Bryntensen et al v. Camp Automotive, Inc. et al

Filing 109

MEMORANDUM DECISION AND ORDER. Defendants' Motion 56 is DENIED. Defendants' Motion 63 is GRANTED. Defendants' Motion 70 is DENIED. Defendants' Motion 91 is GRANTED in part and DENIED in part. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
CASEY BRYNTESEN, et. al.,
Case No. 2:13-cv-00491-BLW
Plaintiffs,

MEMORANDUM DECISION AND
ORDER

v.
CAMP AUTOMOTIVE, INC., et. al.,
Defendants.

INTRODUCTION
The Court has before it Defendants’ Motion Regarding Choice of Law Governing
Punitive Damages (Dkt. 56), Defendants’ Motion for Sanctions (Dkt. 63), Defendants’
Motion to Exclude Plaintiffs’ Expert Witness James Bower (dkt. 70), and Defendants’
Motion to Exclude Plaintiffs’ Rebuttal Experts and Late-Disclosed Experts (Dkt. 91).
ANALYSIS
1.

Choice of Law
As both parties recognize, federal courts sitting in diversity apply the choice-of-

law provisions of the forum state. Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 497,
(1941). Idaho applies the “most significant relationship” test set out in the Restatement
(Second) of Conflict of Laws to determine which state’s laws govern tort cases. Section
145 of the Restatement requires courts to consider: (a) the place where the injury
occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile,

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residence, nationality, place of incorporation and place of business of the parties, and (d)
the place where the relationship, if any, between the parties is centered. Grover v. Isom,
53 P.3d 821, 824 (Idaho 2002). “‘Of these contacts, the most important in guiding [the
Idaho Supreme Court’s] past decisions in tort cases has been the place where the injury
occurred.’” Id. (quoting Seubert Excavators, Inc. v. Anderson Logging Co., 889 P.2d 82,
85 (Idaho 1995)).1
Once the Court analyzes the § 145 factors, “they are evaluated in light of the
following policy concerns [set out in § 6 of the Restatement]”: (a) the needs of the
interstate and international systems, (b) the relevant policies of the forum, (c) the relevant
policies of other interested states and the relative interests of those states in the
determination of the particular issue, (d) the protection of justified expectations, (e) the
basic policies underlying the particular field of law, (f) certainty, predictability and
uniformity of result, and (g) the ease in the determination and application of the law to be
applied. Grover, 889 P.2d at 85. These considerations are not designed to be applied in a
mechanical way. Rather, the conflict must be rationally evaluated in light of the policies
underlying the conflicting rules of law. See Johnson v. Pischke, 700 P.2d 19, 22 (Idaho
1985).

1

The Idaho Supreme Court recognized that the lower Idaho Court of Appeals has held
that the place of injury does not always control the choice of law, but the Idaho Supreme Court
did not reject its own precedent that the most important consideration in determining choice of
law is the place where the injury occurred.

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A.

Place Where the Injury Occurred

Idaho is the place where the injury occurred in this case. Defendants disagree,
noting that Washington is where the borrowed vehicle agreement was signed, that
Washington is where the Bryntesens took possession of the loaner vehicle, and that
Washington is where the Defendants were when they reported the vehicle stolen.
Defendants are correct that all these events occurred in Washington. The question,
though, is where did the injury occur? The answer is Idaho. That is where the Bryntesens
were pulled over, detained, and questioned by the police.
The Court is also not persuaded by Defendants’ suggestion that it was mere
happenstance that the Bryntesens were in Idaho when they were pulled over by the
police. The Bryntesens are, and were at the time of the incident, residents of Idaho. Thus,
they were not unexpectedly in Idaho or in Idaho by chance. Accordingly, the Court finds
that the injury occurred in Idaho, and this factor weighs heavily in favor of applying
Idaho law.
B.

Place Where the Conduct Causing the Injury Occurred

The conduct which caused the injury was the improper reporting of the vehicle as
stolen. The place where that occurred could be considered a bit nuanced because a stolen
vehicle is typically placed on a national database – suggesting the cause of the injury was
nationwide. However, the call to the police reporting the vehicle stolen was made in
Washington, and that was the actual cause of the injury. Accordingly, this factor weighs
in favor of applying Washington law.

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C.

The Domocile, Residence, Nationality, Place of Incorporation and Place
of Business of the Parties

The Bryntesens live in Idaho, and Defendants live primarily in Washington, with
parent companies in Oregon and Delaware. Thus, this factor is neutral.
D.

The Place Where the Relationship, if any, Between the Parties is
Centered

The Bryntesens purchased their vehicle in Washington. They also serviced their
vehicle in Washington, and, more importantly, received the loaner vehicle in
Washington. Therefore, this factor weighs in favor of applying Washington law.
E.

Idaho Law Applies

Under these circumstances, the Court finds that Idaho law applies. Although the
factors as a whole do not definitively suggest one state’s law should apply over the other,
the Idaho Supreme Court’s instruction that the most important factor to consider is where
the injury occurred tips the scale in favor of applying Idaho law. Grover, 53 P.3d at 824.
2.

Sanctions
Defendants ask the Court to sanction Plaintiffs for late disclosure of three videos –

two videos of the arrest incident made by bystanders, and one video of Casey Bryntesen
calling Scott Grumbly of Camp BMW made by an individual unknown to Defendants.
Both parties accurately recite the decision tree often used by this Court to determine
whether Rule 37 sanctions are appropriate for Rule 26 disclosure failures. Rules 26 and
37 contemplate a five-step decision tree for resolving whether exhibits were timely
disclosed: (1) Was the exhibit identified in the Rule 26(f) initial disclosures? (2) If not,

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was the exhibit identified in a supplemental disclosure pursuant to Rule 26(e)? (3) If not,
has the exhibit otherwise been made known to the other parties during the discovery
process or in writing thereby excusing the failure to supplement under Rule 26(e)? (4) If
not, has the disclosing party shown that its failure was substantially justified to avoid
Rule 37 sanctions? (5) If not, has the disclosing party shown that its failure was harmless
to avoid Rule 37 sanctions?
Here, Plaintiffs acknowledge that the three videos were not identified in their
initial disclosures. Nor were they specifically identified in a Rule 26(e) supplement. They
were subsequently made known to Defendants, and are obviously known to Defendants
now, but the circumstances of that disclosure are concerning.
Counsel for Plaintiffs suggest they mistakenly believed the videos were disclosed
with other digital images in their initial disclosures. Mistakes like this surely happen.
However, when served with subsequent discovery requests for photographs and videos of
the incident, Plaintiffs again failed to produce the videos. Then, defense counsel wrote a
letter to Plaintiffs’ counsel stating that “[a]t some point in time, I seem to recall hearing
that part of this incident had been recorded on a video. Please confirm that the three color
photographs produced are those taken by Michael Wickham, and produce any and all
other photographs or motion picture/videos as a supplement to Plaintiffs’ responses to
Request for Production No. 9.” Jackson Decl., Ex. 4, Dkt. 65-1. Plaintiffs’ counsel did
not respond. Instead they now contend that the letter’s reference to the video “escaped the

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notice of Plaintiffs’ counsel” because they were focused on other discovery and believed
the videos had been produced. Schmidt Decl., ¶ 6, Dkt. 78.
Plaintiffs only produced the videos after Sheree Bryntesen acknowledged their
existence during her deposition. And only after disclosing the videos of the incident, did
Plaintiffs’ counsel “investigate whether any other media files had also been inadvertently
omitted from previous disclosure and discovery responses.” Plf. Br., at p. 5, Dkt. 76. “It
was then that Plaintiffs’ counsel discovered that the video of the telephone conversation
between Casey Bryntesen and Scott Grumbly had not yet been disclosed or produced.”
Id.
Mistakes and oversights happen, but the number of mistakes and oversights here
are troubling. Especially where the disclosure was not ultimately made until after the vast
majority of the depositions occurred – depriving defense counsel of the opportunity to
ask most witnesses, particularly the officers involved in the arrest, about the videos.
Plaintiffs failed to timely disclose the videos as required by Rule 26(a) and (e). And,
under these circumstances, the Court finds that the late disclosure was not substantially
justified or harmless – as is necessary to avoid Rule 37 sanctions. Repeated oversights
are not substantial justification, and defense counsel’s inability to question witnesses
about the videos during their depositions is surely not harmless.
Rule 37(c) states that “[i]f a party fails to provide information . . . as required by
Rule 26(a) or (e), the party is not allowed to use that information . . . to supply evidence
on a motion, at a hearing, or at trial, unless the failure was substantially justified or is

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harmless. In addition to or instead of this sanction, the court on motion or after giving an
opportunity to be heard: (A) may order payment of the reasonable expenses, including
attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions including any of the orders listed in Rule
37(b)(2)(A)(i)-(vi).” Fed.R.Civ.P. 37.
Here, the proper sanction is to preclude Plaintiffs from using the videos on a
motion, at a hearing, or at trial. Defendants may still use the videos. However, if they do
so, the Court will then allow Plaintiffs to use them as well – Defendants can make that
choice. Additionally, the Court will order Plaintiffs to pay Defendants’ fees and costs for
bringing the motion for sanctions. But Defendants’ request that the Court also sanction
Plaintiffs by precluding them from using certain depositions and informing the jury of the
late disclosure is excessive and unwarranted.
3.

Expert James Bower
Federal Rule of Civil Procedure 26(a)(2) requires a party to disclose the identity of

any expert witness. The disclosure “must be accompanied by a written report – prepared
and signed by the witness – if the witness is one retained or specifically employed to
provide expert testimony in the case. . . .” Fed. R. Civ. P. 26(a)(2)(B). The report must
contain certain information outlined in Rule 26(a)(2)(B)(i-vi). A party must supplement
or correct its disclosure if necessary. Fed. R. Civ. P. 26(e).
Here, the Court’s Case Management Order required Plaintiffs to disclose their
experts on or before September 15, 2014. Dkt. 30. Plaintiffs timely disclosed James

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Bower as an expert witness, and filed a document titled “Plaintiffs Expert Witness
Disclosure.” Dkt. 60. That document addresses the items listed in Rule 26(a)(2)(B)(i-vi),
but it appeared to be written by someone other than Bower because it refers to Bower in
the third-person. Dkt. 60. The document is signed by Plaintiffs’ counsel.
On October 20, 2014, Plaintiffs provided the opposing parties with a “corrected”
version of the document. That document is essentially the same as the initial document,
except that it does not refer to Bower in the third-person, and it is signed by Bower. It
also includes a new introductory paragraph which indicates that the initial document
contained “the verbal opinions prepared (dictated) by me [Bower] verbally, which were
typed and reviewed for my final approval prior to filing.” Schmidt Decl., Ex. C, Dkt. 73.
Plaintiffs claim to have provided this document to the opposing parties as a corrected
expert report pursuant to Rule 26(e). Plaintiffs assert that they corrected a formatting
issue, changing the language from the third to the first person, and added Bower’s
signature.
The advisory committee notes to Rule 26 address the intended meaning of the
phrase “prepared and signed by the witness.” They explain that a report can be
“prepared” by an expert witness even if counsel has aided the witness. The advisory
committee notes specifically state that “Rule 26(a)(2)(B) does not preclude counsel from
providing assistance to experts in preparing the reports, and indeed, with [certain] experts
. . . this assistance may be needed. Nevertheless, the report, which is intended to set forth
the substance of the direct examination, should be written in a manner that reflects the

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testimony to be given by the witness and it must be signed by the witness.” Fed. R. Civ.
P. 26(a)(2)(B) (1993 advisory committee notes).
This Court has previously noted that given this amplification in the advisory
committee notes, if counsel acts as a scrivener, and the expert supplies the substantive
content for the written report, the report is nonetheless “prepared” by the expert within
the meaning of the rule. Weeks v. Ohio Nat. Life Assur. Corp., 2011 WL 6140967, *4
(D.Idaho 2011) (citing Crowley v. Chait, 322 F.Supp.2d 530, 543–45 (D.N.J.2004);
Wilderness Dev., LLC v. Hash, 2009 WL 564224, at *4 (D.Mont.2009). That appears to
be the case here. Although counsel, acting as scrivener, should have prepared the report
using first-person language, the report nevertheless contained the opinions dictated by
Bower, and it reflects the testimony he intends to give at trial. Accordingly, the Court
finds that the report was prepared by Bower, and that it was properly supplemented to
rephrase scrivener errors.
With regard to the missing signature, it appears that counsel failed to understand
or comply with the clear language of the rule – which is why counsel, not Bower, signed
the first disclosure. However, as many other courts have found, excluding an expert from
testifying because of a missing signature is too punitive. See e.g. Wilderness
Development, LLC v. Hash, 2009 WL 564224, *4 (D.Mont. 2009), Jenkins v. Bartless,
487 F.3d 482, 488 (7th Cir. 2007), Abel v. City of Algona, 2008 WL 3545048, *2
(W.D.Wash 2008). Instead, the report should be cured by adding the expert’s signature.

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Here, Bower signed the corrected disclosure, which was substantively identical to the
first disclosure.
“If a party fails to provide information or identify a witness as required by Rule
26(a) or (e), the party is not allowed to use that information or witness to supply evidence
on a motion, at a hearing, or at trial, unless the failure was substantially justified or is
harmless.” Fed. R. Civ. P. 37(c)(1). Here, the errors in the initial report were harmless
because the other parties were provided with the complete substance of Bower’s report in
a timely fashion. Accordingly, the Court will deny the motion to exclude Bower as an
expert witness.
4.

Other Experts
Defendants ask the Court to exclude Plaintiffs’ rebuttal witnesses from testifying

because they do not satisfy the requirements of Rule 26(a)(2)(A), and to exclude two of
Plaintiffs’ expert witnesses for the same reason, and because they were not timely
disclosed.
A.

Kootenai County Sheriff’s Office Officers

The Kootenai County Sheriff’s Office (“KCSO”) officers are not witnesses
retained or specifically employed to provide expert testimony. Accordingly, they are not
required to provide a Rule 26(a)(2)(B) report. Therefore, their expert disclosures must
only state “(i) the subject matter on which the witness is expected to present evidence
under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and
opinions to which the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C).

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To satisfy their Rule 26(a)(2)(C) burden, Plaintiffs’ disclosure explained that the
KCSO officers are expected to testify as set forth in their deposition transcripts.
Defendants took issue with that disclosure because it did not refer to specific portions of
the depositions. In their response brief, Plaintiffs referenced the specific portions of the
depositions which fulfill the Rule 26(a)(2)(C) requirements. In reply, Defendants appear
to be satisfied with that reference, but note that the KCSO officers should not be allowed
to “offer any expert testimony from those witnesses beyond the specific disclosure as set
for the in their response to Defendants’ Motion to Exclude.” Def. Br., at p. 2, Dkt. 104.
The Court agrees, and the KCSO officers’ expert testimony will be limited to what is set
forth in Plaintiffs’ response brief. The KCSO officers will otherwise be limited to
testifying as fact witnesses.
With respect to Officer Kernkamp, Plaintiffs state that the only expert opinion she
will offer is “limited to what is set forth in her deposition, which is simply that it is her
opinion that reporting unaccounted-for vehicles as ‘stolen’ creates an unreasonable risk
that innocent drivers of the missing vehicles might be detained by law enforcement.” Plf.
Br., p. 5, Dkt. 97. In reply, Defendants suggest that Officer Kernkamp should be
precluded from offering any expert opinion beyond that specific disclosure. The Court
agrees. Officer Kernkamp’s expert testimony will be limited in such a manner, and she
will otherwise be limited to testifying as a fact witness.
B.

Ryan Stoker

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Plaintiffs suggest that Stoker is a fact witness, but out of an abundance of caution,
they supplemented their expert disclosures by adding him and providing Defendants with
his declaration to satisfy Rule 26(a)(2)(C). Plaintiffs note that Stoker was not initially
disclosed as an expert because they did not obtain his declaration until after their initial
disclosure deadline.
The short declaration satisfies Rule 26(a)(2)(C). To the degree Stoker testifies as
an expert, his expert testimony will be limited to the opinions contained in his
declaration. He is otherwise limited to testifying as a fact witness.
C.

Bower as Rebuttal Witness

Plaintiffs explained that they disclosed Bower as a rebuttal expert “to err on the
side of caution in the event that Defendants’ first motion to exclude [Bower] is
successful. As explained above, that motion is denied. Accordingly, the Court assumes
Plaintiffs do not intend to call Bower as a rebuttal expert. Accordingly, this issue is moot.
If Plaintiffs do, in fact, intend to use Bower as a rebuttal expert in addition to
calling him as an expert in their case-in-chief, that issue will need to be addressed in a
separate order. The parties should contact the Court’s staff if they believe that issue needs
to addressed, and the Court will set a briefing schedule on the matter.
ORDER
IT IS ORDERED:

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1. Defendants’ Motion Regarding Choice of Law Governing Punitive Damages
(Dkt. 56) is DENIED. The Court will issue a separate order on the motion to
amend the complaint to add punitive damages.
2. Defendants’ Motion for Sanctions (Dkt. 63) is GRANTED as explained above.
3. Defendants’ Motion to Exclude Plaintiffs’ Expert Witness James Bower (dkt.
70) is DENIED.
4. Defendants’ Motion to Exclude Plaintiffs’ Rebuttal Experts and Late-Disclosed
Experts (Dkt. 91) is GRANTED in part and DENIED in part as explained
above.
DATED: January 20, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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