United States District Court, E.D. Missouri, Eastern Division
SHANNON T. LAEL, Plaintiff,
SIX FLAGS THEME PARKS, INC., Defendant.
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH, Magistrate Judge.
On August 11, 2014, this matter came before the Court for a hearing on Defendant's Motion to Exclude the Supplemental Report of Plaintiff's Liability Expert, William Avery, (Doc. No. 38). After considering Defendant's Motion, Plaintiff's Response (Doc. No. 39), and Defendant's Reply (Doc. No. 40) and arguments of counsel, I will deny Defendant's Motion and extend the deadlines for disclosure and depositions of Defendant's expert witnesses.
The complaint in this matter was originally filed in state court. It was removed to this Court on June 27, 2013, pursuant to 28 U.S.C. §1332. Plaintiff alleges she is entitled to damages for injuries she sustained to her neck and upper back while riding an amusement park ride, the "Highland Fling, " at Six Flags, St. Louis on or about July 8, 2006. Plaintiff's complaint asserts theories of negligence and "general negligence" which, in essence, is a claim for res ipsa loquitur. Shortly after removal, the court held a Rule 16 scheduling conference and adopted the dates proposed in the parties' proposed Joint Scheduling Plan. Under the initial Case Management Order (the "CMO"), Plaintiff's expert disclosures were due by December 16, 2013. As a result of various extensions, the deadline for the parties to complete depositions of Plaintiff's experts was May 30, 2014. Defendant is required to disclose its experts by August 15, 2014, and to produce its experts for deposition by September 15, 2014. All discovery, including expert discovery, is scheduled to close on September 15, 2014.
The parties do not dispute that Plaintiff's liability expert, William Avery, timely submitted an expert report dated December 18, 2013. Instead, the dispute centers around a report by Avery dated March 25, 2013 (the "March 25th report"). On July 10, 2014, defense counsel was taking Avery's deposition when he discovered the March 25th report for the first time in Avery's files. Defendant contends the March 25th report contains new opinions that were not previously disclosed in the initial opinion and Defendant was "surprised" and "prejudiced" by the March 25th report.
In his initial report, which is dated December 18, 2013, Avery opined that "the incident involving [plaintiff] was foreseeable and preventable and but for the failures of Six Flags operations and maintenance personnel this incident would not have occurred." Avery also opined that the "safe operation of an amusement ride or device is the responsibility of the owner/operator" and that "the incident involving [plaintiff] would not otherwise have occurred but not [sic] for the failure/s of Six Flags to properly operate and maintain the Highland Fling ride." The report notes that Avery's opinion is based on his 37 years of safety experience in the amusement ride and device industry; his experience as a certified amusement ride and device inspector; and his familiarity with the Highland Fling ride. The report further notes that it was written based on limited information produced by Six Flags and that Avery "reserved the right to supplement the report if additional information is forthcoming that warrants supplementation."
At the hearing, counsel for both parties acknowledged that defense counsel was advised that Avery was awaiting testimony by at least three of Defendant's maintenance workers and that, due to a facility shut down, the workers were not produced for deposition before the plaintiff expert disclosure deadline of December 16, 2013. Plaintiff's counsel agreed in writing to provide Avery's supplemental report to Defendant by April 6, 2014. In the March 25th report, Avery restated the opinions contained in his initial report; but, based on the maintenance workers' testimony, he also included new opinions criticizing Defendant's maintenance of gas shocks on the Highland Fling ride and articulating maintenance standards he believes Defendant should have followed.
More specifically, Avery opined that (i) "ongoing failures with the gas shocks on the Highland Fling ride could have been addressed in some meaningful way other that [sic] just waiting to find a shock that had failed;" (ii) "one aspect of good maintenance procedures is maintaining records to track the life history of equipment and its parts;" (iii) "maintenance should have recorded the replacement life span to establish a benchmark that would serve to reasonably predict the time parameters for future failures [and] Six Flags could have used this baseline with a built in safety margin for error and replaced the gas shocks before they failed during operation;" (iv) "when there are ongoing and randomly occurring failures such as shock failures where the gondola top can fall on a guest's head this can be accommodated procedurally by having an operator" standby to ensure the top does not fall until a guest is safely loaded into the gondola; and (v) it does not appear that Six Flags had any of preventive safety measures in place. Avery ultimately concluded that Defendant "knew there were recurring failures with the gas shocks and essentially waited for it to happen and be reported by a ride operator or discovered during pre-opening inspections."
By agreement of the parties, Plaintiff produced Avery for deposition on July 10, 2014. As stated above, defense counsel discovered the March 25th report while reviewing Avery's files at the start of the deposition. Plaintiff's counsel indicated that he was aware of the report and mistakenly believed it had been produced to defense counsel. Defense counsel checked their files and confirmed that they had never received the March 25th report.
Citing the Eighth Circuit's decision in Trost v. Treck Bicycle Corp., 162 F.3d 1004, 1008 (8th Cir. 1998), Defendant contends the March 25th report should be excluded under Fed.R.Civ.P. 16 and 37. More specifically, Defendant argues that in a clear violation of Fed.R.Civ.P. 26(a)(2) and 16, Plaintiff disclosed the March 25th report 96 days after the agreed upon deadline of April 6, 2014. The plaintiff in Trost first submitted an expert report more than sixty days after the deadline for expert disclosures and did so in response to a report by the defendant's expert. Trost, 162 F.3d.at 1007. Given the facts presented in Trost, the Eighth Circuit affirmed the district court's decision to ...