Opinion
Case No. 97 C 5131
November 14, 2001
Siemens Electric seeks an order barring Randall German, ESA's newly designated expert, from offering previously undisclosed testimony about why the motors at issue in this case malfunctioned.
Expert discovery was originally to have been concluded by February 2, 1999. At the request of various parties (usually defendants), it was extended to January 31, 2000, then to March 31, 2000, then to December 1, 2000. Siemens and ESA needed more time so the deadline was extended again to April 16, 2001. On April 6, ESA filed an emergency motion to extend discovery and to withdraw its expert witness, who was unable to travel due to illness. I allowed ESA to retain a new expert. The present dispute ensued when Mr. German wrote an expert report advancing a new theory — that it was an electrical circuit problem in Siemens' motor which caused the bearings to overheat, lose oil, and eventually fail. ESA concedes that neither its initial expert report nor its rebuttal report identifies this area of testimony.
Siemens and Bergstrom complain of delay and unfair surprise, and this is understandable. The lawsuit has been pending since 1997. ESA has been in the case for three years. We are now nearly two years past the original close of expert discovery. To allow the new theory would require plaintiff to retain a new expert in electrical engineering. While ESA is not to blame for its expert's illness, it may not use this unfortunate fact as a means to add what is essentially a brand new defense at this late stage.
Accordingly, the motion for protective order is granted.