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Brooks v. Caterpillar Global Mining America, LLC

United States District Court, W.D. Kentucky, Owensboro Division

April 20, 2017

BEAU BROOKS and TINA BROOKS PLAINTIFFS
v.
CATERPILLAR GLOBAL MINING AMERICA, INC. DEFENDANT

          MEMORANDUM, OPINION AND ORDER

          H. Brent Brennenstuhl United States Magistrate Judge.

         BACKGROUND

         Defendant, Caterpillar Global Mining America, LLC (“CGMA”), has filed two related motions. Specifically, CGMA has filed a motion to permit discovery regarding Plaintiffs supplemental response to an interrogatory (DN 103), and a motion to strike Plaintiffs' third supplemental expert disclosures as untimely or, in the alternative, to continue the trial date and reset the discovery deadlines (DN 108). Plaintiffs, Beau and Tina Brooks (the “Brooks”), filed responses to both motions (DN 109, 123), and CGMA filed replies (DN 110, 125). The undersigned conducted a telephonic conference with counsel for the parties in order to obtain clarification on a number of issues raised in the motions (DN 113). This matter is ripe for determination.

         NATURE OF THE CASE

         This is a product-liability case against CGMA arising out of an accident that happened on May 10, 2013 (DN 1 Complaint). Beau Brooks, a Western Kentucky coal miner, sustained a crushing injury to his left hand while operating a Caterpillar RB220 Roof Bolter (Id.). A roof bolter is a large machine used in underground mining operations, and, as the name suggests, is used to drive large bolts through the roof of the mining cavern to prevent the roof from collapsing (Id.). The operator rides beneath a protective steel canopy, and, on this model, a handle was attached to the underside of the canopy close to the outer edge of the canopy (Id.). The Brooks allege that while operating the roof bolter, Beau Brooks grasped the handle with his left hand in order to keep himself inside the cab of the roof bolter (Id.). The Brooks assert the handle was located so close to the edge of the canopy that it extended Beau Brooks' left hand beyond the outer edge of the overhead canopy (Id.). The Brooks allege that as Beau Brooks backed the roof bolter around a coal pillar his left hand became trapped between the canopy handle and the coal pillar (Id.). The Brooks maintain that the location of the handle rendered the roof bolter defective (Id.). The complaint asserts claims of negligence, strict liability, and loss of consortium against CGMA (Id.).

         Discovery in this case closed some time ago. On February 2, 2017, the Brooks supplemented their response to interrogatory No. 22 of CGMA's first set of interrogatories (DN 103-2). Specifically, the Brooks disclosed that Beau Brooks resigned from his position as a coal miner in November 2016, and he began working at an automobile body shop where he earns $16.50 per hour (Id.). On February 24, 2017, the Brooks supplemented their expert witness disclosures (DN 108-3). Specifically, the Brooks' provided supplemental reports, pursuant to Fed.R.Civ.P. 26(a)(2)(B), from their economist (Stan V. Smith, PhD) and rehabilitation expert (Leonard N. Matheson, PhD, CV E, CRC) to address Beau Brooks' recent changes in employment status (Id.). Additionally, the Brooks newly identified Kristy Fleming, a treating nurse practitioner, as a Fed.R.Civ.P. 26(a)(2)(C) testifying expert witness (Id.).

         ARGUMENTS OF THE PARTIES

         Within days of the Brooks serving a supplemental response to interrogatory No. 22, CGMA filed its motion to permit discovery (DN 103). In its motion, CGMA expressed concern that Beau Brooks' changed employment circumstance might significantly impact his claim for impairment of earning capacity and, to that end, wished to undertake discovery to follow up on this development (DN 103). The discovery that CGMA anticipated would include a supplemental deposition of Beau Brooks; a supplemental records deposition and/or deposition testimony from his former employer, Armstrong Coal; a supplemental independent medical examination; a supplemental records deposition and/or depositions of his treating physicians; a deposition of and subpoena duces tecum to his new employer; a potential re-evaluation of him by CGMA's vocational rehabilitation expert; and an evaluation of the new information by CGMA's economic experts (Id.).

         Within days of the Brooks serving supplemental expert witness disclosures, CGMA filed its motion to strike or, in the alternative, to continue the trial date and reset discovery deadlines (DN 108). In the second motion, CGMA argues that the revised expert opinions and newly-identified expert significantly increase the Brooks' damage claims and represent an unfair late-game change of opinion (DN 108-1). CGMA moves the Court to exclude the new opinions and witness (Id.). In the alternative, CGMA asks the Court to continue the May 22, 2017 trial date and to issue a new scheduling order that will permit it adequate time to conduct discovery related to the new opinions, conduct a deposition of Kristy Fleming, allow CGMA's economic and vocational experts an opportunity to review and respond to the revised opinions of the Brooks' experts, and conduct the discovery requested in DN 103 (Id.).

         The Brooks indicated in their responses (DN 109, 123) and during the telephonic conference in which the parties discussed the motions, that they only oppose CGMA's motions in part (DN 113). As to the first motion (DN 103), the Brooks are agreeable to CGMA conducting a follow-up deposition of Beau Brooks that is limited to his change in employment; they do not object to CGMA obtaining from Armstrong Coal additional employment documents about his resignation; and they do not object to CGMA obtaining documents from his new employer, Wester's Body Shop (DN 109). The Brooks oppose deposition discovery of Wester's Body Shop, out of concern that it might negatively impact Beau Brooks' job security as a newly-hired employee (Id.). Additionally, the Brooks oppose any additional medical discovery other than to the extent it involves any change in Beau Brooks' condition, and they oppose his submission to another medical/vocational examination by defense retained experts (Id.).

         As to the second motion (DN 108), the Brooks argue when their counsel learned of Beau Brooks' new employment he timely supplemented the response to interrogatory No. 22 (DN 123). Further, the Brooks assert there are no grounds to strike the supplemental opinions of Drs. Matheson and Smith because they timely submitted supplemental expert disclosures after counsel made them aware of Beau Brooks' recent change in employment (Id. citing Fed.R.Civ.P. 26(e)). The Brooks contend that counsel's expert disclosure of nurse practitioner Kristy Fleming is timely considering Beau Brooks transferred to her care after the closure of discovery and CGMA has known about the subject matter of her treatment since May 2016 (DN 123). Finally, the Brooks argue that CGMA has exaggerated the amount of discovery it will need to adequately prepare for trial in light of the supplemental response to the interrogatory, the supplemental opinions of Drs. Matheson and Smith, and the expert disclosure of Kristy Fleming (Id.). The Brooks believe that a continuance of the trial date will not be necessary because CGMA can adequately prepare for trial without having to conduct extensive discovery (Id.).

         In its replies, CGMA emphasizes the undue prejudice it will suffer if the Brooks are allowed to introduce at trial the untimely supplementations and expert testimony that demonstrate at least an additional $300, 000.00 in damages as a result of a change in Beau Brooks' employment (DN 110, 125). Contrary to the Brooks assertion, CGMA contends these untimely disclosures indicate Beau Brooks' medical condition has changed and the Court should strike the disclosures and preclude the Brooks, at trial, from introducing evidence or referring to the fact of Beau Brooks employment change and/or its alleged impact on their claim against CGMA (Id.). Alternatively, CGMA asserts that good cause exists for the Court to continue the May 22, 2017 trial date and grant it leave to conduct discovery so that it may respond to the Brooks' new evidence with rebuttal evidence, including but not limited to additional expert testimony (Id.). Additionally, CGMA points out that the records from Wester's Body Shop will not provide information such as what Beau Brooks does and what if any accommodations are being made on the job (Id.). Further, CGMA questions the Brooks' general assertion that deposing Wester's Body Shop could have a potential negative effect on Beau Brooks' employment status (Id.). Finally, CGMA contends that the Brooks' argument about discovery already being closed should not be allowed to prevail here because the Brooks themselves altered the fabric of the case after the close of discovery (Id.).

         DISCUSSION

         Rule 26(e) ...


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