Brewster v. Dorel Juvenile Group Inc
MEMORANDUM OPINION AND ORDER GRANTING IN PART and DENYING IN PART 26 MOTION to Strike filed by Alfred Brewster. Plaintiff's Strike Motion is DENIED as to Ms. Padmanaban, but GRANTED as to Dr. Story. Signed by Judge Virginia Emerson Hopkins on 4/10/2017. (JLC)
2017 Apr-10 AM 11:49
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ALFRED BREWSTER, as
Administrator of the Estate of and
next friend of his deceased minor
grandson Landlee Scout Brewster,
) Case No.: 4:15-CV-2285-VEH
DOREL JUVENILE GROUP, INC., )
MEMORANDUM OPINION AND ORDER
Plaintiff Alford Brewster, as the administrator of the estate and next friend of
his deceased minor grandson, Landlee Scout Brewster (“Scout”), initiated this
wrongful death action on December 18, 2015, against Defendant Dorel Juvenile
Group, Inc. (“Dorel”). (Doc. 1 at 1). Dorel is in the business of making booster seats
(Doc. 1 at 2 ¶ 6), and Plaintiff’s grandson was allegedly in a Dorel-made booster seat
when he died in a motor vehicle accident on December 20, 2013. (Doc. 1 at 3 ¶¶ 9-11;
id. at 5 ¶ 23). Plaintiff asserts liability against Dorel under the Alabama Extended
Manufacturers Liability Doctrine and common law. (Doc. 1 at 1).
Pending before the court is Plaintiff’s Motion To Strike Defendant’s Untimely
Expert Report (Doc. 26) (the “Strike Motion”) filed on March 10, 2017. Dorel
responded to the Strike Motion on March 24, 2017. (Doc. 27). Plaintiff replied on
March 31, 2017. (Docs. 28-30). Accordingly, the Strike Motion is now under
submission and, as explained below, is GRANTED IN PART and otherwise
Evidentiary Rulings Generally
“All evidentiary decisions are reviewed under an abuse-of-discretion standard.”
See, e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S. Ct. 512, 517, 139 L.
Ed. 2d 508 (1997). “An abuse of discretion can occur where the district court applies
the wrong law, follows the wrong procedure, bases its decision on clearly erroneous
facts, or commits a clear error in judgment.” United States v. Estelan, 156 F. App’x
185, 196 (11th Cir. 2005) (citing United States v. Brown, 415 F.3d 1257, 1266 (11th
Moreover, as the Eleventh Circuit has made clear, not every incorrect
evidentiary ruling constitutes reversible error:
Auto-Owners’ second argument is that it is entitled to a new trial
on the basis of what it describes as a number of erroneous evidentiary
rulings by the district court. Evidentiary rulings are also reviewed under
an abuse of discretion standard. Finch v. City of Vernon, 877 F.2d 1497,
1504 (11th Cir. 1989). Moreover, even if Auto-Owners can show that
certain errors were committed, the errors must have affected “substantial
rights” in order to provide the basis for a new trial. See FED. R. EVID.
103(a). “Error in the admission or exclusion of evidence is harmless if
it does not affect the substantial rights of the parties.” Perry, 734 F.2d
at 1446. See also Allstate Insurance Co. v. James, 845 F.2d 315, 319
(11th Cir. 1988).
Haygood v. Auto-Owners Ins. Co., 995 F.2d 1512, 1515 (11th Cir. 1993). Therefore,
even the existence of many evidentiary errors does not guarantee the appealing party
a new trial. Instead, such erroneous rulings by a district court must “affect the
substantial rights of the parties” in order for reversible error to occur.
Rulings on Expert Disclosures Specifically
Concerning rulings on expert disclosures, more particularly, the Eleventh
Circuit has explained:
FED. R. CIV. P. 26(a)(2)(C) provides clear deadlines for the submission
of expert reports to the court, and FED. R. CIV. P. 37(c)(1) gives district
courts discretion to exclude untimely submissions. Coastal Fuels Inc. v.
Caribbean Petroleum Corp., 79 F.3d 182, 202-03 (1st Cir. 1996), cert.
denied, 519 U.S. 927, 117 S. Ct. 294 (excluding testimony of rebuttal
witnesses because party did not comply with FED. R. CIV. P.
26(a)(2)(C)); see also Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259
F.3d 1101, 1105-06 (9th Cir. 2001). Although the district court may
have had discretion to admit an untimely report, see Grimm v. Lane, 895
F. Supp. 907, 913 (S.D. Ohio 1995) (admitting untimely expert evidence
because no risk of unfair surprise existed), it did not abuse its discretion
to exclude it as untimely in the circumstances under which the Bearints
offered it. The Bearints waited until trial, about four months after the
report’s publication, to submit it. Given the wide latitude the district
court has to exclude untimely submissions, we cannot say that it abused
its discretion to exclude this report.
Bearint ex rel. Bearint v. Dorell Juvenile Grp., Inc., 389 F.3d 1339, 1348-49 (11th
Cir. 2004) (emphasis added).
On March 9, 2017, Dorel produced to Plaintiff a document entitled “Dorel
Juvenile Group’s First Supplemental Expert Identity Disclosure” (Doc. 26-1) (the
“Supplemental Disclosure”). The Supplemental Disclosure pertains to two
witnesses–Jeya Padmanaban (“Ms. Padmanaban”) and Dr. Michael Story (“Dr.
Story”)–and states in relevant part:
1975 W. El Camino Real, Suite 300
Mountain View, CA 94040
Ms. Padmanaban is a statistician. She may opine about the 2010
NHTSA study relied upon by Plaintiff’s expert Neil Hannemann and
which he raised during his February 22, 2017 deposition in this matter.
Her report rebutting Mr. Hannemann’s expressed opinions on the study,
CV, and testimony list are enclosed. If deposed, she may also offer
testimony on issues raised during her deposition.
Dr. Michael Story
550 Medical Center Drive SW
Fort Payne, AL 35968
Dr. Story is a pediatrician who regularly treated Scout Brewster.
In addition to the topic of Scout’s medical care, Dr. Storey is expected
to testify at trial consistent with his deposition regarding Scout’s
pediatric growth and development, as well as the propriety of booster
seat use for children of Scout’s age and size.
(Doc. 26-1 at 2-3).1
Dorel’s Supplemental Disclosure of Ms. Padmanaban
The court addresses Plaintiff’s objections to Ms. Padmanaban first. Plaintiff
seeks to strike the Supplemental Disclosure of Ms. Padmanaban as untimely under
the Scheduling Order’s disclosure deadline of October 3, 2016, for Dorel (Doc. 13 at
1 § I.A) and as non-compliant with the requirements of FED. R. CIV. P. 26. (Doc. 26
Turning to Plaintiff’s untimeliness challenge, Rule 26(a)(2)(D) governs the
timing for parties to disclose expert witnesses:
(D) Time to Disclose Expert Testimony. A party must make these
disclosures at the times and in the sequence that the court orders. Absent
a stipulation or a court order, the disclosures must be made:
(i) at least 90 days before the date set for trial or for the
case to be ready for trial; or
(ii) if the evidence is intended solely to contradict or rebut
evidence on the same subject matter identified by another
party under Rule 26(a)(2)(B) or (C), within 30 days after
All page references to Doc. 26-1 correspond with the court’s CM/ECF numbering
the other party’s disclosure.
FED. R. CIV. P. 26(a)(2)(D) (emphasis added).
Further, “[t]he parties must supplement these disclosures when required under
Rule 26(e).” FED. R. CIV. P. 26(a)(2)(E). Rule 26(e), in turn, provides:
(2) Expert Witness. For an expert whose report must be disclosed under
Rule 26(a)(2)(B), the party’s duty to supplement extends both to
information included in the report and to information given during the
expert’s deposition. Any additions or changes to this information must
be disclosed by the time the party’s pretrial disclosures under Rule
26(a)(3) are due.
FED. R. CIV. P. 26(e)(2).
Plaintiff complains that Dorel’s disclosure of Ms. Padmanaban was made “over
5 months after the defendant’s expert discovery deadline [in October 2016] and less
than 30 days prior to the discovery cut-off [of March 31, 2017].” (Doc. 26 at 3
(emphasis omitted)). Plaintiff also notes that Dorel did not seek to extend the expert
disclosures deadline when the parties jointly moved to extend several other
Scheduling Order deadlines in September 2016.2
Dorel counters that the disclosure of Ms. Padmanaban is timely because she is
being called to rebut the testimony of Plaintiff’s expert–Neil Hannemann (“Mr.
On September 20, 2016, the court extended several of the parties’ Scheduling Order
deadlines by 90 days, including the discovery completion and dispositive motion deadlines.
(Docs. 23, 24).
Hannemann”)–related to the 2010 NHTSA Study entitled “Booster Seat Effectiveness
Estimates Based on CDS and State Data.” (Doc. 26-2 at 2);3 (see Doc. 26-2 at 4 (“The
inherent deficiencies and inadequacy of the data and methodology used by [the 2010
NHTSA] [S]tudy cannot be relied upon by any qualified, statistically-competent
individuals to propose that children under the age of 4 are at greater risk of serious
injury or death in a booster seat comparing to child restraint seats.”)); (see also Doc.
27 at 6 (“Ms. Padmanaban’s report and disclosure [are] limited to rebutting the
unique statistical issues raised by Mr. Hannemann’s second supplemental report.”)).
Mr. Hannemann has provided multiple expert reports during the course of
discovery. As summarized by Dorel (and uncontested by Plaintiff), Mr. Hannemann
offered his first expert report in 2016, issued a pre-deposition supplemental report on
February 20, 2017, and provided a post-deposition second supplement report on
March 3, 2017. (Doc. 27 at 3-4); (see also Doc. 27-1 (attaching Mr. Hannemann’s
second supplemental report)).
Dorel explains that, consistent with Rule 26(a)(2)(D)(ii) and Rule 26(e)(2), it
disclosed Ms. Padmanaban to Plaintiff and provided her rebuttal expert report “less
than two weeks after Mr. Hannemann’s deposition” and, therefore also, within 30
All page references to Doc. 26-2 correspond with the court’s CM/ECF numbering
days of Mr. Hannemann’s second supplemental report. (Doc. 27 at 6); (see also id.
at 8 (“Ms. Padmanaban’s rebuttal report and disclosure were provided by defense
counsel on March 10, 2017, only a week after Mr. Hannemann’s second supplemental
report, and well within the 30 days required by the Federal Rules.”)). Dorel’s implicit
position that with each supplemental expert report served a new 30-day rebuttalwitness window opens is a persuasive one; otherwise, the party who provides the
supplemental reports would always have the advantage of being able to refine expert
testimony without the chance of a counter disclosure by the opposing side. Dorel also
points out that it offered to put Ms. Padmanaban up for a deposition, but Plaintiff
declined and requested no alternative dates. (Doc. 27 at 6).
In reply, Plaintiff no longer focuses upon whether Dorel timely disclosed Ms.
Padmanaban as a rebuttal witness. Instead, Plaintiff (as summarized) states:
Defendant’s argument relative to the designation of Ms.
Padmanaban is that she was added to address statistical testimony given
by Plaintiff’s expert Neil Hannemann at his deposition. In fact, Mr.
Hannemann was testifying regarding a document produced to Plaintiff
by the Defendant. Any attempt to discredit the document in question
(which was produced by the Defendant during discovery) does not
require the addition of another expert witness (Ms. Padmanaban), but
can be accomplished by cross-examination of Mr. Hannemann or
through the direct testimony of the Defendant’s other expert witnesses.
(Doc. 28 at 2 ¶ 2 (emphasis in original)). Thus, in contrast to the initial brief, Plaintiff
contends that Dorel should not be permitted to rely upon Ms. Padmanaban as a
rebuttal expert because Dorel is the party that produced the 2010 NHTSA Study
during discovery and Dorel already has enough expert witnesses. Plaintiff refers to
no case authority for these new reasons to prohibit Dorel from using Ms. Padmanaban
as a rebuttal expert. However, even if Plaintiff had cited to some on-point cases, the
court, nonetheless, would reject Plaintiff’s contentions as an impermissible
infringement upon Dorel’s right to defend itself in the manner that its counsel
believes is best. Therefore, the untimeliness portion of Plaintiff’s Strike Motion
pertaining to Ms. Padmanaban is DENIED.
Concerning Plaintiff’s challenge of the contents of Ms. Padmanaban’s expert
report, Rule 26(a)(2)(B) governs the requirements for that document:
(B) Witnesses Who Must Provide a Written Report. Unless otherwise
stipulated or ordered by the court, this disclosure must be accompanied
by a written report--prepared and signed by the witness--if the witness
is one retained or specially employed to provide expert testimony in the
case or one whose duties as the party’s employee regularly involve
giving expert testimony. The report must contain:
(i) a complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming
(iii) any exhibits that will be used to summarize or support
(iv) the witness’s qualifications, including a list of all
publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by
(vi) a statement of the compensation to be paid for the
study and testimony in the case.
FED. R. CIV. P. 26(a)(2)(B). Plaintiff maintains that Ms. Padmanaban’s report is
deficient with respect to subsection (iv)–her qualifications and a compilation of her
publications. In her report, Ms. Padmanaban states:
I have published over 50 peer-reviewed studies using field data (realworld crash and performance data) to address trends associated with
different types of automobile and automobile components. I have also
chaired many technical sessions for [the Society of Automotive
Engineers, the Association for the Advancement of Automotive
Medicine, and the International Research Council on the Biomechanics
of Injury], and have conducted technical workshops addressing
statistical analyses using different types of databases.
(Doc. 26 at 8); (see also Doc. 26-2 at 3 (same)).
Plaintiff also argues that her opinions are too vague. (Doc. 26 at 8-9). Finally,
Plaintiff objects that Ms. Padmanaban’s report references (but fails to attach) trial
exhibits that she anticipates presenting to illustrate to the jury the data and findings
upon which her opinions are based. (Doc. 26 at 9-10); (see also Doc. 26-2 at 6
(discussing anticipated trial exhibits)).
In response, Dorel points out (and Plaintiff does not dispute) that Ms.
Padmanaban’s qualifications and publications history are sufficiently detailed by her
CV that was attached to her report and provided to Plaintiff. (Doc. 27 at 9 n.1); (see
Doc. 26-1 at 2 (indicating that Ms. Padmanaban’s CV is attached)). Dorel does not
directly respond to Plaintiff’s other two points. Similarly, Plaintiff, in his reply, does
not pursue any of these content-based arguments.
The court is not persuaded to strike Ms. Padmanaban’s report on account of
Rule 26(a)(2)(B)(iv), claimed vagueness, or her reference to anticipated trial exhibits,
especially when Plaintiff has dropped any discussion of these issues in reply.
Additionally, Plaintiff could have developed the vagueness and trial exhibit
challenges further by deposing Ms. Padmanaban, but elected not to do so. Therefore
the content-based section of the Strike Motion pertaining to Ms. Padmanaban is also
Dorel’s Supplemental Disclosure of Dr. Story
Dorel intends to call Dr. Story, a treating pediatrician, to provide opinions
about “Scout’s pediatric growth and development, as well as the propriety of booster
seat use for children of Scout’s age and size.” (Doc. 26-1 at 3). Plaintiff objects to
Dorel’s disclosure of Dr. Story as an expert witness for these topics (as opposed to
testimony from Dr. Story about his treatment of Scout as a patient) as untimely under
the Scheduling Order. (Doc. 26 at 7).
Dorel counters that Dr. Story is not a retained expert and that it could not have
disclosed Dr. Story as an expert witness on a timely basis because it “had no way of
knowing [Dr. Story’s opinions] until he was timely deposed as a fact witness . . . .”
(Doc. 27 at 10). Dorel also states that it “updated its disclosures within 30 days of Dr.
Story’s deposition to provide fair notice of its intent to use Dr. Story’s testimony at
The Scheduling Order established a deadline for the disclosure of all expert
witnesses–whether specially retained or otherwise. (See Doc. 13 at 1 § I.A
(“Disclosure of expert witnesses – including a complete report under Rule 26(a)(2)(B)
from any specially retained or employed expert – is due from plaintiff(s) by August
1, 2016, and from defendant(s) by October 3, 2016.”) (emphasis in original)). The
Scheduling Order also emphasized that good cause must be shown for the extension
of any deadline. (See Doc. 13 at 2 (“Good cause must be shown for the extension
of any deadline.”) (emphasis in original)); see also Sosa v. Airprint Sys., Inc., 133
F.3d 1417, 1418 (11th Cir. 1998) (“[Scheduling] orders ‘control the subsequent
course of the action unless modified by a subsequent order,’ FED. R. CIV. P. 16(e),
and may be modified only ‘upon a showing of good cause. FED. R. CIV. P. 16(b).’”).
In disclosing Dr. Story as a late expert witness to opine about Scout’s pediatric
growth and development and whether the use of a booster seat for him was
appropriate given his age and size, Dorel did not seek permission from the court–with
a showing of good cause–to modify the Scheduling Order to allow for the untimely
disclosure. Similarly, in responding to Plaintiff’s Strike Motion, Dorel makes no
mention of Rule 16’s good cause standard and, likewise, fails to carry its burden to
show that the circumstances surrounding its late disclosure of Dr. Story as a nonretained expert meet that measure.
In fact, Dorel does not cite to a single supporting case in which a medical
provider expected to testify about the facts of a patient’s treatment was permitted to
offer opinion testimony as well even though the expert disclosure deadline had passed
and no modification of that Rule 16 deadline was sought by the proponent of the
opinion testimony. Cf. United States Steel Corp. v. Astrue, 495 F.3d 1272, 1287 n.13
(11th Cir. 2007) (“We will not address this perfunctory and underdeveloped
argument.” (citing Flanigan’s Enters., Inc. v. Fulton County, 242 F.3d 976, 987 n.16
(11th Cir. 2001), superseded by statute on other grounds as stated in Buehrle v. City
of Key West, 813 F.3d 973, 980 (11th Cir. 2015))); cf. also Flanigan’s, 242 F.3d at
987 n.16 (holding that a party waives an issue when it “fail[s] to elaborate or provide
any citation of authority in support”). Consequently, Dorel’s late disclosure of Dr.
Story as a non-retained expert witness is barred as untimely under the Scheduling
Order, and Plaintiff’s Strike Motion is GRANTED with respect to opinion evidence
offered by Dr. Story. See Sosa, 133 F.3d at 1418 (“A district court’s decision to
enforce its pre-trial order will not be disturbed on appeal absent an abuse of
discretion.” (citing Santiago v. Lykes Bros. Steamship Co., 986 F.2d 423, 427 (11th
Alternatively, Plaintiff’s Strike Motion is GRANTED because the contents of
Dorel’s disclosure of Dr. Story are inadequate under Rule 26(a)(2)(C). That
subsection governs disclosures for experts who are not required to provide a written
report and states:
(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise
stipulated or ordered by the court, if the witness is not required to
provide a written report, this disclosure must state:
(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.
FED. R. CIV. P. 26(a)(2)(C).
While Dorel’s disclosure substantially comports with FED. R. CIV. P.
26(a)(2)(C)(i), it omits a summary of the facts and opinions as required by FED. R.
CIV. P. 26(a)(2)(C)(ii). Therefore, Dorel’s disclosure of Dr. Story to provide opinion
evidence is HEREBY STRICKEN for this additional reason.
Plaintiff’s Strike Motion is DENIED as to Ms. Padmanaban, but GRANTED
as to Dr. Story.
DONE and ORDERED this 10th day of April, 2017.
VIRGINIA EMERSON HOPKINS
United States District Judge
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