Discovery deadlines exist for a reason. Although there are exceptions to every rule – and often a rule dictating how to handle such exceptions – litigants in federal court are expected to show their evidentiary cards in a timely, orderly fashion that avoids surprise. In the context of expert discovery, this means inter alia that witnesses who have been retained specifically to offer expert opinion testimony must author a written report (i.e., a Rule 26 report) setting out their opinions and the bases for those opinions. Fed. R. Civ. P. 26(a)(2)(B). Opinions that are inadequately disclosed may be excluded at trial. Fed. R. Civ. P. 37(c). In some cases, this can leave a litigant unable to make a prima facie case and survive summary judgment.
One recent example is Adkins v. Marathon Petroleum Company LP, — F. Supp. 3d. —, 2023 WL 3242432 (S.D. Ohio 2023). In Adkins, Plaintiff alleged that his exposure to hydrogen sulfide (H2S) fumes while working as a tankerman on Defendant’s barge caused him permanent pulmonary injuries. He sued his employer, asserting three causes of action based on this theory: (1) a claim under the Jones Act, (2) Unseaworthiness, and (3) Maintenance and Cure. But each of these causes of action required Plaintiff to establish that his exposure to H2S fumes caused his alleged injuries. Both parties agreed that H2S fumes can cause pulmonary injuries at high enough concentrations, but there was a problem in Plaintiff’s case – both he and his coworkers routinely wore badges designed to alert the wearer if H2S levels exceeded a certain threshold (which threshold was undisputedly below the OSHA regulatory limit and NIOSH short-term exposure limit), and there was no documentation that Plaintiff’s badge had ever alarmed. In short, it was not at all obvious that Plaintiff had been exposed to enough H2S to cause his claimed injuries. Defendant moved for summary judgment, arguing Plaintiff was unable to establish general and specific causation.
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