Riley et al v. Ford Motor Company
Filing
268
ORDER granting in part and denying in part Ford Motor Company's 244 Motion to Strike the affidavit of Steven E. Meyer. Signed by District Judge Keith Starrett on June 23, 2011 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
MATTHEW RILEY, et al.
PLAINTIFFS
v.
CIVIL ACTION NO. 2:09-CV-148-KS-MTP
FORD MOTOR COMPANY, et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
The Court now considers Defendant Ford Motor Company’s Motion to Strike [244] the
affidavit of Steven E. Meyer attached as an exhibit to Plaintiff’s response to Ford’s motion to
exclude Meyer’s testimony. For the reasons stated below, the motion is granted in part and denied
in part.
I. BACKGROUND
This is a wrongful death and product liability action stemming from an automobile accident
on November 3, 2006. The Riley family was traveling east on Highway 98 in Marion County,
Mississippi, in a 2002 Ford Explorer XLS. Plaintiff Matthew Riley was driving. Plaintiff Carmen
Riley occupied the front passenger seat, while their children, Plaintiffs C.R. and A.R., sat in the back
seat. All Plaintiffs were wearing seatbelts.
Another vehicle attempted to pass Plaintiffs’ Explorer and made contact with it. Plaintiffs’
vehicle went off the road and overturned. All Plaintiffs suffered serious injuries. Carmen Riley and
A.R. were partially ejected from the vehicle. Carmen Riley suffered serious and permanent injuries,
while A.R. was killed.
In their First Amended Complaint, Plaintiffs advanced a variety of claims. They alleged that
the Explorer’s restraint system failed as a result of design and manufacturing defects. They further
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alleged that its door latch system failed, and that its windows were not properly glazed. They
included the following causes of action: strict liability, negligence, and failure to recall and/or
retrofit. Finally, they seek a variety of damages, including punitive damages; medical expenses; lost
earnings; and compensation for pain, suffering, and emotional distress.
II. DISCUSSION
Ford argues that the Court should strike the affidavit of Steven E. Meyer [231-1] attached
to Plaintiffs’ response to Ford’s motion seeking the exclusion of Meyer’s expert testimony. Ford
argues that the affidavit contains four opinions which Plaintiffs failed to disclose in their expert
designations or timely provide in a supplementary designation. Key Safety joined the motion. In
response, Plaintiffs contend that the affidavit is consistent with Meyer’s deposition and the expert
report provided to Defendants.1
As always, the Court possess broad, substantial discretion in discovery-related matters.
Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 569 (5th Cir. 1996). The Court
may control its docket “by refusing to give ineffective litigants a second chance to develop their
case.” Reliance Ins. Co. v. La. Land Exploration Co., 110 F.3d 253, 258 (5th Cir. 1997). Rule 26
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Plaintiffs also contend that it is not necessary for the Court to address Ford’s motion to
strike Meyer’s affidavit, as the four issues raised by Ford in the motion to strike are not relevant
to Ford’s Daubert motion as to Meyer’s testimony. However, Plaintiffs’ plainly rely upon the
affidavit in their response to Ford’s Daubert motion and dispositive motions. “Evidence may
only be introduced at the summary judgment phase of a trial if the evidence would be admissible
at trial.” Williams v. Trader Publ’g Co., 218 F.3d 481, 485 (5th Cir. 2000); see also FED. R. CIV.
P. 56(c)(2). If Plaintiffs wished to withdraw the affidavit from the Court’s consideration, they
were free to do so. They did not. Therefore, the Court must address Ford’s objections if it is to
consider the affidavit.
Additionally, Defendants argued in reply that Plaintiffs conceded that the Court should
not consider the affidavit. Plaintiffs did no such thing. They merely argued that Meyer’s report
and deposition testimony were sufficient to survive Defendants’ Daubert motion with or without
the affidavit.
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provides that “a party must disclose to the other parties the identity of any witness it may use at trial
to present” expert testimony. FED. R. CIV. P. 26(a)(2)(A). “Unless otherwise stipulated or ordered
by the court, this disclosure must be accompanied by a written report – prepared and signed by the
witness – if the witness is one retained or specially employed to provide expert testimony in the case
. . . .” FED. R. CIV. P. 26(a)(2)(B). The report must contain the following:
(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 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)(B)(i)-(vi). “A party must make these disclosures at the times and in the
sequence that the court orders.” FED. R. CIV. P. 26(a)(2)(D).2 Local Rule 26 provides that a “party
must make full and complete disclosure as required by FED. R. CIV. P. 26(a) and L.U.Civ.R.
26(a)(2)(D) no later than the time specified in the case management order.” L.U.Civ.R. 26(a)(2).
Additionally, “[t]he parties must supplement these disclosures when required under Rule
26(e).” FED. R. CIV. P. 26(a)(2)(E). “[A] party is required to supplement its expert disclosures if the
court so orders or if ‘the party learns that in some material respect the information disclosed is
2
The Advisory Committee’s Notes to Rule 26 of the Federal Rules of Civil Procedure
provide that expert witnesses “must prepare a detailed and complete written report, stating the
testimony the witness is expected to present during direct examination, together with the reasons
therefor.” FED. R. CIV. P. 26 advisory committee’s note; see also Sierra Club, 73 F.3d at 571.
“These Notes also explain that the purpose of the reports is to avoid the disclosure of ‘sketchy
and vague’ expert information, as was the practice under the former rule.” Sierra Club, 73 F.3d
at 571.
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incomplete or incorrect and if the additional or corrective information has not otherwise been made
known to the other parties during the discovery process or in writing.” Sierra Club, 73 F.3d at 57
n. 42 (quoting FED. R. CIV. P. 26(e)(1)). “[T]he party’s duty to supplement extends both to
information included in the report and to information given during the expert’s deposition. Any
additions or changes to this information must be disclosed by the time the party’s pretrial disclosures
under Rule 26(a)(3) are due.” FED. R. CIV. P. 26(e)(2). While Rule 26(a)(3) provides that pretrial
disclosures must be made at least thirty days before trial, it adds the following caveat: “[u]nless the
court orders otherwise . . . .” FED. R. CIV. P. 26(a)(3). Local Rule 26 provides that a “party is under
a duty to supplement disclosures at appropriate intervals under FED. R. CIV. P. 26(e) and in no event
later than the discovery deadline established by the case management order.” L.U.Civ.R. 26(a)(5)
(emphasis added).
In summary, Plaintiffs’ expert designations were due by December 14, 2010. If they were
going to provide a supplement to Meyer’s report, it was due before March 31, 2011, the discovery
deadline. Id. Therefore, if the evidence at issue differs materially from the opinions and information
provided to Defendants in the report accompanying Plaintiffs’ expert designation, it was not timely
disclosed. FED. R. CIV. P. 26(a)(2), (e)(1). However, Plaintiffs did not have a duty to supplement the
report if the opinions or information were otherwise made known to Defendants during the
discovery process. FED. R. CIV. P. 26(e)(1).
Preliminarily, the Court notes that it will not strike the affidavit in its entirety, even if the
portions of it to which Ford objects were not timely disclosed. The issue before the Court is whether
the information and opinions contained within the affidavit differ materially from the information
and opinions disclosed to Defendants in Meyer’s report and his deposition. Ford has only
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specifically challenged four paragraphs of the affidavit. If they are not materially different, the
evidence is admissible at trial – barring other issues not raised here – and the Court may consider
it when deciding dispositive motions. If they are materially different, the Court must decide whether
to exclude it, in which case the Court could not consider it when deciding the parties’ dispositive
motions. When deciding whether to exclude expert testimony for a party’s failure to disclose it, the
Court considers the following factors: “(1) the explanation for the failure . . . ; (2) the importance
of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a
continuance to cure such prejudice.” Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875,
883 (5th Cir. 2004); see also EEOC v. Gen. Dynamics Corp., 999 F.2d 113, 115 (5th Cir. 1993).
A.
Meyer’s Previous Testimony Regarding Belt Spoolout
In paragraph 14 of the affidavit,3 Meyer suggests that “belt spoolout from an unlocked
retractor” contributed to “[s]lack in the shoulder belt portion of the 2nd row right restraint.” Ford
argues that Meyer previously testified that he could not state whether, to a reasonable degree of
engineering certainty, the right belt experienced any spoolout.
Both Meyer’s report and the affidavit contain the same language regarding belt spoolout. In
fact, paragraph 14 of the affidavit appears to have been taken word-for-word from Meyer’s expert
report. Therefore, the opinion was timely disclosed. To the extent Defendants argue that Meyer
contradicted his disclosed opinion during his deposition, that goes toward the weight or reliability
of the opinion, matters properly addressed in a Daubert motion or in cross-examination at trial.
B.
Meyer’s Analysis of Other Similar Incidents
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Plaintiffs attached the affidavit at issue [231-1], Meyer’s expert report [231-3], and a
transcript of Meyer’s deposition [231-4] as exhibits to their response to Ford’s motion to exclude
Meyer’s testimony.
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In paragraph 17 of the affidavit, Meyer represented that his opinions are based upon
“empirically tested information, or ‘field data,’” including “[a]nalysis of several other similar
incidences [sic] . . . described and identified in [his] report and during [his] deposition in this
matter.” Defendant argues that Meyer previously testified that he had not analyzed other similar
incidents in preparing his opinions in this case, and that he had only just considered the issue as he
traveled to the deposition. In response, Plaintiffs addressed Meyer’s testimony regarding other
similar incidents of the four specific ways in which the seatbelt system allegedly failed: film spool,
retractor failure, mounting bracket failure, and anchor deformation.
In reply, Ford failed to specify the other similar incidents to which they objected, and Ford
did not address Plaintiffs’ arguments as to each area of alleged failure. Rather, Ford merely recited
general law regarding the timely disclosure of expert testimony. The deposition testimony which
Ford addressed in its initial brief related to other similar incidents of film spool. However, the
language employed by Meyer in the affidavit can be interpreted to encompass other similar incidents
related to any part of the seatbelt system. Accordingly, the Court will analyze Ford’s objection to
Meyer’s “other similar incidents” testimony as it pertains to each of the four ways Plaintiffs allege
the seatbelt system failed.
1.
Film Spool
Plaintiffs first addressed film spool which allegedly caused additional slack in the seatbelt.
Although Plaintiffs’ briefing is less than clear on this point, it appears that Plaintiffs contend
Defendants were aware that film spool generally occurs in rollover accidents, as evidenced by their
own witnesses’ testimony and Meyer’s testimony. However, this fails to address the primary thrust
of Ford’s motion – Plaintiffs’ purported failure to disclose Meyer’s reliance on other similar
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incidents of film spool.
While Meyer referred to film spool during his deposition and briefly discussed it, he did not
provide any specific data regarding other similar incidents. Regardless of whether the parties agree
that film spool generally occurs in rollover accidents, if Plaintiffs intended to put on expert
testimony supported by analysis of other specific incidents, they had an obligation to disclose the
information relied upon by their expert. As it stands, Meyer only testified that, in his general
experience, a certain degree of film spool was typical in rollover accidents, but he did not present
any specific data.
In the affidavit, Meyer used the term “incidences,” rather than the term “incidents.” This
juxtaposition provides an opportunity to illustrate the Court’s point. An “incident” is a distinct,
individual event, while “incidence” refers to the frequency of an event’s occurrence. Meyer’s report
and deposition testimony contained no specific information regarding other similar incidents of film
spool. However, he made general observations based on his own experience regarding the incidence
of film spool. Accordingly, Plaintiffs provided Defendants with notice of his testimony as to the
latter, but not as to the former. They have not provided any explanation to justify this failure.
Therefore, Meyer may testify – as he did during his deposition – that in his general experience, film
spool typically happens in rollover accidents. However, he may not refer to other specific incidents
of film spool, as Plaintiffs failed to disclose such testimony.
2.
Retractor Failure
At deposition, Meyer testified that he was not sure whether he would testify at trial as to
other similar incidents of retractor failure, but he provided Defendants with approximately twenty
test reports from other cases. However, he also testified that he had not performed similar tests in
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this case. Therefore, it is clear that Plaintiffs did not disclose any substantive analysis of other
similar incidents of retractor failure or comparison of those incidents to the present one. Further, it
is undisputed that Meyer did not conduct retractor tests similar to those conducted in the other cases.
The mere provision of test reports from other cases only constitutes a portion of what
Plaintiffs were obligated to disclose if they wished to present an expert opinion comparing other
similar retractor failures to the one alleged in this case. For example, Plaintiffs failed to provide any
test results from this case, or Meyer’s actual analysis. Plaintiffs provided no explanation for this
failure. Therefore, to the extent Plaintiffs seek to introduce expert testimony in which Meyer
compares retractor failure in this case to other similar incidents of retractor failure, such testimony
is barred because Plaintiffs failed to timely disclose it or all the information underlying it.
3.
Mounting Bracket Failure
Plaintiffs do not dispute that they failed to disclose Meyer’s opinions regarding other similar
incidents of mounting bracket failure. Rather, they claim to have been unaware that evidence of
other similar incidents existed until the depositions of Defendants’ corporate representatives on
March 8-10, 2011. Plaintiffs requested such information as early as their initial discovery requests,
which were served in late December 2009. When Ford responded to Plaintiffs’ initial discovery
requests in late January 2010, it produced a number of documents and videos relevant to the design
and performance of the rear seating positions in side and rollover accidents. According to Plaintiffs’
brief, Defendants produced a list of several hundred crash tests and over one hundred testing videos.
This collection of testing information apparently included examples of mounting bracket
failure. Ford’s counsel identified it as potentially responsive to Plaintiffs’ queries regarding crash
tests resulting in broken mounting brackets in a letter dated March 29, 2011 – two days before the
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discovery deadline, and over a year after Ford’s discovery responses were served. In the initial
discovery responses, though, Ford failed to identify any crash test information as responsive to
Plaintiffs’ specific request for evidence of other similar incidents of mounting bracket failure.
Plaintiffs discovered the evidence during the depositions of Ford’s corporate representatives. One
of the corporate representatives alluded to a crash test in which a mounting bracket experienced
“separation.” Plaintiffs’ counsel followed up on the issue, leading to Ford’s counsel’s letter of March
29, 2011.
Plaintiffs’ have provided a satisfactory explanation for their failure to disclose Meyer’s
testimony regarding other similar incidents of mounting bracket failure. Plaintiffs served a
production request specifically targeting other similar incidents of mounting bracket failure, and
Defendants did not identify any documents responsive to it until well after Plaintiffs’ expert
designation deadline, and on the eve of the discovery deadline. Meyer’s opinion on this issue is
pertinent to determination of whether the product in question was defective when it left Ford’s
control. See MISS. CODE ANN. § 11-1-63(a)(i). Additionally, Meyer’s testimony on the issue will be
relevant if Plaintiffs receive a favorable verdict as to Ford’s liability and are permitted to present
evidence relevant to punitive damages. See MISS. CODE ANN. § 11-1-65(e).
Ford has been in possession of the testing data longer than Plaintiffs have, and it is likely
more prepared to discuss it than Plaintiffs are, as it conducted the tests to begin with. However, Ford
has not yet been provided any substantive notice of what Plaintiffs’ expert intends to say regarding
the crash tests in question. Plaintiffs had the crash test evidence in their possession for almost a year
before their expert designations deadline, as Ford produced it in response to a general request for
production concerning testing data. However, Ford had an obligation to identify the specific data
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and documents that were responsive to Plaintiffs’ discovery request concerning other similar
incidents of mounting bracket failure. Neither wholesale admission nor wholesale exclusion of the
testimony would be equitable in this case.
Therefore, the Court will allow Meyer’s testimony regarding the other similar incidents of
mounting bracket failure during crash testing, but the Court will consider granting a continuance of
trial if Defendants believe that they need more time to prepare. If Plaintiffs intend to present Meyer’s
expert testimony on the subject, they must provide Defendants with a supplementary expert report
which includes Meyer’s expected testimony regarding the other similar incidents of mounting
bracket failure. Plaintiffs shall provide Defendants with a supplementary report within seven days
of the entry of this order. If Defendants believe that a continuance of trial is necessary to fully
prepare for Meyer’s testimony on this subject, Defendants may file a motion for a continuance
within three days of their receipt of the supplemental report, outlining why a continuance is
necessary. The Court cautions the parties: this order is not a license to delay trial preparation. The
Court has not decided whether it will grant any continuance, and the decision will likely be
determined by the nature of Meyer’s expected testimony and the amount of preparation it demands
from Defendants.
4.
Anchor Deformation
Plaintiffs argue that Meyer generally discussed the occurrence of anchor deformation and
corresponding D-ring movement during his deposition and in his report. Plaintiffs further argue that
Meyer specifically discussed the manner in which another automobile manufacturer addressed these
particular rollover issues. However, with regard to anchor deformation in Ford vehicles, Meyer
briefly stated that certain spit tests provided a basis for his alternative designs which would reduce
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anchor deformation. Indeed, Plaintiffs admit that Meyer’s discussion of other similar incidents
related primarily to retractor failure, and they did not provide any explanation for their failure to
disclose his potential testimony as to other similar incidents of anchor deformation. Therefore, to
the extent Plaintiffs seek to introduce expert testimony in which Meyer discusses other similar
incidents of B-pillar deformation, C-pillar deformation, and D-ring movement, such testimony is
barred because Plaintiffs failed to timely disclose it or all the information underlying it – with the
exception of the aforementioned spit test data, which was discussed during Meyer’s deposition.
C.
Meyer’s Opinions Regarding Tensile Strength of the Aluminum Rivet
In paragraph 23 of the affidavit, Meyer addressed the performance of an aluminum rivet
which secured the mounting bracket for the right rear buckle and center lap belt to the vehicle’s
frame. He stated that “calculations based upon published tensile strength ratings from an aluminum
rivet of this size further confirm that the rivet could not reasonably be expected to be a structural
attachment as it will fail in the subject configuration when loaded with less than 100 pounds.” Meyer
stated that this opinion was confirmed by his previous deposition testimony “that one of [his]
employees was able to simply pull apart by hand the mounting bracket from the rear buckle and
center rear lap belt through tensile failure of the rivet.” Meyer believed that further testing regarding
tensile strength was not necessary, in light of the rivet’s inability to withstand application of pressure
by hand. Defendants argue that Plaintiffs have never disclosed any opinions from Meyer regarding
tensile strength.
Meyer clearly discussed the strength of the rivet during his deposition, pointing out that
Ford’s own expert testified that the rivet could not withstand the pressure exerted during a rollover
accident. Further, Meyer noted that his assistant had broken the rivet by hand. Therefore, Meyer may
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address the rivet’s strength within the scope of his prior testimony. However, Plaintiffs did not
disclose anything beyond Meyer’s general observations of the rivet’s strength or provide any
explanation for their failure to do so. Therefore, Meyer may not discuss any testing, research, or
analysis which was not timely disclosed to Defendants. For example, in the affidavit Meyer refers
to “calculations based upon published tensile strength ratings for an aluminum rivet of this size.”
Meyer’s report contains no such calculations, and Plaintiff failed to identify Meyer’s discussion of
them at deposition. Prior to the affidavit, Meyer only generally addressed the strength of the rivet,
without reference to tensile strength ratings. Accordingly, such testimony is barred.
D.
Meyer’s Discussion and Diagrams Related to Belt Geometry
In Paragraph 26 of the affidavit, Meyer discussed geometric differences between alternative
designs and the subject seatbelt buckle and bracket, and how the differences resulted in differing
levels of lateral displacement of passengers. In support of this discussion, Meyer presented diagrams
illustrating the geometric differences between his proposed bracket design and the one built into the
Explorer. Ford argues that, prior to the affidavit at issue, Plaintiffs did not disclose any opinion
regarding belt geometry or any diagrams in support of such an opinion.
During his deposition, Meyer discussed the impact that the buckle stalk’s length has on
lateral displacement of passengers. Therefore, Defendant’s were made aware of his opinion on the
issue during discovery. However, it is undisputed that Plaintiffs did not disclose the diagrams
illustrating the difference in buckle stalk length prior to the affidavit, and Plaintiffs did not provide
any explanation for their failure to do so. Accordingly, Plaintiff is barred from presenting the
diagrams at trial, but Meyer may discuss the impact of buckle stalk length within the parameters
established by his deposition testimony.
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III. CONCLUSION
For the reasons stated above, Ford’s Motion to Strike [244] the affidavit of Steven Meyer
is granted in part and denied in part. Specifically:
•
The motion is denied as to Meyer’s testimony addressing belt spoolout.
•
The motion is denied as to Meyer’s testimony that film spool generally
occurs in rollover accidents, but it is granted as to his testimony regarding
other specific incidents of film spool.
•
The motion is granted as to Meyer’s testimony regarding other similar
incidents of retractor failure.
•
The motion is denied as to Meyer’s testimony regarding other similar
incidents of mounting bracket failure. However, within seven days of the
entry of this order Plaintiffs shall provide Defendants with a supplemental
expert report detailing Meyer’s opinions regarding other similar incidents of
mounting bracket failure. If Defendants believe that a continuance of trial is
necessary to properly address the proposed expert testimony, they shall file
a motion for a continuance within three days of service of Plaintiffs’
supplemental report.
•
The motion is granted as to Meyer’s testimony regarding other similar
incidents of B-pillar deformation, C-pillar deformation, and D-ring
movement. However, it is denied as to Meyer’s testimony regarding certain
spit test data which displayed the effects of such anchor deformation.
•
The motion is denied as to Meyer’s general observations regarding the
strength of the aluminum rivet and his assistant’s application of force by
hand. However, the motion is granted as to any calculations, testing, or
analysis not disclosed to Defendants, including his discussion of tensile
strength ratings.
•
The motion is denied as to Meyer’s discussion of belt geometry, but it is
granted as to Meyer’s belt geometry diagrams.
SO ORDERED AND ADJUDGED this 23rd day of June, 2011.s
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
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