                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

_____________________________
                              )
WALDIMIR ADALBERTO CRUZ       )
ROMERO,                       )
                              )
          Plaintiff,          )
                              )
          v.                  )      Civil Action No. 11-1799 (RWR)
                              )
ITW FOOD EQUIPMENT GROUP LLC, )
                              )
          Defendant.          )
_____________________________ )

                          MEMORANDUM ORDER

     Plaintiff Waldimir Adalberto Cruz Romero brings this

products liability action against defendant ITW Food Equipment

Group LLC (“ITW FEG”).    Romero alleges that, while operating a

Hobart Model 4146 grinding machine, his right hand became

entrapped in the throat of the machine and was amputated.    Compl.

¶¶ 8-9, 12.   Romero proffers Steven Kane to offer expert opinion

testimony on ITW FEG’s liability for Romero’s injuries.

     ITW FEG moved to exclude Kane’s expert testimony under

Federal Rule of Evidence 702.   Romero opposed the motion and also

moved to file a surreply to address a diagram introduced by the

defendant for the first time in its reply brief that purports to

illustrate Romero’s alternative design theory.    Romero’s motion

for leave to file a surreply was granted.    Although ITW FEG did

not oppose Romero’s motion to file a surreply, ITW FEG has moved

under Federal Rule of Civil Procedure 37(c) to strike “any
                               - 2 -

reference to the alternative design opinion contained in

Plaintiff’s . . . surreply” as having not been contained in

Kane’s written report in violation of Federal Rule of Civil

Procedure 26(a)(2)(B).   See Def.’s Mot. to Strike & Exclude Pl.’s

Undisclosed Alternative Design Op. (“Def.’s Mot.”) at 1.    Romero

counters that ITW FEG misinterpreted Kane’s opinion and that the

alternative design theory illustrated in his surreply is

consistent with Kane’s disclosed opinions.    Pl.’s Mem. of Law in

Opp’n to Def.’s Mot. to Strike (“Pl.’s Mem.”) at 2.

     Rule 26(a)(2) requires that any expert witness who may

testify at trial prepare and sign a report, which includes “a

complete statement of all opinions the witness will express and

the basis and reasons for them[.]”     Fed. R. Civ. P. 26(a)(2)(B).

Some of the purposes of Rule 26 are to “avoid surprise and the

possible miscarriage of justice [and] to disclose fully the

nature and scope of the controversy[.]”    See Wright, Miller, &

Kane, 8 Federal Practice and Procedure 22–23 (3d ed. 2010); see

also Pierce v. Pierce, 5 F.R.D. 125, 125 (D.D.C. 1946).     “If a

party fails to provide information or identify a witness as

required by Rule 26(a) or (e), the party is not allowed to use

that information or witness to supply evidence on a motion . . .

unless the failure was substantially justified or is harmless.”

Fed. R. Civ. P. 37(c).   Although “Rule 37(c)(1) is a

self-executing sanction,” Norden v. Samper, 544 F. Supp. 2d 43,

49 (D.D.C. 2008) (internal quotation marks omitted), the initial
                                - 3 -

burden is on the movant to show that the expert opinion was

undisclosed, Scholl v. Pateder, No. 09–cv–02959–PAB–KLM, 2011 WL

2473284, at *4 (D. Colo. June 22, 2011).

     The challenged expert opinion pertains to the specifications

of a safe meat grinder.   The parties agree that Kane testified

that meat grinders “with cylinder feed throats larger than two-

to two-and-a-half inches in diameter and of a sufficient length

long enough to prevent an operator’s fingers from contacting the

danger zone or the nip point are unsafe[,]” Def.’s Mot., Ex. A

(Steven F. Kane Dep. at 116:11-117-1).   See Pl.’s Mem. at 2; Mem.

in Supp. of ITW Food Equip. Grp.’s Mot. to Strike & Exclude Pl.’s

Undisclosed Alternative Design Op. at 1-2.   However, they

disagree regarding the part of the feed tube to which Kane was

referring when he said that it should be no larger than 2 ½

inches.    ITW FEG argues that Kane’s opinion is that the opening

of the feed tube should be 2 ½ inches.   Romero counters that

Kane’s opinion is that the bottom of the feed tube should be 2 ½

inches.1

     ITW FEG offers neither evidence nor argument to rebut

Romero’s interpretation of Kane’s testimony, and has not met its


     1
       In line with their differing interpretations of Kane’s
expert opinion, the parties’ diagrams show different shaped feed
tubes. The diagram in ITW FEG’s reply shows a feed cylinder with
a 2 ½ inch opening. Reply in Supp. of ITW Food Equip. Grp. Mot.
in Limine to Exclude the Ops. & Test. of Steven Kane at 9. In
contrast, Romero’s diagram shows a bell-shaped feed tube with a
2 ½ inch bottom dimension and a larger opening. See Pl.’s
Surreply Brief in Resp. to Def.’s Reply Brief at 2.
                               - 4 -

initial burden to show that the plaintiff’s alternative design

theory was based on an undisclosed expert opinion.   Moreover,

Kane’s report was sufficiently detailed to allow ITW FEG to

prepare for its deposition with Kane, see Fed. R. Civ. P. 26

Advisory Committee’s notes, and depose Kane about the meaning of

his expert testimony to avoid any surprise as to the plaintiff’s

alternative design theory.   For these reasons, the defendant’s

motion to exclude will be denied.   Accordingly, it is hereby

     ORDERED that the defendant’s motion [35] to strike and

exclude the alternative design contained in the plaintiff’s

surreply be, and hereby is, DENIED.

     SIGNED this 11th day of March, 2013.



                                      /s/
                               RICHARD W. ROBERTS
                               United States District Judge
