Hart v. Missoula Saws, Inc. et al
Filing
27
ORDER granting 23 Motion to Strike Signed by Jeremiah C. Lynch on 9/6/2012. (TXB, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
_____________________________________________
LAURA HART,
CV-11-128-M-DWM-JCL
Plaintiff,
vs.
ORDER
MISSOULA SAWS, INC., BRIAN
MILLER, and JOHN DOES 1 to 10,
Defendants.
_____________________________________________
Defendants Missoula Saws, Inc. and Brian Miller have moved to strike
Plaintiff Laura Hart’s expert witness, John Daily, and preclude him from testifying
on the ground that Plaintiff’s expert disclosure was untimely and improper.
Alternatively, Defendants argue that Daily’s testimony should be excluded under
Federal Rule of Evidence 403 because its probative value would be substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury.
“Expert witness disclosure requirements are strictly enforced,” and “[t]he
Court has discretion to exclude expert witness testimony due to an inadequate
expert disclosure.” McCluskey v. Allstate Ins. Co., 2006 WL 5230018 * 3 (D.
-1-
Mont. 2006) (citing Yeti By-Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101,
1106 (9th Cir. 2001). Exclusion is an appropriate remedy unless there is evidence
that the “failure to disclose the required information [was] substantially justified or
harmless.” Yeti By-Molly, 259 F.3d at 1106.
The original Fed. R. Civ. P. 16 scheduling order entered in this case
required that Plaintiff disclose her liability and damages experts by May 4, 2012.
Dkt. 18, at 1. Pursuant to a subsequent stipulation by the parties, the Court
extended the deadline for disclosure of Plaintiff’s damages experts to July 9,
2012. Dkt. 21. In apparent compliance with the newly-established deadline,
Plaintiff disclosed Daily as a damages expert on July 9, 2012.
Defendants nonetheless argue that the disclosure was improper and
untimely because Daily’s opinions do not relate to damages, making him a liability
expert rather than a damages expert. Because the liability expert disclosure
deadline was May 4, 2012, Defendants contend that Plaintiff’s disclosure was
untimely. Plaintiff disagrees with Defendants’ characterization, however, and
maintains that Daily’s opinions go solely to the issue of damages. Plaintiff thus
stands by her position that she timely and properly disclosed Daily as a damages
expert in compliance with the July 9, 2012, deadline.
Whether Daily is in fact a damages expert as Plaintiff maintains, or a
-2-
liability expert as Defendants contend, turns on the nature of his expected opinion
testimony under Fed. R. Evid. 702, and the contents of his expert report. This is a
negligence case wherein Plaintiff alleges that while walking in a gas station
parking lot, she was struck and injured by a vehicle driven by Defendant Brian
Miller. Daily explains that his assignment “in this case is limited to determining
the speed at impact and the resulting forces acting upon” Plaintiff at the time of
the accident. Dkt. 24-2, at 1. Daily concludes that Miller’s truck was traveling at
“a speed of about 7 mph at impact,” and the collision force would have been
“between 637lb to 1275 lb.” Dkt. 24-2, at 2. And based on “the photos of her
injuries,” Daily explains that “this force was concentrated between her upper left
chest and left hip areas.” Dkt. 24-2, at 3. In Daily’s opinion, “[t]his is consistent
with the location of her injuries and is consistent with a forward projection
trajectory.” Dkt. 24-2, at 3.
Plaintiff argues that Daily’s task, which was limited to determining the
speed at impact and resulting forces, was a “damages assignment” because it did
not require him to reconstruct the accident or describe why and how it occurred.
Dkt. 25, at 6. As Plaintiff sees it, Daily’s opinion relates exclusively to the issue
of damages because it addresses “the nature and extent of the impact suffered by
Plaintiff at the hands of Defendants, and describes the force imposed by the truck
-3-
on her body.” Dkt. 25, at 3.
But Plaintiff’s argument overlooks the well-recognized distinction between
injury and damages. “To maintain an action in negligence, the plaintiff must
prove four essential elements: (1) the defendant owed the plaintiff a legal duty, (2)
the defendant breached that duty, (3) the breach was the actual and proximate
cause of an injury to the plaintiff, and (4) damages resulted.” Peterson v.
Eichhorn, 189 P.3d 615, 620-21 (Mont. 2008). In Montana, “[e]very person is
responsible for injury to the person [or property] of another, caused by his/her
negligence.” Mont. Pattern Jury Instr. Civil § 3.00 (2d ed. 2003). Likewise,
“[e]very person who suffers detriment from the unlawful act or omission of
another may recover from the person in fault a compensation therefor in money,
which is called damages.” Mont. Code Ann. § 27-1-202. As these sources reflect,
proof of injury is necessary to establish liability for negligence, while “damages”
is a term of art referring to the monetary amount necessary to compensate the
plaintiff for his or her injury. The language of the Rule 16 scheduling order
relating to expert witness disclosures is based upon, and consistent with, this
distinction between injury and damages.
Because Daily’s task was limited to determining speed at impact and
collision force, his opinion could be relevant only for purposes of establishing the
-4-
cause of Plaintiff’s personal injuries and thus, Defendant’s liability. For all intents
and purposes, Daily is a liability expert, which means that Plaintiff was required to
disclose his opinion by the May 4, 2012, deadline. As noted above, however,
Plaintiff did not disclose Daily as an expert until July 9, 2012. Because Plaintiff
has not shown that her failure to timely disclose Daily was substantially justified
or harmless, the Court finds that the appropriate remedy under the circumstances is
to exclude his testimony.1 Accordingly,
IT IS ORDERED that Defendant’s motion to strike Daily as an expert is
GRANTED.
DATED this 6th day of September, 2012.
Jeremiah C. Lynch
United States Magistrate Judge
1
Because Daily’s testimony is properly excluded on this basis, the Court
need not address Defendants’ alternative argument that the testimony should be
excluded under Rule 403.
-5-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?