Loper v. Adams

• Decision Date: 25 March 2011
• Docket Number: No. 20100101.,20100101.
• Citation: 795 N.W.2d 899,2011 ND 68
• Parties: Kenneth LOPER, Plaintiff and Appellantv.William ADAMS, Defendant and Appellee.
• Court: North Dakota Supreme Court

795 N.W.2d 899

2011 ND 68

Kenneth LOPER, Plaintiff and Appellant

v.William ADAMS, Defendant and Appellee.

No. 20100101.

Supreme Court of North Dakota.

March 25, 2011.

Rudra Tamm, Bismarck, N.D., for plaintiff and appellant.Scott Kenneth Porsborg, and David Ray Phillips (appeared), Bismarck, N.D., for defendant and appellee.MARING, Justice.

[¶ 1] Kenneth Loper appealed from a district court summary judgment dismissing his negligence action against William Adams. We reverse and remand, concluding that: (1) the district court did not abuse its discretion in excluding Loper's expert witness and denying Loper's motion for an enlargement of time to disclose his expert witness; but (2) genuine issues of material fact remain and the district court therefore erred in granting summary judgment.

I

[¶ 2] Loper was employed as a ranch hand by Adams. On May 16, 2005, Loper was assisting with branding and vaccination of calves when, on two separate occasions, calves got loose in the cattle chute and struck Loper in the back, knocking him to the ground. Loper did not seek medical attention on that date, but testified in his deposition that his back was sore, his legs were weak, and he had difficulty moving. Although he continued working the week after the May 16 incidents, he continued to suffer pain and weakness in his back and legs.

[¶ 3] On May 23, 2005, Loper went to a pasture to check the cows. He testified that, as he turned to close a gate, he twisted his trunk and heard something pop in his lower back. Loper fell to the ground, felt pain in his lower back, and temporarily lost feeling in his legs. He used his cell phone to summon help and was taken to the hospital by ambulance. An MRI conducted at the hospital revealed a disc rupture at L5–S1.

[¶ 4] Loper sued Adams for negligent supervision and negligent maintenance of the workplace, alleging that his back was injured when he was struck by the calves in the cattle chute on May 16, 2005. Loper does not claim Adams was negligent or liable based upon the incident with the gate on May 23, 2005. ¹

[¶ 5] On February 14, 2008, Adams served interrogatories, including an interrogatory asking Loper to identify any expert witnesses he expected to call at trial. On March 20, 2008, Loper responded: “Experts have not been selected.” On July 1, 2009, with a scheduled September 14, 2009, trial date pending and with no supplementation of Loper's interrogatory response, Adams moved for summary judgment, arguing Loper had failed to present any expert medical evidence establishing that his injuries and resultant damages were causally related to the calf incident. Loper's counsel initially submitted an affidavit indicating that Dr. Ralph Dunnigan, Loper's treating neurologist, would testify as an expert witness, but at the hearing on the summary judgment motion Loper's counsel indicated it had not been decided whether Dr. Dunnigan would testify.

[¶ 6] By order dated September 2, 2009, the district court denied the summary judgment motion, continued the trial, and directed the parties to agree to a scheduling order to complete discovery. The parties thereafter stipulated that Loper would disclose his expert witnesses by November 15, 2009, and Adams would disclose his experts, including an independent medical examination of Loper, by January 15, 2010. The court adopted the stipulation as its scheduling order and trial was set to begin March 24, 2010.

[¶ 7] The November 15, 2009, and January 15, 2010, deadlines passed without Loper disclosing a medical expert, updating his interrogatory response, or otherwise advising opposing counsel or the court of an intent to call a medical expert witness at the upcoming trial. On January 27, 2010, Adams filed a renewed motion for summary judgment, again arguing that Loper had failed to present expert testimony demonstrating that his injuries were causally related to the calf incident as opposed to the gate incident. On February 10, 2010, Loper's counsel e-mailed an expert report by Dr. Dunnigan to Adams's counsel. Adams moved to exclude Dr. Dunnigan's report and to exclude expert testimony by Dr. Dunnigan at trial. Loper then filed a motion for enlargement of time to disclose his expert witness and for a continuance of the trial. The district court determined that Loper's failure to timely disclose Dr. Dunnigan as an expert witness was not due to excusable neglect and his testimony and report would therefore be excluded. The court further held that, without expert medical testimony showing that Loper's injuries were caused by the calf incident, Loper could not carry his burden of proof on causation. The court therefore granted summary judgment dismissing Loper's action.

II

[¶ 8] Loper contends that the district court erred in refusing to grant his motion for an enlargement of time to disclose his expert witness and for a continuance of the trial, and in excluding Dr. Dunnigan's testimony and report.

[¶ 9] We have outlined the district court's broad discretionary authority and our limited scope of review in such cases:

The decision to admit expert testimony rests within the discretion of the district court and will not be reversed in the absence of a showing of abuse of discretion. We also will not reverse a district court's decision to deny a continuance absent an abuse of discretion by the court. A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process.

Clark v. Clark, 2006 ND 182, ¶ 7, 721 N.W.2d 6 (citations omitted).

[¶ 10] In February 2008, Adams had served interrogatories asking Loper to identify any expert witnesses he intended to call at trial. Loper responded: “Experts have not been selected.” Under N.D.R.Civ.P. 26(e)(1)(B), Loper had an ongoing duty to seasonably supplement that response by providing the identity of any expert witness and the subject matter and substance of the witness's testimony. Loper failed to do so. Under these circumstances, the “district court has discretionary authority in determining appropriate sanctions for a party's failure to timely supplement interrogatories by disclosing the identity of an expert witness and the substance of the expert's testimony,” including exclusion of the expert's testimony. Clark, 2006 ND 182, ¶¶ 8, 10, 721 N.W.2d 6.

[¶ 11] In addition to the general duty to seasonably supplement his interrogatory response under the rules, Loper had expressly stipulated that he would disclose his expert witnesses by November 15, 2009, and the court adopted the stipulation as its scheduling order. The stipulation and scheduling order resulted from the court's prior order denying Adams's motion for summary judgment and continuing the trial date. The district court in that order cautioned Loper that expert medical testimony would be necessary to establish causation, and that the purpose of the continuance was to allow completion of discovery and disclosure of witnesses. Despite having two months between the time of the court's September 14, 2009, scheduling order and the November 15 due date, Loper did not identify a medical expert or provide the substance of the expert's testimony by the deadline. In fact, Loper provided no indication that he intended to call a medical expert witness until February 10, 2010, after all discovery deadlines had passed and Adams had renewed his motion for summary judgment based upon Loper's failure to provide expert medical evidence of causation.

[¶ 12] Loper acknowledges that the disclosure of Dr. Dunnigan as an expert witness was untimely, but argues that the failure to disclose was the result of excusable neglect and that the district court therefore should have granted his motion for enlargement of time under N.D.R.Civ.P. 6(b). Rule 6(b) provides:

When an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if a request for enlargement is made before expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after expiration of the specified period permit the act to be done if the failure to act was the result of excusable neglect....

Because Loper's motion for enlargement of time came after the original deadline had passed, Loper had the burden to demonstrate that his failure to timely disclose was the result of excusable neglect. Alerus Fin., N.A. v. Lamb, 2003 ND 158, ¶ 8, 670 N.W.2d 351. Under Rule 6(b), the district court has broad discretion in determining whether to allow additional time. Alerus Fin., at ¶ 9.

[¶ 13] In support of his motion for enlargement of time, Loper submitted an affidavit of counsel indicating he had first requested a medical opinion from Dr. Dunnigan in 2006, but it was decided to delay the report until Loper reached maximum medical improvement. Counsel's affidavit continued:

7. In subsequent years, despite repeated requests from this office, Dr. Dunnigan delayed in writing a report regarding Mr. Loper.

8. One reason for the delay has been waiting for Mr. Loper to reach maximum medical improvement. The other reason has been Dr. Dunnigan's heavy workload.

The district court determined that Loper had failed to establish excusable neglect, and concluded that Loper had adequate time to disclose his expert witness within the deadlines set in the scheduling order. The court therefore denied the motion for enlargement of time and for a continuance.

[¶ 14] Loper's purported reasons for failing to timely disclose Dr. Dunnigan are either conclusory or irrelevant, and the district court did not abuse its discretion in determining Loper had failed to establish excusable neglect under N.D.R.Civ.P. 6(b)(2). Dr. Dunnigan's report, when finally issued, did not address maximum medical improvement. Furthermore, Loper provided no...