McLaurin v. East Jordan Iron Works, Inc.
| Citation | 666 F.Supp.2d 590 |
| Decision Date | 09 April 2009 |
| Docket Number | No. 5:08-CV-89-F.,5:08-CV-89-F. |
| Parties | Henry D. McLAURIN and Millie D. McLaurin, Plaintiffs, v. EAST JORDAN IRON WORKS, INC., Vulcan Threaded Products, Inc., and Grand Rapids Bolt and Nut, Inc. d/b/a Great Lakes Fasteners, Defendants. |
| Court | U.S. District Court — Eastern District of North Carolina |
Daniel F. Read, Durham, NC, for Plaintiffs.
William W. Pollock, Andrew D. Hathaway, Cranfill Sumner & Hartzog, LLP, Raleigh, NC, Jeffrey H. Blackwell, Hedrick, Gardner, Kincheloe & Garofalo, LLP, Wilmington, NC, for Defendants.
This matter is before the Court on Defendants' motion to strike as experts Bill W. Hong and Andrew Preiss and to strike the expert report of Hong [DE-27] and motion for extension of time to produce expert reports [DE-33]. Plaintiffs oppose the motion to strike [DE-30] and have not responded to the motion to extend time. These matters are now ripe for ruling.
Plaintiffs filed this case in North Carolina Superior Court on January 22, 2008, and a notice of removal was filed in this Court on March 4, 2008. On June 10, 2008, the Court entered a scheduling order providing that reports from retained experts were due from the Plaintiffs by October 1, 2008 and from the Defendants by November 1, 2008, and that all discovery was to be completed no later than December 31, 2008. The scheduling order was subsequently amended three times to extend the deadlines set forth therein. On August 20, 2008, Plaintiffs made their Rule 26(a) disclosures, which identified Andrew Preiss, but not Bill Hong, as an expert witness. On February 6, 2009, Defendants received the expert report of Hong and on February 13, 2009, filed the present motion to strike.
Courts have broad discretion to determine whether to exclude evidence based on non-disclosure, and the Fourth Circuit has enumerated the following five factors as a guide: (1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for its failure to disclose the evidence. Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596-97 (4th Cir.2003). Applying these factors in light of the scheduling order, it appears to the Court that exclusion of Hong's report and testimony is not warranted. See Pacific AG Group v. H. Ghesquiere Farms, Inc., No. 5:05-CV-809 (E.D.N.C. Jan. 19, 2007) (unpublished op.) . However, the Court will exclude Preiss as an expert as the Plaintiffs have not produced an expert report for this witness.
With respect to Hong, Plaintiffs disclosed Hong as an expert at Henry McLaurin's deposition on January 8, 2009, and Defendants received his expert report on February 6, 2009, two months before Defendants' expert reports were due, four months before the close of discovery, and eight months before trial. Consequently, the first and third factors, surprise to Defendants and the extent to which allowing the evidence would disrupt the trial, weigh against striking Hong's report. Furthermore, given this case's schedule, any surprise or prejudice caused by Plaintiffs' noncompliance can be cured by amendment of the scheduling order providing Defendants more time to disclose reports from their retained experts. The fourth factor, the importance of the evidence, is undisputed, as Defendants recognized in their brief: "Arguably, Hong's report is the only evidence to allow Plaintiffs to survive summary judgment." (Def.'s Memo. in Support at 7.)
Considering all of the Southern States factors, the Court DENIES Defendants' motion to strike Hong as an expert and to strike his report. The Court notes that it understands the Defendants' frustration with Plaintiffs' counsel regarding the late filed report, and Plaintiffs' counsel is put on notice that any further failure to comply with case management deadlines will result in the imposition of sanctions. To ensure Defendants are not prejudiced by Plaintiffs' failure to comply with the scheduling order, the Court will extend the deadline to produce its expert reports and will correspondingly extend the other case management deadlines.
With respect to Preiss, Defendants assert that Plaintiffs have failed to produce Preiss's expert report and have not made Preiss available for deposition. Plaintiffs' response to the motion to strike makes no mention of Preiss. Consequently, the Court finds that striking Preiss as an expert witness is appropriate under the Southern States factors. Accordingly, the Court GRANTS Defendants' motion to strike Preiss as an expert.
For the foregoing reasons, the Defendants' motion to strike with respect to Hong is DENIED and Defendants' motion to strike with respect to Preiss is GRANTED. Furthermore, Defendants' motion to extend time is GRANTED, and the scheduling order is AMENDED as follows:
1. Reports from retained experts are due from the Defendants by June 4, 2009;
2. All discovery shall be completed by July 2, 2009;
3. All potentially dispositive motions shall be filed by August 3, 2009; and
4. The trial of this matter shall be scheduled for Judge Fox's December 7, 2009 term in Wilmington, NC.
No further extensions of these deadlines will be granted.
ORDER ON MOTION FOR RECONSIDERATION
This matter is before the court on Plaintiffs' Motion to Reconsider [DE-35] the court's April 9, 2009, Order; Defendant East Jordan Iron Works, Inc.'s Motion for Leave to Amend Answer [DE-39], and the motions for summary judgment filed by Defendants Vulcan Threaded Products [DE-41] and Defendant Grand Rapids Bolt and Nut, Inc. [DE-42]. All motions are ripe for ruling.
Plaintiffs Henry D. McLaurin ("Mr. McLaurin") and Millie D. McLaurin ("Mrs. McLaurin") initiated this action by filing a complaint in the Superior Court of Sampson County, North Carolina on January 22, 2008. The action was removed to this court on March 4, 2008.
On February 13, 2009, Defendants filed a joint motion [DE-27] to strike as experts Bill W. Hong and Andrew Preiss, and to strike the expert report of Wong. In an order filed on April 9, 2009, the Hon. David W. Daniel, United States Magistrate Judge, denied the motion to strike Hong as an expert and to strike his report, but allowed the motion to strike Preiss as an expert. In so ruling, Judge Daniel noted that Defendants represented that Plaintiffs failed to produce Preiss's expert report and failed to make him available for a deposition. Judge Daniel also noted that Plaintiffs' response to the motion to strike made no mention of Preiss.
On June 4, 2009, almost two months after Judge Daniel's order striking Preiss as an expert, Plaintiffs filed the Motion to Reconsider the April 9, 2009, Order. On July 10, 2009, Defendant East Jordan Iron Works, ("East Jordan"), filed a Motion for Leave to Amend its Answer in order to assert additional affirmative defenses. Defendants Vulcan Threaded Products, Inc. ("Vulcan") and Grand Rapids Bolt and Nut, Inc., d/b/a Great Lakes Fasteners ("Great Lakes") filed their respective Motions for Summary Judgment on August 3, 2009. Plaintiffs filed a Notice of Voluntary Dismissal against East Jordan on August 19, 2009.
At the time of the events giving rise to this action, Mr. McLaurin was working as a civilian, non-uniformed employee for the United States Department of Defense ("USDOD"). Specifically, on December 22, 2005, Mr. McLaurin was working as a telecommunications splicer on Fort Bragg in North Carolina.
As part of his duties, Mr. McLaurin was required to enter a manhole just outside the Fort Bragg main gate. To do so, Mr. McLaurin had to remove the manhole cover by inserting a lifting bar under the horizontal portion of a U-shaped drop handle1, or "U-bolt" attached to the cover. As Mr. McLaurin began to pull up on the lifting bar in an effort to remove the manhole cover, the horizontal portion of the U-bolt sheared off from the two vertical portions and broke away, causing Mr. McLaurin to full backwards and suffer personal injuries. Mr. McLaurin represents that since the incident, he has had two surgeries on his knee and one on his shoulder, and has developed a blood clot in his leg due to the surgeries.
McLaurin contends that East Jordan had a contract to supply the USDOD with manhole covers. According to Grand Rapids, East Jordan submitted specifications for the U-bolts to Grand Rapids. The specifications sent by East Jordan did not include a "sampling plan"—an industry term for a request from the client that a specified percentage of the U-bolts be inspected or tested. Upon receipt of the specifications from East Jordan, Grand Rapids forwarded the specifications to Vulcan to obtain a quotation for the manufacturing of the U-bolts. Once Grand Rapids received a quotation from Vulcan, it forwarded its own quotation to East Jordan. East Jordan approved the quotation, and then placed a purchase order with Grand Rapids for a specified number of U-bolts. Grand Rapids then placed a purchase order with Vulcan.
The parties all agree that Vulcan did not utilize heat in the manufacturing process of the U-bolts. Vulcan contends it did not do so because (1) it was not asked to do so and (2) it did not have the capacity to heat products in the manufacturing process. Instead, it used a cold-bending process,...
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