B & P Enterprises of Avoyelles Parish L L C v. Mahindra U S A Inc

Filing 44

MEMORANDUM RULING denying 36 Daubert Motion to Exclude and/or Restrict Testimony of Expert. Plaintiff's Motion to Exclude Testimony (Doc. 36) is denied, but without prejudice to the right of Plaintiff to challenge Mr. Grzeskowiak's ability to offer opinion testimony at trial. Plaintiff may re-urge the issue at an appropriate time before the district judge who is later assigned to this case. Signed by Magistrate Judge Mark L Hornsby on 3/13/2019. (crt,Keller, J)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
B & P ENTERPRISES OF AVOYELLES
PARISH, LLC

CIVIL ACTION NO. 17-cv-0876

VERSUS

UNASSIGNED DISTRICT JUDGE

MAHINDRA USA, INC.

MAGISTRATE JUDGE HORNSBY
MEMORANDUM RULING

Introduction
B&P Enterprises, LLC (“Plaintiff”) filed this action against Mahindra USA, Inc.
pursuant to the court’s diversity jurisdiction. Plaintiff alleges that it is entitled, under
Louisiana law regarding redhibition and warranty, to rescind the sale of a tractor that
allegedly has a number of defects. Mahindra identified one of its employees, Theodore
“Ted” Grzeskowiak as a potential expert witness. Before the court is Plaintiff’s Motion to
Exclude Testimony (Doc. 36) that asks the court to prohibit Mr. Grzeskowiak from offering
opinion/expert testimony regarding the defects in the tractor. For the reasons that follow,
the motion is denied without prejudice to re-urging after a hearing or a procedure at trial in
which the relevant facts can be more fully explored.
Relevant Facts
Plaintiff alleges that it paid more that $88,000 for a Mahindra tractor and loader
combination that it purchased primarily for use in the business of farming in Avoyelles
Parish. Plaintiff alleges that, within a few months after purchase, the tractor exhibited
defective conditions. The complaint lists problems such as engine is hard to start, engine

will not accelerate properly, right door will not latch properly, rear hydraulic valve not
functioning properly, and engine malfunctions to the extent the tractor cannot be used on
the road. Plaintiff alleges that service dealers performed authorized warranty service, but
the problems with the tractor continued.
Mr. Grzeskowiak is an employee of Mahindra. The company identifies him as a
Senior Field Service Engineer. He inspected the tractor in December 2017 at Plaintiff’s
farm, in the presence of Plaintiff’s representative, Plaintiff’s attorney, and counsel for
Mahindra. Mr. Grzeskowiak prepared a report regarding eight items/problems that were
listed in Plaintiff’s complaint. He noted his observations and remarks about each.
For example, Mr. Grzeskowiak found that the difficulty getting the engine to start
and idle was due to a loose battery cable. The cable was tightened, and the tractor started
in less than three seconds. Another claim was that the tractor could not be used on the
road. Mr. Grzeskowiak observed that the tractor ran fine, and he drove it on the road for
36 minutes with no issues. Plaintiff’s complaint about the exhaust being broken was
confirmed, but Mr. Grzeskowiak noted that marks indicated that it was hit. He made
similar assessments and observations about the other listed problems. He also made notes
of a multi-point inspection of the tractor, took photographs of problem areas, and checked
with two dealers who had performed work on the tractor.
Plaintiff did not submit any expert reports within the allowed deadline. Mahindra
timely tendered a report from Mr. Grzeskowiak that attached the notes and photographs
from his December 2017 examination. The report added, in addition to the factual
observations in the report, “Based on the investigation described above and my reliance on
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my experience with tractors, and other equipment and vehicles, over seventeen years, it is
my opinion the complaints related to the performance of this tractor result from misuse and
lack of proper maintenance of the product.”
Timeliness of the Daubert Challenge
This case was originally assigned to Judge Trimble, who is now retired. He issued
scheduling instructions that included a May 10, 2018 deadline to file Daubert motions.
Plaintiff did not file a Daubert motion by that deadline, but it did raise the issue at a pretrial
conference soon afterward on May 31, 2018. Mahindra argues that the challenge is
untimely.
The scheduling order cited by Mahindra has since been vacated. A new trial date
and related deadlines have been selected. The current scheduling order (Doc. 43) allows
until May 6, 2019 to file Daubert motions or other challenges to expert testimony.
Mahindra was not prejudiced by any delay in Plaintiff raising the issue. Under these
circumstances, the court finds that Plaintiff has raised the issue in an adequately timely
manner.
Employee as Expert
Federal Rule of Civil Procedure 26(a)(2) provides that a party must disclose the
identity of any witness it may use at trial to present opinion/expert evidence. The rule adds
that, unless otherwise stipulated or ordered, the disclosure must be accompanied by a
written report if the witness is one retained or specially employed to provide expert
testimony in the case or one whose duties as the party’s employee regularly involve giving
expert testimony.
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Mahindra states in its memorandum that Plaintiff argued at the pretrial conference
that Mr. Grzeskowiak’s testimony should be excluded or limited because he is a Mahindra
employee. Defendant argues that the rule contemplates such employee-experts. Plaintiff
may have raised the issue in the pretrial conference, but it appears to have abandoned the
issue in its motion. The issue is not raised, so the court need not address it.
Qualifications
Federal Rule of Evidence 702 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
if his specialized knowledge will help the trier of fact understand the evidence or determine
a fact at issue, the testimony is based on sufficient facts or data, the testimony is the product
of reliable principles and methods, and the witness has reliably applied the principles and
methods to the facts of the case. Plaintiff argues that Mr. Grzeskowiak is not qualified to
offer opinion testimony under this rule.
The landmark Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993)
focused on the admissibility of scientific expert testimony. It discussed certain factors such
as testing, peer review, error rates, and acceptability in the relevant scientific community
as factors that might prove helpful in determining the reliability of a particular scientific
theory or technique.
The Court clarified in Kumho Tire Co., Ltd. v. Charmichael, 119 S.Ct. 1167 (1999)
that Daubert’s general holding applies not only to testimony based on “scientific”
knowledge, but also to testimony based on technical and other specialized knowledge
contemplated by Rule 702. Kumho explained that one or more of the scientific factors
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from Daubert might be helpful in determining the reliability of such a witness, but the test
for reliability is flexible. The law grants the trial judge the same broad latitude in deciding
how to determine reliability as is afforded with respect to the ultimate reliability
determination.
“As a general rule, questions relating to the bases and sources of an expert’s opinion
affect the weight to be assigned that opinion rather than its admissibility.” Puga v. RCX
Solutions, Incorporated, 914 F.3d 976, 985 (5th Cir. 2019). While the district court must
act as a gatekeeper to exclude all irrelevant and unreliable expert testimony, “the rejection
of expert testimony is the exception rather than the rule.” Id., quoting Fed. R. Evid. 702
advisory committee’s notes (2000). “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.” Daubert, 113 S.Ct. at 2798.
Mr. Grzeskowiak has an associate’s degree from Triton College in applied sciences,
automotive management. He has some other post-secondary education, but he has not
earned any other degrees. He was at one time certified by the National Automotive Service
Excellence, but his certification expired in 2010. His title as senior field service engineer
was assigned by Mahindra and does not indicate any particular engineering education or
qualifications.

Thus, Mr. Grzeskowiak does not have any particular degrees or

certifications that would tend to demonstrate his qualification to offer an opinion about the
issues in this case.
On the other hand, Mr. Grzeskowiak’s resume indicates that he has good deal of
practical experience working with and troubleshooting similar equipment. He states that
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he worked for Mahindra on a field service team and with in-house technical support team
to diagnose engine and electrical issues. Before that, he worked for John Deere as part of
a team of diesel engine experts providing technical solutions and delivering problem
resolution to customers. Before that, he worked for about six years for Navistar, where he
led a team to determine root cause of failure analysis on big bore diesel engines. Mahindra
states in its memorandum that Mr. Grzeskowiak has many hours of service manager
training that includes training related to the model at issue. He has also taught classes and
conducted training sessions for Mahindra mechanics that included the function and
maintenance of the model at issue. Mr. Grzeskowiak has a total of approximately 20 years
of experience with major tractor, farm equipment, and diesel engine manufacturers.
It appears that much of the testimony that Mr. Grzeskowiak would offer is factual,
based on his field observations, as opposed to opinion based on any form of analysis or
testing. His report primarily describes what he saw and how the tractor responded to
adjustments or changes that he made. His report notes: “No diagnostics were performed,
inspection only.” He also took photographs and checked maintenance records to learn any
relevant facts. Mr. Grzeskowiak does not need to be qualified under Rule 702 to offer
testimony about most, if not all, of these matters. Those are facts based on first-hand
observation, not opinions.
Neither party’s briefs specifically identify the opinion testimony that is being
challenged. The only opinion that the court sees is that quoted above, regarding Mr.
Grzeskowiak’s assessment that Plaintiff’s complaints about the performance of the tractor
were caused by misuse and lack of proper maintenance. It is not necessary for a skilled
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mechanic or troubleshooter to have a Ph.D. or other certification to offer an opinion about
a matter. It may be that Mr. Grzeskowiak has adequate specialized knowledge and
experience that a trial judge would find him qualified to offer the opinion stated in his
report. See Puga, 914 F.3d at 985-87 (state trooper who investigated auto accident allowed
to offer opinion regarding causation).
The undersigned is reluctant to offer a final ruling on that issue at this stage of the
case for two reasons. First, this case is not currently assigned to a district judge, and that
judge will have a great deal of discretion in determining how to assess Mr. Grzeskowiak’s
qualifications and whether Mr. Grzeskowiak is in fact qualified to offer an opinion.
Reasonable minds could differ on how to approach those issues, and it is best that the judge
who tries the case make the final assessment. Second, the record relevant to this issue
would benefit from a more detailed examination of Mr. Grzeskowiak’s field experience
and training. What was recited above comes largely from his resume or representations in
Mahindra’s memorandum and has not been explored in detail.
For these reasons, Plaintiff’s Motion to Exclude Testimony (Doc. 36) is denied,
but without prejudice to the right of Plaintiff to challenge Mr. Grzeskowiak’s ability to
offer opinion testimony at trial. Plaintiff may re-urge the issue at an appropriate time before
the district judge who is later assigned to this case.
THUS DONE AND SIGNED in Shreveport, Louisiana, this the 13th day of March,
2019.

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