United States District Court, W.D. Washington, Seattle
ORDER ON MOTION FOR SUMMARY JUDGMENT
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant FLSmidth,
Inc.'s (“FLS”) motion for summary judgment
(Dkt. No. 89) and motion to strike (Dkt. No. 95). Having
thoroughly considered the parties' briefing and the
relevant record, the Court hereby GRANTS the motions for the
reasons explained herein.
Salome Aguayo-Becerra sustained serious injuries when he
attempted to take a cement sample by inserting his hand into
a maintenance port on an operating screw conveyor at Ash
Grove Cement Company (“Ash Grove”). (Dkt. No. 17
at 3-4.) The port was located on the side of a horizontal
screw conveyor, connected to an upper conveyer by a vertical
transfer chute. (See Dkt. No. 89 at 8.) The correct
sampling port was located above the subject port on the side
of the chute. (Id.) Plaintiff brought this product
liability suit against Ash Grove and the parties who designed
and manufactured the screw conveyor. (Dkt. Nos. 1-1 at 4,
5-6; 38 at 4-17.) Ash Grove was dismissed under the
parties' arbitration agreement. (Dkt. No. 12.) After
further discovery, all defendants other than FLS were
voluntarily dismissed. (Dkt. Nos. 17, 37, 57, 87.)
its subcontractors designed, supplied, and installed a new
cement production line at Ash Grove between 1989 and 1993.
(Dkt. No. 80 at 2-3.) FLS project drawings did not include
the port into which Plaintiff inserted his hand.
(See Dkt. Nos. 89 at 3, 92 at 3.) Nor did the
drawings show the transfer chute and sampling port currently
located above the subject port. (Dkt. No. 93-7 at 2.)
However, Plaintiff asserts that FLS deviated from its
original design and added the chute and ports during plant
construction. (Dkt. No. 92 at 1, 10.) FLS maintains that the
port did not exist when it completed construction at Ash
Grove and moves for summary judgment on this basis. (Dkt. No.
89 at 3.)
FLS's Motion to Strike
initial matter, the Court will address FLS's motion to
strike Plaintiff's expert, Alan Werner's, November
13, 2017 declaration. (Dkt. No. 95 at 2.) This declaration is
attached as an exhibit to Plaintiff's response to
FLS's summary judgment motion. (Dkt. No. 93-18.)
a stipulation or court order, expert disclosures must be made
at least 90 days before trial. Fed.R.Civ.P. 26(a)(2)(D)(i).
Disclosure of an expert witness “must be accompanied by
a written report” containing “a complete
statement of all opinions the witness will express . . .
.” Id. 26(a)(2)(B). The 90-day deadline does
not apply if the disclosure “is intended solely to
contradict or rebut evidence on the same subject matter
identified by [another party's expert]” and occurs
“within 30 days after the other party's
disclosure.” Id. 26(a)(2)(D)(ii). “If a
party fails to provide information . . . as required by Rule
26(a) . . . [it] is not allowed to use that information . . .
to supply evidence on a motion . . . unless the failure was
substantially justified or is harmless.” Id.
November 13, 2017 declaration was not timely disclosed. Trial
in this case is set for January 29, 2018. The declaration
contains new observations and opinions implicating FLS and
not raised in Werner's July 2017 declaration.
(Compare Dkt. No. 93-18 with Dkt. No.
93-5.) Plaintiff disclosed new opinions in response to a
dispositive motion, not to rebut evidence identified within
the prior 30 days. See Fed. R. Civ. P. 26(a)(2)(D);
(Dkt. No. 92 at 9).
disclosure of Werner's declaration was neither justified
nor harmless. Werner inspected the Ash Grove plant on October
4, 2017, and Plaintiff could have disclosed new opinions
based on this inspection within the 90-day window, as
required by Rule 26(a). (See Dkt. No. 92 at 9.)
Plaintiff's late disclosure limited FLS's ability to
depose Werner and to rebut opinions contained in the new
foregoing reasons, the Court GRANTS FLS's motion to
strike (Dkt. No. 96 at 2). Werner's November 13, 2017
declaration (Dkt. No. 93-18) is hereby STRICKEN.
shall grant summary judgment if the movant shows there is no
genuine dispute as to any material fact, and the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
The moving party has the initial burden of production to
demonstrate the absence of any genuine issue of material
fact. Fed.R.Civ.P. 56(a); see Devereaux v. Abbey,263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). To carry this
burden, the moving party need not introduce affirmative
evidence but may simply point to the absence ...