Malovanyi v. N. Am. Pipe Corp., 15-cv-548-jdp
| Decision Date | 12 July 2017 |
| Docket Number | 15-cv-548-jdp |
| Parties | RUSLAN MALOVANYI, Plaintiff, v. NORTH AMERICAN PIPE CORPORATION, Defendant and Third-Party Plaintiff, v. MOONLIGHT TRANSFER INC. and BLUE AND YELLOW TRANSPORTATION, INC., Third-Party Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
Plaintiff Ruslan Malovanyi is a truck driver who was picking up a load of plastic pipe from defendant North American Pipe Corporation (NAPCO). Malovanyi was injured when a bundle of pipe fell from his truck while he was securing the load, which had been placed on his truck by a NAPCO employee. Malovanyi contends that the NAPCO employee had improperly placed the bundle, and he brings claims against NAPCO for negligence, negligence per se, and gross negligence. Dkt. 23. NAPCO brings claims against third-party defendants, Moonlight Transfer Inc., which brokered the delivery and hired Blue and Yellow Transportation, Inc., to pick up and deliver the pipe.
NAPCO moves for summary judgment on Malovanyi's claims. Dkt. 39. And both Malovanyi and NAPCO have filed motions concerning Malovanyi's late-disclosed liability expert. The court will grant NAPCO's motion to strike Malovanyi's expert, and it will grant NAPCO's motion for summary judgment. The court will apply the Savage rule, under which Malovanyi, not NAPCO, was responsible for securing the load. In light of the court's decision on Malovanyi's claims, NAPCO's claims against the third-party defendants are apparently moot, although the court will give NAPCO the opportunity to inform the court whether those claims should be dismissed.
Except where noted, the following facts are undisputed.
NAPCO manufactures plastic pipe. In late 2014, NAPCO arranged to transport a load of pipe from its Janesville, Wisconsin facility to two destinations outside of Wisconsin. NAPCO contacted Moonlight to transport the load, and Moonlight assigned the load to Blue and Yellow. Blue and Yellow assigned one of its independent contractors to do the job: Malovanyi.
Malovanyi was an inexperienced driver. Malovanyi had received his commercial driver's license on July 30, 2014. But when Malovanyi applied to work for Blue and Yellow, he stated, falsely, that he had worked as a commercial driver since July 2012. Malovanyi claims this was merely a mistake; NAPCO characterizes the misrepresentation as more nefarious. Regardless, as of the date of the accident, December 1, 2014, Malovanyi had been driving a commercial vehicle for only four months.
Malovanyi arrived at the Janesville facility to pick up the pipe. NAPCO's employee, Larry Lewis, directed Malovanyi to several locations in the yard, and Lewis loaded pipe with a fork lift onto Malovanyi's trailer at each stop. Each time Lewis placed pipe on the trailer, Malovanyi strapped it down before moving to the next location. NAPCO personnel were not responsible for securing the load.
In total, Lewis loaded four stacks of pipe, two forward stacks (one on the driver's side, one on the passenger's side), and two rearward stacks (again, one on the driver's side, one on the passenger's side). Lewis told Malovanyi to secure the load after he placed each stack of pipe; but nothing in the record indicates that Lewis—or any other NAPCO employee—told Malovanyi how to approach or secure the load.
Malovanyi knew the proper procedure for securing a load of pipe, which required throwing straps over a base layer of pipe—sometimes called the belly layer—before throwing straps over the top of the stack. Once all straps are in place, Malovanyi knew to tighten the top straps before tightening the bottom ones. The steps are as follows:
Malovanyi knew that he needed to tighten the top straps first, "[t]o make sure that the upper portion of the pipes would not fall." Dkt. 77, ¶ 19 (quoting Dkt. 43 (Malovanyi Dep. 96:23-24)).
But Malovanyi did not follow these steps on December 1: Malovanyi tightened the bottom straps before Lewis loaded the top layer.1 The passenger's side bottom layer was taller than the driver's side stack, so the taut bottom straps were at an angle, sloping down toward the driver's side. By Malovanyi's account, Lewis continued to load the trailer; he set a bundle on top of the taut bottom straps. As Lewis moved his forklift away from the trailer, the bundle was left sitting at an angle atop the straps. Then Lewis left the area.
When Malovanyi approached the driver's side of the trailer, the angled bundle slid off the trailer, striking Malovanyi. Malovanyi claims that he did not see that the top bundle was sitting at an angle. Malovanyi did not ask Lewis or any other NAPCO personnel to reload the trailer or adjust the load before he approached it.
Pictures of the scene immediately after the accident confirm that no top straps had been thrown over the load and that the bottom straps had been tightened.
The court has subject matter jurisdiction over Malovanyi's claims pursuant to 28 U.S.C. § 1332 because the parties are completely diverse and the amount in controversy exceeds $75,000.
The court begins with NAPCO's motion to strike Malovanyi's liability expert. Dkt. 56. Early in the case, Malovanyi disclosed his liability theory and his liability expert, Brooks Rugemer. NAPCO, understandably, built its defense in response. But then Malovanyi changed experts. On November 30, 2016, more than a year after he first disclosed Rugemer's opinions, Malovanyi disclosed a new liability expert, Adam Grill, with new opinions.2
Malovanyi disclosed Rugemer's report on October 6, 2015, before the court held its preliminary pretrial conference. The Preliminary Pretrial Conference Order required NAPCO to disclose its responsive liability expert not later than June 17, 2016; Malovanyi was required to disclose his rebuttal report not later than August 19, 2016. Dkt. 12, at 2. The order explicitly provides that "[f]ailure to comply with these deadlines and procedures could result in the court striking the testimony of a party's experts pursuant to Rule 37." Id. On August 23, 2016, Malovanyi de-designated Rugemer, citing unspecified "professional reasons." Dkt. 56-6, at 1.
Malovanyi's first attorney had a medical emergency, and the court agreed to reset a number of deadlines. But the Amended Scheduling Order explicitly notes that Dkt. 55. And the court told Malovanyi that he would need to seek and obtain leave of the court before attempting to disclose or use expert witnesses in this suit. Id. () But Malovanyi ignored the court's instructions and disclosed a new liability expert with new opinions on November 30, 2016, without moving for leave to do so.
Federal Rule of Civil Procedure 26(a)(2)(D) provides that a party must make its expert disclosures "at the times and in the sequence that the court orders." Under Rule 37(c)(1), "[i]f a party fails to provide information or identify a witness as required by Rule 26(a) . . . the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial." These sanctions are "automatic and mandatory . . . unless [the] non-disclosure was justified or harmless." Musser v. Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir. 2004).
After reviewing Malovanyi's explanations for his late disclosure of a new expert, the court is not convinced that the late report was justified or harmless. Malovanyi contends, unconvincingly, that the November 30, 2016 disclosure was actually timely. He cites Rule 26(a)(2)(D), which provides that parties must make expert disclosures "at least 90 days before the date set for trial or for the case to be ready for trial." But this rule does not govern here. Expert disclosures are due 90 days before trial "[a]bsent . . . a court order." Id. As discussed, parties must make their expert disclosures "at the times and in the sequence that the court orders." Id. Period. Malovanyi's November 30, 2016 disclosure was untimely. Mere weeks before he produced the new report, the court explicitly warned him that his time for disclosing experts had come and gone.
Malovanyi contends that even if the disclosure were untimely, it was harmless. Malovanyi contends that NAPCO has had the opportunity to depose the new expert and couldhave its expert prepare a supplemental report; as a result, NAPCO is not prejudiced. But Malovanyi's disclosure came well after NAPCO had secured and disclosed its own expert and well after NAPCO had moved for summary judgment. The schedule that Malovanyi proposes—where he is permitted to disclose experts at will, provided he leaves enough time in the schedule to allow NAPCO to depose the expert and secure supplemental responsive opinions—is not the schedule that the court set in this case. See Finwall v. City of Chicago, 239 F.R.D. 494, 501 (N.D. Ill.), objections overruled, 239 F.R.D. 504 (N.D. Ill. 2006) ().
Malovanyi also contends that the new expert merely adopts...
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