Weaver v. Toyota Motor Corporation et al
OPINION AND ORDER re 60 MOTION to Exclude Untimely Disclosed Evidence and Alternative Motion for Continuance filed by Toyota Motor Corporation, Toyota Motor Sales USA Inc. A new scheduling order will be entered by separate order; di scovery will remain open until May 22, 2013, for the limited purpose of conducting the depositions of Dr. Paver, Dr. Batzer, Mr. Hooker, Michael Sanders, Charles Butler, and Peter Dishart. If a party wishes to take another deposition within this extended period of discovery, and the deposition cannot be taken by agreement, that party may file a motion with the Court. Signed by Judge Kristine G. Baker on 3/1/13. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
RICKY WEAVER, as Personal
Representative of the Estate of
MICAH WEAVER, Deceased
No. 1:11-cv-025 KGB
TOYOTA MOTOR CORPORATION,
TOYOTA MOTOR SALES, U.S.A., INC.,
and TK HOLDINGS, INC.
OPINION AND ORDER
Defendants Toyota Motor Corporation and Toyota Motor Sales, U.S.A., Inc.
(collectively the “Toyota Defendants”), filed a motion to exclude untimely disclosed evidence
and alternative motion for continuance (Dkt. No. 60). Plaintiff Ricky Weaver, as the personal
representative of the estate of Micah Weaver, deceased, responded to the motion (Dkt. No. 66),
and the Toyota Defendants replied (Dkt. No. 69).
Summary of the Parties’ Positions
On November 30, 2010, near Batesville, Arkansas, 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.
The procedural history of this case is set out in the parties’ filings.
requested, and received from the Court, several extensions of the deadline to disclose his expert
witnesses, their opinions, and supporting materials. In the last order extending his deadline, the
Court cautioned Mr. Weaver that “no further extensions will be granted” (Dkt. No. 52).
The Toyota Defendants contend that, months after the court-ordered deadline, Mr.
Weaver disclosed large amounts of new materials created by and relied on by his designated
expert witnesses. They claim these materials “dramatically alter and far exceed the scope of
Plaintiff’s experts’ original reports and disclosures, and relate to vehicle defect allegations not
included in Plaintiff’s live pleadings” (Dkt. No. 60, at 1). The Toyota Defendants also complain
that the materials were produced only days prior to the experts’ scheduled depositions. They ask
the Court to strike the late disclosed evidence and to exclude any reference to the materials at
trial, including any testimony or opinions from Mr. Weaver’s experts regarding the materials. In
the alternative, the Toyota Defendants ask the Court to continue the trial of this matter to permit
them sufficient time to analyze and obtain full discovery of the new materials to prepare
evidence to rebut it.
The Toyota Defendants primarily complain about (1) insufficient initial disclosures from
Mr. Weaver’s experts about an alleged defect in the driver’s seatbelt buckle and (2) additional
supporting and related expert witness materials belatedly produced, including but not limited to
(a) rollover testing materials and (b) testing or demonstrations related to Mr. Weaver’s claim of
an unintended buckle release. The Court will examine arguments related to each of these in turn.
Disclosures About An Alleged Defect In The Driver’s Seatbelt Buckle
The Toyota Defendants contend that any expert material related to an assertion that the
vehicle’s driver’s seat belt system was defectively designed because of the potential for
inadvertent unlatchment is not relevant. They contend that Mr. Weaver’s live pleading, the
Corrected Amended Complaint, does not contain an allegation that the vehicle’s seat belt system
was defective in any way (Dkt. No. 44-1). They maintain that, since Mr. Weaver has not alleged
that the subject vehicle’s seat belt system was defective, any expert testimony or supporting
materials purporting to support such an allegation are not relevant and should be excluded.
Mr. Weaver contends that his Corrected Amended Complaint includes the allegation that
“the roll-over protective system was inadequately designed because it did not afford reasonable
occupant protection during the foreseeable rollover crash,” and that “occupant protection
system” includes the seat belt (Dkt. 66, at 1).
With their challenge to the allegations in the Corrected Amended Complaint, the Toyota
Defendants also challenge Mr. Weaver’s initial expert reports. They contend those reports
contained only vague statements about an alleged defect with the driver’s seatbelt buckle. They
claim little or no support for those statements was included, and no testing was disclosed to
support a claim of defect in the buckle.
In response, Mr. Weaver points to specific passages in Dr. Jacquelyn Paver’s initial
expert report which he claims clearly detail her claims of seat belt defects (Dkt. 66, at 2). Mr.
Weaver also maintains that defense experts in their reports dedicated approximately four pages
to defending against Dr. Paver’s unwanted seat belt buckle release opinions (Dtk. 66, at 2) and
addressed the opinions of Dr. Stephen Batzer as to enhanced protective glass defects (Dtk. 66, at
5). Mr. Weaver has included the expert reports of defense experts Jeffrey J. Croteau and
William W. Van Arsdell (Dkt. 66, Exhibits 7 and 4). The Toyota Defendants disagree with Mr.
Weaver’s characterization of their experts’ reports and claim their experts’ reports in fact
demonstrate the conclusory and vague nature of plaintiffs’ experts’ reports on this subject.
Additional Supporting Materials
The Toyota Defendants also challenge additional supporting and related expert witness
materials belatedly produced by Mr. Weaver.
Based on the production of these materials, the
Toyota Defendants did not proceed with the depositions of Mr. Weaver’s experts when
previously scheduled. Mr. Weaver maintains that the additional materials furnished (1) do not
alter the original opinions of such experts stated in their expert reports, (2) are in part cumulative
of materials previously produced, (3) were not necessary for the formulation of plaintiff’s expert
opinions stated in their initial expert reports, (4) are in part demonstrative aids which according
to Mr. Weaver are not under court decisions necessary to be endorsed or provided with
disclosures, (5) do not alter the prior opinions of plaintiff’s experts or (6) are in part for
impeachment, such as the 1997 Ford Explorer Demonstration (Dkt. 66, at 4).
The Toyota Defendants take exception to Mr. Weaver’s representations. They assert that
most, if not all, of the materials Mr. Weaver claims were produced contemporaneously with
plaintiff’s expert reports in early November 2012 were not produced to defendants until January
7, 2013, approximately two months after the court-ordered deadline (Dkt. 69, at 2). After further
review of his file materials, Mr. Weaver’s counsel acknowledges that the Toyota Defendants are
correct in regard to the date these materials were first produced (Dkt. 70, at 1-2). Although they
take issue with all of the materials they claim have been belatedly produced, the Toyota
Defendants single out two categories of materials in particular.
Rollover Testing Materials
As a part of his production, Mr. Weaver produced rollover testing materials related to a
1997 Ford Explorer Demonstration.
Mr. Weaver contends that the 1997 Ford Explorer
Demonstration is relied upon by Dr. Paver as impeachment of the opinions of defense experts
that, if Micah Weaver had been wearing his seat belt at the time of the subject accident, there
would have been gross damage to the seat belt webbing which was not found on the seat belt
webbing of the subject vehicle’s seat belt (Dkt. 66, at 5). Mr. Weaver maintains that “[t]he 1997
Ford Explorer demonstration demonstrates that claim by defense experts is patently untrue”
(Dkt. 66, at 7). Based on Mr. Weaver’s explanation of this material, the Court understands that
plaintiff’s vehicle stability and handling expert, Robert Hooker, performed the demonstration on
the 1997 Ford Explorer.
According to Mr. Weaver, Mr. Hooker did not reference the
demonstration in his report initially produced in this case because he will not be testifying about
it, unless the Court requires him to do so, and will offer no opinions based on it. Instead, Mr.
Weaver claims that he intends to have Dr. Paver testify about the demonstration and will attempt
to show the demonstration to the jury during Dr. Paver’s testimony but not admit it into evidence
pursuant to Rule 803(18) of the Federal Rules of Evidence. Mr. Weaver agrees to make Mr.
Hooker available for the purpose of examining him relating to his performance of such 1997
Ford Explorer demonstration, if the Toyota Defendants desire to examine him on this.
Testing or Demonstrations Related to Unintended Buckle Release
The Toyota Defendants also claim that they received from Mr. Weaver’s counsel on
January 22 and 24, 2013, gigabytes worth of seat belt buckle latching and unlatching “test
videos.” Mr. Weaver maintains that these are videotape demonstrations conducted under Dr.
Paver’s direction and control and are intended as “merely demonstrative aids to illustrate Dr.
Paver’s opinion” (Dkt. 66, a 6-7). Mr. Weaver asserts that these demonstrations could have all
been and still can be done in the courtroom before the jury (Dkt. 66, at 7). He also asserts that
“[t]he ‘other seat belt buckles and latch plates’ used in the demonstration, as well as the new seat
belt buckle purchased from a Toyota dealer, at the request of the Defendants, could be
immediately shipped overnight to the defense experts, for the defense experts’ examination”
(Dkt. 66, at 7).
Based on this Court’s review of all materials submitted and the record in this case,
seatbelt defect evidence is relevant, given the claims and defenses the parties can reasonably be
expected to assert in this case at trial. This determination is supported by plaintiff’s and
defendants’ initial expert disclosures.
The Court acknowledges there may be legal and
evidentiary reasons such evidence is not admissible at trial, but those arguments have not been
presented by the parties and are not before the Court.
The Court conducted an initial telephone hearing with counsel for the parties when this
motion was filed. Based on counsels’ representations on that call and the filings submitted on
these issues, the Court determined the parties required time to develop seatbelt defect evidence,
to be able to present such evidence and to prepare to counter such evidence effectively in
advance of and at trial. For this reason, in part, the Court continued the trial of this matter.
The Court will not go item by item through the materials Mr. Weaver is alleged to have
belatedly produced. Instead, this Court rules that materials disclosed by Mr. Weaver after his
initial expert reports were produced may not be relied upon by Mr. Weaver in an effort to bolster
or otherwise support his expert’s disclosed opinions. The initial opinions produced must stand
on their own with the materials provided or cited at the time those initial opinions were
produced. In other words, materials that Mr. Weaver now contends (1) do not alter the original
opinions of such experts stated in their expert reports, (2) are in part cumulative of materials
previously produced, (3) were not necessary for the formulation of plaintiff’s expert opinions
stated in their initial expert reports, (4) are in part demonstrative aids which according to Mr.
Weaver are not under court decisions necessary to be endorsed or provided with disclosures, and
(5) do not alter the prior opinions of plaintiff’s experts must be confined to those categories.
With this determination, the Court does not intend to foreclose further challenges to these
materials. Instead, the Court determines at this stage the materials may not be used to bolster or
otherwise support the initial disclosed opinions of Mr. Weaver’s experts.
With that, the Court makes clear it is not at this stage prohibiting Mr. Weaver’s experts
from testifying about alleged defects with the subject vehicle’s seat belt system as disclosed in
their initial expert reports or about materials upon which they intend to rely for impeachment of
defendants’ experts. The Court cautions that all opinions an expert witness can reasonably
anticipate offering at trial – whether offering the opinion affirmatively or as impeachment or
rebuttal – should be disclosed in advance of trial.
In regard to the 1997 Ford Explorer Demonstration (Dkt. 66, at 4), the Court will not rule
in advance on Mr. Weaver’s disclosed plan to show this evidence to the jury without admitting it
by having Dr. Paver testify about it and citing Federal Rule of Evidence 803(18), except to point
out to the parties that this Court will rule on objections raised in advance or at the time of trial,
will hold all parties to the same standards under the Federal Rules of Evidence, and will not take
judicial notice under Rule 803(18) of this demonstration or any other materials presented based
on the record before the Court.
In regard to the seat belt buckle latching and unlatching “test videos,” this Court
previously ruled that materials disclosed by Mr. Weaver after his initial expert reports were
produced may not be relied upon by Mr. Weaver in an effort to bolster or otherwise support his
expert’s disclosed opinions. Mr. Weaver appears to disclaim that motive in regard to these test
videos. He claims instead that they are demonstrations that could have all been and still can be
done in the courtroom before the jury. The Court will consider these test videos as such and will
rule on any evidentiary challenges to the videos if and when such challenges are made.
A new scheduling order will be entered by separate order. Discovery will remain open
until May 22, 2013, for the limited purpose of conducting the depositions of Dr. Paver, Dr.
Batzer, Mr. Hooker, Michael Sanders, Charles Butler, and Peter Dishart. If a party wishes to
take another deposition within this extended period of discovery, and the deposition cannot be
taken by agreement, that party may file a motion with the Court.
SO ORDERED this 1st day of March, 2013.
Kristine G. Baker
United States District Judge
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