Chisum v. Mercedes-Benz USA, LLC

Filing 105

ORDER : Motion 64 Motion to Strike AND 92 Motion in Limine are DENIED. Signed by Judge Brian A. Jackson on 7/29/2021. (ELW)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
GAIL CHISUM

CIVIL ACTION

VERSUS
NO. 18-00661-BAJ-EWD

MERCEDES-BENZ USA, LLC
ORDER

Before the Court are the Plaintiff’s Motion to Strike Witness (Doc. 64) and
Motion in Limine to Exclude Untimely Expert Opinions (Doc. 92). The
Motions are opposed. (Docs. 67, 95). For the following reasons, the Motions are
DENIED.
I.

BACKGROUND
Plaintiff purchased a 2014 Winnebago View, Model WM524M motor home (the

“Vehicle”) from Miller’s RV Center in Baton Rouge, Louisiana in April 2015. (Doc. 22,
p. 3). On June 27, 2018, Plaintiff filed suit against Defendant to recover damages
under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq. (“MMWA”), and
Louisiana’s redhibition law, alleging that the continued illumination of the check
engine and other lights breached the express and implied warranties on the Vehicle.
See (Doc. 22).
Pursuant to the scheduling order entered by the Court on October 21, 2019, as
modified by the Court’s Order of June 9, 2020, Defendant was obligated to disclose
its expert witness list by July 1, 2020, while all expert reports were due by
July 31, 2020. All other discovery was to be completed by July 1, 2020. Plaintiff
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alleges that Defendant identified Hess Crocket as an expert witness for trial and
produced his expert report on July 31, 2020. (Doc. 64-1, p. 2). Plaintiff argues that
any testimony by Crockett should be excluded because it was untimely disclosed.
(Docs. 64, 92). Defendant asserts that, given the nature of Crockett’s opinion 1, it did
not believe that he should be designated as an expert subject to disclosure. (Doc. 95,
p. 2). Further, Defendant argues that Plaintiff was not prejudiced or harmed by the
thirty-day delay in disclosing Crockett’s name—particularly as his report was timely
disclosed—therefore he should be allowed to testify at trial. (Doc. 95, p. 3).
II.

LEGAL STANDARD
Where a party intends to use a witness it may use at trial to present evidence

under Federal Rules of Evidence 702, 703, or 705, the disclosure of certain
information is required, including:
i.
ii.
iii.
iv.
v.
vi.

a complete statement of all opinions the witness will express and the
basis and reasons for them;
the facts or data considered by the witness in forming them;
any exhibits that will be used to summarize or support them;
the witness’s qualifications, including a list of all publications
authored in the previous 10 years;
a list of all other cases in which, during the previous 4 years, the
witness testified as an expert at trial or by deposition; and
a statement of the compensation to be paid for the study and
testimony in the case.

FED. R. CIV. P. 26(a)(2).
The failure to comply with the requirements of Rule 26(a) will result in the

Defendant contends that Crockett is “not a witness retained or specifically employed to offer
expert testimony, but rather an employee of [Mercedes Benz of Baton Rouge] designated to
offer factual testimony as to the cost of a RPM sensor and the fact that [P]laintiff was never
asked to pay for said sensors.” (Doc. 95, p. 2)
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court striking the noncompliant information or witness, and barring the use of the
information or witness to furnish 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).
To determine whether a failure to comply with Rule 26(a) is substantially justified or
harmless, the court considers four factors: (1) the importance of the witness’s
testimony; (2) the prejudice to the opposing party of allowing the witness to testify;
(3) the possibility of curing such prejudice by granting a continuance; and (4) the
explanation, if any, for the party’s failure to comply with the discovery order. See
Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546, 572 (5th Cir.
1996); Bradley v. United States, 866 F.2d 120, 125 (5th Cir. 1989) (citing Murphy v.
Magnolia Elec. Power Ass’n, 639 F.2d 232, 235 (5th Cir. 1981)).
III.

ANALYSIS
Plaintiff argues that he would “undoubtedly be prejudiced were this Court to

permit Mr. Crockett’s testimony and evidence to be heard at trial.” (Doc. 92-1, p. 3).
Crockett was identified after the July 1, 2020 deadline for completing fact discovery.
(Id.); (Doc. 54). Crockett was also disclosed after the deadline for Plaintiff to offer his
own expert to address the opinions Crockett provided. (Doc. 92-1, p. 3). Plaintiff has
not identified how he would be prejudiced by the introduction of Crockett’s testimony,
other than its untimeliness.
Defendant asserts that Crockett’s testimony “is primarily but not exclusively
factual”; therefore, it did not believe Crockett needed to be disclosed by the
July 1, 2020 expert disclosure deadline. (Doc. 95, p. 5). Defendant proffers that
Crockett “will offer factual testimony to the effect that the RPM sensor costs little
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and takes only minutes to replace.” (Doc. 67, p. 3). Crockett will also testify that
Plaintiff “was never asked to pay for said sensors,” and that the sensor repair “left
the value of Plaintiff’s vehicle unimpaired.” (Doc. 95, p. 3). Defendant further argues
that even if Crockett was untimely disclosed as an expert witness, his opinions and
report were disclosed pursuant to the July 31, 2020 deadline to submit expert reports
set by the Court, and therefore Plaintiff “was afforded more than adequate
opportunity to depose Mr. Crockett had he wished to do so.” 2 (Doc. 95, p. 5). Therefore,
permitting Crockett to testify at trial will not prejudice Plaintiff. (Id.)
Plaintiff fails to show how he will be prejudiced by the introduction of
Crockett’s testimony. It is undisputed that while Crockett’s resume and opinions were
disclosed on the day expert reports were due, he was identified to Plaintiff thirty days
after the deadline to disclose the identity and resumes of experts. (Doc. 92, p. 1).
Nevertheless, Plaintiff has had a full opportunity to depose Crockett in the
intervening time, including prior to the September 13, 2020 expert discovery
deadline. If Plaintiff deemed it necessary, he could have requested leave to identify a
rebuttal expert even though time had elapsed. Indeed, Plaintiff previously made such
a request and was permitted to reopen discovery on other matters—which did not
include any opinions offered by Crockett. See (Doc. 90). Moreover, a continuance at
this time is unnecessary, as trial in this matter was delayed by six months in
April 2021 and is now scheduled to begin on September 7, 2021.

The deadline to complete all discovery from experts was September 13, 2020. (Doc. 48);
(Doc. 54).
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IV.

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CONCLUSION
Accordingly,
IT IS ORDERED that Plaintiff’s Motions (Docs. 64, 92) are DENIED.

Baton Rouge, Louisiana, this 29th day of July, 2021

_____________________________________
JUDGE BRIAN A. JACKSON
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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