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Luigi Ciocca v. Bj.'s Wholesale Club

August 12, 2011


The opinion of the court was delivered by: Robert F. Kelly, Sr. J.


Presently before the Court is a "Motion in Limine to Preclude the Trial Testimony of Plaintiff's Putative Expert, Craig D. Clauser, P.E." submitted by Defendant, BJ's Wholesale Club, Inc. ("Defendant"). For the following reasons we will deny Defendant's Motion.


Plaintiff, Luigi Ciocca ("Plaintiff") commenced this action by filing a Complaint in this Court on December 2, 2004, seeking damages for injuries caused by an allegedly defective snow blower purchased by Plaintiff's parents at Defendant's store. (Compl. ¶ 13.) According to Plaintiff, his parents bought the snow blower on or about January 17, 2000 and neither he nor his parents altered it in any way since the date of purchase. (Id. ¶ 14.) On December 5, 2002, Plaintiff decided to use the snow blower to remove snow from the driveway of his residence. (Pl.'s Dep. at 27:11-13.) He started the snow blower in the shed where his parents kept it (Id. at 29:6-10), and used it successfully to remove snow from the driveway until he reached about one quarter of the way down the length of the driveway, which Plaintiff estimates is about twenty feet long (Id. at 28:17-18). At this point, the discharge chute of the snow blower became clogged.

(Id. at 35:9.) After releasing the levers for the auger and the traction drive located on the handles of the snow blower, Plaintiff walked away to retrieve an approximately one and one-half foot long stick that he planned to use to unclog the chute. (Id. at 35:12-36:6, 75:4-14.) It was Plaintiff's belief that releasing the levers stopped the blades inside the machine. (Id. at 75:10-21.) Plaintiff left the snow blower running during the ten minutes he left to retrieve the stick, despite the fact that he had seen placards on the snow blower that cautioned against leaving the snow blower running when unattended. (Id. at 79:22-80:13.) When Plaintiff returned with the stick, he used it to push the snow back into the discharge chute. (Id. at 37:23-38:7.) As he was unclogging the discharge chute with the stick, he felt the machine tugging the stick and his hand into the chute. (Id. at 38:17-39:8.) Plaintiff's father was outside with Plaintiff when this incident occurred. (Id. at 33:17-34:4.) Immediately after the accident, Plaintiff approached his father, who then brought him into the house. (Id. at 39:15-24.) Upon entering the house, Plaintiff took of his work gloves and realized that his hand had been cut. (Id. at 39:11-17.) Plaintiff then fainted and was taken to Frankford hospital.

As a result of the accident, one of Plaintiff's fingers had to be amputated and another finger was severely cut. (Id. at 71:17-72:2.) Specifically, Plaintiff's injuries consisted of a comminuted fracture of the middle phalanx of his left index finger with an amputation distal to the fracture. (Pl.'s Resp. to Interrog. No. 3.) He also sustained a transverse fracture of the middle phalanx of the left middle finger with comminuted fragments. (Id.) On December 9, 2002, he underwent surgical revision of the amputation with flap closure, and surgical repair of the laceration and fracture of the middle finger. (Id.) Plaintiff is now permanently disfigured. (Id.)

Plaintiff testified at his deposition that he was aware that "getting [his] hand or putting [his] hand into the discharge shoot may cause injury if the blades were still moving." (Id. at 61:22-62:2.) Plaintiff further testified that he had previous experience with snow blowers and lawnmowers and that he was "aware of the possibility that if the blade was still moving and [he] stuck a stick or something in there that the stick would get pulled in." (Id. at 64:8-13.) However, when asked whether Plaintiff was "aware that if [he] were still holding that stick [he] might get pulled in [or that his] hand could go with it," he responded that he did not remember. (Id. at 64:14-17.)

Plaintiff filed a Complaint in this Court on December 2, 2004 against Defendant and Murray, Inc. ("Murray") (collectively, "Defendants"), alleging: (1) strict liability against Defendants under § 402A of the Restatement (Second) of Torts; (2) negligence against Murray for failing to properly design, manufacture, assemble, inspect, and test the snow blower; (3) negligence against Defendant for failing to properly assemble, test, and inspect the snow blower;

(4) breach of implied warranty against Murray; and (5) breach of express warranty against Murray. On January 10, 2005, we received a Suggestion of Bankruptcy indicating that Murray had filed for Chapter 11 and that all civil actions against it were to be stayed, including the present action. On February 15, 2005, Defendant filed its Answer with Affirmative Defenses and Cross-claim against Murray, alleging that Murray would be solely or at least jointly and severally liable and would be liable over to Defendant for contribution and indemnity in the event that we found in favor of Plaintiff. On January 23, 2006, we placed this case in the civil suspense file due to Murray's Chapter 11 proceedings. On October 29, 2010, Defendant filed a Motion to transfer this case from the civil suspense file to the active docket, indicating that Murray had dissolved and that Plaintiff wished to pursue him claims against Defendant. On November 1, 2010, we granted Plaintiff's Motion and transferred this case back to the active docket.

The present dispute centers around an untimely expert report compiled by Mr. Craig D. Clauser, P.E. ("Clauser"), submitted by Plaintiff. On December 17, 2010, we issued a Scheduling Order requiring Plaintiff to submit his expert reports to Defendant by June 20, 2011. We expressly ordered that any proposed changes to the Scheduling Order would be considered by written motion only. On June 7, 2011, Defendant filed a Motion for Summary Judgment arguing that Plaintiff could not prove their case without expert testimony, Plaintiff had assumed the risk of his injuries, and Plaintiff could not produce any evidence of negligence on the part of Defendant. On June 16, 2011, Plaintiff emailed Defendant Clauser's expert report ("Clauser Report") without this Court's authorization and without any explanation for its untimeliness. On June 21, 2011, Defendant filed a Motion in Limine to preclude the Clauser Report arguing that allowing Plaintiff's untimely submission would cause it prejudice, would unreasonably delay the proceedings, and was otherwise unauthorized in the first instance.


Federal Rule of Civil Procedure 26(a)(2)(C) establishes the timing of the required disclosures of the identity of experts and their expert reports, providing that:

(C) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a ...

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