and 45 days before that deadline, with further timing for rebuttals.
- Plaintiff’s expert Gailor provided initial report (April 12, 2013) and deposition (May 29, 2014); MTD’s expert Martens produced a report (March 17, 2014) and deposition (April 1, 2014).
- Gailor issued a second report and an affidavit in September 2014 asserting a manufacturing defect in brake pads and insufficiency of warnings; these disclosures occurred after extended discovery.
- Court granted in part and denied in part the request to exclude the late affidavit, permitting a limited reopening of discovery to address Gailor’s manufacturing defect and warnings opinions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gailor’s September 2014 affidavit is timely under Rule 26(a)(2)(B) and the Uniform Order | Engler argues the late affidavit supplementation is warranted by later discovery needs. | MTD contends the affidavit is untimely and violates Rule 26(a)(2)(B) and the discovery schedule. | Untimely; preclusion generally required, but court allowed limited reopening for a supplemental Martens statement. |
| Whether Gailor’s manufacturing defect theory in brake pads should be precluded | Gailor’s later manufacturing defect theory is responsive to defense expert and relevant to causation. | Late disclosure is prejudicial and not substantially justified. | Preclusion; but limited reopening of discovery permitted for a supplemental Martens statement addressing the theory. |
| Whether Gailor’s opinion on warnings about brake adjustments is admissible on summary judgment | Gailor’s warnings opinion is relevant to failure-to-warn claims and may exist independently of defense expert. | Warnings opinions were not timely disclosed and would not be outcome-determinative. | Partially precluded; court allows limited consideration and permits supplemental Martens statement if pursued. |
| Appropriate sanction for late expert disclosure | Late disclosure should be allowed given discovery needs. | Preclusion or other sanctions are warranted for failure to comply with scheduling. | Continuance with limited reopening of discovery; potential selective sanctions including expense shifting. |
| Impact of the late disclosure on trial readiness | New opinions could be addressed through deposition and supplemental reports. | Preclusion should prevent new material from shaping trial. | Limited reopening and deposition rights granted to address specified opinions. |
Key Cases Cited
- Hunt v. CNH America LLC, 857 F.Supp.2d 320 (W.D.N.Y. 2012) (expert disclosure timing and completeness in Rule 26(a)(2)(B) context)
- Monell v. Scooter Store, Ltd., 895 F.Supp.2d 398 (N.D.N.Y. 2012) (experts not required for certain warning claims; jury may assess warnings)
- Outley v. City of New York, 837 F.2d 587 (2d Cir. 1988) (preclusion as a sanction and less drastic remedies when appropriate)
- Design Strategy, Inc. v. Davis, 469 F.3d 284 (2d Cir. 2006) (trial court discretion in Rule 37 sanctions and preclusion standards)
- Billiar v. Minnesota Mining & Mfg. Co., 623 F.2d 240 (2d Cir. 1980) (preclusion and evidence sanctions considerations in negligence/warning contexts)