ANDREW P. RODOVICH, Magistrate Judge.
This matter is before the court on the Motion for Extension of Time to Submit Rule 26(a)(2) Report [DE 16], the Amended Motion for Enlargement of Time to Submit Rule 26(a)(2) Report [DE 20] filed by the plaintiffs, Ball Corporation and Factory Mutual Insurance Company, as subrogee, on May 30, 2017 and June 5, 2017, respectively, and the Motion to Set Aside Defendant's Deadline to Depose Plaintiff's Rule 26(a)(2)(B) Witnesses [DE 23] filed by the defendant, Air Tech of Michigan, Inc., on June 15, 2017. For the following reasons, the Motion for Extension of Time to Submit Rule 26(a)(2) Report [DE 16] is
This matter arose from a fire that occurred at a can manufacturing plant owned by the plaintiff, Ball Corporation, and that was insured by the plaintiff, Factory Mutual Insurance Company. The plaintiffs have alleged that the defendant, Air Tech, who was hired as an independent contractor to clean ovens and other fixtures, caused the fire and thus is liable for the damages sustained to the plant and consequential damages relating to business interruption losses.
The parties attended the Rule 16 Preliminary Pretrial Conference on September 30, 2016. The Report of the Parties' Planning Meeting was approved, and the following deadlines were set: both parties to comply with Rule 26(a)(2)(C) by April 28, 2017; plaintiffs' expert witness disclosures and reports to be delivered by May 29, 2017; depositions of plaintiffs' Rule 26(a)(2)(B) witnesses by June 30, 2017; defendant's expert witness disclosures and reports to be delivered by July 31, 2017; and all discovery to be completed by December 29, 2017.
On May 30, 2017, the plaintiffs filed the Motion for Extension of Time to Submit Rule 26(a)(2) Report [DE 16] requesting a 60 day extension to submit the expert report of Scott Howell.
Pursuant to
The expert report serves the purpose of putting the opposing party on notice of the expert's proposed testimony, so the opposing party may form an appropriate response.
The plaintiffs designated Peter Hagen and Scott Howell as expert witnesses. On May 30, 2017, Hagen's expert report was timely produced. The plaintiffs have requested additional time to submit Howell's expert report because no fact depositions have been taken. The plaintiffs indicated that for Howell to formulate his opinion on the cause and origin of the fire he needed additional time to review testimony from witnesses and defendant's employees who serviced the oven immediately prior to the fire. After a conversation with defendant's counsel, in an effort to address counsel's concerns regarding plaintiffs' request for a 60 day extension, the plaintiffs amended the request to 14 days.
The defendant has argued that the plaintiffs have not established good cause to extend the expert report disclosure deadline. The defendant indicated that the plaintiffs received written discovery on February 16, 2017, which identified the employees who may have relevant knowledge. Therefore, the defendant contends that the plaintiffs had time to complete the requested depositions prior to the May 30, 2017, expert disclosure deadline.
The court has discretion to determine the appropriate sanction for the failure to disclose or supplement an expert report. See
The plaintiffs have indicated that during the briefing of the plaintiffs' motion and the amended motion, Howell was provided documents that were produced recently during discovery and information from other available witnesses. Howell has reviewed the additional information and completed his Rule 26(a)(2) report. The court finds that the additional time given to the plaintiffs to submit Howell's expert report was harmless and the defendant was not prejudiced by the delay in a way that cannot be repaired.
The defendant has indicated that the plaintiffs in addition to their Rule 26(a)(2)(B) disclosures also provided Rule 26(a)(2)(C) disclosures. The defendant has argued that the Rule 26(a)(2)(C) disclosures were untimely. The deadline to disclose Rule 26(a)(2)(C) expert witnesses, per the parties approved Report, was April 28, 2017. The plaintiffs contend that the Rule 26(a)(2)(C) witnesses were disclosed in the initial Rule 26(a)(1) disclosures and in response to defendant's Interrogatories on April 14, 2017.
The plaintiffs have confused Rule 26(a)(1) and 26(a)(2) because disclosing a person as a witness and disclosing a person as an expert witness are two distinct acts.
However, the defendant has not indicated that it has or may suffer prejudice from the plaintiffs' failure to identify the witnesses as experts. The plaintiffs disclosed the witnesss in response to defendant's Interrogatories and, as indicated by the defendant, provided the Rule 26(a)(2)(C) disclosures with their Rules 26(a)(2)(B) disclosures. Given the current posture of the matter, the court will not bar the plaintiffs' Rule 26(a)(2)(C) expert witness from offering expert testimony.
Based on the foregoing, the Motion for Extension of Time to Submit Rule 26(a)(2) Report [DE 16] is