Bruce v. Ancra International, LLC et al

Filing 52

ORDER AND REASONS denying 35 Motion in Limine to Exclude the Testimony of Marshal Clark; granting 36 Motion in Limine to Exclude Photographs Not Included in Clark's Report; granting 37 Motion in Limine to Exclude Reference to Collateral Sources; granting 38 Motion in Limine to Prohibit Reference to Labels on Exemplar Bars; granting 45 Motion to Strike Untimely Raised Affirmative Defenses. Signed by Judge Jane Triche Milazzo. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
THOMAS BRUCE

CIVIL ACTION

VERSUS

NO: 17-3940

ANCRA INTERNATIONAL, LLC

SECTION: “H”(5)

ORDER AND REASONS
Before the Court are five motions filed by Plaintiff Thomas Bruce: a
Motion in Limine to Exclude the Testimony of Marshal Clark (Doc. 35), a
Motion in Limine to Exclude Photographs Not Included in Clark’s Report (Doc.
36), a Motion in Limine to Exclude Reference to Collateral Sources (Doc. 37), a
Motion in Limine to Prohibit Reference to Labels on Exemplar Bars (Doc. 38),
and a Motion to Strike Untimely Raised Affirmative Defenses (Doc. 45). For
the following reasons, the Motion to Exclude the Testimony of Marshal Clark
is DENIED, and the motions to Exclude Photographs Not Included in Clark’s
Report, Exclude Reference to Collateral Sources, Prohibit Reference to Labels
on Exemplar Bars, and Strike Untimely Raised Affirmative Defenses are
GRANTED.

1

BACKGROUND
This products liability action arises out of injuries that Plaintiff Thomas
Bruce allegedly suffered while using a winch bar manufactured by Defendant
Ancra International, LLC (“Ancra”). Plaintiff alleges that he was using the bar
for its intended purpose—to tighten straps around building materials on the
back of a truck—when the tip of the bar snapped, causing the main shaft of the
bar to strike Plaintiff in the shoulder and driving Plaintiff to the ground as a
result. 1 Plaintiff alleges that a Chinese company fabricated the bar that
Defendant subsequently labelled and sold. 2 Plaintiff suffered physical injury
as a result of the incident and alleges that those injuries prevent him from
working. Plaintiff sues for damages for past and future medical expenses, pain
and suffering, past and future lost wages, and loss of enjoyment of life.
Plaintiff now submits four motions in limine and one motion to strike.
Defendant opposes Plaintiff’s Motion to Exclude the Testimony of Marshal
Clark and Motion to Strike Untimely Raised Affirmative Defenses, but does
not oppose Plaintiff’s Motion to Exclude Photographs Not Included in Clark’s
Report, Motion to Exclude Reference to Collateral Sources, or Motion to
Prohibit Reference to Labels on Exemplar Bars.
LAW AND ANALYSIS
I.

Plaintiff’s Motion to Exclude the Testimony of Marshal Clark
Plaintiff moves to exclude the testimony of Defendant’s expert witness

Marshal Clark as failing to meet the standard of Daubert v. Merrell Dow

1
2

Doc. 4 at 3.
Doc. 43 at 4.

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Pharmaceuticals, Inc. 3 The admissibility of expert testimony is governed by
Federal Rule of Evidence 702, which provides that,
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if: (a) the expert’s scientific, technical, or
other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (b) the
testimony is based on sufficient facts or data; (c) the testimony is
the product of reliable principles and methods; and (d) the expert
has reliably applied the principles and methods to the facts of the
case.
The current version of Rule 702 reflects the Supreme Court’s decisions
in Daubert and Kumho Tire Co. v. Carmichael. 4 The threshold inquiry is
whether the expert possesses the requisite qualifications to render opinion on
a particular subject matter. 5 Having defined the permissible scope of the
expert’s testimony, a court next inquires whether the opinions are reliable and
relevant. 6 In undertaking this tripartite analysis, courts must give proper
deference to the traditional adversary system and the role of the jury within
that system. 7 “Vigorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.” 8 As the
“gatekeeper” of expert testimony, the trial court enjoys broad discretion in
determining admissibility. 9

3
4
5

6
7
8
9

See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
See Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999); id.
Wagoner v. Exxon Mobil Corp., 813 F. Supp. 2d 771, 799 (E.D. La. 2011); see also Wilson v.
Woods, 163 F.3d 935, 937 (5th Cir. 1999) (“A district court should refuse to allow an expert
witness to testify if it finds that the witness is not qualified to testify in a particular field
or on a given subject.”).
See United States v. Valencia, 600 F.3d 389, 424 (5th Cir. 2010).
See Daubert, 509 U.S. at 596.
Id.
Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 881 (5th Cir. 2013).

3

Plaintiff argues that Clark’s report and testimony should be excluded
because a) Clark is not qualified to offer the opinions contained in his report,
b) Clark failed to obtain basic facts relevant to the bar’s failure, and c) Clark
relied on speculation to form his conclusions. This Court disagrees.
Clark has a Ph.D. in metallurgical and materials engineering, teaches
metallurgical engineering as an adjunct for the University of Utah, has
authored multiple publications and presentations regarding metallurgy and
welds, and has worked for many years in the field of metallurgic failure
analysis. Clark has extensive experience evaluating metals and welds to
determine the cause of their failure, exactly the issue on which he opines. The
fact that Clark has not previously analyzed a winch bar specifically is not
grounds for exclusion. Clark, therefore, is qualified to render expert opinions
as to the causes of the failure of the bar at issue here.
Plaintiff argues that Clark’s opinions fail to meet the standard of
reliability set forth in Daubert because Clark did not determine the load limit
of the bar, has never operated a winch bar, and did not know or seek to
determine what welding process was used to join the tip of the bar to its shaft.
None of these facts are grounds to exclude Clark’s testimony. Rather, they are
better addressed on cross examination. The core of Clark’s opinion is that
visual indicators on the fracture surface of the bar tip show that the break was
caused by fatigue due to overloading over time. Such a conclusion does not
necessarily depend on knowing the load limit of the bar or the type of weld
used.
Plaintiff finally argues that many of Clark’s conclusions or assumptions
are mere speculation. The Court is satisfied that Clark provided sufficient
foundation for the opinions in his report to clear the Daubert bar of reliability.
Plaintiff is free to explore the basis for Clark’s opinions on cross examination.
4

Accordingly, Plaintiff’s Motion to Exclude the Testimony of Marshal Clark is
DENIED.
II.

Plaintiff’s Unopposed Motions in Limine
Plaintiff moves to exclude and prohibit reference to any photographs of

the winch bar that were taken by Clark but not included in Clark’s expert
report. 10 Defendant makes no opposition. Pursuant to Federal Rule of Civil
Procedure 16(b), this Court entered a scheduling order setting deadlines for
the disclosure of expert reports that have now passed. The presumptive
sanction under Rule 37(c)(1) for the failure to disclose is exclusion. 11 Defendant
offers no justification for why Clark did not include other photographs in the
report and no argument to counter the obvious prejudice that Plaintiff would
suffer from the use of such photographs at trial. Accordingly, Plaintiff’s Motion
in Limine to Exclude Photographs Not Included in Clark’s Report is
GRANTED. Defendant shall not introduce or reference photographs taken by
Clark and not included in his expert report.
Plaintiff also moves, pursuant to the collateral source rule, to prohibit
Defendant from referencing the payment of medical expenses by Plaintiff’s
employer’s worker’s compensation insurer and the worker’s compensation
benefits that Plaintiff has received. 12 Louisiana law prohibits the introduction
of evidence that a plaintiff has received benefits or payments from a collateral

Doc. 36-1.
See FED. R. CIV. P. 37(c)(1); see also Honey-Love v. United States, 664 F. App’x 358, 362
(5th Cir. 2016) (per curiam) (“[U]nder Rule 37(c), the presumptive sanction for failing to
disclose a testifying expert or supply a required expert report or summary disclosures is to
exclude or limit the expert’s testimony unless the failure was substantially justified or
harmless.”).
12 Doc. 37.
10
11

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source. 13 Accordingly, Plaintiff’s Motion in Limine to Exclude Reference to
Collateral Sources is GRANTED.
Plaintiff further moves to prohibit any reference to the labels that appear
on any exemplar bars. Plaintiff points to Clark’s deposition in which Clark
states that the labels appearing on the bars changed between 2013—when the
bar that injured Plaintiff was manufactured—and 2017—when the bars that
Clark used as examples were manufactured. 14 This Court interprets Plaintiff’s
Motion as one to exclude evidence under Federal Rule of Evidence 402 as
irrelevant. 15 Defendant offers no reason why a label that was not on the bar
that is the subject of this lawsuit is relevant. Accordingly, Plaintiff’s Motion in
Limine to Prohibit Reference to Labels on Exemplar Bars is GRANTED. There
shall be no reference to the labels on the exemplar bars.
III.

Plaintiff’s Motion to Strike Affirmative Defenses
Plaintiff moves to strike two of Defendant’s affirmative defenses as

untimely. In its pretrial order inserts, Defendant asserted the comparative
fault of Plaintiff’s employer and of the Chinese fabricator of the bar. 16 In its
Answer, on the other hand, Defendant only specifically asserted the negligence
of Plaintiff as an affirmative defense. 17 Defendant merely asserted the
negligence of other parties generally, stating that,
The negligence, fault or carelessness of other parties, persons or
entities over which Ancra had no control, caused or contributed to
Plaintiff’s alleged damages and, therefore, any recovery by
Plaintiff against Ancra is barred or diminished in proposition to

See Kadlec Med. Ctr. v. Lakeview Anesthesia Assocs., 527 F.3d 412, 425 (5th Cir. 2008)
(citing Bozeman v. State, 879 So. 2d 692, 697 (La. 2004)).
14 See Doc. 35-2 at 14.
15 See FED. R. EVID. 402.
16 See Doc. 44 at 11.
17 Doc. 7 at 4–5.
13

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the amount of negligence, fault or carelessness attributed to such
persons or entities. 18
Plaintiff argues that Defendant failed to plead sufficient facts in its Answer to
put Plaintiff on notice that Defendant would assert the negligence of Plaintiff’s
employer and of the Chinese fabricator of the bar, and therefore Defendant has
waived those defenses.
Rule 8(c)(1) of the Federal Rules of Civil Procedure requires a defendant
to affirmatively state any affirmative defense in its answer. 19 “A defendant
must plead with ‘enough specificity or factual particularity to give the plaintiff
“fair notice” of the defense that is being advanced.’” 20 “In a diversity case,
substantive state law determines what constitutes an affirmative defense.” 21
Under Louisiana law, the negligence or fault of parties other than the
defendant is generally an affirmative defense. 22 The key question is whether
the affirmative defense raises a “new matter.” 23 Similarly, under federal law,
a technical failure to plead an affirmative defense may be excused if the
“matter is raised in the trial court in a manner that does not result in unfair
surprise.” 24
Defendant failed to plead sufficient facts to put Plaintiff on notice that it
would be asserting the negligence of Plaintiff’s employer and the Chinese
fabricator of the bar. Other than the specific reference to Plaintiff’s own
negligence, Defendant’s Answer asserted only the negligence of “other parties.”

Doc. 7 at 5.
See FED. R. CIV. P. 8(c)(1).
20 LSREF2 Baron, L.L.C. v. Tauch, 751 F.3d 394, 398 (5th Cir. 2014) (quoting Rogers v.
McDorman, 521 F.3d 381, 385–86 (5th Cir. 2008)).
21 Id.
22 See LA. CODE CIV. P. art. 1005; id.
23 See Bienvenu v. Allstate Ins. Co., 819 So. 2d 1077, 1080 (La. App. 4 Cir. 2002).
24 See McCadney v. Hamilton, 706 F. App’x 188, 189 (5th Cir. 2017) (quoting Allied Chem.
Corp. v. Mackay, 695 F.2d 854, 855–56 (5th Cir. 1983)) (per curiam).
18
19

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Such broad, boilerplate statements do not satisfy the requirements of Rule
8(c)(1). 25 Nor did Defendant’s various discovery responses provide enough
notice to Plaintiff to overcome Defendant’s technical failure to comply with the
rule. Listing a witness as having “knowledge of the sourcing” of the bar or
producing documents containing the identity of the company that fabricated
the bar do not indicate that Defendant planned to assert that entity’s fault.
Defendant argues that, “it [was] easy to see the direction in which Ancra was
focusing its discovery.” 26 This is precisely the guessing game that Rule 8(c)(1)
is intended to avoid.
The extremely late notice of Defendant’s intent to argue the negligence
of the bar’s fabricator and Plaintiff’s employer leaves little to no time for
Plaintiff to prepare a proper response. Viewing the context of the litigation as
a whole, including Counsel for Defendant’s lack of candor with the Court,
Defendant failed to plead sufficient facts to put Plaintiff on notice that
Defendant planned to assert the fault of the fabricator or Plaintiff’s employer
and did not remedy that failure at any subsequent time. Accordingly, Plaintiff’s
Motion to Strike is GRANTED. Any references to the fault of the bar’s
fabricator or Plaintiff’s employer are stricken from the pretrial order and
excluded from trial.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Exclude the Testimony of
Marshal Clark is DENIED, and the motions to Exclude Photographs Not
Included in Clark’s Report, Exclude Reference to Collateral Sources, Prohibit

25
26

See Woodfield v. Bowman, 193 F.3d 354, 361 (5th Cir. 1999).
Doc. 50 at 6.

8

Reference to Labels on Exemplar Bars, and Strike Untimely Raised
Affirmative Defenses are GRANTED.

New Orleans, Louisiana this 12th day of April, 2018.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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