Weaver v. Toyota Motor Corporation et al
ORDER granting Mr. Weaver's motion for non-suit. Signed by Judge Kristine G. Baker on 3/7/2014. (mmd)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
RICKY WEAVER, as Personal
Representative of the Estate of
MICAH WEAVER, Deceased
Case No. 1:11-cv-00025 KGB
TOYOTA MOTOR CORPORATION,
and TOYOTA MOTOR SALES, U.S.A., INC.
The Court conducted a hearing in this matter on March 6, 2014, outside the presence of
the jury. Counsel for plaintiff Ricky Weaver, as personal representative of the estate of Micah
Waver, deceased (hereinafter “Mr. Weaver”), and counsel for defendants Toyota Motor
Corporation and Toyota Motor Sales, U.S.A., Inc. (hereinafter collectively “Toyota
Defendants”), were present. Mr. Weaver’s counsel made an oral motion for voluntary non-suit.
This is a products liability case that was originally filed on March 23, 2011. Mr. Weaver
alleges facts regarding a fatal accident that occurred in late 2010 near Batesville, Arkansas. Mr.
Weaver’s son, Micah Weaver, was the driver and sole occupant of a 2000 Toyota 4Runner
involved in a single-vehicle crash. Micah Weaver allegedly lost control of the 4Runner causing
it to rollover. He was ejected and died in the crash.
In support of his motion, Mr. Weaver’s counsel explained that one of Mr. Weaver’s
expert witnesses, Dr. Jacquelyn Paver, is currently suffering from H1N1 (“swine flu”), based on
information he received. The Court notes that this motion was made the second day of what all
counsel anticipated would be a seven to eight day jury trial. At the pretrial hearing last week and
again this week, the Court and defense counsel agreed to Mr. Weaver’s taking this expert witness
out of turn based on representations that she had a conflicting trial obligation this week that may
necessitate such rescheduling.
This expert witness also was deposed in this case.
considerations have factored into this Court’s determination of whether to grant Mr. Weaver’s
request for non-suit and, if so, upon what conditions to grant his request.
On the record with counsel, the Court observed that, if Mr. Weaver opts not to proceed
with his request for a non-suit or the Court opts not to grant such a request, and this expert
witness remains unable to attend trial due to illness, this Court has the option of determining that
the witness is “unavailable” under Federal Rule of Evidence 804 and permitting Mr. Weaver to
call this witness to testify by deposition designation. The Court made no formal ruling as to the
use of Dr. Paver’s prior deposition and acknowledges that courts distinguish between
unavailability of fact witnesses and expert witnesses. As one court observed, generally, “even
the unavailability of a particular expert witness should not without more allow the use of [her]
prior testimony,” because an “expert witness generally has no knowledge of the facts of the
case,” but is “called upon to express a professional opinion upon the facts as they are given to
[her], often expressing [her] opinions in the form of answers to hypothetical questions,” so “even
if one particular expert is unavailable, there is no need to use [her] previous testimony to prevent
the loss of evidence, because there will usually be other experts available to give similar
testimony orally.” Carter-Wallace, Inc. v. Otte, 474 F.2d 529, 535–36 (2d Cir. 1973) (emphasis
Dr. Paver’s anticipated testimony also has been the subject of several filings by the
Toyota Defendants. Although the Court ruled on the in limine motion regarding Dr. Paver’s
anticipated testimony prior to trial (Dkt. No. 112, at 3), after that ruling, the Toyota Defendants
filed a brief supporting their objections to Mr. Weaver’s seat belt defect claims and related
testimony or evidence, submitting additional facts and raising additional challenges to aspects of
Dr. Paver’s anticipated testimony (Dkt. No. 114). The Court took those issues up at the March 5,
2014, pretrial and stated on the record during the March 6, 2014, conference with counsel that it
intended to issue a second written order regarding the scope of Dr. Paver’s anticipated trial
testimony. The Court announced this after Mr. Weaver’s motion for non-suit.
In considering whether to grant Mr. Weaver’s request for voluntarily non-suit or
dismissal without prejudice, along with the above factors, this Court also considered the
procedural history of the case. Mr. Weaver makes clear that he does not seek to dismiss with
prejudice his case; he seeks a dismissal without prejudice. This Court previously dismissed
without prejudice this case (Dkt. No. 30), but the Court’s Order was promptly vacated by request
of Mr. Weaver (Dkt. No. 33). This Court determines that, because the previous Order of
dismissal was vacated, it has no preclusive effect on Mr. Weaver. See, e.g., Witmer v. Bryan
Lincoln Gen. Hosp., 2003 WL 367726, *7 (D. Neb. Feb. 20, 2003). Therefore, this Court
determines Mr. Weaver’s current request is in effect his first request for dismissal without
This issue has significance because Arkansas Rule of Civil Procedure 41(a)(2) provides
in relevant part that “[a] voluntary dismissal . . . operates as an adjudication on the merits when
filed by a plaintiff who has once dismissed in any court . . . an action based upon or including the
same claim . . . .” Federal Rule of Civil Procedure 41 provides no similar restriction when the
dismissal is by Court order; only that the Court may grant such a motion “on terms that the court
considers proper.” Fed. R. Civ. P. 41(a)(2). Whether the Arkansas Rule 41 restriction on and
effect of successive non-suits impacts this matter is not at issue now, as the Court determines
based on the record before it that Mr. Weaver’s request for voluntarily non-suit or dismissal
without prejudice constitutes his first request.
If the Court grants Mr. Weaver’s motion for non-suit, there are also considerations as to
whether a refiling of the suit would be timely. The products liability statute of limitations in
Arkansas is three years. Ark. Code Ann. § 16-116-103. However, the Arkansas “savings
statute” provides in relevant part that “if any action is commenced within the time prescribed . . .
and the plaintiff therein suffers a nonsuit . . . the plaintiff may commence a new action within
one year after the nonsuit suffered . . . .” Ark. Code Ann. § 16-56-126; Chandler v. Roy, 272
F.3d 1057, 1058 (8th Cir. 2001). The “savings statute” is substantive law and, therefore, would
be applied by this Court, if this matter is refiled, as the Court is sitting in diversity and applies
the state statute of limitations. See Jinks v. Richland County, S.C., 538 U.S. 456, 464–65 (2003).
For these reasons, the savings statute operates to toll the statute of limitations one year from the
date of non-suit.
Finally, the Court takes up on what terms it “considers proper” to grant Mr. Weaver’s
motion to non-suit in this case. See Fed. R. Civ. P. 41(a)(2). Generally, “in the federal courts,
after answer, dismissals without prejudice should be granted only ‘if no other party will be
prejudiced.’” Kern v. TXO Production Corp., 738 F.2d 968, 970 (8th Cir. 1984) (quoting Wright
& Miller, Federal Practice & Procedure—Civil § 2362 (1971)). “By ‘prejudice’ in this context
is meant something other than the necessity that defendant might face of defending another
action. That kind of disadvantage can be taken care of by a condition that plaintiff pay to
defendant its costs and expenses incurred in the first action.” Kern, 728 F.2d at 970.
The Court, noting that two pretrial hearings had been conducted; counsel, the parties, and
witnesses assembled; and a jury empaneled, stated to the parties on the record that, if the Court
were to grant the motion to non-suit, it would condition doing so and the refiling of this action on
the following: (1) that the suit would be refiled in this Court; (2) that no further discovery would
occur in the case, as the deadlines for conducting discovery, and expert discovery in particular,
were extended several times by this Court and have passed; and (3) that, if and when this case is
refiled, the Court would assign to Mr. Weaver, at least, all duplicative costs and fees incurred by
the Toyota Defendants related to the refiling of this case and, at most, all costs and fees
previously incurred by the Toyota Defendants. See, e.g., Behrle v. Olshansky, 139 F.R.D. 370,
372–73 (W.D. Ark. 1991) (citing Kern, 738 F.2d 968, for the proposition that it would be an
abuse of discretion not to impose conditions on a non-suit motion made during trial). The Court
expressly stated that it would reserve ruling on any request for costs and fees until and if the case
is refiled. Federal Rule of Civil Procedure 41 permits the Court to stay the refiled proceedings
until the plaintiff has complied. Fed. R. Civ. P. 41(d).
Counsel for Mr. Weaver considered these factors and renewed his motion for non-suit.
The Court orally granted Mr. Weaver’s motion, subject to the above-listed conditions. This
Order memorializes the Court’s ruling in this matter. All pending motions are dismissed as
SO ORDERED this 7th day of March, 2014.
Kristine G. Baker
United States District Judge
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