Attorneys Kevin Alexandersen and Holly Olarczuk-Smith obtained a summary judgment motion for two major railroad carriers in a throat cancer case filed in Lucas County Court of Common Pleas. Plaintiff brought his action under the Federal Employers’ Liability Act (“FELA”) alleging that the railroads negligently exposed him to diesel exhaust and asbestos throughout his career and that this exposure had caused his cancer. In the summary judgment motion, the railroads argued that Plaintiff failed to disclose any of his expert reports. In addition, Plaintiff’s opposition to summary judgment was untimely submitted and Plaintiff failed to request an extension or otherwise demonstrate excusable neglect. Plaintiff then belatedly disclosed his expert reports and further, those reports were not authenticated as required by Civ.R. 56.
The trial court agreed with all of the arguments presented by the railroads. The trial court struck Plaintiff’s untimely response and disregarded Plaintiff’s untimely disclosed expert reports. The trial court further concluded that, even if the court were to accept the untimely expert reports from Plaintiff, the reports were not proper summary judgment evidence because the reports were not authenticated by affidavit in compliance with Civ.R. 56. The trial court, therefore, granted summary judgment in favor of the railroads and dismissed Plaintiff’s complaint with prejudice.