In the Matter of C. F. Bean L.L.C., as Owner Pro Hac Vice and Operator, and Bean Meridian L.L.C., as the Record Owner, of the Barge Bean 20, Official No. 627225, Praying for Exoneration from or Limitation of Liability

Filing 547

Memorandum Opinion and Order Granting in Part and Denying in Part Suzuki Motor Corporation's Emergency Motion to Strike Expert and Expert Report 526 . Signed by District Judge Halil S. Ozerden on September 28, 2018. (BGL)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
IN THE MATTER OF C.F. BEAN, L.L.C.,
AS OWNER PRO HAC VICE AND
OPERATOR, AND BEAN MERIDIAN,
L.L.C., AS THE RECORD OWNER, OF
THE BARGE BEAN 20, OFFICIAL NO.
627225, PRAYING FOR EXONERATION
FROM OR LIMITATION OF LIABILITY

CIVIL NO. 1:13cv77-HSO-RHW

CONSOLIDATED WITH:
JERRIE P. BARHANOVICH, EXECUTRIX
AND PERSONAL REPRESENTATIVE OF
THE ESTATE OF MARK BARHANOVICH,
DECEASED
v.

PLAINTIFF
CIVIL NO. 1:13cv84-HSO-RHW

C.F. BEAN, L.L.C.,
BEAN MERIDIAN, L.L.C., AND
ARCHER WESTERN CONTRACTORS, L.L.C.

DEFENDANTS/
THIRD PARTY PLAINTIFFS

v.
SUZUKI MOTOR CORPORATION,
SUZUKI MOTOR OF AMERICA, INC.,
AND RSM INTERNATIONAL, INC.,
D/B/A BOB’S MACHINE SHOP

THIRD PARTY DEFENDANTS

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART SUZUKI MOTOR CORPORATION’S EMERGENCY
MOTION TO STRIKE EXPERT AND EXPERT REPORT [526]
BEFORE THE COURT is Third Party Defendant Suzuki Motor Corporation’s
Emergency Motion to Strike Expert and Expert Report [526]. This Motion is fully
briefed. Having considered the parties’ submissions, the record, and relevant legal
authority, the Court is of the opinion that Defendants/Third Party Plaintiffs C. F.

Bean, L.L.C., Bean Meridain, L.L.C., and Archer Western Contractors have
exceeded the scope of discovery allowed on remand in contravention of the Fifth
Circuit’s mandate and the Magistrate Judge’s discovery Orders [502] [513]. Third
Party Defendant’s Motion to Strike Expert and Expert Report should be granted in
part and denied in part, in that Robert D. Bartlett’s (“Bartlett”) December 4, 2017,
Report should be stricken, with the exception that Bartlett may offer the following
opinions stated in his 2017 Report at Section “5.0 CONCLUSIONS”:
(1) The similarity in the metallurgical, mechanical, and chemical
characteristics of the subject swivel bracket and exemplar type “A”
swivel bracket indicate that they were both the same material (sic) that
they had the properties intended by the manufacturer for these
components.
....
(3) The Suzuki casting material, JIS H 5202 AC4C, of the subject
bracket was found to have low Charpy impact toughness values for halfsize specimens of less than 2/3 ft-lbs which would be less than 1 and 1/3
ft-lbs for a full sized specimen.
Bartlett may also testify to the opinions stated in his 2014 Report.
I. RELEVANT BACKGROUND
A.

Factual background
This case arises out of the death of Mark Barhanovich (“Barhanovich”) on the

morning of September 16, 2012. Barhanovich and one passenger, Mr. Eric
Ransonet, were operating a 24-foot recreational fishing boat as they traveled toward
a fishing reef known as “Katrina Reef” in the Mississippi Sound. Barhanovich Ans.,
Defenses and Claim [15] at 13. The boat was powered by a single outboard motor.

2

Id. Third-Party Defendant Suzuki Motor Corporation (“Suzuki”) “designed in part
and manufactured in part the subject 225 horsepower, 4 stroke outboard motor,
Model DF225, bearing Serial No. 22501F-510312.” Suzuki Ans. and Affirmative
Defenses [203] at 3.
During the trip to the fishing reef, Barhanovich’s boat and/or motor struck an
underwater obstacle. The obstacle turned out to be a dredge pipe owned and
operated by Defendants/Third-Party Plaintiffs C.F. Bean L.L.C., as Owner Pro Hac
Vice and Operator, and Bean Meridian L.L.C., as the Record Owner, of the Barge
Bean 20 (collectively “Bean”), who were engaged in dredging operations pursuant to
a sub-contract with Defendant Archer Western Contractors, L.L.C. As a result of
the collision, the motor came out of the water and entered the boat, striking
Barhanovich and severely injuring him. Barhanovich was transported to a hospital
in Ocean Springs, Mississippi, for treatment, but died later that day from his
injuries. Id.
B.

Relevant procedural history
1.

The Fifth Circuit’s mandate and the Magistrate Judge’s discovery
Orders on remand

This case has a lengthy procedural history. The Court will not detail all of it
here, but only those portions relevant to the pending Motion. Suffice it to say, at
this point in the litigation the Court does not write on a blank slate. On November
4, 2016, the United States Court of Appeals for the Fifth Circuit reversed in part
the Court’s prior Opinion [445] and Order [453], which struck the second Report of

3

Bean’s expert Edward Fritsch, and its Opinion [454] which granted summary
judgment in favor of Suzuki. Specifically, the Fifth Circuit held as follows:
We affirm the district court’s exclusion of Fritsch’s first expert
report. However, we reverse the district court’s exclusion of Fritsch’s
second expert report, notwithstanding its untimeliness. Because the
district court ruled that Bean could not defeat summary judgment
without expert testimony, the district court’s grant of summary
judgment is also reversed. Finally, we affirm the district court’s denial
of Bean’s motion to conduct additional testing on the motor. On remand,
however, we encourage the district court to consider whether to reopen
discovery to allow (1) SMC to adequately respond to Fritsch’s second
expert report and (2) Bean to test the motor. The district court should
also consider lesser sanctions for Bean’s untimeliness, such as costs and
attorneys’ fees for SMC’s additional discovery.
Order [470] at 6. The Fifth Circuit’s Judgment was issued as mandate on December
23, 2016. J. [471] at 1-3. It thus governs, and by its terms limits, the focus of these
proceedings on remand.
After the case was remanded to this Court, the parties filed numerous
discovery motions. On May 25, 2017, United States Magistrate Judge Robert H.
Walker entered an Order [498] consistent with the Fifth Circuit’s mandate and
granted Suzuki’s request for out-of-time discovery and Bean’s request to re-depose
Suzuki’s expert, to the extent that: (1) Suzuki would be permitted to depose Fritsch
as to his untimely second expert Report; (2) Suzuki would be permitted to designate
rebuttal experts and furnish reports from those experts; and (3) Bean would be
permitted to depose the rebuttal experts. Order [498] at 1-2.
The Magistrate Judge then entered another Order [502] re-opening discovery
for the limited purpose of allowing testing of the motor, as follows:

4

Consistent with the Fifth Circuit’s order of remand, the Court
finds that Bean should be permitted to conduct additional testing on the
outboard engine. However, the Court’s permission has several
conditions attached. First, costs associated with the testing shall be
charged to Bean. This includes attorneys’ fees associated with the
motions practice connected with this motion and any motions related to
the testing issue. The additional testing and out-of-time discovery are
the result of Bean’s untimely submission of Fritsch’s second report;
therefore, the cost for out-of-time discovery should fall on Bean. The
Court will set a separate deadline for SMC to file its motion for costs and
attorneys’ fees related to out-of-time discovery. Second, Bean will be
permitted to supplement expert reports based on additional testing, but
Bean will NOT be permitted to designate any new experts. The deadline
for designating new expert witnesses has expired. Third, SMC will be
allowed to designate rebuttal experts and/or supplement expert
designations relating to the additional testing. The Court will conduct
a case management conference to set deadlines on out-of-time discovery.
Fourth, if Bean wishes to pursue testing under these conditions, Bean
shall file within 14 days of this Order a motion seeking Court approval
of the testing protocol, thereby allowing SMC the opportunity to lodge
any objections to the proposed testing protocol. The parties are urged to
reach an agreement on the testing protocol before seeking Court
intervention.
Order [502] at 2-3 (emphasis added).
On August 9, 2017, the Magistrate Judge entered an Order [513] stating that
the parties had agreed to a testing protocol, with the exception of Bean’s request to
be allowed to test two exemplars. The Magistrate Judge granted this request over
Suzuki’s objection. Order [513] at 1-2. The Magistrate Judge denied, as exceeding
the scope of remand, other motions filed by Bean seeking to: (1) continue the
deposition of Suzuki’s Rule 30(b)(6) representative, Order [499]; (2) subpoena
certain documents, Order [500]; and (3) lift confidentiality orders, Order [501]. No
party appealed any of the Magistrate Judge’s discovery Orders.

5

2.

Bean’s allegations against Suzuki in the Second Supplemental and
Amended Third-Party Complaint

Bean sued Suzuki by way of a Third Party Complaint filed on May 1, 2014.
The Third-Party Complaint asserted a products liability claim against Suzuki and
sought full indemnity, contribution, and/or recovery for any settlement or judgment
paid by Bean to Barhanovich. 1 Third-Party Compl. [69]. Bean has amended its
Third-Party Complaint three times, on July 17, 2014, on August 29, 2014, and on
October 10, 2014. Am. and Suppl. Third-Party Compl. [103]; First Am. and Suppl.
Third-Party Compl. [133]; Second Suppl. and Am. Third-Party Compl. [163]. The
Second Supplemental and Amended Third-Party Complaint [163] is, and has been
for nearly four years, the operative pleading which governs the dispute between the
parties, subject now also to the limitations imposed by the Court of Appeals’
mandate. 2

Barhanovich and Bean entered into a settlement resolving the claims as between
those parties, and Barhanovich was dismissed. Order [426] at 1-2.
1

Following remand from the Fifth Circuit, on February 7, 2017, Bean filed a Motion
for Leave to File Third Supplemental and Amended Third-Party Complaint [474]
seeking to assert diversity of citizenship as an additional or alternative basis for the
Court’s subject-matter jurisdiction. The Magistrate Judge denied this request,
finding that the Fifth Circuit’s mandate did not include an allowance for amended
pleadings. The Magistrate Judge found that Bean’s “delay of two years and nine
months between Bean’s original third party complaint and the instant motion to
amend the third party complaint constitutes undue delay,” and that “Bean had
failed to demonstrate any cause, let alone good cause, for the inordinate delay in
seeking to amend.” Order [479] at 1-8. In denying Bean’s subsequent Motion for
Reconsideration [481], this Court adopted the well-reasoned opinion of the
Magistrate Judge. Order [520] at 1-9.
2

6

At Paragraph 7 of the Second Supplemental and Amended Third-Party
Complaint, Bean asserts that:
[o]n or about September 16, 2012, the said Mark Barhanovich was
operating his 24 foot pleasure boat, which was equipped with the
aforesaid Suzuki motor and “Flats Jac” jack plate, in the shallow waters
of or near Biloxi Bay just off the east end of Deer Island in Harrison
County, Mississippi, at an excessively high rate of speed when the lower
unit or other portion of the Suzuki motor is believed to have struck the
water bottom and/or some unknown submerged object, which caused the
Suzuki motor’s swivel bracket to fracture completely through at a
location beyond its hinged connection with the motor’s clamp bracket,
which allowed the bulk of the motor to separate entirely from the rest of
the boat and, impelled by the force of the underwater impact, to rotate
upward and to be projected forward into the passenger compartment of
the Barhanovich vessel, striking Mark Barhanovich and causing him to
sustain traumatic and fatal injuries.
Second Suppl. and Am. Third-Party Compl. [163] at 4 (emphasis added).
4.

Bean’s expert Reports

Bean filed its Second Supplemental and Amended Third-Party Complaint,
which remains the operative pleading, on October 10, 2014. Bean filed its
Designation of Experts [526-5] on October 14, 2014, designating Robert D. “Bob”
Bartlett, P.E., as an expert “metallurgist and registered professional engineer.” 3

Bean designated Edward V. Fritsch, P.E. (“Fritsch”), as “a registered professional
engineer and an expert in mechanical engineering, with particular emphasis on the
design and testing of boats, other vehicles[,] and mechanical equipment.” Desig. of
Experts [526-5] at 3. The record reflects that Fritsch has submitted three Reports.
Fritsch’s October 2014 Report disclosed the opinion that the speed of Barhanovich’s
boat when it impacted the dredge pipe was 28 miles per hour. 2014 Report [329-2]
at 13. His 2015 Report stated that the impact speed was approximately 35 miles
per hour. 2015 Report [360-1] at 31. Fritsch’s most recent December 2017 Report
expresses an opinion that the impact speed was in excess of 31 miles per hour based
upon Suzuki’s testing. 2017 Report [526-4] at 7.
3

7

Desig. of Experts [526-5] at 3. Bartlett’s entire October 2014 Report [526-2]
consisted of a mere three pages and stated that he was retained to provide a
“metallurgical evaluation of the fractures associated with this accident.” Id. at 2.
Bartlett’s conclusions were that:
(1) The fracture through the clevis ears on the swivel bracket appeared
to be due to a single application of load, and no evidence was observed
which would suggest that a pre-existing crack or fatigue played a part
in the fracture.
(2) The fracture through the body of the swivel bracket appeared to be
due to a single application of load, and no evidence was observed which
would suggest that a pre-existing crack or fatigue played a part in this
fracture.
(3) The hexagonal hole in the transom plate appeared to be due to the
head of the nearby bolt being pulled through that plate as a result of a
single load cycle.
Id. at 3. This was the sum total of Bartlett’s opinions.
After the Magistrate Judge entered the present discovery Orders on remand,
the parties conducted testing. Bean then submitted a Report from Bartlett dated
December 5, 2017.
Bartlett’s December 2017 Report consists of 34 pages, 31 pages longer than
his original 2014 Report. The 2017 Report contains a Section “4.0 FINDINGS,”
which purports to set forth approximately five full pages of findings, one of which is
that, based upon the deposition testimony of the passenger in the boat at the time
the collision occurred and the passenger’s trajectory when the outboard motor

8

struck the dredge pipe, the boat was traveling at no more than 17 miles per hour. 4
Id. at 27-32.
Bartlett’s ultimate opinions and conclusions are found in Section “5.0
Conclusions,” as follows:
(1) The similarity in the metallurgical, mechanical, and chemical
characteristics of the subject swivel bracket and exemplar type “A”
swivel bracket indicate that they were both the same material (sic) that
they had the properties intended by the manufacturer for these
components.
(2) The swivel bracket is a critical component of this outboard motor
because there is no redundancy in the form of another component. The
swivel bracket is required for the system to be able to function.
(3) The Suzuki casting material, JIS H 5202 AC4C, of the subject
bracket was found to have low Charpy impact toughness values for halfsize specimens of less than 2/3 ft-lbs which would be less than 1 and 1/3
ft-lbs for a full sized specimen. Other aluminum materials such as
forgings of ASTM B247-15 6061-T6 had impact toughness values for fullsize specimens of 10 ft-lbs or greater and an elongation of approximately
7 percent. That forged aluminum would absorb more than 5 times the
energy as that used of the subject bracket.
(4) Since the consequences of a failed swivel bracket can easily lead to
death of an occupant, which occurred in this case and other documented
cases, the use of a brittle material for a critical component requires
special consideration. When critical components are constructed using
brittle material and low ductility of less than approximately 4 percent
elongation, special care must be taken to ensure that the stresses in the
critical component never reach the fracture stress even under shock
loads.
(5) The fracture features, FEA results, and calculation results are also
consistent with this scenario. Allisions between outboard motors and
obstructions are common enough that an outboard motor should have a
means for accommodating such allisions. Though the shock absorber of
the PTT system and the design of the swivel bracket can handle allisions
with obstructions which produce axial forces on the engine, allisions
Mr. Ransonet was the passenger; his deposition, however, was taken on July 28,
2014, and has been available to Bean and Bartlett since that time. Ransonet Dep.
Excerpts [346-6] at 1.
4

9

which produce some axial and some side load will cause the engine to
tip up and out of the side bearing pads. The failure of this engine from
such a contact at a speed that was likely more than 17 mph
demonstrates that this engine design is defective in this regard.
Id. at 32-33.
5.

Suzuki’s Motion to Strike

Suzuki’s Emergency Motion to Strike Expert and Expert Report [526]
requests that Bartlett’s 2017 Report “be stricken or, specifically, the new portions of
Bartlett’s [R]eport beyond the results of the testing be stricken so that Suzuki
Motor Corporation may provide its expert responses to the results of the
metallurgical testing.” Mot. to Strike [526] at 3-4. Suzuki alleges that Bean
violated the Court’s discovery Orders, specifically the Magistrate Judge’s Order
[502] that permitted experts to supplement their opinions but denied Bean’s Motion
[486] seeking to designate rebuttal experts out of time. Id. at 1-3. Suzuki posits
that Bartlett was originally designated as “an expert metallurgist and professional
engineer,” and that in his initial 2014 Report, he “offered only metallurgical
opinions.” Id. 2; see also Exhibit “B” – Bartlett’s 2014 Report [526-2] at 1-3.
According to Suzuki, Bean is now attempting to re-designate Bartlett as an
expert to testify as an “all purpose boat accident reconstructionist,” Rebuttal [531]
at 1, and the 2017 Report expresses opinions outside the scope of the testing in
“areas of expertise not previously disclosed, and a theory of the collision between
the Barhanovich boat and the dredge pipe not previously described by an expert,”
Mot. to Strike [526] at 3; Exh. “A” – Bartlett 2017 Report [526-1] at 1-34. Suzuki

10

concludes that Bean has violated the Order prohibiting Bean from designating new
experts and has effectively designated a new expert by expanding Bartlett’s
expertise to encompass new areas, including
biomechanics and anthropometry (Ransonet’s body’s trajectory),
hydraulics (speed of oil passage in steering system), polymer chemistry
(FTIR analysis of plastic, resilience of dredge pipe HDPE, stress
discoloration of unknown plastic), photogrammetry (interpretation of
dimensions of parts seen in Coast Guard photographs) and boating
accident reconstruction generally.
Id. at 1-4; Mem. in Supp. [527] at 6-7.
In its Response [529], Bean concedes that Bartlett was “originally retained
to perform a limited metallurgical examination of the subject engine including the
fracture area to determine whether there was pre-existing damage, or the fracture
had resulted from fatigue.” Resp. in Opp’n [529] at 8. Thus, by Bean’s own
admission, Bartlett was designated for a limited purpose. See id. Bean further
states that, after remand, Bartlett
began to develop an idea of what type of analysis he could perform based
upon an inspection of the boat and engine as well as metallurgical
testing of the subject swivel bracket in the context of the available
evidence and the known facts. He suggested a number of metallurgical
tests, many of which SMC opposed. Those tests were intended to yield
data that could be utilized in an analysis of the entire fact situation to
determine the likely cause of the swivel bracket failure and the death of
Mark Barhanovich. The data from the metallurgical testing make little
sense in the abstract unless they are applied in the context of the known
facts and evidence. It was never Mr. Bartlett’s intent to have extensive,
expensive testing performed simply for the sake of testing, and never
use the data to analyze all other information and evidence available to
date. That would make no sense.
Id. at 8-9.

11

Bean further argues that Suzuki’s own metallurgical expert, Dr. Michael
Stevenson,
generated an expert report which contains findings far afield from
metallurgy under [Suzuki]’s criteria. Further, Dr. Stevenson certainly
applied the metallurgical findings to the known facts to reach new
conclusions. Moreover, Dr. Stevenson’s report was also based on recent,
unilateral testing of an exemplar not covered by the subject Protocol to
which neither Bean nor Archer were invited to participate. This
suggests SMC expects a special standard to apply to the Court’s
admission of SMC’s evidence but a more restrictive standard for Bean.
Id. at 2.
Suzuki’s Rebuttal maintains that the Court’s Orders [502] [513] limited the
scope of testing to the approved protocol, did not authorize Bean to conduct tests of
other components, and did not authorize Bean to tender an expert report which
essentially constitutes a new expert opinion and completely changes Bean’s theory
of the case. Rebuttal [531] at 6-7. Suzuki posits that Bean is attempting to change
its theory that Barhanovich was operating the boat at an excessively high rate of
speed, as alleged in the Second Supplemental and Amended Third-Party Complaint,
and “re-start the case, something that the Court stated it was not going to permit.”
Id. at 7.
II. DISCUSSION
A.

Applicable law
It is axiomatic “that ‘an inferior court has no power or authority to deviate

from the mandate issued by an appellate court.’” League of United Latin Am.
Citizens, Dist. 19 v. City of Boerne, 675 F.3d 433, 438 (5th Cir. 2012) (quoting Briggs

12

v. Penn. R.R. Co., 334 U.S. 304, 306 (1948)). “The mandate rule is a specific
application of the general doctrine of the law of the case.” Demahy v. Schwartz
Pharma, Inc., 702 F.3d 177, 184 (5th Cir. 2012) (quotation omitted). “The mandate
rule requires that a ‘district court follow both the letter and spirit of the mandate by
taking into account the appeals court’s opinion and circumstances it embraces.’”
League of United Latin Am. Citizens, Dist. 19, 675 F.3d at 438 (quoting United
States v. Carales-Villalta, 617 F.3d 342, 344 (5th Cir. 2010)). A district court is
prohibited from reexamining issues already “decided both expressly and by
necessary implication” by the court of appeals. United States v. Teel, 691 F.3d 578,
583 (5th Cir. 2012) (quoting United States v. Pineiro, 470 F.3d 200, 205 (5th Cir.
2006)). The mandate rule serves the important jurisprudential policy of finality in
litigation, and is aimed at precluding obstinate litigants from reasserting
arguments and appealing again and again in the hope of obtaining a more
sympathetic appellate panel. See Pineiro, 470 F.3d at 205.
B.

Analysis
In reviewing Suzuki’s Motion and the submissions filed in connection with it,

it appears that the parties have proffered no case authority in support of their
respective positions. However, as stated previously, this Court is not writing on a
blank slate. The issue before the Court is easily resolved based upon the law of the
case as set forth in the Fifth Circuit’s mandate, and the Magistrate Judge’s
discovery Orders, which no party appealed. The Fifth Circuit remanded the case

13

and directed this Court to allow Bean’s submission of its expert Fritsch’s second
Report, which the Court of Appeals agreed was untimely, and suggested that this
Court consider re-opening discovery for the limited purpose of allowing: (1) Suzuki
to adequately respond to Fritsch’s second expert Report; and (2) Bean to test the
motor.
On remand, discovery Orders were entered allowing very specific and limited
testing of the motor, per an agreed testing protocol, and allowing Bean to
supplement expert reports based upon this testing. Bean was not permitted to
designate new experts or offer new expert opinions. Order [502] at 1-3.
A review of this Court’s discovery Orders makes it abundantly clear that
Bean was expressly and unequivocally prohibited from designating new expert
witnesses or advancing new theories of liability. Id. It appears that, in an attempt
to circumvent the Fifth Circuit’s mandate and this Court’s Orders, Bean seeks to
advance an entirely different theory of how the motor struck the dredge pipe and
what the speed of the boat was at the time of the collision. Despite its position
throughout this litigation that the boat was traveling at an excessive rate of speed,
Bartlett now advances the theory that the boat was traveling at 17 miles per hour
and, rather than striking the dredge pipe head-on, that it struck the dredge pipe at
an angle. Bartlett then uses these new theories to conclude that the “engine design
is defective.” Bartlett 2017 Report [526-1] at 32-33.

14

Bean has effectively re-designated Bartlett as an expert in numerous fields,
including accident reconstruction, far beyond those disclosed in his original 2014
designation. Comparing Bartlett’s 2017 Report to his 2014 Report, it is clear that
Bean has acted in bad faith and has grossly exceeded the scope of the Fifth Circuit’s
mandate and this Court’s discovery Orders. Indeed, Bean has engaged in precisely
the same type of conduct it did when it earlier submitted Fritsch’s second 2015
Report, which, as the Fifth Circuit agreed, in fact contained new opinions and was
not a supplemental report. J. [470]; Opinion [445]; Order [520]. Just as that report
was not supplemental, so too Bartlett’s 2017 Report is essentially a new, not
supplemental, Report. Bartlett’s present Report is replete with calculations and
references to methods and materials bearing no connection to metallurgy, but
instead encompassing areas such as biomechanics and accident reconstruction.
Indeed, very little of the 2017 Report appears to be based on the metallurgical
conclusions to be drawn from the results of the testing.
By Bean’s own admission, Bartlett was retained and designated for a limited
purpose, as an expert in metallurgy to express opinions on the fracture area of the
engine to determine whether pre-existing damage or fatigue played a role in the
incident. He was most certainly not designated as an accident reconstructionist. It
was not until remand that Bean apparently determined it needed a new expert in
order to pursue an essentially new theory of the case, which is at odds with Bean’s
allegations in its Second Supplemental and Amended Third-Party Complaint.

15

Specifically, Bean’s position throughout has been that, at the time of the collision,
the boat was traveling “at an excessively high rate of speed.” Second Suppl. and
Am. Third-Party Compl. [163] at 4. Now, to achieve its end of finding that Suzuki’s
product was defective, Bean advances the entirely new theory that, rather than
hitting the dredge pipe head-on at a high rate of speed, the boat veered to the left
and essentially struck the dredge pipe at 17 miles per hour. To reach this
conclusion, Bartlett’s expertise had to expand dramatically. It is clear that
Bartlett’s 2017 Report exceeds the scope of the Court’s discovery Orders. Moreover,
it is in direct conflict with Fritsch’s Reports. Fritsch found that the boat was
traveling at speeds in excess of 28, 35, or 31 miles per hour at the time of the
collision, while Bartlett now advances the new theory that the boat was traveling at
a mere 17 miles per hour. 5
With respect to Bean’s assertion that, because Suzuki’s expert Stevenson has
allegedly proffered new opinions, Bean’s expert should be allowed to do the same,
this is an attempt to recast the issue. Unlike Bean, Suzuki was explicitly “allowed
to designate rebuttal witnesses and/or supplement expert designations relating to
the additional testing” in order to respond to Fritsch’s untimely 2015 Report, which

The record reflects that Edward V. Fritsch’s October 2014 Report disclosed the
opinion that the impact speed was 28 miles per hour. 2014 Report [329-2] at 13.
His 2015 Report stated that the impact speed was approximately 35 miles per hour.
2015 Report [360-1] at 31. Fritsch’s most recent December 2017 Report expresses
an opinion that the impact speed was in excess of 31 miles per hour based upon
Suzuki’s testing. 2017 Report [526-4] at 7.
5

16

itself offered new opinions. Id. at 2-3. Bean, on the other hand, was only permitted
to supplement its Reports within narrow limits. 6 Bean acted in bad faith by
submitting an entirely new set of opinions in Bartlett’s 2017 Report and by
expanding the scope of Bartlett’s designation, just as Bean did previously with
Fritch’s untimely 2015 Report.
Despite the foregoing, a review of Bartlett’s 2017 Report reflects that some
limited portions of it contain proper supplemental opinions within the field of
metallurgy. Specifically, Bartlett will be allowed to testify to the following
conclusions found in Section “5.0 CONCLUSIONS,” which the Court finds to be
proper supplemental opinions within the scope of Bartlett’s designation:
(1) The similarity in the metallurgical, mechanical, and chemical
characteristics of the subject swivel bracket and exemplar type “A”
swivel bracket indicate that they were both the same material (sic) that
they had the properties intended by the manufacturer for these
components.
....
(3) The Suzuki casting material, JIS H 5202 AC4C, of the subject
bracket was found to have low Charpy impact toughness values for halfsize specimens of less than 2/3 ft-lbs which would be less than 1 and 1/3
ft-lbs for a full sized specimen.
The Court finds that the other conclusions stated in Section 5.0 are either beyond
the scope of Bartlett’s designation and expertise, are not based on the metallurgical

Even if Bean were correct that Stevenson improperly offered new opinions, Bean’s
remedy is to file a motion to strike Stevenson’s opinions. Instead, Bean took it upon
itself to violate the Court’s discovery Orders, apparently subscribing to the view
that “two wrongs make a right.”

6

17

tests, are based on information that has long been available to Bean and is not new,
or constitute new, rather than supplemental, opinions. Specifically Bartlett’s
Conclusion (2) is a statement not dependent on any testing and not within the field
of metallurgy. The second and third sentences of Conclusion (3) reference other
materials, specifically aluminum, which were not part of the testing and fall beyond
the scope of Bartlett’s original designation. Conclusion (5) is based upon new
theories and testing outside the scope of Bartlett’s designation as an expert. As
such, these opinions will be stricken. Bartlett will, however, also be allowed to
testify to the opinions stated in his 2014 Report.
III. CONCLUSION
To the extent the Court has not addressed any of the parties’ arguments, it
has considered them and determined that they would not alter the result. Based
upon the Motion, the related pleadings, the record as a whole, including the Fifth
Circuit’s mandate and the law of the case, the Court finds that Suzuki’s Motion to
Strike should be granted in part and denied in part, in that the opinions contained
in Bartlett’s 2017 Report should be stricken, with the exception of the following
opinions found in Section “5.0 CONCLUSIONS”:
(1) The similarity in the metallurgical, mechanical, and chemical
characteristics of the subject swivel bracket and exemplar type “A”
swivel bracket indicate that they were both the same material (sic) that
they had the properties intended by the manufacturer for these
components.
....

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(3) The Suzuki casting material, JIS H 5202 AC4C, of the subject
bracket was found to have low Charpy impact toughness values for halfsize specimens of less than 2/3 ft-lbs which would be less than 1 and 1/3
ft-lbs for a full sized specimen.
Bartlett may also testify to the opinions stated in his 2014 Report.
IT IS, THEREFORE, ORDERED AND ADJUDGED that Third Party
Defendant Suzuki Motor Corporation’s Motion to Strike is GRANTED IN PART
and DENIED IN PART, and the opinions contained in Bartlett’s 2017 Report are
stricken, with the exception of the following opinions found in Section “5.0
CONCLUSIONS”:
(1) The similarity in the metallurgical, mechanical, and chemical
characteristics of the subject swivel bracket and exemplar type “A”
swivel bracket indicate that they were both the same material (sic) that
they had the properties intended by the manufacturer for these
components.
....
(3) The Suzuki casting material, JIS H 5202 AC4C, of the subject
bracket was found to have low Charpy impact toughness values for halfsize specimens of less than 2/3 ft-lbs which would be less than 1 and 1/3
ft-lbs for a full sized specimen.
Bartlett may also testify to the opinions stated in his 2014 Report.
SO ORDERED AND ADJUDGED this the 28th day of September, 2018.

s/ Halil Suleyman Ozerden

HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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