ORDER
Before the Court are two Motions for Partial Summary Judgment filed by Defendants, Bristol, Inc. d/b/a Emerson Process Management and/or d/b/a Remote Automated Solutions, 'Inc. (“Emerson”), Irene Bielen (“Bielen”), and Craig Rossman (“Rossman”) (collectively “Defendants”). Also before the Court is a Motion to Amend or Substitute Response (“Motion to Amend”), filed by Lana Anderson (“Plaintiff’), as Administrator of the Estate of Norman Anderson. Clerk’s No. 67.
Defendants’ first Motion for Partial Summary Judgment (“MSJ I”), filed July 30, 2012, asserts that Defendants are entitled to judgment as a matter of law on Plaintiffs wrongful death claim (Count VII of the Amended Complaint). Clerk’s No. 36. Plaintiff resisted the motion on September 17, 2012. Clerk’s No. 39. Defendants replied on October 1, 2012. Clerk’s No. 42. Defendants’ Second Motion -for Partial Summary Judgment (“MSJ II”), filed December 14, 2012, requests judgment as a matter of law on Plaintiffs breach of contract, intentional interference with contract, and intentional interference with emotional distress claims (Counts I, II, and IV of the Amended Complaint). Clerk’s No. 47. Plaintiff resisted the motion on January 28, 20.13. Clerk’s No. 59. Defendants replied on February 8, 2013. Clerk’s No. 66. On February 20, 2013, Plaintiff filed her Motion to Amend, requesting leave to file amended or substituted responses to Defendants’ statement of material facts in support of Defendants’ MSJ II. Clerk’s No. 67. Defendants responded on March 5, 2013. Clerk’s No. 68. Plaintiff replied on March 15, 2013. Clerk’s No. 73. The matters are fully submitted. .
I. PLAINTIFF’S SUPPLEMENTAL MOTION TO AMEND OR SUBSTITUTE .HER .RESPONSE
According to the Court’s Local Rules, a party resisting a motion for summary judgment must support its claims “by references to the specific pages, paragraphs or parts of the pleadings, depositions, answers to interrogatories, admissions, exhibits, and affidavits that support the resisting party’s- refusal to admit the statement, with citations to the appendix containing that part of the record.” LR 56(b).
In responding to Defendants’ MSJ II, Plaintiff failed to support numerous denials of Defendants’ asserted facts with citations to the record, thereby violating LR 56(b). See PL’s Resp. to Material
Defendants respond that the Court should deny Plaintiffs motion because Plaintiff had an adequate opportunity, in the first instance, to respond to Defendants’ facts and refused to take it. See Defs.’ Resistance to Pl.’s Mot. to Amend at 2-3. Further, they claim that such an amendment would be futile and prejudicial. See id. at 3-11. Finally, Defendants argue that Plaintiffs “amendments” do not properly respond to Defendants’ statement of facts; rather, the amendments rehash legal arguments that have already been asserted in different documents. See id. at 4-10. In other words, Defendants contend that Plaintiffs amended responses still do not comply with LR 56(b). See id.
The Southern District of Iowa’s Local Rule 56(b) is in place “to prevent a district court from engaging in the proverbial search for a needle in the haystack.” Nw. Bank & Trust Co. v. First Illinois Nat’l Bank,
While the Court finds Plaintiffs reasons for not complying with LR 56(b) in the first instance uncompelling,
Justice is not served by taking a heavy-handed approach to violations of local procedural rules. Non-compliance by counsel slows the judicial process and is certainly frustrating to both opposing counsel and to the Court. Imposing Draconian sanctions for isolated rule violations, however, does far more- than simply punish[ ] the attorneys. Rather; such an approach destroys the vital right of the, most likely, innocent client to have her day in Court simply because her attorney mistakenly violates a local procedural rule. This Court will not be party to such an egregious offense of anyone’s right to due'process.
Nw. Bank & Trust Co. v. First Illinois Nat’l Bank,
For these reasons, the Court will consider Plaintiffs amended filings in ruling on Defendants’ motions. As Defendants accurately point out, however, parts of Plaintiffs Amended Response are improper responses to Defendants’ statement of facts. Instead of listing concise and clear responses with appropriate citations to the record or appendix, Plaintiff frequently rehashes legal arguments covered in previous pleadings. See, e.g., Pl.’s Am. Resp. at 15-25 (responding to Defendants’ material facts and rehashing legal arguments already made in resisting Defendants’ MSJ II). Thus, to the extent the Amended Response asserts legal arguments, it will be ignored. Rather, the Court will use Plaintiffs Amended Response and Amended Appendix for the sole purpose of apprising itself of the additional factual information contained therein.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Anderson’s First Years at Emerson
The decedent, Norman Anderson (“Anderson”) began working for the Mar
I understand and agree that my employment is at will and for no definite period and may, regardless of the period of payment of wages or salary, be terminated at any time for any reason without previous notice. I further understand that ... no employee handbook or policy may be construed to the' contrary or interpreted as a contract or guarantee of employment.
Defs.’ App. in Supp. of MSJ II (Clérk’s No. 48-2) (“Defs.’ App. II”) at 2. However, just above this statement and the signature box, the following language appears: “THIS APPLICATION REMAINS ACTIVE FOR A PERIOD NOT TO EXCEED THREE MONTHS.”
Anderson worked for Emerson under the name of Fisher Controls until 2006, when Emerson obtained Bristol, Inc. Defs.’ Facts II ¶ 2. After some additional mergers and changes within the parent company, Anderson’s employer nominally became Remote Automation Solutions, but Emerson was still the parent-company employer. Id. At the time of his termination, Anderson had been employed by Emerson for a little less than ten years. ■ Am. Compl. (Clerk’s No. 6) ¶ 12. Between 1999 and 2008, Anderson received a number of promotions and raises. Id. ¶ 20. Most recently, in August of 2008, Anderson received a 10% raise from Emerson and a promotion to “controller.” Id. ¶¶ 20, 21-22.
B. Anderson’s First Hospitalization - for Alcohol and His “Last Chance” Agreement
Anderson’s life while working at Emerson was not without problems. Plaintiff claims that Anderson had “severe mental health impairments,” and specifically, that he suffered from alcoholism, drug addiction, depression, personality disorders, and chronic insomnia while he worked for Emerson. Defs.’ Statement of Facts in Supp. of MSJ. I (“Defs.’ Facts I”) (Clerk’s No. 36-2) ¶ 2. At the end of February 2009, Anderson’s alcoholism came to. the forefront, and he had to take a leave of absence. due to his alcoholic tendencies. App. to Pl.’s Resistance to Defs.’ MSJ II (“Pl.’s App. II”) (Clerk’s No. 59-2) at 10. Anderson entered the hospital on February 26, 2009 for alcohol withdrawal, and missed a substantial amount of work while
As a result of Anderson’s hospitalization and alcoholism, he entered into a “last chance” agreement with Emerson. Defs.’ App. II at 3-5. The agreement consisted of three pages and twelve numbered paragraphs detailing new rules and the steps that Anderson would have to take if he wanted to remain employed at Emerson. Id. Notably, paragraph 10 of the agreement referred' to Anderson’s at-will employment status, specifically stating: “I also understand that my entering into this agreement, does not, and is not intended to, alter my at-will employment status with the Company.” Id: at 4. Anderson signed the agreement on April 20, 2009, and Bielen approved it on May 18. Id. at 5.
C. Anderson’s Mother’s Death and Anderson’s Work Situation Surrounding the Death
Nothing of particular relevance to this case occurred between April 20 and July 13, 2009. However, on Monday, July 13, 2009, Anderson emailed Rossman to inform him that Anderson’s mother was close to death and that it likely would “only be a matter of days” until she passed away. PL’s AmApp. at 85. Rossman responded a little over an hour later and requested that Anderson “keep [him] updated, so that the team and [Rossman could] assist [Anderson] as best as possible.” Id. Anderson then took Tuesday afternoon off and told Rossman that he would, probably be absent on Wednesday as well, but that he would “check email nightly, and keep [Rossman] up to date.” Id. On Wednesday morning at 7:30 AM, Rossman requested that Anderson provide some additional financial information to the company. Id. at 92. Anderson responded fourteen hours later that he would “work on this in the morning,” adding that he would likely be absent from work on Thursday. Id. On Thursday, July 16, Rossman emailed additional questions to Anderson, and Anderson responded within a few hours. Id. at 86-87.
Later in the afternoon on July 16, Anderson’s mother passed away. Id. at 95. On Friday morning, July 17, Anderson set up an “Out of Office AutoReply: My Mother” email, stating that he would be out of the office with “limited access' to email,” but “w[ould] respond as soon as possible.” Id. at 94. ‘ Additionally, on the morning of July 17, Anderson informed Rossman that his mother had passed away and the funeral would likely take place on Tuesday, July 21. Id. at 95. Rossman offered his condolences and told Anderson to “keep [him] updated on the requirements for [Anderson’s] time away from the office to be with [his] family.” Id.
Anderson then took three days of bereavement leave and was absent from work from Monday, July 20 until Wednesday, July 22, 2009. Defs.’ Facts II ¶ 15. Despite knowing Anderson was out of the office for bereavement leave, Rossman sent two emails on July 20 to Anderson’s
On Thursday, July 23, Anderson contacted Rossman and indicated he would be working from home. Id. ¶ 18. The month-end financial closing date was Friday, July 24, and on July 23, Rossman emailed Anderson asking for specific financial information and reminding Anderson to update certain documents. Pl.’s Am. App. at 101-02. Anderson replied with some information later that evening.
The following day, Friday, July 24, Anderson informed the company (specifically Rossman) that he had a flat tire and would not be in the office. Defs.’ Facts II ¶ 19. Rossman sent two emails the same morning requesting information from Anderson. PL’s Am.App. at 104, 106. Anderson responded with answers to both questions.
D. Anderson’s Suicide Attempt, , Resulting Hospitalization, and Termination
On the evening of Friday, July 24 (the last day of the week of his mother’s death), Anderson returned home and began to drink. Pl.’s Am.App. at 130 (Pl.’s Dep. at
A few days later, on July 30, 2009, Anderson was involuntarily committed and moved to Waterloo. See Pl.’s App. to Resistance to Mot. to Dismiss (Clerk’s No. 14-2). Anderson remained involuntarily committed until August 3. Pl.’s, Am.App. at 29. Plaintiff claims that from the time of his admission to the emergency room until his discharge from the psychiatric ward, Anderson did not have access to a telephone. ' See Br. in Supp. of PL’s Resistance to Defs.’ MSJ- II (“PL’s Resistance II”) (Clerk’s No. 59-3) at 13
While Anderson was out of the office, work continued' at Emerson. On the first day of Anderson’s unexpected absence, July 27, Rossman began inquiring about Anderson’s status. See Pl.’s App. at 21-24. Rossman sent an email to Anderson at 11:32 ÁM simply asking “Are you in the office today?” Id. at 114. After receiving no reply,' Rossman made multiple other attempts to contact Anderson on his office phone, home phone, and mobile phone. Defs.’ Facts II ¶23. Neither Anderson nor a family member responded to Ross-man’s calls. Id. Although Rossman did not know of Anderson’s whereabouts from a member of the Anderson family, Vanderah claims to have called Rossman on July 27 and informed him that he had heard that Anderson was in the hospital and would likely be gone for two weeks. See PL’s App. IÍ at 25. As a result of Anderson’s absence, Rossman had to make arrangements to fly an' employee from Connecticut to Marshalltown to obtain the financial information needed for the month-end ’ closing. Defs.’ Facts II ¶ 24.
Additionally, on Monday, July 27, Ross-man contacted Bielen regarding Anderson’s employment status with the company. See Pl.’s Am.App. at 115-16; Pl.’s App. II at 23.
On the morning of Tuesday, August 4, Plaintiff stopped by Emerson to drop off a document regarding Anderson’s hospitalization, and Yanderah forwarded this document to Bielen. Pl.’s App. II at 28-29. The document, dated August 3, simply stated that Anderson had been hospitalized since 7-24-09; it did not, however, contain a return-to-work date.. Id. at 28 (document from McFarland Clinic stating that Anderson had been hospitalized and “May not return to work until reevaluated”). When Anderson was released from the hospital on August 3, he called Vanderah, who informed Anderson that he needed to speak with Rossman or Bielen. Pl.’s Am.App. at 129 (PL’s Dep. at 174). Anderson called Bielen around 3:00 that afternoon. PL’s App. II at 29. During that conversation, Bielen explained that Emerson had terminated Anderson’s employment due to no-call/no-show. Id. Bielen also claimed that Emerson had “no idea what was going on” during the time Anderson was out of the office, and that “Rick [Yanderah] did not get [the] message” from Anderson’s wife. Id: Anderson then begged for his job back, told Bielen that she did not understand the situation, and stated that he had a family and needed his job to take care of that family. Pl.’s Am.App. at 129 (Pl.’s Dep. at 176). Anderson.was crying during this phone call. Id. Anderson informed Bielen that he would be back at work that Thursday. Pl.’s App. II at 29. Bielen responded that Anderson’s actions were unacceptable and although “[she was not] sure if it will change anything,” Anderson could call Rossman. Id. During this conversation, Bielen did not use confrontational, harsh or inappropriate language. Defs.’ Facts II ¶34. She acted professionally and discussed the situation calmly. Id. Anderson said he would call Rossman, but never did. PL’s App. II at 29. The following day, August 5, Bielen obtained Anderson’s updated address and sent a copy of the termination letter. See id. at 25-26.
E. Emerson’s Policies and Procedures: Sick Leave Policy, Employee Handbook, and At-Will Policy
Defendants claim that during his time at Emerson, Anderson was subject to a number of different policies and procedures contained in various documents on an intranet site as well as in employee handbooks and other directives in the office. See Pl.’s Am.App. at 4. Four of these policies and portions of those policies are relevant to this case: Emerson’s Sick Leave Policy, Emerson’s Absences & At
Emerson’s Sick Leave Policy sets out the procedure regarding salary continuance for “eligible employees for periods of absence resulting from the employee’s sickness or injury.” PL’s Am.App. at 1. The policy provides, in pertinent part:
Ih order to bé eligible for salary continuance, each employee absent due to illness or injury in excess of three (3) days is required to submit a signed doctor’s certificate to the Human Resources Department. This certificate must show the first day of absence, the nature of the illness and the return to work date. No payment will be made without a properly ■ executed doctor’s certificate ....
Upon receiving a return to work release, employees will be reinstated to the same or equivalent position with the same pay, benefits and terms and conditions of employment provided that [sic] are able to perform the duties of the occupation without restriction or where reasonable accommodation can be made to provide for continued employment....
Excessive absenteeism, even if caused by injury or illness [sic ] may be grounds for termination if it interferes significantly with or causes any undue hardship upon the performance 'of duties.
Id. at 1-2. The Sick Leave Policy lists as a “Related Procedure,” PERS 11, which corresponds to the Absences & Attendance Policy and Procedure. Id. at 1.
The Absences & Attendance Policy and Procedure explains that Emerson “[d]oes not wish to penalize an individual for excusable absences or lateness and will only do so-when such absences or lateness become unfair, unreasonable or excessive.” Id. at 6. In the event of an absence, the document requires the employee to “notify [his or her] Supervisor or the Personnel Department promptly.” Id. at 7. It further states that absences are considered “excessive” when the amount reaches “more than five days per year.” Id.
In addition to other documents and policies, Emerson generally distributes an employee handbook to all employees. See Defs.’ App. II at 45 (Bielen Aff. ¶ 9). After receiving this handbook, employees are required to sign a sheet accompanying the book stating that they received it.
Employment-at-Will Disclaimer
We are an at-will employer and operate under the provision that employees have the right to resign their position at any time, with or without notice, and with or without cause. We, the employer, have similar rights to terminate the employment relationship at any time, with or without notice, and with or without cause[.]
Handbook Disclaimer
This Employee handbook is provided' as a guide and is not considered a contract. The contents of this Handbook are presented as a matter of information only. RAS [Emerson] reserves the right to make changes to policies, procedures, and other statements made in this employee handbook. Business conditions, Federal and State Law, and organizational needs are constantly influx and may require that portions of the handbook be re-written. This is necessary to successfully provide the appropriate guidance and to obtain the goals of the organization. You are encouraged to ask for and receive more information about any subject contained in this Handbook.
Def.’s App. II at 33. Despite the general practice of distributing the handbook to all employees, there is no evidence in the record that Anderson received the handbook.
Finally, Emerson had an Employment-at-Will Policy in place. Id. at 6. In pertinent part, the policy reads:
In accepting or continuing employment with Remote Automation Solutions [Emerson], employees agree that their relationship with Remote Automation Solutions is, and always has been, strictly voluntary and at-will on both sides.
Nothing in the Employee Handbook or in any other document issued by Remote Automation Solutions will alter this at-will relationship except legally ratified union contracts or employment agreements signed by both the employee and the President of Remote Automation Solutions ....
To ensure that all employees have been fully advised of our at-will relationship, they will be required to sign a receipt and acknowledgment for the Employment at will statement and the Employee Handbook on their first day of hire.
Id. at 6 (emphasis added). Plaintiff claims that Anderson never received the document. See Pl.’s Am. Facts at 29-30.
After Anderson’s termination, he became depressed and lethargic. Pl.’s Am. App. at 132 (Pl.’s Dep. at 183). He did little more than lay in bed or on the couch and would not shower.’ Id. Then, on August 11, 2009, as Anderson was getting ready to leave his house to attend a substance abuse meeting, he told his wife, “without a job to take care of [my] family, there [is] no reason for [me] to be here anymore.” Id. (Pl.’s Dep. at 184). Right before he walked out the door, he told his wife, “Remember I have always loved you.” Id. (Pl.’s Dep. at 185). Later that same night, a vehicle was reported in a bean field at approximately 11:30, PM. Defs.’ App. I at 26. A few hours later,, in the early morning hours of August 12, a local resident noticed smoke in a creek bed. Id. at 31. There was an irregular path from the road through the field to the creek embankment. Id. The embankment was not visible from the road. Id. Anderson’s heavily charred body was found in the car. Id. at 27.
After performing an autopsy, the medical examiner concluded that Anderson had a significant amount of alcohol in his system as well as a toxic level of paroxetine^ a drug used to treat depression and other mental illnesses. See id. at 32; PL’s Resistance to Defs.) .MS J I (Clerk’s No. 39) at 8. Due to other evidence, such as the fact that there was an irregular path to the creek and the embankment was not visible from the roadway, the medical examiner stated her opinion that Anderson’s death was an accident. See Defs.’ App. I at 32. She did not, however, completely exclude an overdose of paroxetine as a possible cause of death. Id. Anderson’s certificate of death reiterated the medical examiner’s findings and listed the manner of death as an accident. Id. at 47.
G. Procedural Background
Plaintiff originally filed a complaint on July 25, 2011 in the Iowa District Court in and for Marshall County against Defendants Emerson, Bielen, and Rossman. On September 8, 2011, Defendants removed the action to this Court on the basis of diversity jurisdiction. See Notice of Removal (Clerk’s No. 1) at 2. A week later, on September 15, Defendants filed a Motion to Dismiss claiming that the Plaintiff incorrectly filed the case and, thus, lacked standing. Clerk’s No. 2. Additionally, Defendants moved to dismiss certain counts due to inadequate pleadings. Shortly thereafter, on October 11, Plaintiff filed an Amended Complaint curing the defect in her original pleading,
On October 21, 2011, Defendants moved to dismiss Plaintiffs Amended Complaint. Mot. to Dismiss PL’s Am. Compl. (Clerk’s No. 9). Although it did not' fully grant Defendants’ motion, the Court dismissed Plaintiffs claims as to Counts II, fraud, and VI, wrongful discharge. Clerk’s No. 22. Thus, following the Court’s- order, only eight causes of action remain. The present Motions for Partial Summary Judgment submit that judgment- as a matter of law must be granted in Defendants’ favor on four of those claims — Count I, breach of written contract; Count II, intentional interference with written contract; Count IV, intentional infliction of emotional distress; and Count VII, wrongful death. Clerk’s Nos. 36, 48.
III. SUMMARY JUDGMENT STANDARD
The term “summary judgment” is something of a misnomer. See D. Brock Horn-by, Summary Judgment Without Illusions, 13 Green Bag 2d 273 (Spring 2010). It “suggests a judicial process that is simple, abbreviated, and inexpensive,” while in reality, the process is complicated, time-consuming, and expensive.
Federal Rule of Civil Procedure 56(a) provides that “[a] party may move for summary judgment, identifying each claim or defense — or the part of each claim or defense — on which summary judgment is sought.” “[Sjummary judgment is an extreme remedy, and one which is not to be granted unless the movant has established his right to a judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances.” Robert Johnson Grain Co. v. Chem. Interchange Co.,
Federal Rule of Civil Procedure 56 mandates the entry of summary judgment upon motion after there has been adequate time for discovery. Summary judgment is appropriately granted when the record, viewed in the light most favorable to the nonmoving party and 'giving that party the benefit of all reasonable inferences, shows that there is no genuine issue of material fact, and that the moving party is therefore entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Harlston v. McDonnell Douglas Corp.,
In a summary judgment motion, the moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact based on the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any. See Celotex, 477 U.S. at 323,
Courts do not treat summary judgment as if it were a paper trial. Therefore, a “district court’s role in deciding the motion, is not to sift through the evidence, pondering the nuances and inconsistencies, and' decide whom to believe.” Waldridge v. Am. Hoechst Corp.,
Defendants have moved for partial summary judgment in an attempt to dismiss four of Plaintiffs eight remaining claims. Defendants’ MSJ I solely asks the Court to grant summary judgment on Plaintiffs claim for wrongful death (Count VII). Defendants’ MSJ II requests that the Court grant summary judgment on Plaintiffs claims for breach of contract (Count I), intentional interference with written contract (Count II), and intentional infliction of emotional distress (Count IV). Defendants’ MSJ II also raises additional arguments as to why summary judgment on Plaintiffs wrongful death claim (Count VII) is warranted. The Court will consider each motion separately. Because the Court is hearing the case due to diversity jurisdiction, see Notice of Removal, it must apply the substantive laws of the forum state — in this case, Iowa. See Erie R.R. Co. v. Tompkins,
A. Defendants’ MSJ I
In MSJ I, Defendants ask the Court- to grant judgment as a matter of law in their favor on Plaintiffs wrongful death claim (Count VII). Defendants claim that Plaintiff has failed to point to any facts that demonstrate either: (1) that Anderson committed suicide; or (2) that, assuming Anderson’s death was a suicide, Defendants caused the suicide. Defs.’ Br. in Supp. of MSJ I (“Defs’ Br. I”) (Clerk’s No. 36-1) at 7-10. Additionally, Defendants assert that. Plaintiff should be prohibited from using any expert testimony' because she faded to comply with the expert disclosure requirements contained in the recently amended version of Federal Rule of Civil Procedure 26(a)(2)(C). Id. at 10-11. More specifically, Defendants contend that Plaintiff failed to provide “a summary of facts and opinions to which [each non-retained expert] witness is expected to testify” as required by the Rule. Id. at 10 (quoting-Fed.R.CiviP. 26(a)(2)(C)). As a result of Plaintiffs inadequate disclosure, Defendants implicitly ask the Court to prohibit all expert witnesses from testifying and .to prohibit Plaintiff from relying on expert .testimony.
The Court will first discuss Defendants’ implicit motion to strike expert testimony based on Plaintiffs inadequate 26(a)(2)(C) disclosures. Then, it will consider the two fighting issues of the wrongful death claim — whether Anderson’s death was a suicide and whether Defendants were the cause of the suicide. Although the Court disagrees with Defendants’ proposed discovery sanction of prohibiting all expert testimony, it nevertheless agrees that
1. Defendants’ implicit motion to exclude expert testimony.
To help resolve tensions and clarify when non-retained experts had to provide expert reports, the Advisory Committee to the Federal Rules of Civil Procedure recently amended the disclosure rules for non-retained experts. See Fed.R.Civ.P. 26(a)(2)(C) advisory committee’s note. - Effective December 1, 2010, parties must not only identify non-retained witnesses, but also must disclose “the subject matter on which the [non-retained expert] witness,is expected to present ...; and a summary of the facts and opinions to which- the witness is expected to testify.” Fed. R.Civ.P. 26(a)(2). Therefore, under the current rule, if a party fails to comply with the new requirements, a sanction may b.e appropriate. See Fed.R.Civ.P. 37(c)(1). The Court then, must consider two questions: (1) Did the party comply with the rule? and (2) If not, what should be the appropriate sanction?
a. Did Plaintiff comply with the disclosure requires under amended Rule 26(a)(2)(C) ?
On its face, Rule 26(a)(2)(C) requires “a summary of the facts and opinions to which the [non-retained expert] witness is expected to testify.” Due to its relatively recent enactment, however, few courts have explained precisely what the rule demands. District courts have repeatedly held that a mere citation to records fails to satisfy the requirements of the new rule. See, e.g., Lopez v. Keeshan, No. 4:11CV3013,
The Court finds the preceding cases’ reasoning persuasive, and holds that when a party merely states the name of the witness along with the witness’ connection to the ease, or where the party solely refers to medical or similar records that have already been produced, without providing a summary of the witness’ expected testimony, the party is not in full compliance with the disclosure requirements found in Rule 26(a)(2)(C). See, e.g., Lopez,
Boswell, Mark. Autopsy Technician, Mr. Boswell was an Autopsy Technician, as listed on “Report of Autopsy, of Norman Anderson,” Plaintiffs Potential Exhibit. Also, presumably, Mr. Boswell has knowledge about situations and scenes where a decedent is found, investigating situations and scenes where a decedent is found, and laws, regulations, and proper procedures governing situations where a decedent is found and investigating situations where a decedent is found, as well as performing autopsies, preparing reports of autopsies, and laws, regulations, and proper procedures governing performing autopsies and preparing reports of autopsies. Finally, Mr. Boswell presumably has all the education, training, experience, scientific and technical expertise, and other specialized knowledge one would expect an Autopsy Technician to possess.26
Pl.’s Resistance I at 18-19 (emphasis added). Plaintiffs disclosures of treating physicians are much shorter, and state only the name of the physician, the physician’s title, and then refer Defendants to previously produced medical records.
Out of Plaintiffs thirty expert disclosures, none contains an appropriate “summary of facts and opinions” that comply with either the letter or the spirit of Rule 26(a)(2)(C). Rather, they are the types of disclosures that other courts have rejected in’ Lopez, Ballinger, Kristensen, and Ni-castle. While not constrained by these decisions, this Court finds their reasoning persuasive, and thus concludes that Plaintiff has failed to adequately disclose experts pursuant to Rule 26(a)(2)(C).
b. What is the appropriate sanction for failing to disclose expert testimony pursuant to Rule 26(a)(2)(C)?
Upon finding that a Rule 26 disclosure was inadequate or there was a failure to disclose, courts are faced with a second, and in many ways, more important, ques
To aid in the Court’s determination of whether the failure was substantially justified or harmless and to help decide upon an appropriate sanction or remedy, the Eighth Circuit has instructed trial courts to consider,-inter alia, the following four factors: “[ (1) ] the reason for noncompliance; [ (2) ] the surprise and prejudice to the opposing party; [ (3) ] the extent to which allowing the information or testimony would disrupt the order and efficiency of the trial, and [ (4) ] the importance of the information or testimony.” Wegener,
Keeping in mind the Eighth Circuit’s animosity toward exclusion of evidence or sanctions that will result in a de facto dismissal, the Court will now consider the various factors listed in Wegener. First, the Court will consider Plaintiffs reason for noncompliance with the rule. In other words, this factor asks if the party was substantially justified' in its delay. See Wegener,
The Court now turns to the second factor in Wegener — the surprise and prejudice to the opposing party. Here, Defendants received the names of the treating-physician witnesses along with some minimal disclosures — such as the medical records previously disclosed. Surprise, however, is generally not a large concern in relation to treating physicians. See Lopez,
The other non-retained “expert” witnesses disclosed by Plaintiff present additional problems, however. While the calling of the witness at trial would not surprise Defendants, the testimony of the non-treating-physician experts would constitute a surprise. Unlike the treating physicians listed in Plaintiffs answer to Interrogatory 3, Defendants have no documents or other information from which to prepare cross-examination or rebuttal witnesses to combat the testimony or any way to predict what the testimony of
The Court must now consider “the extent to which allowing the information or testimony would disrupt the order and efficiency of the trial.” Wegener,
Finally, the Court must examine the importance of the expert testimony to the case. Although the Court is unsure what the medical reports say, Defendants repeatedly assert that expert testimony is paramount to Plaintiffs case. Simply put, without expert testimony, it is impossible for Plaintiffs claims to succeed. For the non-medical experts, however, the Court cannot know the extent- or importance of their expert testimony. Clearly, Plaintiff relies on many' of these witnesses to provide the factual background of the case, but for the most part, Plaintiff has failed to list what their opinions will be, has failed to list what facts they will testify to, and has failed to provide any explanation of the relevance of their expert testimony to the case. Indeed, in her resistances to Defendants’ motions for partial summary judgment, Plaintiff does not rely on a single non-retained expert’s testimony; rather, she merely tells the Court experts exist and she will present experts at trial.
Balancing these factors, the Court must now fashion an appropriate sanction or remedy for Plaintiffs failure to comply with Rule 26(a)(2)(C). Interestingly, none of the witnesses listed by Plaintiff in her response to the expert interrogatory differ from those listed on-the fact-witness interrogatory.' Additionally, with regard to the overlapping witnesses, the answers to both interrogatories are identical. After balancing all factors, and in light of Plaintiffs answers to Defendants’ interrogatories, the Court finds that the expert witnesses should not be completely prohibited frofri testifying; rather, their testimony must be limited. In similar situations, other courts have come to the same conclusion and have limited testimony to the information contained in the witnesses’ respective reports. See Lopez,
Accordingly, in the present case, the opinion testimony of all of the treating physicians, as well as the other non-medical witnesses who provided other reports
2. Plaintiff’s wrongful death claim (Count VII).
Iowa statutory law allows a party to bring an action to recover damages for wrongful death if the decedent, had he lived, would have been able to bring the same cause of action. See Troester v. Sisters of Mercy Health Corp.,
In the present case, Plaintiff claims that “Defendants’ tortious acts
a. Did Anderson commit suicide?
Defendants first challenge whether the claimed injury — suicide or a mental defect so severe as to-,“prevent[ ] Anderson from realizing the true nature of the act of suicide” — actually occurred. See Defs.’ Br. I at 7-9. It is axiomatic that if Anderson did not commit suicide and his death was an accident, Defendants cannot be liable for his wrongful death. Because the Court believes that Plaintiff has failed to generate a genuine issue of material fact as to the cause of the alleged suicide (i.e., that Defendants’ actions led to Anderson’s suicide), the Court will assume, without deciding, that Plaintiff has generated a genuine issue of material fact as to whether Anderson committed suicide and will not fully consider the issuel
b. Assuming the decedent committed suicide, has Plaintiff raised a genuine issue of material fact as to the cause of that suicide?
Defendants assert that, assuming Plaintiff has proven a suicide, she has failed to raise a genuine issue of material fact regarding the cause of the suicide. Defs.’ Br. I at 9-10. In other words, Plaintiff has failed to point to any facts supporting a conclusion that Defendants’ actions caused Anderson to commit suicide. Id. More specifically, Defendants assert that Plaintiff fails to meet this burden because she lacks required expert testimony to engender a jury question. Id. at 10-11. Under Iowa law, to succeed on a tort claim, a plaintiff must prove the two components of causation, cause in fact and legal cause. Thompson v. Kaczinski,
While Plaintiff is correct in asserting that causation is almost always a question for a jury,
In some situations, however, a plaintiff who puts forward merely a “possible” theory may survive summary judgment — provided that the possibility is coupled with sufficient evidence to give rise to a plausible theory that generates a genuine issue of material fact. See Bradshaw,
Further, when a question of causation lies outside the general knowledge and understanding of a layperson, a party must use expert testimony to prove its theory. Donovan v. State,
The Court must first consider whether expert testimony is necessary for Plaintiff to substantiate her. claim. Due to its complex and scientific nature, medical causation almost always requires expert testimony. See Chaney v. Smithkline Beckman Corp.,
Next, the Court must consider whether Plaintiff has .provided sufficient evidence to put forward á theory of causation that is “reasonably probable — not merely possible, and more probable than any other hypothesis based on such evidence,” Doe,
The present case mirrors the situation faced by the Iowa Supreme Court in Doe. See
Anderson’s case is strikingly similar. Anderson had gone through incredible personal difficulties prior to his termination — financial troubles, alcohol addiction, and his mother’s death. He had even attempted suicide prior to his termination. Plaintiff has failed to proffer any record evidence that would pinpoint Anderson’s termination as the driving force behind his alleged suicide. The only argument Plaintiff makes with regard to causation can be classified as a temporal argument, i.e., that because Plaintiffs death occurred in close temporal proximity to his termination, there must be a genuine issue of material fact as to causation. See Pl.’s Resistance I at 16. However, a fact “based only on the assumption of causation due to a temporal relationship is ‘entitled to little weight in determining causation.’ ” Korte,
Based on the record before the Court, any jury verdict in favor of the Plaintiff for wrongful death would be the result of sympathy, immense speculation, and a long line of assumptions. Indeed, the summary judgment record is devoid of evidence that would demonstrate that Anderson’s death was more likely precipitated by his termination than by any other cause. See Chaney,
B. Defendants’ MSJ II
In Defendants’ MSJ II, Defendants move for summary judgment on Plaintiffs claims of.breach of contract (Count I), intentional interference with written contract (Count II), intentional infliction of emotional distress (Count IV), and wrong
1. Breach of written contract.
Defendants first move for summary judgment on Plaintiffs breach of written contract claim. Defendants assert that Plaintiff, at all times, was an at-will employee, and thus no breach was possible. Defs.’ Br. in Supp. of MSJ II. (“Defs.’ Br. II”) (Clerk’s No. 51) at 5-10. Under Iowa law, employment relationships are presumed to be “at-will” in nature. “This means the- employment relationship is terminable by either party ‘at any time, for any reason, or no reason at all.’ ” Fitzgerald v. Salsbury Chem., Inc.,
Plaintiff asserts that Emerson’s Sick . Leave Policy constitutes a unilateral employment contract, and claims that Emerson terminated Anderson in breach of that contract.
When deciding whether a policy is sufficiently definite in its terms as to
Courts have traditionally considered the first two factors together— “whether the policy is a mere guideline or a directive [and] whether the language of the policy is detailed and definite or general and vague.” Kartheiser,
However, in determining “whether a reasonable employee; upon reading the policy, would believe they had been guarantéed certain' protections by their employer,” Fesler,
The final factor the Court must consider is the effect certain disclaimers had on the Sick Leave Policy. “A disclaimer can prevent the formátion of a contract by clarifying the intent of the employer not to make an offer.” Anderson,
Defendants have additionally produced two extrinsic documents that they claim have an effect on the Sick Leave Policy. The first is Anderson’s original employment application from September 12, 1999. Def.’s App. II at 2. This document was signed before Anderson was ever offered employment, and while it is unambiguous in its coverage and alleged scope, a number of other facts — time, additional policies, job changes, company changes, and similar occurrences — could lead a reasonable employee to disregard the disclaimer in the application.' Second, Defendants rely on Anderson’s Last Chance Agreement, signed by Anderson on April 20, 2009, which states: “I also understand that my entering into this agreement, does not, and is not intended to, alter my át-will employment status with the Company.” Defs.’ App. at 4. Although this statement mentions Anderson’s at-will status, it says nothing about disclaiming other policies and seems to disclaim . only the Last Chance Agreement. Indeed, it reaffirms that the Last Chance Agreement keeps things status quo,, except for a few additional requirements for Anderson. As a result, the Court finds for purposes of summary judgment that this disclaimer has no effect on the Sick Leave Policy.
Considering all of the evidence in the record in the light most favorable to Plaintiff, the non-moving party, the Court finds there is'a genuine issue of material fact as to whether the Sick Leave Policy constitutes a unilateral contract. See Hinshaw v. Ligon Indus., L.L.C.,
Assuming that the Sick Leave Policy constitutes a unilateral contract, the
The record demonstrates that Anderson failed to fulfill the request made by Ross-man on Friday, July 24. See PL’s Am. App. at 111-14. Further, due to Anderson’s absence, Emerson was required to fly in an employee from Connecticut to do the work for Anderson. Defs.’ App. at 40 (Rossman Aff. ¶ 14). Considering these undisputed facts, it appears that the conditions for termination of the Sick Leave Policy were fulfilled. The Court is inclined to grant summary judgment on the breach of contract claim for this reason. The Court notes, however, that Defendants did not specifically raise this argument in Defendants’ MSJ II; accordingly, granting summary judgment at this time would be improper. Under Federal Rule of Civil Procedure 56(f)(2) a court can “grant the motion on grounds not raised by a party,” but only after first “giving notice and a reasonable time to respond.” Therefore, the Court will reserve final ruling on Defendants’ MSJ II as it relates to Plaintiffs breach of contract claim. Each party may file a supplemental brief on the issue raised by the Court no later than April 12, 2013. Each party may file a response to the other party’s brief no later than April 24, 2013. After receiving the parties’ submissions, the Court will enter a supplemental Order regarding the propriety of an entry of summary judgment on Plaintiffs Count I.
2. Intentional interference with a written contract or intentional interference with a business advantage.
Under Iowa law, a party seeking recovery for intentional interference with a contract must first show that a third party committed the tort; a party to a contract cannot be liable for such a claim. Jones v. Lake Park Care Ctr., Inc.,
On the present record, there is simply no evidence that would support a conclusion that either Rossman or Bielen exceeded their qualified privilege.
The Court notes that Plaintiff also asserts that, in the absence of a unilateral contract, Rossman and Bielen intentionally interfered with Anderson’s rights as an employee at will.
For the reasons discussed above, Defendants’ MSJ II is GRANTED with respect to Plaintiffs intentional interference with a contract, or in the alternative, intentional interference ' with employment at will, claim. ,
3. Intentional infliction of emotional distress.
Finally, the Court must consider Defendants’ MSJ II as it relates to Plaintiffs Intentional Infliction of Emotional Distress claim. Defendants raise three arguments explaining why the claim should fail as a matter of law. First, Defendants claim
Intentional infliction of emotional distress, under Iowa law,' requires the party to prove four elements: “(1) outrageous conduct by the defendant; (2) the defendant intentionally caused, or recklessly disregarded the probability of causing, the emotional distress; (3) plaintiff suffered severe or extreme emotional distress; and (4) the defendant’s outrageous conduct was the actual and proximate cause of the emotional distress.” Borreca v. Nicholas,
To satisfy the first element under Iowa law, outrageous conduct, a plaintiff must show the act was “so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Northrup v. Farmland Indus., Inc.,
In the present case, Plaintiff claims that Defendants inflicted emotional distress by:'
Continually contacting [Anderson] while on valid leave for his mother’s death, and demanding more and more work be completed even though he was déeply grieving; [] Complaining to Mr. Anderson aboiit excessive use of vacation, even though he wanted to use vacation time to be with his mother[;] ... Terminating Mr. Anderson for alleged “no call/no show” when Defendants knew or should have known, he was in a hospital and unable to call ... and Refusing to reinstate Mr. Anderson, despite a decade of hard work and invaluable service to Defendants, and despite his literal begging for return to his job....
Am. Compl. ¶ 103.
Further, even assuming that Anderson was discharged for alcoholism and not for no-call/no-show as Emerson claims, this conduct simply does not reach the requisite level of “outrageousness” to support a finding of intentional infliction, of emotional distress. See Northrup,
Additionally, it is clear that even if Plaintiff could demonstrate the requisite level of “outrageousness,” her claim would still fail on the fourth element of an intentional infliction of emotional distress claim, i.e., that “defendant’s outrageous conduct was the actual and proximate cause of the emotional distress.” Barreca,
V. CONCLUSION
For the foregoing reasons, Defendants’ MSJ I (Clerk’s No. 36) is GRANTED. Similarly, Defendants’ MSJ II (Clerk’s No. 48) is GRANTED with respect to Plaintiffs claims of intentional interference with contract (Count II) and intentional infliction of emotional distress (Count IV). Defendants’ MSJ II remains pending as to Plaintiffs breach of contract claim (Count I). while the Court awaits supplemental briefing by the parties, as discussed supra in this Order.
IT IS SO ORDERED.
Notes
. Local Rule 56(b) serves as a supplement to Federal Rule of Civil Procedure 56. The Court notes that Defendants' argument as to why certain facts should be deemed admitted is based on Local Rule 56(b), but Plaintiff's motion is filed pursuant to Rule 56(e). Clerk's No. 67. Under Federal Rule of Civil Procedure 56(e), the Court has the discretion, when "a party- fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact [in conjunction with a motion for summary judgment], the court may ... give an opportunity to properly support or address the fact.” In such a situation, the Court also has the power to "issue any other appropriate order.” Id. 56(e)(4). The Court, however, need not grant any motion or consider the new information; instead, it may "consider the fact[s] undisputed for purposes of the motion [or] grant summary judgment if the motion and supporting materials — including the facts considered undisputed — show that the movant is entitled to it.” Id. 56(e)(2) & (3).
. Notably, Plaintiff in the present case is represented by experienced counsel from a well-regarded Des Moines law firm. While the Court grants leniency to pro se litigants and may excuse failures to comply with local rules, the same leniency, cannot and should not be applied to experienced attorneys. Further, Plaintiff provided no reason for failing to comply despite the fact that she had adequate time to prepare a response to Defendants’ statement of material facts. Defendants filed their first Motion for Partial Summary Judgment on July 30, 2012, about seven months prior to Plaintiff's Motion to Amend. See Clerk's Nos. 36, 67. Although Plaintiff does not expressly move to amend her response to that motion (Clerk's No. 39), some of the information contained in the current Motion to Amend relates back to Defendants’ MSJ I. See Pl.’s Am. Resp. at 53-56 (revealing new evidence as to the manner of decedent's death and reiterating arguments in favor of a wrongful death claim that were previously argued in Plaintiff's response to Defendants’ First Motion for Partial Summary Judgment).
Plaintiff also had ample time to draft a response in compliance with LR 56(b) with respect to Defendants' MSJ II. Defendants' moved for partial summary judgment on December 14, 2012. Clerk’s No. 48. Although originally due on January 7, 2013, Plaintiff requested, and the Court granted, numerous deadline extensions to file her response. Clerk’s Nos. 53 (first extension, filed December 21, 2012), 55 (Order granting Plaintiff's first motion for an extension), 57 (Plaintiff's second motion for an extension filed January 14, 2013), 58 (Order granting Plaintiff's second motion for an extension). Plaintiff filed her response forty-five days after Defendants’ MSJ II, on January 28, 2013. Clerk’s No. 59.
. First, Defendant was not offering a completely new or novel legal argument. The Court, without guidance from Defendants could rightly have ignored all facts denied by Plaintiff that were not supported by-the record. Additionally, Plaintiff was aware or should have been aware of the relevant Local Rule. Therefore, a claim of “surprise” is inadequate. Second, Plaintiff ignores the reality that Defendants raised this argument at the earliest possible time — in their first filing after Plaintiff's response to Defendants’ facts. Finally, Plaintiff claims that she has not had the opportunity to be heard on these fáctual issues. Br. in Supp. of Mot. to Amend at 7. Plaintiff, however, again ignores the fact that she had the opportunity to be heard on the issues and failed to take that opportunity. Notably, Defendants did not raise any additional facts in their Reply to Plaintiff’s Resistance to Defendants' MSJ II.
. In Nw. Bank I, the "court ultimately denied permission for a party to make certain amendments, but only after that party repeatedly violated the local rules. Nw. Bank I,
. Because Fisher Controls was a division of Emerson, any reference to "Emerson” throughout the order also pertains to Fisher Controls. References to Bristol, Inc. will also be considered as referring to Emerson.
. Although the Amended Complaint says 1990, it appears from other pleadings that this was a typographical error and that Anderson actually began work in 1999. Compare Am. Compl. (Clerk’s No. 6) ¶ 11 with Defs.’Facts I ¶ 1.
. In addition to Anderson's employment application, the Appendix' to Plaintiff’s Resistance to Defendants’ MSJ II ("Pl.’s App. II”) contains a document from Fisher Controls, signed by Anderson as well as the Fisher Human Resources Manager on October 10, 1999, that indicates either party must give thirty days written notice before terminating Anderson’s employment. PL’s App. II (Clerk's No. 59-2) at 5. The agreement further states that in the event the employee is "transferred from FISHER CONTROLS to the employment of another company that is a Subsidiary or is Emerson or Fisher ... and [the employee] has not entered into a superseding agreement with [the employee's] new employer covering the subject matter of this Agreement, then this Agreement shall continue in effect....” Id. The parties, however, do not mention this agreement anywhere in their additional pleadings. Accordingly, the Court will assume the agreement either was not in effect at the time of Anderson’s termination or is not pertinent.
. This policy will be discussed in greater detail in Section II.E of this Order.
. The Court is uncertain as to Margaret Allen’s exact relation to Anderson. It appears, however, that she works as an assistant to Rick Vanderah, but also is an assistant to other employees in some respects — specifically in scheduling. See PL's Am. Statement of Facts at 38; Pl.’s Am.App. at 94, 95 (Ms. Allen is listed as a carbon copy recipient of multiple emails sent to and from Anderson regarding his time out of the office), 98.
. This email chain suggests that Anderson and Rossman talked on the phone at some point as well. Neither party, however, has provided to the court the contents of such a phone call. See Pl.’s Am.App. at 102 ("I need the information we discussed today by tomorrow morning.” (emphasis added)), 103 (Anderson stating, "The '08 Chesapeake shipments were $1,000,112 with commission of $177,136”). Notably, there are only two emails in the record sent by Rossman on this date and neither requests information about "Chesapeake shipments.” See id. at 101-03 (emails from July 23).
. The two questions dealt with wage inflation over a three-year peribd and asked where $60,000 in savings was located. Pl.’s Am. App. at 104, 106.
. Trazodone is a prescription antidepressant and should not be taken with alcohol. See Trazodone, PubMed Health U.S. Nat’l Library of Medicine (Nov. 1, 2012) http://www.ncbi. nlm.nih.gov/pubmedhealth/PMHT0012504/? report=details.
. The Court notes that Plaintiff has attempted to cite a document from McFarland Clinic, but Plaintiff has failed to provide the Court with the cited document. Defendants have not challenged this assertion, however, and construing all facts and reasonable inferences in favor of the nonmoving party, the Court will adopt, as fact, for purposes of this motion, that Anderson did not have access to a phone during his hospital stay.
. These emails discuss prior problems with Anderson and show that Bielen was gathering information to talk with “Jeff” — presumably Jeffrey R. Carius, Vice President and Chief Employment Counsel. See Pl.'s Am.App. at 5 (listing "Jeffrey R. Carius” as a representative
. Likely, she knew of the situation sometime on Monday, July 27. See Pl.'s Am.App. at 115 (email from July 27 stating, "I don’t want us to be viewed as unsympathetic to the fact that his mother just passes away which he may claim brought this episode on, etc.”).
. Indeed, this is general practice for Emerson employees. See Pl.’s Am.App. at 67 (Rossman's signed receipt), 68-69 (Bielen signature pages), 70-71 (Vanderah signature pages).
. Defendants claim that the Court should accept as a fact that Anderson received the Employee Handbook and the Employment-at-Will Policy because these facts were supported by Bielen’s Affidavit. See Reply in Supp. of Defs.' MSJ II (Clerk’s No. 66) at 3. The Court, however, need not accept information in affidavits if the information lacks sufficient support. See Fed.R.Civ.P. 56(c)(4). According to Rule 56, affidavits that are "used to support or oppose a motion must be made on personal knowledge ... and show that the affiant ... is competent to testify on the matters stated.” Id. In the present case, Bielen’s statement that Anderson received the employee handbook fails to satisfy either of these requirements. Bielen stated she only spoke with Anderson on less than three occasions'— one of which was following his termination. Defs.’ App. II at 46 (Bielen Aff. ¶21). She has failed to provide any context surrounding the distribution of the handbooks, including date or location. Most unsettling, however, is the fact that Bielen lacks personal knowledge of whether Anderson received the handbook. Bielen works in Connecticut, and nothing in her affidavit (or in the record) indicates that she traveled the thousand-plus miles to Marshalltown, Iowa to distribute employee handbooks or oversee their distribution. Thus, the Court cannot accept Bielen’s representation as fact when ruling on Defendants' motions.
Additionally, under Federal Rule of Civil Procedure 56(c)(1)(B), a party can support an assertion by "showing ... that an adverse party cannot produce admissible evidence to support [a] fact.” In her requests for admissions, Plaintiff asked Defendants to admit that one of the Defendants have a copy of Anderson’s signed acknowledgment, and Defendants responded that none of them have been able to locate such a document. Pl.’s Am.App. at 47. By demonstrating other parties signed documents stating they had received the employee handbook and by demonstrating that Defendants could not produce a signed sheet by Anderson, Plaintiff has raised an issue of fact as to whether Anderson did or did not receive the employee handbook. See Pl.’s Am. Facts at 17-18.
. Defendants have not produced any evidence that Anderson received this policy other than Bielen’s affidavit. For the reasons listed, supra, in footnote 17, the Court must ignore Bielen’s affidavit with respect to the Employment-at-Will Policy. Unlike the Employee Handbook, however, Plaintiff has not demonstrated that Anderson did not receive the Employment at Will Policy, so the Court cannot assume the fact in favor of one party or the other.
. Plaintiff changed the party to read: "Lana Anderson, as Administrator of the Estate of Norman Anderson,” rather than simply "Estate of Norman Anderson.”
. The "intentional interference with at-will employment” claim was not raised in the complaint. Rather, Plaintiff raised this claim for the first time in her response to Defendants’ MSJ II. See Pl.’s Resistance II at 22-23.
. Indeed, Judge Hornby, a District Court judge for the District of Maine, convincingly suggests that the name "summary judgment” should be changed to "motion for judgment without trial.”
. Judge Hornby notes that over ' seventy years of Supreme Court jurisprudence gives no hint that the summary judgment process is unconstitutional under the Seventh Amendment. Id. at 281 (citing Parklane Hosiery Co. v. Shore,
. Despite Defendants’ failure to raise this issue in a separate motion, the Court will construe this part of Defendants’ brief as a motion to exclude expert testimony.
. The parties repeatedly refer to the manner of death as the “cause of death.” In this context, "manner of death” means how the car crash came to be — whether the crash was intended as a suicide or simply an accident.
. Plaintiff's "disclosures” are contained in her answer to Defendants’ Interrogatory No. 3. PL's Resistance I at 17-26.
. Plaintiff’s other answers' follow the ■ same pattern, but change the .witness’s name and occupation.
. The Court possesses almost none of these - medical records. Rather, Plaintiff implies that Defendants have received them, in initial discovery.
. Even liberally reading the answer to interrogatories in a way that leads the Court to believe that the answers describe "the subject matter on which the witness is expected to present evidence," and even perhaps "the facts ... to which the witness is expected to testify,” the Court still finds the answers completely lack the mention of any opinion. It is also important to note that misinterpreting the rule because it was “new” does not justify Plaintiff's failure. By the time the suit reached federal court, Rule 26(a)(2)(C) had been in place for nine months. When Plaintiff filed expert disclosures, on July 9, 2012, the rule had been in effect for over,a year and a half. Finally, a number of district court opinions had discussed and. interpreted the rule by July 9, 2012. See, e.g., Lopez, 2012
. Defendants did, in fact, seek out expert testimony to rebut the potential testimony of Plaintiff's experts. See Defs.’ Reply to Pl.’s Opp’n to Defs.’ Mot. for Summ. J. Ex. A (Clerk's No. 42).
. For example, reports from witnesses such as Michele Catellier, the associate state medical examiner who produced the "Report of Autopsy of Norman Anderson,” do provide some background on the subject of their testimony.
. These witnesses include any person who had signed or helped develop a type of written record — for example, Michele Catellier can offer opinion testimony as to the autopsy of Norman Anderson.
. The Court’s decision regarding expert testimony has no impact on any witness’s eligibility to testify as a fact witness.
. Plaintiff is somewhat vague as to what exactly constitutes the tortious acts, but refers the Court to "the preceding counts and paragraphs” in her Amended Complaint. Presumably, Plaintiff is relying on the other claims in the Amended Complaint, i.e., Defendants’ alleged breach of contract, tortious interference with a contract, intentional infliction of emotional distress, violation of ICRA, interference with FMLA rights, retaliation for exercising FMLA rights, and disability discrimination. See Am. Compl. ¶¶ 77-157.
. The Court notes, however, that the claim would be very close. Under Iowa law; "generally the question of suicide is one for the jury.” Brown v. Metro. Life Ins. Co.,
. Indeed, the Iowa Judicial Branch has codified this rule in the Iowa Rule of Appellate Procedure 6.904(3)(j), which states "General
. The Iowa Supreme Court noted in Fitzgerald that, given the exceptions to the at-will employment doctrine, the “traditional doctrine of termination ‘at any time, for any reason, or no reason at all’ is now more properly stated as permitting ‘termination at any time for any lawful reason.' ” Fitzgerald,
. In her original complaint, Plaintiff asserted that this termination was also in violation of public policy. Am. Compl. ¶¶ 115-19. The Court, however, rejected this argument and dismissed the claim after Defendants’ Second Motion to Dismiss. See Clerk’s No. 22.
. For an explanation of why this evidence cannot be accepted when ruling on this motion, see supra, notes 17-18.
. At the time of Anderson's termination, Rossman was an officer of the corporation; specifically, he was a vice president and Chief Financial Officer of the company. Defs.’ App. at 38 (Rossman Aff. ¶ 2). The same holds true for Bielen, who was the head of Human Resources. Defs.’ App. at 43 (Bielen Aff. ¶ 2).
. Plaintiff first raised this claim in her Resistance to Defendants’ MSJ II, and Defendants asked the Court to prohibit Plaintiff from raising it. See PL’s Resistance II at 22-23; Defs.’ Br. in Reply to PL’s Resistance II at 5.
. Plaintiff also states some other alleged causes of Anderson's emotional distress that have no basis in the record — for example, that Anderson was treated much differently and much worse after signing his "Last Chance” agreement and "Complaining to Mr. Anderson about excessive use of vacation.” Am-. Compl. ¶ 103.