Cameron v. Lowes Home Centers Incorporated et al

Filing 192

ORDER: IT IS ORDERED denying Plaintiff Christine Cameron's Motion to Preclude Testimony from Defense Expert Paul Zimmer (Doc. 159 ) with leave to re-urge as the case develops. (See attached Order). Signed by Judge John J Tuchi on 6/26/19. (JAMA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Christine Cameron,
Plaintiff,

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ORDER

v.

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No. CV-17-08082-PCT-JJT

Lowes Home Centers Incorporated, et al.,

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Defendants.

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At issue is Plaintiff Christine Cameron’s Motion to Preclude Testimony from

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Defense Expert Paul Zimmer (Doc. 159), to which Defendant Lowe’s Home Centers, LLC

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filed a Response (Doc. 161) and in support of which Plaintiff filed a Reply (Doc. 172). The

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Court will deny the Motion with leave to re-raise should it become ripe. As of now, it is

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not.

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Plaintiff claims Mr. Zimmer’s expert report contains no opinions. Defendant

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acknowledges the same and indicates that is because Plaintiff has disclosed no evidence in

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support of any theory of economic loss. Defendant treats Mr. Zimmer as a rebuttal expert

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witness who would rebut as yet undisclosed economic loss evidence. Plaintiff counters that

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any opinion Mr. Zimmer would now offer is precluded because it was not disclosed by the

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deadline this Court set for rebuttal expert opinion disclosure under Fed. R. Civ. P. 26(a)(2).

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That may be true, but it is difficult to disclose an opinion whose formulation depends on

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disclosure of economic loss evidence which also has not yet been disclosed, and by

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Plaintiff’s own logic, also would be precludable as untimely under the Court’s Case

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Management and Scheduling Order.

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In other words, there is nothing to decide on Plaintiff’s Motion to preclude

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Mr. Zimmer at this point. If Plaintiff never discloses economic loss evidence, there will be

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no need for Mr. Zimmer to testify and the Motion will be mooted. If Plaintiff does later

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disclose such evidence, or attempts to introduce it at trial without disclosure, the Court

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would take up such a motion to preclude Mr. Zimmer at that point, concomitant with

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Defendant’s motion to preclude undisclosed evidence under the deadline set by the

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Scheduling Orders. The Court reminds counsel for all parties that it will not allow

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“sandbagging” by any party.

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IT IS ORDERED denying Plaintiff Christine Cameron’s Motion to Preclude

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Testimony from Defense Expert Paul Zimmer (Doc. 159) with leave to re-urge as the case

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develops.

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Dated this 26th day of June, 2019.

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Honorable John J. Tuchi
United States District Judge

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