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Aguayo-Becerra v. Flsmidth. Inc.

United States District Court, W.D. Washington, Seattle

November 30, 2017

FLSMIDTH, INC., a Delaware company, Defendant.



         This 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.

         I. BACKGROUND

         Plaintiff 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.)

         FLS and 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.)


         A. FLS's Motion to Strike

         As an 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.)

         Absent 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. 37(c)(1).

         Werner's 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).[1]

         Late 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 declaration.

         For the 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.

         B. Summary Judgment

         A Court 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 ...

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