UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

LAFAYETTE DIVISION 

BALL CORPORATION, an Indiana ) 

Corporation and FACTORY MUTUAL ) 

INSURANCE COMPANY, a Rhode ) 

Island Corporation, as subrogee, ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Case No. 4:16-cv-42 

 ) 

AIR TECH OF MICHIGAN, INC., ) 

a Michigan corporation, ) 

 ) 

 Defendant. ) 

OPINION AND ORDER 

 This matter is before the court on the Motion for Extension of Time to Submit Rule 

26(a)(2) Report [DE 16], the Amended Motion for Enlargement of Time to Submit Rule 26(a)(2) 

Report [DE 20] filed by the plaintiffs, Ball Corporation and Factory Mutual Insurance Company, 

as subrogee, on May 30, 2017 and June 5, 2017, respectively, and the Motion to Set Aside 

Defendant’s Deadline to Depose Plaintiff’s Rule 26(a)(2)(B) Witnesses [DE 23] filed by the 

defendant, Air Tech of Michigan, Inc., on June 15, 2017. For the following reasons, the Motion 

for Extension of Time to Submit Rule 26(a)(2) Report [DE 16] is DENIED as MOOT, the 

Amended Motion for Enlargement of Time to Submit Rule 26(a)(2) Report [DE 20] is 

GRANTED, and the Motion to Set Aside Defendant’s Deadline to Depose Plaintiff’s Rule 

26(a)(2)(B) Witnesses [DE 23] is GRANTED. 

Background 

 This matter arose from a fire that occurred at a can manufacturing plant owned by the 

plaintiff, Ball Corporation, and that was insured by the plaintiff, Factory Mutual Insurance 
2 

Company. The plaintiffs have alleged that the defendant, Air Tech, who was hired as an 

independent contractor to clean ovens and other fixtures, caused the fire and thus is liable for the 

damages sustained to the plant and consequential damages relating to business interruption 

losses. 

 The parties attended the Rule 16 Preliminary Pretrial Conference on September 30, 2016. 

The Report of the Parties’ Planning Meeting was approved, and the following deadlines were set: 

both parties to comply with Rule 26(a)(2)(C) by April 28, 2017; plaintiffs’ expert witness 

disclosures and reports to be delivered by May 29, 2017; depositions of plaintiffs’ Rule 

26(a)(2)(B) witnesses by June 30, 2017; defendant’s expert witness disclosures and reports to be 

delivered by July 31, 2017; and all discovery to be completed by December 29, 2017. 

 On May 30, 2017, the plaintiffs filed the Motion for Extension of Time to Submit Rule 

26(a)(2) Report [DE 16] requesting a 60 day extension to submit the expert report of Scott 

Howell.1

 On June 5, 2017, the defendant filed a Response in Opposition [DE 18]. The plaintiffs 

subsequently filed the Amended Motion for Enlargement of Time to Submit Rule 26(a)(2) 

Report [DE 20], which reduced the requested extension from 60 days to 14 days. 

Discussion 

 Pursuant to Federal Rule of Civil Procedure Rule 26(a)(2)(A) parties must disclose the 

identity of any witness who may present evidence under Federal Rule of Evidence 702, 703, or 

705. Rule 26(a)(2) splits expert witnesses into two categories: retained or specially employed 

expert witnesses and other expert witnesses. Federal Rule of Civil Procedure 26(a)(2)(B) and 

(C). A retained or specially employed expert witness must provide a written report prepared and 

 1

 The plaintiffs’ deadline to submit expert witness disclosures and reports was May 29, 2017 (Memorial Day), a 

legal holiday. Therefore, the period runs until the end of the next regular business day. Federal Rule of Civil 

Procedure 6(a). 
3 

signed by the witness. Federal Rule of Civil Procedure 26(a)(2)(B); see Banister v. Burton, 

636 F.3d 828, 833 (7th Cir. 2011) (“[O]nly those witnesses ‘retained or specially employed to 

provide expert testimony’ must submit an expert report complying with Rule 26(a)(2)(B).” 

(citing Musser v. Gentiva Health Servs., 356 F.3d 751, 756–57 (7th Cir. 2004)). Unless 

otherwise stipulated or ordered by the court, if a witness is not required to provide a written 

report, the party’s disclosure must state the subject matter of the witness’ expected testimony and 

a summary of the facts and opinions the witness is expected to testify. Federal Rule of Civil 

Procedure 26(a)(2)(C). Additionally, Rule 26 requires a party to supplement any disclosures in 

a timely manner if the party learns the disclosure is incomplete or incorrect in a material respect 

and if the additional or corrective information has not otherwise been disclosed to the other 

parties. Federal Rule of Civil Procedure 26(e)(1)(A). 

The expert report serves the purpose of putting the opposing party on notice of the 

expert’s proposed testimony, so the opposing party may form an appropriate response. Meyers 

v. National R.R. Passenger Corp., 619 F.3d 729, 734 (7th Cir. 2010); Musser, 356 F.3d at 757–

58. The consequence of non-compliance with Rule 26(a)(2)(B) is “exclusion of an expert’s 

testimony . . . ‘unless the failure was substantially justified or is harmless.’” Meyers, 619 F.3d at 

734 (citing Gicla v. United States, 572 F.3d 407, 410 (7th Cir. 2009) (quoting Federal Rule of 

Civil Procedure 37(c)(1))). 

 The plaintiffs designated Peter Hagen and Scott Howell as expert witnesses. On May 30, 

2017, Hagen’s expert report was timely produced. The plaintiffs have requested additional time 

to submit Howell’s expert report because no fact depositions have been taken. The plaintiffs 

indicated that for Howell to formulate his opinion on the cause and origin of the fire he needed 

additional time to review testimony from witnesses and defendant’s employees who serviced the 
4 

oven immediately prior to the fire. After a conversation with defendant’s counsel, in an effort to 

address counsel’s concerns regarding plaintiffs’ request for a 60 day extension, the plaintiffs 

amended the request to 14 days. 

 The defendant has argued that the plaintiffs have not established good cause to extend the 

expert report disclosure deadline. The defendant indicated that the plaintiffs received written 

discovery on February 16, 2017, which identified the employees who may have relevant 

knowledge. Therefore, the defendant contends that the plaintiffs had time to complete the 

requested depositions prior to the May 30, 2017, expert disclosure deadline. 

 The court has discretion to determine the appropriate sanction for the failure to disclose 

or supplement an expert report. See Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 763 

(7th Cir. 2010). “A district court need not make explicit findings concerning the existence of a 

substantial justification or the harmlessness of a failure to disclose.” Woodworker's Supply, Inc. 

v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir.1999); David v. Caterpillar, Inc., 

324 F.3d 851, 857 (7th Cir. 2003). A district court's discretion under Rules 26(a) and 37(c)(1) is 

guided by four factors: “(1) the prejudice or surprise to the party against whom the evidence is 

offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to the 

trial; and (4) the bad faith or willfulness involved in not disclosing the evidence at an earlier 

date.” David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003) (internal citations omitted). 

 The plaintiffs have indicated that during the briefing of the plaintiffs’ motion and the 

amended motion, Howell was provided documents that were produced recently during discovery 

and information from other available witnesses. Howell has reviewed the additional information 

and completed his Rule 26(a)(2) report. The court finds that the additional time given to the 

plaintiffs to submit Howell’s expert report was harmless and the defendant was not prejudiced by 
5 

the delay in a way that cannot be repaired. 

 The defendant has indicated that the plaintiffs in addition to their Rule 26(a)(2)(B) 

disclosures also provided Rule 26(a)(2)(C) disclosures. The defendant has argued that the Rule 

26(a)(2)(C) disclosures were untimely. The deadline to disclose Rule 26(a)(2)(C) expert 

witnesses, per the parties approved Report, was April 28, 2017. The plaintiffs contend that the 

Rule 26(a)(2)(C) witnesses were disclosed in the initial Rule 26(a)(1) disclosures and in response 

to defendant’s Interrogatories on April 14, 2017. 

 The plaintiffs have confused Rule 26(a)(1) and 26(a)(2) because disclosing a person as a 

witness and disclosing a person as an expert witness are two distinct acts. Musser, 356 F.3d at 

757. Under Rule 26(a)(2)(A), “a party shall disclose to other parties the identity of any person 

who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules 

of Evidence.” In addition, under Rule 26(a)(2)(C), for non-retained experts the party also must 

disclose “(i) the subject matter on which the witness is expected to present evidence under 

Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which 

the witness is expected to testify.” The Federal Rules of Civil Procedure demand the formal 

designation of expert witnesses. This includes a list of names of persons already known to the 

defendant through prior discovery if the designation “expert witness” has been added. Musser, 

356 F.3d at 757. 

 However, the defendant has not indicated that it has or may suffer prejudice from the 

plaintiffs’ failure to identify the witnesses as experts. The plaintiffs disclosed the witnesses in 

response to defendant’s Interrogatories and, as indicated by the defendant, provided the Rule 

26(a)(2)(C) disclosures with their Rule 26(a)(2)(B) disclosures. Given the current posture of the 

matter, the court will not bar the plaintiffs’ Rule 26(a)(2)(C) expert witnesses from offering 
6 

expert testimony. 

 Based on the foregoing, the Motion for Extension of Time to Submit Rule 26(a)(2) 

Report [DE 16] is DENIED as MOOT, the Amended Motion for Enlargement of Time to 

Submit Rule 26(a)(2) Report [DE 20] is GRANTED, and the Motion to Set Aside Defendant’s 

Deadline to Depose Plaintiff’s Rule 26(a)(2)(B) Witnesses [DE 23] is GRANTED. The 

plaintiffs must disclose Howell’s expert report to the defendant, instanter. The defendant’s 

deadline to submit expert witness disclosures and reports is EXTENDED to August 21, 2017, 

and the deadline to depose plaintiffs’ Rule 26(a)(2)(B) witnesses is EXTENDED to July 28, 

2017. 

 ENTERED this 28th day of June, 2017. 

 /s/ Andrew P. Rodovich 

 United States Magistrate Judge