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White v. Cooper Tools

May 10, 2010


The opinion of the court was delivered by: Karen E. Schreier Chief Judge


Plaintiffs, James D. White (White) and Brenda White, move to strike the expert reports of Kenneth Boudreaux, Ph.D., Larry Stokes, Ph.D., and Matthew Monsein, M.D. Defendant, Cooper Tools, Inc., opposes the motion.


This is a personal injury case in which plaintiffs allege that White was injured because of a manufacturing defect in a chain, which was manufactured by defendant. Both parties have disclosed expert opinions regarding liability. Plaintiffs also disclosed the reports of two damages experts, Linda K. Graham, R.N., M.A., C.L.C.P. and George Langelett, Ph.D. Graham, a health care cost consultant, initially estimated that the total lifetime cost of White's injuries was $2,988,886. Docket 133, Ex. 1 at 12. On April 14, 2009, plaintiffs notified defendant that they would be asking Graham to amend her report to reflect changes in White's medications. Later in April 2009, plaintiffs conducted the trial depositions of White's psychologist, primary surgeon, treating physician, and psychiatrist. On June 29, 2009, Graham completed an updated Health Care Cost Evaluation based on then-available information about White. In this updated report, Graham estimated that the total lifetime cost of White's injuries was $5,795,062. Docket 133, Ex. 2 at 13. The increase in the total lifetime costs reflects an increase in the cost of nursing services, medical services, and medications.

Dr. Langelett analyzed the economic loss to White due to his injuries. In Dr. Langelett's initial report, dated February 22, 2008, he estimated that the present value of White's total economic loss was $1,536,748.51. Docket 133, Ex. 5 at 6. On June 28, 2009, Dr. Langelett prepared an updated report in which he estimated the present value of White's total economic loss to be $7,015,980.04. Docket 133, Ex. 6 at 8. Dr. Langelett's updated estimate included the present value of medication, equipment, and medical expenses, none of which were included in his initial estimate. Plaintiffs disclosed Dr. Langelett's updated report to defendant on June 30, 2009. Defendant responded that Dr. Langelett's updated report reflected "quite a change in his opinion" and that defendant might designate a rebuttal expert or experts to address the assumptions of Dr. Langelett's report.

A pretrial conference was held on July 31, 2009.*fn1 There was little discussion about damages experts at this hearing. Plaintiffs indicated that the main issue in the case was liability. Plaintiffs stated, "[t]here is no economist that defense has employed, no life care planner the defense has employed, no vocational rehabilitation expert the defense has employed." Docket 154 at 77. Defendant did not indicate any concerns about the updated reports of Graham and Dr. Langelett or state its intention to disclose its own damages experts. There was a discussion, however, about new information provided by plaintiffs' liability expert the morning of the pretrial conference. A week after the pretrial conference, plaintiffs disclosed a supplemental report from their liability expert introducing a new theory that the chain had failed due to excessive aluminum oxide inclusions in the steel used to make the chain.

On August 20, 2009, defendant moved the court to strike plaintiffs' new expert reports or, in the alternative, to continue the trial date to allow defendant to have its experts perform appropriate tests and issue supplemental reports on the excessive aluminum oxide inclusions theory, to evaluate a potential third-party complaint on the basis of plaintiffs' liability expert's new opinions, to conduct necessary discovery on plaintiffs' experts' new opinions, and to "consider a new expert or experts in the wake of new opinions from damages experts." Docket 130 at 1.

The court denied defendant's motion to strike but granted defendant's motion for a continuance on August 27, 2009. The order stated in full, Plaintiffs contend both that the new opinion from its liability expert, Lester Engel, should be admissible and the trial date should not be moved. The defense resists as this new theory was first raised at the Pre-Trial Conference on July 31, 2009. The Court does view Mr. Engel's opinion concerning a materials defect because of possible "excessive aluminum oxide inclusions" to be a new opinion. The Court does view the alternatives to be either not allowing this new theory to be presented at trial or to grant a continuance. The Court is reluctant to grant a continuance because this is one of the oldest cases on the Court's docket, having been filed in 2006. Despite that, this is a most serious case involving, as the Court sees it, a very large amount of claimed damages from serious injuries while on the other hand hotly contested issues concerning liability. Trials ultimately must be a search for the truth and it is because of that underlying basis that this Court grants a continuance so that additional discovery can be undertaken. The parties apparently both acknowledge the need for additional discovery if the continuance is granted, and the parties should advise the Court on the amount of time necessary for additional discovery. Additional discovery can also be taken by the defense of the two damage expert witnesses for the Plaintiffs as their damage figures have significantly increased. If the parties cannot agree on the issue of destructive testing of portions of the chain in question, then the respective positions should be presented to the Court. The Court advises as a preliminary matter that if it appears that destructive testing is warranted, then the question is by whom and with what protocols to be followed. Once an additional period of discovery has been established, the Court will then set a new trial date.

Docket 135. On December 17, 2009, the court issued an amended scheduling order setting the deadlines for "additional expert designations and reports," any necessary rebuttal reports, and "any additional depositions deemed necessary by the parties." Docket 143.

Defendant disclosed expert reports from Dr. Boudreaux, an economist, Dr. Stokes, a rehabilitation counselor, and Dr. Monsein on January 20, 2010. Dr. Stokes's report was dated August 21, 2009. On January 22, 2010, plaintiffs asked that defendant withdraw these expert reports because the deadline to disclose damages experts had already passed and the parties had already taken video depositions of White's treatment providers. Defendant resisted plaintiffs' request. Plaintiffs filed the present motion to strike on April 8, 2010.


Plaintiffs argue that the reports of defendant's proffered damages experts are untimely and prejudicial. Defendant argues that plaintiffs' motion to strike is untimely, that Dr. Boudreaux's, Dr. Stokes's, and Dr. Monsein's reports were timely disclosed, and that plaintiffs are not unfairly prejudiced by the disclosure of these reports.

Rule 26(a)(2) governs the mandatory disclosure of expert testimony. Under this rule, each party must disclose the identity of any expert witness it may use at trial, along with a written report prepared and signed by the witness, by the date ordered by the court or, in the absence of a court order, 90 days before trial. Fed. R. Civ. P. 26(a)(2). If the evidence is offered solely to contradict or rebut expert testimony offered by another party, however, disclosure may be made up to 30 days after the other party's disclosure. Fed. R. Civ. P. 26(a)(2)(C)(ii). Each party also has an obligation to supplement information included in an expert's report or given during an expert's deposition "if the party learns that in some material respect the disclosure or response is incomplete or incorrect." Fed. R. Civ. P. 26(e). Absent a court order directing otherwise, supplemental disclosures must be made at least 30 days before trial. Fed. R. Civ. P. 26(a)(3)(B), 26(e).

Here, the court originally ordered defendant to make its initial expert disclosures by March 28, 2008. Dockets 10 & 26. Based on a joint motion of the parties, the court ordered defendant to supplement its expert disclosures by May 1, 2008. Docket 39. After holding the pretrial conference and continuing the trial date, the court ordered the ...

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