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Kenneth Loper v. William Adams

March 25, 2011

KENNETH LOPER, PLAINTIFF AND APPELLANT
v.
WILLIAM ADAMS, DEFENDANT AND APPELLEE



Appeal from the District Court of Kidder County, South Central Judicial District, the Honorable Gail H. Hagerty, Judge.

The opinion of the court was delivered by: Maring, Justice.

N.D. Supreme CourtLoper v. Adams,

This opinion is subject to petition for rehearing. [Go to Documents]

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2011 ND 68

REVERSED AND REMANDED.

Opinion of the Court by Maring, Justice.

[¶1] Kenneth Loper appealed from a district court summary judgment dismissing his negligence action against William Adams. We reverse and remand, concluding that: (1) the district court did not abuse its discretion in excluding Loper's expert witness and denying Loper's motion for an enlargement of time to disclose his expert witness; but (2) genuine issues of material fact remain and the district court therefore erred in granting summary judgment.

I [¶2] Loper was employed as a ranch hand by Adams. On May 16, 2005, Loper was assisting with branding and vaccination of calves when, on two separate occasions, calves got loose in the cattle chute and struck Loper in the back, knocking him to the ground. Loper did not seek medical attention on that date, but testified in his deposition that his back was sore, his legs were weak, and he had difficulty moving. Although he continued working the week after the May 16 incidents, he continued to suffer pain and weakness in his back and legs.

[¶3] On May 23, 2005, Loper went to a pasture to check the cows. He testified that, as he turned to close a gate, he twisted his trunk and heard something pop in his lower back. Loper fell to the ground, felt pain in his lower back, and temporarily lost feeling in his legs. He used his cell phone to summon help and was taken to the hospital by ambulance. An MRI conducted at the hospital revealed a disc rupture at L5-S1.

[¶4] Loper sued Adams for negligent supervision and negligent maintenance of the workplace, alleging that his back was injured when he was struck by the calves in the cattle chute on May 16, 2005. Loper does not claim Adams was negligent or liable based upon the incident with the gate on May 23, 2005.*fn1

[¶5] On February 14, 2008, Adams served interrogatories, including an interrogatory asking Loper to identify any expert witnesses he expected to call at trial. On March 20, 2008, Loper responded: "Experts have not been selected." On July 1, 2009, with a scheduled September 14, 2009, trial date pending and with no supplementation of Loper's interrogatory response, Adams moved for summary judgment, arguing Loper had failed to present any expert medical evidence establishing that his injuries and resultant damages were causally related to the calf incident. Loper's counsel initially submitted an affidavit indicating that Dr. Ralph Dunnigan, Loper's treating neurologist, would testify as an expert witness, but at the hearing on the summary judgment motion Loper's counsel indicated it had not been decided whether Dr. Dunnigan would testify.

[¶6] By order dated September 2, 2009, the district court denied the summary judgment motion, continued the trial, and directed the parties to agree to a scheduling order to complete discovery. The parties thereafter stipulated that Loper would disclose his expert witnesses by November 15, 2009, and Adams would disclose his experts, including an independent medical examination of Loper, by January 15, 2010. The court adopted the stipulation as its scheduling order and trial was set to begin March 24, 2010.

[ΒΆ7] The November 15, 2009, and January 15, 2010, deadlines passed without Loper disclosing a medical expert, updating his interrogatory response, or otherwise advising opposing counsel or the court of an intent to call a medical expert witness at the upcoming trial. On January 27, 2010, Adams filed a renewed motion for summary judgment, again arguing that Loper had failed to present expert testimony demonstrating that his injuries were causally related to the calf incident as opposed to the gate incident. On February 10, 2010, Loper's counsel e-mailed an expert report by Dr. Dunnigan to Adams's counsel. Adams moved to exclude Dr. Dunnigan's report and to exclude expert testimony by Dr. Dunnigan at trial. Loper then filed a motion for enlargement of time to disclose his expert witness and for a continuance of the trial. The district court determined that Loper's failure to timely disclose Dr. Dunnigan as an expert witness was not due to excusable neglect and his testimony and report would therefore be ...


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