United States District Court, D. Maryland
CLARA DANIELS, et al. Plaintiffs,
THE CARTER-JONES LUMBER COMPANY, et al. Defendants.
Lipton Hollander, United States District Judge.
tort litigation, plaintiffs Clara Daniels and Robert Daniels
have sued The Carter-Jones Lumber Company, d/b/a Carter
Lumber Company ("Carter Lumber"), and E3 Holdings,
LLC, d/b/a EnerLux Windows and Doors ("EnerLux").
See ECF 26 ("Amended
Complaint").They allege, inter alia, that due
to the negligence of EnerLux and Carter Lumber, Ms. Daniels
sustained physical injuries while inspecting custom made
windows that fell on her. Id.
motions are now pending before the Court. On January 16,
2018, EnerLux filed a "Motion to Strike Plaintiffs'
Supplemental Rule 26(a)(2) Disclosures" of expert
witnesses (ECF 45), supported by a memorandum of law (ECF
45-1) (collectively, the "Motion to Strike"), and
exhibits. See ECF 45-2 through ECF 45-7. Carter
Lumber has joined in the Motion to Strike. ECF 46. Plaintiffs
oppose to the Motion to Strike (ECF 52), with a memorandum of
law (ECF 52-1) and exhibits. See ECF 52-2 through
ECF 52-4. EnerLux has replied (ECF 55), with a supporting
memorandum of law (ECF 55-1) and additional exhibits.
See ECF 55-2 through ECF 55-4.
subsequently filed a "Motion for Leave to File a Sur
Reply in Further Opposition . .." to the Motion to
Strike (ECF 60), supported by a memorandum of law (ECF 60-1)
(collectively, the "Surreply Motion") and an
exhibit. See ECF 60-2. In the Surreply Motion,
plaintiffs ask the Court to grant leave to file a surreply
"because EnerLux made arguments in its Reply
Memorandum" that are "in direct violation of the
deadlines and Procedures set by the Court's 1-17-18
Order." ECF 60 (citing ECF 48). Defendants have not
responded to the Surreply Motion (see Docket), and
the time to do so has expired. See Local Rule
105.2.a ("[A]ll memoranda in opposition to a motion
shall be filed within fourteen (14) days of the service of
January 17, 2018, EnerLux filed a "Motion in Limine for
Pre-Trial Order Precluding Plaintiff, Robert Daniels From
Offering Expert Testimony" (ECF 47), along with a
memorandum of law (ECF 47-1) (collectively, the "Motion
in Limine"), and one exhibit. See ECF 47-2
(portions of the deposition transcript of Mr. Daniels).
Plaintiffs oppose the Motion in Limine (ECF 53), supported by
a memorandum of law (ECF 53-1) and more than a hundred pages
of exhibits. See ECF 53-2 through ECF 53-5. EnerLux
has filed a reply (ECF 59), along with a memorandum of law
(ECF 59-1) and additional exhibits. See ECF 59-2;
hearing is necessary to resolve the motions. See
Local Rules 105.6. For the reasons that follow, I shall deny,
as moot, the Motion to Strike and the Surreply Motion. And, I
shall deny, without prejudice, the Motion in Limine, on the
ground that it is premature.
Factual and Procedural Background
and Robert Daniels are residents of West Virginia. ECF 26,
¶¶ 4-5. EnerLux is a manufacturer of windows.
Id. ¶ 6. Carter Lumber is a "building
supply company." Id. ¶ 10.
2014, plaintiffs purchased custom manufactured windows from
EnerLux for their home in West Virginia, which was then under
construction. Id. ¶¶ 4-5, 12, 15-16.
EnerLux had the windows delivered to Carter Lumber, which was
to store them at its premises in Hagerstown, Maryland, until
they were ready for installation. Id. ¶¶
12', 16-17, 19, 70.
April 11, 2014, plaintiffs arrived at Carter Lumber to
inspect the windows. Id. ¶¶ 18, 20.
Plaintiffs aver that Ms. Daniels was concerned about the way
in which the windows had been packed (id. ¶
23), and apparently climbed aboard the tractor trailer to
inspect the windows for damage. Id. ¶ 28.
Employees of Carter Lumber began to offload the windows from
the tractor trailer (id. ¶ 27), and Ms. Daniels
"stood inside the truck so that she could observe each
window as it was removed to determine whether there had been
any damage" due to the "packing and
transport[.]" Id. ¶ 28. According to
plaintiffs, after nearly all of the windows had been removed
from the truck, and while Ms. Daniels "was standing
alone in the trailer", several large windows
"toppled" onto her (id. ¶ 30),
causing serious injuries to Ms. Daniels. Id.
filed suit in April 2017 (ECF 1) ("Complaint"), and
lodged an Amended Complaint in August 2017 (ECF 26). Judge J.
Frederick Motz, to whom the case was initially assigned,
issued a Scheduling Order on June 20, 2017 (ECF 19), with a
discovery deadline of October 19, 2017. Id. at 2.
That deadline was subsequently extended to November 29, 2017.
See ECF 28 (Joint Motion); ECF 29 (Order).
case was reassigned to me on October 24, 2017. See
Docket. By Order of November 30, 2017 (ECF 41), I granted the
parties' Joint Motion for Modification of the Scheduling
Order (ECF 39), extending the discovery deadline to January
15, 2018. See ECF 41. On January 16, 2018,
plaintiffs unilaterally asked the Court to modify the
Scheduling Order so as to provide additional time to issue
expert reports and depose three medical experts: "Dr.
Thomas Amalfitano, Laura Fox and Dr. Steven Worrell."
Order signed January 16, 2018 (ECF 48), and docketed on
January 17, 2018, 1 granted the motion, extending the
discovery deadline to February 28, 2018. Id.
However, I also granted defendants the opportunity, by
January 24, 2018, to move to rescind the Order. Id.
Notably, defendants never moved to rescind. See
January 16, 2018, EnerLux filed its Motion to Strike. ECF 45.
It seems that the motion was docketed after the Court had
already approved ECF ...