Meza et al v. Wacker Neuson Sales Americas LLC et al

Filing 90

ORDER - Wacker's motion to strike 82 is granted in part and denied in part. The motion is granted as to Dr. Freeman's opinions regarding his own life expectancy analysis. The motion is otherwise denied. (See document for complete details). Signed by Judge H Russel Holland on 6/10/19. (SLQ)

WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

Antonio Meza, et al.,

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Plaintiffs, )
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vs.
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Wacker Neuson Sales Americas LLC, et al.,
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Defendants.
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_______________________________________)

No. 2:18-cv-0574-HRH

ORDER
Motion to Strike
Wacker Neuson Sales Americas LLC moves to strike three of plaintiffs’ experts.1 This
motion is opposed.2 Oral argument was not requested and is not deemed necessary.
Background
On July 9, 2016, Steven Wood was operating a power trowel that hit a metal stake, spun
out of his hand, and struck plaintiff Antonio Meza in the head. Meza suffered a traumatic brain
injury and required extensive medical treatment immediately after the accident and will
continue to require extensive medical treatment for the remainder of his life. Wacker is the
manufacture of the power trowel in question.

1

Docket No. 82.

2

Docket No. 86.
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Meza, his wife, and children commenced this action on April 13, 2017. In their
amended complaint, plaintiffs assert a strict product liability claim and a negligence claim
against Wacker.
Plaintiffs’ initial expert disclosure included opinions from Lanny Berke, a mechanical
and safety engineer, on product defect issues including product warnings and opinions from
John Buehler, an economist. Berke opined that the power trowel and the owner’s manual for
the power trowel did not contain adequate warnings.3 Buehler stated that his opinion as to the
present value of the future cost of care for Meza was based on a life expectancy taken from the
National Center for Health Statistics’ Life Tables.4 Wacker’s expert disclosure included
opinions from Roger McCarthy on product warnings and opinions from Dr. Scott Kush on life
expectancy. Plaintiffs’ rebuttal expert disclosure included opinions from Lila Laux on product
warnings and Dr. Michael D. Freeman on life expectancy.
Plaintiffs also recently disclosed Dr. Eric Foltz as a witness. Dr. Foltz is a treating
physician who “is expected to testify that [his] treatment and charges were reasonable and
necessitated by the incident at issue.”5

3

Exhibit A-1 at 3-4, Defendant Wacker Neuson Sales Americas LLC’s Motion to Strike
[etc.], Docket No. 82.
4

Exhibit A-2 at 1, Defendant Wacker Neuson Sales Americas LLC’s Motion to Strike
[etc.], Docket No. 82.
5

Plaintiffs’ Eleventh Supplemental Response [etc.] at 16, Exhibit D, Defendant Wacker
Neuson Sales Americas LLC’s Motion to Strike [etc.], Docket No. 82.
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Wacker now moves to strike Laux, Dr. Freeman, and Dr. Foltz as witnesses and to
exclude them from testifying at trial.
Discussion
Wacker argues that Laux, Dr. Freeman, and Dr. Foltz were not timely disclosed. “A
party that does not timely identify a witness under Rule 26 may not use that witness to supply
evidence at a trial ‘unless the failure was substantially justified or is harmless.’” Ollier v.
Sweetwater Union High School Dist., 768 F.3d 843, 861 (9th Cir. 2014) (quoting Fed. R. Civ.
P. 37(c)(1)).
As for Laux and Dr. Freeman, Wacker does not argue that plaintiffs did not disclose
these experts and their reports by the deadline for expert rebuttal reports. Rather, Wacker
argues that plaintiffs were required to disclose these two experts as part of their initial expert
disclosure. In short, Wacker is arguing that Laux and Dr. Freeman are not proper expert
rebuttal witnesses.
Wacker’s argument is based on California v. Kinder Morgan Energy Partners, L.P., 159
F. Supp. 3d 1182 (S.D. Cal. 2016). Kinder Morgan involved the “remediation of the 166 acres
underlying and surrounding Qualcomm Stadium and its adjoining parking lots. . . .” Id. at
1188. The City of San Diego asserted continuing public nuisance, private nuisance, and
trespass claims against Kinder Morgan. Id. For these claims, the City sought the following
damages:
(1) “water damages”—including the loss of use of the Mission
Valley aquifer as a source of potable water and for underground
water storage; (2) “real estate damages”—based on the property’s
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fair rental value for redevelopment projects; and (3) “restoration
damages”—to restore the property to its original,
pre-contamination condition, i.e. “background.”
Id. As part of its expert rebuttal disclosure, the City disclosed two reports from Dr. Huntley,
“an expert in groundwater hydrology,” as “purported rebuttal to Kinder Morgan’s expert
hydrogeologist, Joseph Scalmanini, and Kinder Morgan’s water treatment expert, Stephen
Johnson.” Id. at 1191. Kinder Morgan moved to exclude Dr. Huntley’s opinions, arguing in
part that his opinions were not rebuttal evidence. Id. The court found “that Dr. Huntley’s
opinion and testimony ‘do not solely contradict or rebut’ the Scalmanini and Johnson
reports[,]” and thus “they are not proper rebuttal.” Id. (quoting Fed. R. Civ. P. 26(a)(2)(D)(ii)).
Kinder Morgan argued that the City’s failure to disclose Dr. Huntley earlier was not
substantially justified, and the court agreed. Id. The court explained that the City’s
failure to disclose a water expert, and Dr. Huntley in particular, by
the March 11, 2011 initial expert disclosure deadline is indefensible. “Normally, parties are expected to present all of their
evidence in their case in chief.” The use of the groundwater
underneath the property as a source of potable water has been a
key part of this litigation from its inception.
Id. at 1191-92 (quoting Skogen v. Dow Chemical Co., 375 F.2d 692, 705 (8th Cir. 1967)). The
court further explained that
[w]hen a plaintiff’s case, particularly with regard to damages,
relies in part on the viability, operation, and value of a complex
product, the plaintiff must expect to introduce such expert
testimony—this is particularly true when the plaintiff can expect
that the defendant will attempt to show that the product cannot
work or has no value. Here, knowing that in its case-in-chief it
would argue that the Mission Valley aquifer is viable as a source
of supply and storage of groundwater, is therefore valuable, and
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entitles the City to millions in damages, the City’s designation of
Dr. Huntley as a mere rebuttal expert seems to be disingenuous, at
best. A party with the burden of proof on an issue “should not be
allowed to secretly prepare an army of ‘rebuttal’ experts . . . If
they were allowed to do so, their work would not be subject to a
direct response from any opposing expert. This immunity,
combined with the element of surprise,” is simply unfair.
Id. at 1192 (quoting Oracle Am., Inc. v. Google Inc., 2011 WL 5572835, *3, (N.D. Cal. 2011)).
The court concluded that Dr. Huntley’s “expert opinion and testimony are essential to proving
the City’s case-in-chief—its entitlement to ‘loss of use’ water damages—and are not proper
rebuttal. Furthermore, the late disclosure of Dr. Huntley’s opinion was neither ‘substantially
justified’ nor ‘harmless.’” Id. at 1193 (quoting Fed. R. Civ. P. 37(c)(1)).
Similarly here, Wacker argues that plaintiffs should have disclosed Laux and Dr.
Freeman as part of their initial expert disclosures because these experts are offering opinions
on issues on which plaintiffs carry the burden of proof. Wacker argues that any experts
providing opinions on issues on which plaintiffs have the burden of proof should have been
disclosed with plaintiffs’ initial expert disclosures.
As an initial matter, as plaintiffs point out, the disclosure of experts in this case was not
at all similar to that in Kinder Morgan. There, the City did not disclose any expert on an issue
that was essential to its case-in-chief. Here, however, plaintiffs initially disclosed an expert
on product warnings and an expert who offered an opinion on life expectancy. Wacker seems
to be arguing that plaintiffs’ rebuttal experts cannot offer opinions or testimony on these two
issues, that only plaintiffs’ initial experts could offer opinions or testimony on these issues.
But, a rebuttal expert’s report can address the same issues that were addressed by an initial
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expert. 103 Investors I, L.P. v. Square D Co., 372 F.3d 1213, 1218 (10th Cir. 2004).
Moreover, there is nothing improper about a party retaining a different expert to provide
rebuttal testimony. See Kinder Morgan, 159 F. Supp. 3d at 1191 (citations omitted) (“[a] party
need not disclose an expert within the deadline for initial expert reports, and can instead
disclose an expert as a rebuttal expert, when the expert’s testimony is intended solely to
contradict or rebut evidence on the same subject matter identified by an initial expert witness”).
The question here is whether Laux and Dr. Freeman are offering rebuttal evidence, as
opposed to entirely new evidence. “‘The proper function of rebuttal evidence is to contradict,
impeach or defuse the impact of the evidence offered by an adverse party.’” Huawei
Technologies, Co, Ltd v. Samsung Electronics Co, Ltd., 340 F. Supp. 3d 934, 996 (N.D. Cal.
2018) (quoting Matthew Enter., Inc. v. Chrysler Grp. LLC, No. 13-CV-04236-BLF, 2016 WL
4272430, at *1 (N.D. Cal. Aug. 15, 2016)).
As to the product warnings issue, Wacker disclosed McCarthy as its product warnings
expert and he generally opined that, contrary to Berke’s opinion, product warnings would not
have made any difference in this case.6 Laux is a “human factors psychologist” and she offered
a response to two of McCarthy’s assertions or opinions.7 Laux’s opinions are direct rebuttal
of specific assertions or opinions by McCarthy.

6

Exhibit 3 at 2-3, Plaintiffs’ Response [etc.], Docket No. 86.

7

Exhibit C-1 at 1, 3-4, Defendant Wacker Neuson Sales Americas LLC’s Motion to
Strike [etc.], Docket No. 82.
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But Wacker points out that Berke has also prepared a rebuttal expert report in which he
counters McCarthy’s opinions.8 Thus, Wacker argues that even if Laux were providing a direct
rebuttal of McCarthy’s assertions or opinions, she should still be stricken as a witness because
her testimony would be cumulative and duplicative. Rule 403, Federal Rules of Evidence,
provides that “[t]he court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Wacker argues that plaintiffs have not explained why they need two experts on the issue of
product warnings, particularly when, according to Wacker, the two experts are offering
substantially the same opinions.
At this point, the court cannot conclude that Laux’s testimony would be cumulative or
duplicative of Berke’s rebuttal testimony. She provides testimony about the purpose of
warnings from a human factors perspective, as opposed to a safety engineering perspective.
This may be the same thing as Wacker contends, but the court does not have sufficient
information at this time to determine that this difference is “of no consequence[.]”9 Wacker’s
motion to strike Laux as a rebuttal expert is denied.
As for the life expectancy issue, as set out above, Buehler, plaintiffs’ economist, based
his opinion as to the present value of the future cost of care for Meza on a life expectancy taken

8

Exhibit 1, Defendant Wacker Neuson Sales Americas LLC’s Reply [etc.], Docket No.

89.
9

Defendant Wacker Neuson Sales Americas LLC’s Reply [etc.] at 3, Docket No. 89.
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from the National Center for Health Statistics’ Life Tables.10 Based on the Life Tables,
Buehler opined that “[t]he assumed normal life expectancy of Mr. Mesa is through year
2046.”11 Wacker disclosed Dr. Kush as a life expectancy expert and he opined that Meza had
a shorter life expectancy than what is shown in the Life Tables. Plaintiffs then disclosed Dr.
Freeman as a rebuttal expert. Dr. Freeman stated that his “report in this matter concerns my
analysis of the methods and conclusions provided by [Wacker’s] life expectancy expert Dr.
Scott Kush. Additionally, I have provided my own evidence-based projection of Antonio
Meza’s survival.”12
To the extent that Dr. Freeman is critiquing Dr. Kush’s analysis and methodology, he
is providing rebuttal evidence. But, Dr. Freeman’s own life expectancy analysis is new
evidence, not rebuttal evidence. Plaintiffs’ economist chose to use the Life Tables to determine
life expectancy13 and allowing Dr. Freeman to opine as to a totally different life expectancy
would result in plaintiffs’ experts offering inconsistent opinions as to Meza’s life expectancy,
which would confuse a fact finder. Dr. Freeman may offer his opinions as to Dr. Kush’s
analysis and methodology. Such testimony will not be cumulative or duplicative of Buehler’s
10

Exhibit A-2 at 1, Defendant Wacker Neuson Sales Americas LLC’s Motion to Strike
[etc.], Docket No. 82.
11

Id.

12

Exhibit C-2, Defendant Wacker Neuson Sales Americas LLC’s Motion to Strike [etc.],
Docket No. 82.
13

Plaintiffs contend that Buehler used the Life Tables as the basis for his opinions
because the Arizona Jury Instructions for personal injury damages instruct jurors to assume life
expectancy based on the Life Tables. See RAJI Personal Injury Damages 5.
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testimony. But, Dr. Freeman cannot offer any opinions related to his own life expectancy
analysis.
Finally, Wacker moves to strike Dr. Foltz as a witness. On April 29, 2019, plaintiffs
identified Dr. Foltz as a witness. Dr. Foltz is a physician with Phoenix Neurology and Sleep
Medicine who recently treated Meza. Plaintiffs indicated that Dr. Foltz “is expected to testify
that [his] treatment and charges were reasonable and necessitated by the incident at issue.”14
Wacker contends that Dr. Foltz’s treatment notes do not contain any conclusions about the
reasonableness or necessity of treatment, which means his opinions about the reasonableness
and necessity of Meza’s treatment are expert opinions. See DeGuzman v. United States, Case
No. 2:12–cv–0338 KJM AC, 2013 WL 3149323, at *2 (E.D. Cal. June 19, 2013) (treating
physician “may testify as both a fact and expert witness”). Because Dr. Foltz will testify as an
expert, Wacker argues that he should have been disclosed in plaintiffs’ initial expert disclosure.
Because he was not, Wacker argues that Dr. Foltz has been untimely disclosed and should be
stricken as a witness.
Plaintiffs do not disagree that Dr. Foltz should be treated as an expert witness. But, they
argue that any late disclosure of Dr. Foltz was substantially justified or harmless. To determine
whether a late disclosure is substantially justified or harmless,
courts consider “(1) the surprise to the party against whom the
evidence would be offered; (2) the ability of that party to cure the
surprise; (3) the extent to which allowing the evidence would

14

Plaintiffs’ Eleventh Supplemental Response [etc.] at 16, Exhibit D, Defendant Wacker
Neuson Sales Americas LLC’s Motion to Strike [etc.], Docket No. 82.
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disrupt the trial; (4) the importance of the evidence, and (5) the
nondisclosing party’s explanation for it[s] failure to disclose the
evidence.”
San Francisco Baykeeper v. West Bay Sanitary Dist., 791 F. Supp. 2d 719, 733 (N.D. Cal.
2011) (quoting Dey, L.P v. Ivax Pharm., Inc., 233 F.R.D. 567, 571 (C.D. Cal. 2005)).
The late disclosure of Dr. Foltz was substantially justified and harmless. To the extent
that Wacker was surprised by the disclosure of Dr. Foltz, Wacker has ample time in which to
cure the surprise. Because discovery does not close in this case until September 3, 2019,15 and
no trial date is set, Wacker will have time to depose Dr. Foltz. And, plaintiffs had a good
reason for not disclosing Dr. Foltz sooner, given that Dr. Foltz did not evaluate Meza until
March 18, 2019 and they did not receive his records until April 9, 2019.
But, there is another problem with the disclosure of Dr. Foltz. “[A] treating physician
is” not required to file a Rule 26(a)(2)(B) written report if “his opinions were formed during
the course of treatment.” Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 826
(9th Cir. 2011). But, “if a treating physician is to testify as an expert, as opposed to a fact
witness, he or she must be disclosed pursuant to Rule 26(a)(2)(C).” Jones v. Colorado Casualty
Ins. Co., Case No. CV-12-01968-PHX-JAT, 2015 WL 6123125, at *2 (D. Ariz. Oct. 19, 2015).
“Rule 26(a)(2)(C) requires any disclosure of a treating physician identify ‘the subject matter
on which [the physician] will testify’ and ‘a summary of the facts and opinions to which the
[physician] is expected to testify.’” Titus v. Golden Rule Ins. Co., Case No. CV-12-00316-

15

Order re Amended Stipulation to Extend Deadlines at 1, Docket No. 88.
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PHX-ROS, 2014 WL 11515698, at *2 (D. Ariz. April 4, 2014) (quoting Fed. R. Civ. P.
26(a)(2)(C)). While plaintiffs’ disclosure as to Dr. Foltz arguably identifies the subject matter
on which he will testify, it does not contain a summary of Dr. Foltz’s facts and opinions.
Plaintiffs have not complied with Rule 26(a)(2)(C). But, because plaintiffs’ failure to comply
with Rule 26(a)(2)(C) can be remedied without causing harm to Wacker, the court will give
plaintiffs an opportunity to comply. Plaintiffs shall disclose the required summary for Dr. Foltz
on or before June 24, 2019, or Dr. Foltz will be stricken as an expert witness.
Conclusion
Wacker’s motion to strike16 is granted in part and denied in part. The motion is granted
as to Dr. Freeman’s opinions regarding his own life expectancy analysis. The motion is
otherwise denied.
DATED at Anchorage, Alaska, this 10th day of June, 2019.
/s/ H. Russel Holland
United States District Judge

16

Docket No. 82.
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