Sims v. BMW of North America LLC
Filing
251
ORDER denying 199 Motion for Sanctions. See Order for further details. Signed by Judge Paul G. Byron on 1/29/2025. (ABD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
WILLIAM HARRISON SIMS,
Plaintiff,
v.
Case No: 6:22-cv-1685-PGB-UAM
BMW OF NORTH AMERICA
LLC and BAYERISCHE
MOTOREN WERKE AG,
Defendants.
/
ORDER
This cause is before the Court on Defendants’ Motion for Sanctions
Regarding Plaintiff’s Failure to Disclose Documents Relied Upon by Expert Robert
Renz, Jr. (Doc. 199 (the “Motion for Sanctions”)). Plaintiff filed a Response in
Opposition. (Doc. 218). Upon consideration, the Motion for Sanctions is denied.
I.
BACKGROUND
The history of this litigation is outlined in the Court’s prior Order (See Doc.
249) and is incorporated herein by reference. The thrust of Defendants’ Motion for
Sanctions concerns allegations that Plaintiff’s airbag inflator design expert, Robert
Renz, Jr., produced documents in response to Defendants’ Notice of Duces Tecum
Deposition that were not cited in his expert report. 1 (Doc. 199, p. 2). Defendants
1
Defendants support this contention by citing email correspondence regarding Mr. Renz’s
deposition. (Doc. 199, p. 2). However, the email exchanges do not describe the documents
further contend that Plaintiff failed to produce documents responsive to the notice
of taking deposition duces tecum until the evening before Renz’s deposition to gain
a tactical advantage. (Id.). Plaintiff counters that the subpoena duces tecum
requested the production of documents in “far less than the 30 days permitted for
response.” (Doc. 218, p. 3; Doc. 199-2, p. 3). Plaintiff’s response was not due until
July 11, 2024, and Renz’s deposition was noticed on June 27, 2024. (Doc. 218, p.
3). And, the Second Amended Case Management and Scheduling Order (“CMSO”)
provides that discovery closes on July 1, 2024, ten days before Plaintiff’s response
to the subpoena duces tecum was due. 2 (Doc. 149).
Defendants claim that at deposition, Mr. Renz produced materials not
disclosed in his expert report, failed to include materials identified in the report,
and provided email correspondence referring to attachments that were not
included. 3 (Id. at p. 2). Defendants further contend they were prejudiced by
produced by Plaintiff in response to the subpoena duces tecum which allegedly vary from
those cited in Mr. Renz’s report. (Doc. 199-2, p. 5). Defense counsel’s email states:
There are many inconsistencies in the file material you sent last
night compared to what Renz said he reviewed in his report.
Further, documents that Renz says he reviewed are not in his file.
Additionally, many documents in his file were not disclosed in his
report as being part of his review. Finally, there are emails included
in Renz’s file that . . . [contain] attachments, but the attachments
are not in Renz’s file.
(Id.).
2
Defendants aver that Mr. Renz failed to supply his file three days prior to the deposition, but
they do not cite a court order requiring early disclosure of these materials. (Doc. 199, pp. 2–
3).
3
Defendants cite exhibits 2 and 3 to their Motion as evidence of Mr. Renz’s disclosure of
material not mentioned in his report, his failure to produce documents identified in his report,
and his production of email correspondence without including referenced attachments. (Doc.
2
Plaintiff’s failure to produce Mr. Renz’s file until the evening before his deposition.
(Id. at p. 4). However, Defendants failed to acknowledge that Plaintiff was entitled
to wait 30 days from receipt of the subpoena duces tecum before producing
responsive documents, which had not expired by June 27, 2024.
Defendants further submit that Appendix C of Mr. Renz’s expert report lists
documents reviewed in preparing the report, including “[e]mail communications
between BMW and Takata.” (Doc. 199, p. 4 (quoting Doc. 199-3, p. 26)).
Defendants claim that 48 documents were produced in response to the deposition
duces tecum concerning “internal Takata communications that do not fall under
the above improper catchall.” 4 (Doc. 199, pp. 4–5). Defendants did not depose Mr.
Renz on the opinions he would offer, but they did ask him about documents he
produced and documents missing from his file. (Doc. 199-4).
Defendants assert that Plaintiff intends to rely on Mr. Renz to support
punitive damages. (Doc. 199, p. 6). Defendants contend they filed a motion to
compel better responses to interrogatories seeking the basis for punitive damages,
aside from Plaintiff’s reference to the In re: Takata Airbag Products Liability
Litigation Matter. 5 (Id.). Defendants further claim that Plaintiff assured them that
199, p. 4). As noted supra in note 1, exhibit 2 consists of email exchanges between counsel for
Defendants and Plaintiff’s counsel which do not specify the offending materials in any detail.
(Doc. 199-2). And exhibit 3 is Renz’s expert report. (Doc. 199-3).
4
It does not appear that Defendants filed a motion challenging the “improper catchall” after
Mr. Renz’s expert report was issued.
5
The Magistrate Judge denied Defendants’ Motion to Compel, agreeing with Plaintiff that the
interrogatories were improper contention interrogatories. (Doc. 182).
3
the factual basis for punitive damages would be provided in Renz’s file. (Id.). They
argue the deficiencies in Mr. Renz’s response to the subpoena duces tecum is
unfairly prejudicial. (Id. at p. 7). Defendants ask the Court to prohibit Plaintiff from
using Mr. Renz as an expert witness, and they seek reasonable expenses and
attorney’s fees. (Id.).
II.
LEGAL STANDARD
Federal Rule of Civil Procedure 37 provides that a party may be sanctioned
if they “fail[] to provide information or identify a witness as required by Rule 26(a)
or (e).” FED. R. CIV. P. 37(c)(1). Rule 37 further provides that the appropriate
sanction in such a circumstance includes not allowing the party to use the
undisclosed witness or information to supply evidence on a motion, at hearing, or
at trial. Id. “Rule 37 gives a trial court discretion to decide how best to respond to
a litigant’s failure to make a required disclosure under Rule 26.” Taylor v. Mentor
Worldwide LLC, 940 F.3d 582, 593 (11th Cir. 2019). However, the Court may not
sanction a party for a failure to disclose if the nondisclosure is substantially
justified or harmless. Id. A failure to disclose is substantially justified where
reasonable people could disagree as to whether disclosure was required. Nevado
v. Off. Depot, LLC, No. 23-cv-80244, 2024 WL 1529177, at *1 (S.D. Fla. Apr. 9,
2024). In determining whether nondisclosure is harmless, courts consider the
explanation for the failure, the surprise to the party against whom the evidence
would be offered and the party’s ability to cure it, the extent to which permitting
the evidence would disrupt trial, the importance of the information at issue, and
4
any prejudice caused to the opposing party. Bendik v. USAA Cas. Ins. Co., No. 6:19cv-118-Orl-41EJK, 2019 WL 9466018, at *2 (M.D. Fla. Oct. 25, 2019).
III.
DISCUSSION
Defendants support their argument that Mr. Renz’s response to the
subpoena duces tecum was deficient with generalities. They claim Mr. Renz
produced materials not disclosed in his expert report, failed to include materials
identified in the report, and provided email correspondence referring to
attachments that were not included. As Plaintiff correctly notes, Defendants do not
identify a single document by its title or address its significance to Mr. Renz’s
expert opinions. (Doc. 218, p. 5). For example, the subpoena duces tecum requests
the production of “[a]ny and all documents which you received or reviewed related
to this case.” (Id. at p. 6 (citing Doc. 218-2)). This category could include materials
Mr. Renz reviewed and found unhelpful and may explain why Mr. Renz produced
material not listed in his report. Defendants chose not to question Mr. Renz on
how documents produced at deposition but not listed in Appendix C of his report
may have influenced his opinions, if at all. Defendants’ assertion that Mr. Renz’s
response to the subpoena duces tecum is deficient has not been properly developed
by Defendants and is deemed waived. See W. Sur. Co. v. Steuerwald, No. 16-61815CV, 2017 WL 5248499, at *2 (S.D. Fla. Jan. 17, 2017) (“It is axiomatic that
arguments not supported and properly developed are deemed waived.”); U.S. Steel
Corp v. Astrue, 495 F.3d 1272, 1287 n.13 (11th Cir. 2007) (noting that the court
5
need not consider “perfunctory and underdeveloped” arguments and that such
arguments are waived).
Notwithstanding the Court’s finding of waiver, Plaintiff is correct that Mr.
Renz did not violate Rule 26, so sanctions under Rule 37 are inappropriate. (Doc.
218, pp. 6–7). Mr. Renz’s expert report outlines his education, qualifications, and
experience relative to the issues at hand. (Doc. 218-1, ¶¶ 1–19). In paragraph 23,
he identifies the facts and data considered, and which are cited in his report, and
the filings with the National Highway Traffic Safety Administration identified in
Appendix C. (Id. ¶ 23). Mr. Renz next summarizes his opinions and provides the
basis and reasons for his opinions. (Id. ¶¶ 24–66). Plaintiff is correct that Rule 26
does not require the expert to attach the documents relied upon in forming
opinions. (Doc. 218, p. 7); see Heard v. Town of Camp Hill, No. 16-cv-856-WKWGMB, 2017 WL 5514325, at *1–2 (M.D. Ala. Nov. 17, 2017) (holding that expert’s
report was sufficient where it described the evidence he considered in forming his
opinions in lieu of attaching physical copies of the evidence to his report); Crouch
v. Honeywell Int’l, Inc., No. 3:07-cv-638-DJH, 2015 WL 13547448, at *5 (W.D. Ky.
Nov. 19, 2015) (holding that Rule 26 does not require expert reports to contain or
attach exhibits); Perez v. El Tequila, LLC, No. 12-cv-588-JED-PJC, 2015 WL
11144032, at *4 (N.D. Okla. Feb. 13, 2015) (holding that expert’s identification of
“examples” of documents in his report suffices to disclose that these documents
and others like them will be used as exhibits at trial); R.C. Olmstead, Inc. v. CU
Interface, LLC, 657 F. Supp. 2d 905, 912 (N.D. Ohio 2008) (holding that reference
6
to screenshots in the expert report is sufficient to disclosure that the screenshots
will be used as exhibits at trial).
In short, Mr. Renz’s report is well-reasoned and thoroughly supported,
referencing the materials he considered in reaching his opinions. Federal Rule of
Civil Procedure 26(a)(2)(B) provides that the expert report must contain the
following:
(i)
a complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii)
the facts or data considered by the witness in forming
them;
(iii) any exhibits that will be used to summarize or support
them;
(iv) the witness’s qualifications, including a list of all
publications authored in the previous 10 years;
(v)
a list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by
deposition; and
(vi) a statement of the compensation paid for the study and
testimony in the case.
Defendants do not claim that Mr. Renz’s report fails to comply with the
requirements of Rule 26. Instead, without supporting citation, they claim that his
response to their subpoena included documents not referenced in his report—
which is what they requested. Defendants failed to question Mr. Renz to determine
whether documents voluntarily produced at deposition and not referenced in his
report influenced his opinions. Defendants also claim he produced internal
communications between Takata and BMW without developing whether Mr. Renz
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relied on these communications or explaining why these records do not fall within
one of the categories identified in Mr. Renz’s report. Had Defendants taken a
substantive deposition, the Court would be better positioned to evaluate whether
the “48 documents” were disclosed in the expert report or relied on by Mr. Renz in
forming his opinions. Again, the Court notes that Defendants failed to develop the
record properly. And so, Defendants’ contention that Mr. Renz’s voluntary
response to an unenforceable subpoena duces tecum impaired their ability to
cross-examine him effectively is unsupported. Therefore, sanctions under Rule 37
are inappropriate. 6
While the Defendants’ Motion for Sanctions is deficient, the Court declines
to grant Plaintiff’s request for sanctions in this overly litigated case.
IV.
CONCLUSION
For these reasons, Defendants’ Motion for Sanctions (Doc. 199) is DENIED.
DONE AND ORDERED in Orlando, Florida on January 29, 2025.
Copies furnished to:
Counsel of Record
Unrepresented Parties
6
The Court notes that Plaintiff was not obligated to produce any documents at his deposition,
since he was entitled to 30 days to respond. One can hardly cry foul when the opposing party
voluntarily produces documents.
8
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