Pool et al v. Matco Mfg.

Filing 49

MINUTE ORDER granting in part and denying in part 40 Motion to Strike Defendant's Rule 26 Experts for Failure to Comply with Scheduling Order, as set forth in the order. Part (ii) of George Happ's proposed testimony is stricken; the motion is denied in all other respects. By Magistrate Judge Michael J. Watanabe on 6/23/2015. (emill)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01563-WYD-MJW
HAP POOL and
DARCI POOL,
Plaintiffs,
v.
MATCO MFG, a foreign corporation,
Defendant.
MINUTE ORDER
Entered by Magistrate Judge Michael J. Watanabe
It is hereby ORDERED that the Motion to Strike Defendant’s Rule 26 Experts for
Failure to Comply with Scheduling Order (Docket No. 40) is GRANTED IN PART and
DENIED IN PART, as follows.
Background
The scheduling order (Docket No. 24) originally provided that affirmative expert
witnesses for both parties should be disclosed by March 23, 2015, and rebuttal expert
witnesses for both parties should be disclosed by April 23, 2015.
Plaintiffs designated three experts: Hap Pool, David Klepacki, and Ted Waltman.
•

Mr. Pool, who is also one of the Plaintiffs, will testify to matters more
properly described as lay witness testimony – but also, apparently, to his
expert opinion that everything was “normal” as he landed the plane until
the left brake “locked,” which caused a crash. He will also testify as to
damages.

•

Mr. Klepacki will testify as to his investigation, reconstruction, and analysis
of the accident, concluding that the defective design and manufacture of
the parking brake caused the accident.

•

Mr. Waltman will testify to damages.

Defendant did not designate any affirmative expert witnesses. On April 17, 2015,
Defendant moved for an extension of time for rebuttal experts. The Court granted the
motion, extending the deadline for rebuttal experts to May 22, 2015. On May 22, 2015,
Defendant disclosed two experts: Thomas Pratt and George Happ.
•

Mr. Pratt will testify to Plaintiff’s design and assembly of the aircraft
(generally and specifically as to the parking brake), the design of the
parking brake at issue, the cause of the accident, and the Klepacki report.

•

Mr. Happ will testify to those same topics, but will also apparently opine
that Plaintiffs haven’t proven that they purchased the parking brake valve
in the condition it existed in when manufactured by Defendant, nor that it
was inherently defective.

Plaintiffs now move to strike both of Defendants’ experts, on the ground that the
experts cannot fairly be considered rebuttal experts and were not timely disclosed as
affirmative experts.
Discussion
Under Rule 26(a)(2)(D)(ii), rebuttal experts must address the “same subject
matter” as the opposing party’s affirmative experts. But “[s]uch evidence is not tied to
any particular witness; it is tied to whether the party with the affirmative burden has
presented evidence and/or testimony from a duly disclosed expert on the same subject
matter as that which will be rebutted by the disclosed rebuttal expert.” Bleck v. City of
Alamosa, Colo., No. 10-cv-03177-REB-KMT, 2012 WL 695139, at *4 (D. Colo. Mar. 5,
2012). The rebuttal expert need not address the testimony of the other party’s expert,
nor must the rebuttal expert address the same methodology. See, e.g., Armstrong v. IBehavior Inc., No. 11-cv-03340-WJM-BNB, 2013 WL 2419794 (D. Colo. June 3, 2013)
(vocational consultant who focused on qualitative analysis provided evidence on same

subject matter as economist who focused on quantitative analysis).
By designating its expert witnesses as rebuttal witnesses, Defendant runs the
risk that there will be nothing to rebut: if Plaintiff does not offer its affirmative experts, or
limits the scope of those experts to particular subject matters, Defendant will not be
allowed to offer its rebuttal experts. See Bleck, 2012 WL 695139, at *4 (“It is irrelevant
through which expert witness that evidence is elicited; that it actually be elicited in the
course of Plaintiff’s case-in-chief is the determining factor in the context of the
admissibility analysis.”). But so long as Defendant’s proposed experts address the
same subject matters as Plaintiffs’ proposed experts, Defendant is within its rights to run
this risk.
Here, the majority of the proposed testimony by Mr. Pratt and Mr. Happ falls
within the same subject matter as the proposed testimony of Mr. Pool and Mr. Klepacki.
The Court has only two reservations about Defendant’s rebuttal experts.
First, both of Defendant’s experts will apparently testify to the design and
assembly of the aircraft by Mr. Pool – a topic which seems to be outside the subject
matter of Mr. Klepacki’s report and perhaps outside the “expert” portion of Mr. Pool’s
testimony. But this is a problem Plaintiffs have created by designating Mr. Pool, the
lead lay witness in this case, as an expert. Further, both Mr. Pool and Mr. Klepacki will
testify to causation, and Defendant’s alternative theory of causation is indisputably
within that same subject matter; if Defendant’s alternative theory of causation is based
on how Mr. Pool assembled the aircraft, then such assembly is proper rebuttal
testimony. Accordingly, the Court will not strike this portion of Defendant’s experts’
testimony.

The Court’s second reservation relates to Mr. Happ’s proposed testimony. Mr.
Happ’s proposed testimony falls into seven categories, enumerated (i) through (vii).
The second category, (ii), states: “Plaintiffs have not presented any evidence that they
purchased the Valve in the condition it existed when manufactured by MATCO.”
(Docket No. 48-3, p.2.) This is well outside the subject matter of Plaintiffs’ proposed
expert testimony. Indeed, it seems unlikely even to qualify as a proper subject for
expert testimony under Federal Rule of Evidence 702. Accordingly, the Court will strike
it.
The remainder of Mr. Happ’s testimony bears on causation and the role of the
parking brake valve in the accident – and it is therefore within the same subject matter
as Plaintiffs’ experts’ testimony.
Order
The Motion to Strike Defendant’s Rule 26 Experts for Failure to Comply with
Scheduling Order (Docket No. 40) is GRANTED IN PART and DENIED IN PART, as
follows:
•

Part (ii) of George Happ’s proposed testimony is STRICKEN;

•

The motion is DENIED in all other respects.

Date: June 23, 2015