Kuberski v. Allied Recreation Group, Inc.

Filing 74

OPINION AND ORDER: The Court OVERRULES Defendant's Objection to Report and Recommendation 68 , and ADOPTS in whole the Report and Recommendation 66 . Accordingly, Allied's Motion to Bar Plaintiff's Expert 31 is DENIED, and Kuberski's Motion to Exclude Douglas Haas' Testimony 34 is GRANTED IN PART and DENIED IN PART in accordance with the Report and Recommendation 66 . Signed by Judge Holly A Brady on 5/29/2019. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
JOSEPH KUBERSKI,
Plaintiff,
v.

CAUSE NO.: 1:15-CV-320-HAB

ALLIED RECREATIONAL GROUP,
INC.,
Defendant.
OPINION AND ORDER
This is a lawsuit for breach of warranty in connection with the purchase of a
recreational vehicle (RV). On November 7, 2017, Magistrate Judge Susan Collins issued a
Report and Recommendation [ECF No. 66] upon referral of two motions: (1) Defendant
Allied Recreational Group, Inc.’s, Motion to Bar Plaintiff’s Expert (Phillip Grismer) [ECF
No. 31]; and (2) Plaintiff Joseph Kuberski’s Motion to Exclude Douglas Haas’ Testimony
[ECF No. 34]. The Magistrate Judge recommended that this Court deny Defendant’s
Motion to bar Grismer’s testimony. The Magistrate Judge also recommended that this
Court deny Plaintiff’s Motion to bar Haas’ testimony, with one exception. The Magistrate
Judge found that one portion of Haas’ opinions should be excluded because it was not
disclosed in accordance with Federal Rule of Civil Procedure 26(a) and (c), and the failure
to disclose it was not substantially justified or harmless.
Defendant has objected to this portion of the Report and Recommendation. (See
Def.’s Obj. to R. & R., ECF No. 68.) Haas offered the opinion that is at issue during his

deposition. Haas testified that two worn front tires of the RV and Plaintiff’s failure to
have an alignment performed caused the RV’s vibration and the loosening of parts
throughout the RV. Defendant argues that the testimony regarding the tires is “merely a
common sense rebuttal to Mr. Grismer’s opinion that there was no relationship between
the tires and complaints raised by plaintiff.” (Def.’s Obj. ¶ 2.)
For the reasons stated in this Opinion and Order, the Court overrules Defendant’s
objection and adopts the Report and Recommendation in whole.

ANALYSIS
Under 28 U.S.C. § 636(b)(1)(B), a magistrate judge is authorized, upon referral from
the presider, to submit proposed findings of fact and recommendations to the district
court. If a party files a timely objection to the magistrate judge’s report and
recommendation,
the district judge is to make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which
objection is made. The court may accept, reject, modify, in whole or in part,
the findings or recommendations made by the magistrate judge. The judge
also may receive further evidence or recommit the matter to the magistrate
judge with instructions.
28 U.S.C. § 636(b)(1). Portions of a recommendation to which no party objects are
reviewed for clear error. Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
Defendant has made a timely objection to a specific recommendation. As stated
above, Defendant does not agree that, when its expert, Haas, testified during his
deposition that there was a connection between the worn tires and misalignment and

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other problems with the RV, this was a new opinion that was not timely disclosed. In
concluding otherwise, the Magistrate Judge began with Grismer’s Report.
Grismer stated that the “dash assembly and entire right front wall
area began rattling and shaking” at 25 miles per hour, that the “dash panel
visible [sic] jumps up and down,” and that “[a] severe vibration is felt
through the seats, steering wheel, wall and floor while driving.” (DE 47-5
at 8). Grismer’s report also notes an invoice for the replacement of two front
tires that were worn out on the inside tread to the extent that the steel belts
were exposed (DE 47-5 at 6), though the report does not offer any opinion
about the worn tires. Haas’s report notes a “slight rattle” in the front
passenger side wall, but indicated that “[r]epairs to the fasteners in the dash
assembly . . . would significantly reduce this issue.” (DE 35-3 at 5). Haas’s
report also indicates that Kuberski’s traveling off road to the storage
location “very likely caused or contributed to the present condition of the
dash . . . .” (DE 35-3 at 18).
At his deposition, Grismer was asked whether there was any
relationship between the tires and Kuberski’s various complaints, and
Grismer simply responded: “No.” (DE 46-10 at 2). At Haas’s deposition 11
days later, Haas testified that the two worn front tires and Kuberski’s failure
to have an alignment performed caused the vibration and loosening of parts
throughout the Subject RV. (DE 35-2 at 18-20, 22). Haas further testified that
he reached this conclusion “[w]hen [he] saw the picture of the tire[,]” which
was prior to his first inspection and prior to writing his expert report. (DE
35-2 at 19). Haas admitted, however, that he failed to mention this opinion
in his written report. (DE 35-2 at 20).
(R. & R. 19–20.)
The Magistrate Judge then acknowledged Defendant’s argument that the
testimony was in rebuttal to Grismer’s deposition testimony denying any causal
effects of the worn tire, and also acknowledged Plaintiff’s position that it was not
an elaboration of his written report but a contradiction to it. The Magistrate Judge
agreed with Plaintiff. She wrote that Grismer had not raised the worn tires in his
report, and his only deposition testimony was to deny any connection between the

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tires and the vibration. Accordingly, Grismer had not raised “a new opinion that
necessitated rebuttal testimony on this point.” (R. & R. 21.) The Magistrate Judge
noted that the most significant fact was that Haas admitted that he formed the
opinion about the worn tires before he completed his inspection and issued the
written report, yet the opinion was not included in his report.
Defendant urges the Court to view the testimony as rebuttal, and to modify
the Magistrate Judge’s Report and Recommendation accordingly. Defendant
contends that it is important to consider that Grismer did not merely deny a
connection between the worn tires and the RV issues. Rather, he also opined, for
the first time in his deposition, that even though worn tires and a misaligned
chassis could cause vibration, he viewed the effect on drivability as negligible.
(Grismer Dep. 97, ECF No. 68-1.) Defendant argues that Haas’s testimony, in this
context, simply points out that Grismer’s conclusions are illogical. Defendant
argues that Haas’s conclusions were so rudimentary that they should not have
surprised Plaintiff, and were simply an explanation of other testimony that
suspension, alignment and tire balance are matters of maintenance that can cause
or contribute to the problems Plaintiff experienced with the RV.
If Defendant intended to convince the Court that Haas’s testimony was an
explanation of his previously stated opinions, he has not succeeded. Defendant
does not cite those opinions, nor attempt to place Haas’ testimony in context with
those opinions. Accordingly, the Court adopts the Magistrate Judge’s conclusion,

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based on a review of Haas’ report, that he offered a different opinion with respect
to the vibration of the dash that made no mention of tires.
Defendant’s most strenuous objection appears to be that the testimony was
harmless rebuttal to a new opinion Grismer offered, and that Haas was entitled in
fairness to address that opinion. Grismer’s testimony, however, cannot be
characterized as a new opinion. Grismer never opined in his Report that the tires
had any relationship to the other complaints with the RV. Thus, when he was
asked about a possible connection during his deposition and denied that one
existed, his testimony was entirely consistent with his report. Grismer was not
required to identify in his Report all potential causes that he did not associate with
the RV’s vibration. It does not stand to reason that any questioning along the lines
of what Grismer did not consider a causal connection would open the door for
Haas to offer a new opinion.
Further, the Court finds that Defendant has not offered a substantial
justification for Haas’s exclusion of this opinion from his report. Haas admittedly
saw pictures of the tire and inspected the RV before writing his report. Moreover,
permitting its introduction would not be harmless, as it affirmatively assigns a
particular cause to one of Plaintiff’s major complaints about the RV.
Because Haas offered an opinion that he had not included in his report, and
this opinion has not been shown to be an elaboration of a prior opinion, the
Magistrate Judge correctly applied Rule 37(c)(1) to exclude the opinion as
untimely.
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CONCLUSION
For the reasons stated above, the Court OVERRULES Defendant’s
Objection to Report and Recommendation [ECF No. 68], and ADOPTS in whole
the Report and Recommendation [ECF No. 66]. Accordingly, Allied’s Motion to
Bar Plaintiff’s Expert [ECF No. 31] is DENIED, and Kuberski’s Motion to Exclude
Douglas Haas’ Testimony [ECF No. 34] is GRANTED IN PART and DENIED IN
PART in accordance with the Report and Recommendation [ECF No. 66].
SO ORDERED on May 29, 2019.
s/ Holly A. Brady
JUDGE HOLLY A. BRADY
UNITED STATES DISTRICT COURT

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