The opinion of the court was delivered by: A. Richard Caputo United States District Judge
Presently before the Court are the Motion for Summary Judgment (Doc. 14) filed by Defendants PACCAR Inc and Kenworth Truck Company and the Motion to Supplement (Doc. 18) filed by Plaintiffs Robert and Deanna Vaskas. Plaintiffs brought this action asserting claims of negligence, strict products liability, breach of warranty, and loss of consortium against Defendants to recover damages for personal injuries sustained by Robert Vaskas. (Doc. 1, Ex. A.) Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). Plaintiffs move for this Court to consider an addendum to their expert's report in ruling on Defendants' summary judgment motion. For the reasons that follow, Plaintiffs' Motion to Supplement (Doc. 18) is granted and Defendants' Motion for Summary Judgment (Doc. 14) is granted in part and denied in part.
Defendant Kenworth Truck Company is an unincorporated division of Defendant PACCAR Inc. (Doc. 14 at 1.) Defendants manufacture and design tractor cabs, including the Kenworth T800. (Doc. 1, Ex. A at ¶ 8.) On May 19, 2005, Defendants delivered a 2005 Kenworth T800 tractor ("the Kenworth tractor") to its purchaser, R.C. Moore, Inc. ("R.C. Moore"). (Doc. 14, Ex. B.) The cab access system on the Kenworth tractor was comprised of two aluminum steps with rounded edges and a vertical handhold mounted on the right exterior of the cab. (Peck Dep. at 53--54, 82--83.) The Kenworth tractor did not conform to its design specifications, as the distance from the tractor's top step to its bottom step (21.5 inches) exceeded the distance on the design specifications (19.5 inches). (Id. at 77, 79.) Also, the depth of the tractor's steps (4.625 inches) did not meet Kenworth's internal requirements (4.76 inches) or those of the applicable Federal Motor Vehicle Safety Standards (at least 5 inches). (Doc. 24, Ex. F at ¶ 2.)
In early June 2007, Plaintiff Robert Vaskas ("Mr. Vaskas"), who had worked as a truck driver for several trucking companies after receiving his commercial driver's license in 1996, became employed by R.C. Moore. (Vaskas Dep. at 50--56, 99--100.) Prior to working for R.C. Moore, Mr. Vaskas had extensive experience with commercial and industrial vehicle step systems and different kinds of trucks or tractors. (Id. at 33--39, 50--56, 64, 66--68, 73--74, 76--80, 83--88.) After completing safety training, Mr. Vaskas began operating the Kenworth tractor as a truck driver for R.C. Moore. (Id. at 101, 104.) At approximately 10:30 PM on August 21, 2007, toward the beginning of his work shift, Mr. Vaskas was exiting the cab of the Kenworth tractor with his right hand positioned on the tractor's handhold and both of his feet on the top step. (Id. at 134, 144.) As he lowered his left foot to the bottom step and reached for the handhold with his left hand, his right foot slipped off the top step, causing him to fall. (Id. at 145--48.) He hit his head on the top step, lost consciousness, and sustained serious injuries to his neck and back. (Id. at 148--49, 165--66.) At the time of the fall, the tractor's steps were wet and Mr. Vaskas' boots were muddy. (Vaskas Dep. at 134--35, 140--41, 150.) Mr. Vaskas noted that the Kenworth tractor's steps were different from those he had usually seen on trucks because they were grated instead of having sharp, straight lines across. (Id. at 150.)
The Kenworth tractor contained nine warning symbols, but none cautioned drivers or passengers about hazards associated with accessing the front of the cab. (Peck Dep. at 47--48, 92, 95.) Defendants also include a safety video and operating manual with each truck they manufacture. (Id. at 44.) In instructing drivers on the proper way of entering and exiting the tractor's cab, the safety video emphasizes the "three points of contact" system, which requires the driver to have two hands and one foot or two feet and one hand in contact with the cab access system at all times. (Doc. 14, Ex. I.) The operating manual specifically warns of the risk of a fall from the cab access system and also cautions that the three points of contact system should be used. (Doc. 14, Ex. H, at 7--8.) It also warns of the heightened risk of a fall from the cab access system when conditions are wet or muddy. (Id.) Mr. Vaskas neither viewed the safety video nor the operating manual included with the Kenworth tractor, nor was he aware of whether the manual was located in the tractor's glove box. (Vaskas Dep. at 123.) However, Mr. Vaskas understood that the three points of contact system was the proper way to enter or exit a truck cab, had received training on the system (Id. at 60), and was required by R.C. Moore to use the system when navigating tractor steps (Doc. 14, Ex. G., at 2).
Mr. Vaskas and his wife, Plaintiff Deanna Vaskas, commenced this action in the Court of Common Pleas of Lackawanna County, Pennsylvania, on August 11, 2009, alleging negligence, strict products liability, breach of warranty, and loss of consortium claims against Kenworth. (Doc. 1, Ex. A.) On May 12, 2010, Kenworth successfully removed the case to this Court on diversity grounds. (Doc. 1.)
This Court entered a Case Management Order on February 27, 2012 (Doc. 7) and amended the order on April 19, 2012 (Doc. 11). The Amended Case Management Order placed the case on the January 2013 trial list and required Plaintiffs and Defendants to comply with the requirements of Federal Rule of Civil Procedure 26(a)(2) with respect to expert witnesses no later than August 1, 2012 and September 1, 2012, respectively. (Id. at ¶¶ 1, 4.) Supplemental expert reports were due no later than October 1, 2012, and the parties were to complete expert discovery by October 15, 2012. (Id. at ¶¶ 2, 4.) The disclosures required by Federal Rule of Civil Procedure 26(a)(3) were to be made by August 1, 2012, the same day that dispositive motions were due. (Id. at ¶¶ 4--5.)
On August 1, 2012, Plaintiffs disclosed the expert report of Traci K. Campbell, P.E., dated May 4, 2009 (the "Campbell Report"). (Doc. 21, Ex. 2). The Campbell Report, which was six pages long and contained fourteen bullet-point statements of opinions, did not rely on the record generated during discovery. (Doc. 21 at 2.) That same day, Defendants filed a Motion for Summary Judgment. (Doc. 13.) In their brief in opposition, filed August 21, 2012, Plaintiffs argued that the opinions in the Campbell Report created genuine issues of material fact. (Doc. 16 at 3--4, 9, 11, 14--16.) Defendants' reply brief, filed September 4, 2012, argued against the sufficiency of the opinions in the Campbell Report. (Doc. 17 at 2--6.) On September 7, 2012, Plaintiffs requested a supplemental report from Ms. Campbell, which they both received and served on Defendants on October 1, 2012. (Doc. 24 at 5, Ex. F.) The thirteen page addendum contained twenty-seven bullet-point statements of opinion, many of which were not in the Campbell Report. (Doc. 21 at 2.)
On October 30, 2012, Plaintiffs filed their Motion to Supplement (Doc. 18), which asks this Court to consider the addendum to the Campbell Report in deciding Defendants' Motion for Summary Judgment. In response, Defendants request that this Court deny Plaintiffs' motion and strike the addendum to the Campbell Report, or, alternatively, compel Plaintiffs to produce Ms. Campbell for deposition and grant Defendants leave to serve supplemental expert reports on Plaintiffs. (Doc. 21 at 11.) Plaintiffs' Motion to Supplement and Defendants' Motion for Summary Judgment have been fully briefed and are now ripe for this Court's review.
A. Plaintiffs' Motion to Supplement (Doc. 18)
Plaintiffs move to have this Court consider the October 1, 2012 addendum to the expert report of Traci K. Campbell, P.E. in deciding Defendants' Motion for Summary Judgment. (Doc. 18 at 1.) Plaintiffs contend that the addendum is critical to this Court's resolution of Defendants' motion because it highlights existing issues of material fact and refutes Defendants' position that they are entitled to judgment as a matter of law. (Doc. 19 at 3.) In response, Defendants argue that the addendum should be struck pursuant to Federal Rule of Civil Procedure 37(c)(1) because Plaintiffs violated Federal Rules of Civil Procedure 26(a) and 26(e) by failing to timely disclose the addendum's new opinions. (Doc. 21 at 5--10.) Alternatively, Defendants argue that if the Court allows the addendum, it should compel Plaintiffs to produce Ms. Campbell for deposition, grant Defendants leave to serve supplemental expert reports on Plaintiffs, and possibly allow Defendants to address the addendum in additional summary judgment briefing.
Defendants specifically contend that Plaintiffs violated Federal Rules of Civil Procedure 26(a)(2) and 26(e)(2) by submitting the addendum, which is more than twice as long as the Campbell Report, in an untimely manner and failing to disclose its additional opinions. (Doc. 21 at 6.) Plaintiffs served the addendum on October 1, 2012 -- two months after the Campbell Report and several weeks after summary judgment briefing ended on September 4, 2012. (Id. at 6--7.) Plaintiffs respond that they followed the Court's Amended Case Management Order by making their Rule 26(a)(2) expert disclosures on August 1, 2012 and serving their supplemental expert report no later than October 1, 2012, two weeks in advance of the expert discovery deadline. (Doc. 21 at 1--2.) Plaintiffs note that even if the addendum prejudiced Defendants in any way, they failed to allege prejudice or remedy it with a rebuttal report within thirty days of service, as is permitted by Rule 26(a)(2)(D). (Id. at 2.)
Under the Federal Rules of Civil Procedure, parties must disclose the identity of expert witnesses who may testify at trial and accompany that disclosure with a written report prepared by the witness which includes "a complete statement of all opinions the witness will express and the basis and reasons for them; the facts or data considered by the witness in forming them; any exhibits that will be used to summarize or support them," as well as additional information about the witness' qualifications, prior expert testimony, and compensation received in the relevant case. Fed. R. Civ. P. 26(a)(2)(A)--(B). The parties must make these disclosures according to deadlines set in any case management order or other order issued by the court. Fed. R. Civ. P. 26(a)(2)(D). Rule 26(a)(2) "imposes . . . [a] duty to disclose information regarding expert testimony in advance of trial that opposing parties have a reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses." Fed. R. Civ. P. 26, cmt. to 1993 Amendments.
The Federal Rules also give the parties a continuing duty to timely supplement their expert disclosures when they are incorrect or incomplete if the additional information has not otherwise been known to the other parties in the case. Fed. R. Civ. P. 26(a)(2)(E); Fed. R. Civ. P. 26(e). The duty to supplement applies to the expert's report and opinions given during deposition testimony. Fed. R. Civ. P. 26(e)(2). Supplemental reports must be disclosed by the time a party's pre-trial disclosures are due. Id.
Here, Plaintiffs have followed the Amended Case Management Order as well as Rule 26(a) and 26(e). The Amended Case Management Order required Plaintiffs to make their Rule 26(a)(2) disclosures no later than August 1, 2012. (Doc. 11, ¶ 4.) On that date, Plaintiffs disclosed the materials required by Rule 26(a)(2), including the Campbell Report. (Doc. 24 at 4.) On September 7, 2012, days after encountering the Defendants' argument that the Campbell Report was incomplete, Plaintiffs requested a supplemental report from Ms. Campbell. (Doc. 24 at 5, Ex. F.) On October 1, 2012, the deadline for supplemental expert reports, Plaintiffs received the addendum from Ms. Campbell and served it upon Defendants that same day. (Doc. 24 at 5.) Pursuant to Rules 26(a)(2) and 26(e), Plaintiffs timely supplemented their expert disclosures by serving Defendants with the addendum the same day that Plaintiffs received it. Thus, because Plaintiffs made their Rule 26(a) disclosures on time and supplemented them in a timely manner, they have not violated Rules 26(a) and 26(e). Accordingly, it is unnecessary for this Court to exclude the addendum, which was timely filed and disclosed, pursuant to Federal Rule of Civil Procedure 37(c)(1) or permit the deposition of Ms. Campbell. Plaintiffs' Motion to Supplement (Doc. 18) will be granted and this Court will consider the addendum in deciding Defendants' Motion for Summary Judgment.
B. Defendants' Motion for Summary Judgment
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit ...