Wiedeman v. Canal Insurance Company et al

Filing 239

OPINION AND ORDER denying as moot Plaintiff Gregory Wiedeman's Motion to Exclude John Harrison Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., [and] Plaintiffs Motion in Limine 183 . Signed by Judge William S. Duffey, Jr on 7/5/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
GREGORY WIEDEMAN,
Plaintiff,
v.

1:15-cv-4182-WSD

CANAL INSURANCE COMPANY,
H&F TRANSFER, INC., AUTOOWNERS INSURANCE
COMPANY, and WALTER
PATRICK DORN, IV,
Defendants.

OPINION AND ORDER
This matter is before the Court on Plaintiff Gregory Wiedeman’s
(“Plaintiff”) “Motion to Exclude John Harrison Pursuant to Daubert v. Merrell
Dow Pharmaceuticals, Inc., [and] Plaintiff’s Motion in Limine” [183] (“Motion”).
On September 30, 2016, Plaintiff filed his Motion to exclude expert
testimony by John Harrison. Mr. Harrison was retained by H&F Transfer, Inc.
(“H&F”). Plaintiff specifically seeks to exclude (1) any testimony of Harrison that
was not previously disclosed regarding the electronic control module (“ECM”)
download or the general recording capacity of the truck’s ECM and (2) any new
opinion regarding the ECM because there is no showing Harrison is qualified to

render such opinions and thus the testimony does not meet the requirements of
Daubert.1.
On August 26, 2014, John Bethea conducted his inspection of the truck’s
electronic control module (“ECM”). H&F later disclosed Bethea as its expert with
respect to the ECM. On July 25, 2016, H&F disclosed John Harrison as a trucking
practices expert, and Harrison’s report contains several opinions regarding H&F’s
compliance with the Federal Motor Carrier Safety Regulations. (See [113]).
Harrison’s report did not contain any opinions regarding the ECM. H&F did not
amend its disclosures to disclose any Harrison opinions regarding the ECM.
H&F argues that the question whether Harrison’s opinions could be
supplemented or amended cannot be made until the inspection and download of the
ECM data. The inspection was, at the time of the Motion, scheduled for
November 7, 2016, and “it ha[d] yet to be determined that the hard drive contains
any ECM data upon which [Harrison could] render any expert opinion.” ([191] at
6).
On September 2, 2016, the Court denied Plaintiff’s Motion for Sanctions
[142] regarding alleged spoliation of the ECM data. The Court required the parties

1

Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993).

2

to locate the computer on which the ECM data was purportedly stored, and, if the
ECM data was determined to be unavailable, Plaintiff could file a renewed motion
for sanctions. On April 5, 2017, Plaintiff filed his Renewed Motion for Sanctions
[221]. The docket does not show that Harrison revised his opinions to include an
opinion on the ECM data.
In the absence of any evidence that Harrison offered any opinions regarding
the ECM data, it appears Plaintiff’s Motion is moot, and the Court denies
Plaintiff’s Motion to exclude Harrison’s opinions, if any, regarding ECM data.
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff Gregory Wiedeman’s “Motion to
Exclude John Harrison Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc.,
[and] Plaintiff’s Motion in Limine” [183] is DENIED AS MOOT.

SO ORDERED this 5th day of July, 2017.

3