Logan v. Cooper Tire and Rubber Company
Filing
381
OPINION & ORDER: GRANTING Cooper Tire's 205 Motion to preclude testimony from undisclosed expert witness. Signed by Judge Karl S. Forester on 11/2/11.(KJR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
CIVIL ACTION NO. 10-3-KSF
KIM LOGAN, as Legal Guardian for
JAMES O. GUMM, JR.
PLAINTIFF
and
KENTUCKY CABINET FOR
HEALTH & HUMAN SERVICES,
THE UNIVERSITY OF KENTUCKY
AND KENTUCKY MEDICAL SERVICES
FOUNDATION
v.
INTERVENING PLAINTIFFS
OPINION & ORDER
COOPER TIRE & RUBBER COMPANY
DEFENDANT
**********
This matter is currently before the Court upon the motion of the defendant, Cooper Tire &
Rubber Company (“Cooper Tire”), to preclude testimony from witnesses deposed as former
employees of an indirect European subsidiary of Cooper Tire [DE #205]. The plaintiff, Kim Logan,
as Legal Guardian for James O. Gumm, Jr., has filed her response opposing Cooper Tire’s motion
[DE #245]. Cooper Tire has filed its reply [DE #308], and, therefore, this motion is now ripe for
review. For the reasons set forth below, Cooper Tire’s motion in limine will be granted.
I.
FACTUAL AND PROCEDURAL BACKGROUND
This civil action arises out of a one-vehicle automobile accident which occurred on Interstate
1
64 in Montgomery County, Kentucky on February 12, 2009. At the time of the accident, James O.
Gumm, Jr. was driving a 1994 Chevrolet C2500 pickup truck in the westbound lane when the left
rear tire of his truck failed. Gumm lost control of the vehicle, crashed, and was rendered a braininjured quadriplegic as a result of the accident. This products liability action was subsequently filed
by Kim Logan, Gumm’s legal guardian, on January 4, 2010 against Cooper Tire and Rubber
Company (“Cooper Tire”), the manufacturer of the failed tire. [DE #1].
The plaintiff seeks to introduce evidence at trial, both testimony and documents, from
depositions taken in London, England in October 2010 of three individuals who are former
employees of Avon Tyres, Ltd. (“Avon Tyres”), Richard Adams, David Osborne1, and Desmond
Pegler. In 1997, Cooper Tire purchased Avon Tyres, which became Cooper-Avon Tyres, Ltd. It
subsequently changed its name to Cooper Tire & Rubber Company, Europe, Ltd. (“Cooper Europe”).
Cooper Europe is a subsidiary of Cooper Tire & Rubber Company, U.K., Ltd. (“Cooper U.K.”) and
is not a party to this case. Cooper Tire is a parent company of Cooper U.K.
After receiving notice of these depositions, Cooper Tire asked for clarification from the
plaintiff as to whether these were depositions of expert or fact witnesses in light of the fact that the
plaintiff had not disclosed these individuals as experts or complied with any of the expert witness
disclosure requirements of Rule 26 of the Federal Rules of Civil Procedure. Based on the plaintiff’s
characterization of the deponents as fact witnesses, Magistrate Judge Robert Weir entered his
October 7, 2010 Order stating, in part:
Plaintiff characterizes these witnesses as “fact” witnesses, and the Court expects
Plaintiff to depose the witnesses for their knowledge about design alternatives, pre1
The plaintiff has not designated any deposition testimony from David Osborne, and by
letter dated July 11, 2011, indicates that she will not call Osborne as a witness in this case.
2
2002, of which they had personal knowledge as a result of their connection with
Cooper (including its affiliate). The expert designation is, per the Amended
Scheduling Order, long-since passed.
[DE #46].
The depositions took place in London on October 11, 2010. Cooper Tire now moves to
preclude any evidence, testimony or evidence obtained during the depositions. According to Cooper
Tire, the deposition testimony and exhibits from these witnesses should be excluded for the
following reasons:
(1)
the depositions consist of opinion testimony from former employees hired as expert
witnesses without any compliance with Rule 26 (a)(2) disclosure requirements;
(2)
the conduct and knowledge of Avon Tyres cannot be imputed to Cooper Tire, its
parent company;
(3)
the testimony is irrelevant and improper, and based on speculation;
(4)
there has been no showing as required by Rule 602 of the Federal Rules of Evidence
that the witnesses have any personal knowledge in the matter;
(5)
the depositions are irrelevant under Rule 402 of the Federal Rules of Evidence, and
also should be excluded because any purported probative value is substantially
outweighed by the danger of unfair prejudice to Cooper Tire under Rule 403 of the
Federal Rules of Evidence.
[DE #205]. In response, the plaintiff contends that she has not designated any testimony which can
be construed as expert testimony. She also argues that any knowledge these witnesses obtained at
Avon Tyres can be imputed to Cooper Tire and that the deponents testified based on their
observations and knowledge of design methods used by Avon Tyres in the United Kingdom methods which Cooper Tire became aware of when it subsumed Avon’s business. The plaintiff
denies that these witnesses have been paid for their testimony [DE #245].
3
II.
ANALYSIS
After careful review of the pleadings and the depositions of the witness, the Court concludes
that the testimony of the London witnesses should be excluded. It is undisputed that the plaintiff
never disclosed these witnesses as expert witnesses or complied with the expert witness disclosure
requirements of Rule 26. The plaintiff specifically characterized the witnesses as “fact witnesses”
to both Cooper Tire and Magistrate Judge Wier. Moreover, there is no ambiguity in the October 7,
2010 Order of Magistrate Judge Wier - the depositions were to be only of the deponents as fact
witnesses [DE #46].
Nevertheless, a review of the depositions reveals that counsel for the plaintiff deposed these
witnesses as expert, not factual, witnesses and repeatedly asked questions requiring them to express
their opinions. For example, Desmond Pegler, a former employee of Avon Tyres, testified that he
believes he was employed there until September 2000, and that he has never been an employee of
Cooper Tire [DE #205-5, Pegler Deposition at 10]. He admits that he is not authorized to speak on
behalf of Cooper-Avon or Avon Tyres [Id. at 166]. Pegler further admits that he had no firsthand
knowledge or information about the design and manufacture of tires in the United States by Cooper
Tire, and that he had no role in tire design at Avon Tyres. There is also no evidence that he has any
personal knowledge about any of the facts relevant to this case. He was unable to testify about the
exchange, if any, of information between Avon and Cooper Tire [Id. at 73-74]. Finally, Pegler
testified that he expected payment for his deposition and ultimately submitted an invoice to both
plaintiff’s counsel and Cooper Tire’s counsel for a total of $1,900 [DE #205-6].
Despite his admitted lack of knowledge about the facts of this case, counsel for the plaintiff
repeatedly solicited opinion testimony from Pegler. For example, Pegler was asked the following
4
questions:
Q.
Explain to the ladies and gentlemen of the jury your understanding of how a nylon
cap ply prevents tread separations [DE #205-5, Pegler Deposition at 79-80];
Q.
With regard to the first part, though, where it says: “A nylon overlay increased tread
pattern strength and reduces belt separations.” Do you agree with that? [Id. at 86];
Q.
What is your understanding of how localized or spot wear can occur in a tire? [Id. at
218]; and
Q.
Does Indonesia have the same standards about tire speed rating and the testing of
tires that Europe does? [Id. at 180].
These questions, in conjunction with the remainder of his deposition and when considered with
Pegler’s lack of personal knowledge, clearly fall outside the range of questions properly presented
to a factual witness.
A review of Richard Adams’ deposition yields a similar conclusion. Adams testified that he
left Avon Tyres in 1989 and never worked for Cooper-Avon [Adams’ Deposition at 44, 54, 122].
He was not authorized to speak on behalf of Avon Tyres or Cooper-Avon [123]. He has never seen
the tire at issue, nor does he have any information about its design or the facts of this case [57, 13738]. Adams is not a tire designer or tire engineer and admits any information he purports to have
about design specifics was secondhand [140-42].
Nevertheless, Adams was also questioned as an expert witness. For example, he was
provided a document he had never seen before and then asked to give opinions about it [DE#205-4,
Adams Deposition at 58-59]. Additionally, he was asked a series of opinion, and even hypothetical
questions, including:
Q.
If I took a tire, tore it apart and took the skim stock out of it and reverse engineered
it, would I be able to tell, not in amounts or percentage wise, but would I be able to
tell if that skim stock incorporated 6PPD? [Id. at 90];
5
Q.
You would agree with me that a properly designed tire does not fail by belt tread
separation because of underinflation or overinflation? [Id. at 94]; and
Q.
Tell me this. If you saw a tire that was returned to Avon from the field that had failed
as a result of a belt tread separation, or a tread separation, and that tire exhibited bare
or brassy looking wires, what would that indicate to you, based on your training and
knowledge that you gained at Avon? [Id. at 97].
These are just a few examples of the opinion-type questions contained throughout Adams’
deposition.
While the plaintiff has attempted to label these witnesses as fact witnesses, it is clearly
evident that they are not. The Federal Rules of Civil Procedure and the Federal Rules of Evidence
set out explicit rules relating to expert witnesses, and allowing the plaintiff to evade these rules by
merely labeling the witnesses “fact witnesses” cannot be condoned. In fact, the Notes to the 2000
Amendments to Rule 701 of the Federal Rules of Evidence explicitly prohibit this, stating:
Rule 701 has been amended to eliminate the risk that the reliability requirements set
forth in Rule 702 will be evaded through the simple expedient of proffering an expert
witness in lay witness clothing. Under the amendment, a witness’ testimony must be
scrutinized under the rules relating to expert opinion to the extent that the witness is
providing testimony based on scientific, technical, or other specialized knowledge
within the scope of Rule 702. See generally Asplundh Mfg. Div. v. Benton Harbor
Eng’g, 57 F.3d 1190 (3rd Cir. 1995). By channeling testimony that is actually expert
testimony to Rule 702, the amendment also ensures that a party will not evade the
expert witness disclosure requirements set forth in Fed.R.Civ.P. 26 and
Fed.R.Crim.P. 16 by simply calling an expert witness in the guise of a layperson. See
Joseph, Emerging Expert Issues Under the 1993 Disclosure Amendments to the
Federal Rules of Civil Procedure, 164 F.R.D. 97, 108 (1996)(noting that “there is no
good reason to allow what is essentially surprise “expert testimony” and that “the
Court should be vigilant to preclude manipulative conduct designed to thwart the
expert disclosure and discovery process”).
Although the Federal Rules of Evidence distinguish between lay and expert testimony, not
witnesses, see U.S. v. White, 492 F.3d 380, 403 (6th Cir. 2007), in this case it is impossible to
separate out any lay testimony from expert testimony in Pegler and Adams’ depositions. The
6
depositions are riddled with opinion questions and neither witness had any personal knowledge of
the facts relevant to the case. As a result, in this case, exclusion of the entire depositions is
appropriate. This result is further justified by the conduct of the plaintiff’s counsel in disregarding
Magistrate Judge Wier’s clear admonishment that the depositions were only to be taken of the
deponents as lay witnesses.
III.
CONCLUSION
For the reasons set forth above, the Court, being fully and sufficiently advised, hereby
ORDERS that Cooper Tire’s motion to preclude testimony from undisclosed expert witnesses [DE
#205] is GRANTED.
This November 2, 2011.
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?