JMAR Express Inc et al v. Peterbilt of Memphis Inc et al

Filing 188

ORDER denying without prejudice #159 Defendant Caterpillar's MOTION to Exclude Testimony of David Merrion and #172 Defendants PACCAR Inc.'s and Peterbilt of Memphis Inc.'s Motion to Strike plaintiffs' expert testimony. Signed by Judge Billy Roy Wilson on 7/31/12. (kpr) (Additional attachment(s) added on 8/2/2012: #1 Main Document - Correct) (thd). (Additional attachment(s) added on 8/2/2012: #1 Main Document - Correct and docket entry modified to correct the linkage and the description of the document filed.) (thd).

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
JMAR EXPRESS, INC., et al.
v.

PLAINTIFFS
4:10CV01231-BRW

PETERBILT OF MEMPHIS, INC., et al.

DEFENDANTS
ORDER

Pending is a Motion to Strike Plaintiffs’ Expert’s Testimony by Defendants PACCAR, Inc.
and Peterbilt of Memphis, Inc. (Doc. No. 172). Plaintiffs have responded.1 Also pending is a Motion
to Exclude Testimony of David Merrion by Defendant Caterpillar, Inc. (“Caterpillar”) (Doc. No.
149). Plaintiffs have responded,2 and Caterpillar has replied.3 For the reasons set out below, both
Motions (Doc. Nos. 172, 149) are DENIED without prejudice.
I.

PACCAR and Peterbilt of Memphis
PACCAR and Peterbilt of Memphis (“POM”) urge that the Court should strike the testimony

of David Merrion, Plaintiffs’ Expert witness, as to PACCAR and POM because: (1) Merrion’s Rule
26 expert report expressed to opinions related to PACCAR’s trucks; (2) Merrion’s opinion has no
factual basis and does not create a genuine issue of material fact; and (3) Merrion has no basis for his
opinions.

1

Doc. No. 187.

2

Doc. No. 174.

3

Doc. No. 182.
1

On May 31, 2012, Plaintiffs filed a second amended complaint adding new claims against
Caterpillar.4 On June 7, 2012, a second amended final scheduling order was entered.5 Discovery in
this case is still ongoing. According to the second amended final scheduling order, the expert
disclosure deadline is October 22, 2012, and the rebuttal expert disclosure deadline is
November 21, 2012. The dispositive motions deadline is December 6, 2012; trial is scheduled for
February 19, 2013.
PACCAR and POM’s motion to exclude is well taken; Merrion’s report was not focused on
PACCAR trucks, but on Caterpillar engines. Expert disclosure deadlines in this case, however, are
still months away. Accordingly, the parties’ Motion (Doc. No. 172) is DENIED without prejudice.
II.

Caterpillar
Caterpillar asserts that Merion’s testimony is unreliable because: (1) he cannot conform that

his count of engine “failures” is accurate; (2) his “failure rate” expressed in terms of claims per
engine per miles is flawed; (3) his comparison of his calculated failure rate expressed in terms of
claims per engine per month to industry claim rates is invalid; and (4) he cites no authority for what
he contends are industry standards. Caterpillar also maintains that Merion’s testimony is irrelevant.
Caterpillar’s motion, particularly in connection with industry standards, is also well taken,
and is also DENIED without prejudice for the same reasons as given above.
IT IS SO ORDERED this 31st day of July, 2012.

/s/Billy Roy Wilson
UNITED STATES DISTRICT JUDGE

4

Doc. No. 162.

5

Doc. No. 166.
2