Plaintiff sued Berry Petroleum Company for injuries incurred while pumping oil for transport as a crude oil truck driver for Savage Industries Inc. In both the initial disclosure and the supplemental disclosure at issue here, Plaintiff designated Edward R. Ziegler as an “oil field, oil tank and oil tank’s ‘thief hatch’ safety expert as to all relevant safety issues involved in this injury incident.”
Berry agreed that Plaintiff complied with the deadlines concerning Ziegler’s initial disclosures and report. Ziegler’s deposition was taken December 16, 2022. Per the fifth amended scheduling order, expert discovery closed January 29, 2024. On April 12, 2024, Plaintiff filed his Second Supplemental Expert Reports containing an updated expert report from Ziegler. Berry moved the Court to exclude this updated report on the grounds that it is untimely and that the delay was not substantially justified or harmless.
Petroleum Engineering Expert Witness
Edward R. Ziegler is a petroleum and natural gas engineer with a law degree. He is also a registered Professional Engineer (Texas and Wyoming), a Certified Safety Professional (C.S.P.), and has been trained several times as an OSHA 500-series instructor. Currently, Ziegler is the American Society of Safety Engineers’ appointee to the ANSI Z49.1 welding and cutting safety committee, and he has served on other industry safety committees.
Besides, his diverse, international background includes oilfield, safety, pipeline, and construction employment. Particularly, he has extensive oilfield experience in drilling, completion, production, reservoir, and construction engineering—both onshore and offshore.
Discussion by the Court
Under Fed. R. Civ. P. 37(c)(1), “if a party fails to provide information . . . as required by Rule 26(a) or (e), the party is not allowed to use that information . . . unless the failure was substantially justified or is harmless.”
Berry argued that “it will undoubtedly be prejudiced” if the report is not excluded and that this prejudice cannot be cured. Berry claimed that it will be prejudiced by increased costs, arguing that it will have to conduct a second Ziegler deposition, pay for its own experts to review the supplemental report, and the amount of prejudgment interest will be increased by delaying trial. The Court did not find this persuasive. Berry conceded that the supplemental report does not rely on new information, and further, there is no trial date set.
Next, Berry argued that the supplemental report will disrupt the trial because it will further delay the trial. As there is not yet a trial date set, the inclusion of the supplemental report does not disrupt the trial setting. Accordingly, the Court found that this factor did not weigh in favor of exclusion.
Finally, Berry argued that the untimely disclosure was willful because Plaintiff had waited so long to produce it. Berry also asserted that Plaintiff was using this supplemental report to add additional opinions or reinforce opinions already presented in the original report. They did not cite any part of the report to support this assertion. Berry also objected to Plaintiff’s explanation as to why he had filed the supplemental report. The Court did not need to consider Plaintiff’s explanation in finding that this factor did not weigh in favor of exclusion. Berry did not present evidence that suggested bad faith or willfulness by Plaintiff.
Held
The Court denied Defendant Berry Petroleum Company, LLC’s motion to exclude Plaintiff’s second supplemental expert reports containing an updated expert report from Edward Ziegler.
Key Takeaway:
Berry conceded that the supplemental report does not rely on new information, and further, there is no trial date set. As there is not yet a trial date set, the inclusion of the supplemental report does not disrupt the trial setting. In conclusion, the Court found that Berry did not present evidence that suggested bad faith or willfulness by Plaintiff.
Case Details:
| Case Caption: | Skinner V. Berry Petroleum Company Et Al |
| Docket Number: | 1:19cv124 |
| Court: | United States District Court for the District of Utah, Central Division |
| Order Date: | July 31, 2024 |
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