Speaks v. Mazda Motor Corporation et al
ORDER denying 228 Motion for Leave to File Supplemental Expert Report; denying 238 Motion in Limine. White Ms. Hoffman may testify at trial, her testimony is limited to the opinions disclosed in her initial report (dated November 2014). Signed by Judge Donald W. Molloy on 2/14/2018. (NOS)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
FEB 14 2018
Clerk, U.S Courts
District Of Montana
INCARNACION L. SPEAKS,
MAZDA MOTOR CORPORATION, and
MAZDA MOTOR OF AMERICA, INC.,
d/b/a MAZDA NORTH AMERICA
In January 2011, Plaintiffincamacion Speaks ("Speaks") was involved in a
motor vehicle accident while riding in the front passenger seat of her 1994 Mazda
Protege DX four-door sedan ("Protege"). (Final Pretrial Or., Doc. 142 at ,-r IV(F).)
The Protege was equipped with automatic passive shoulder and manual lap belts
for the front seat occupants. (Id. at ,-r IV(G).) At the time of the collision, Speaks
was wearing both the automatic shoulder belt and manual lap belt. (Id.) In
January 2014, Speaks sued Defendant Mazda Motor Corporation and its related
entities ("Mazda"), alleging her Protege's seat belt system failed to restrain her
properly and caused life-threatening internal injuries. (Doc. 1 at ,-r 10.) In October
2015, a jury returned a verdict in favor of Mazda after a 7-day trial. (Doc. 189.)
Speaks appealed, (Doc. 193), and, in July 2017, the case was remanded for a new
trial, (Doc. 207). Trial is scheduled for May 14, 2018. (Sched. Or., Doc. 226.)
Speaks seeks leave for her biomechanical expert Michelle Hoffman to
supplement her initial November 2014 expert disclosure with materials from
January 2015 and November 2017. (Doc. 228.) Mazda seeks to exclude Ms.
Hoffman's testimony in its entirety. (Doc. 238.) Substantially similar motions
were raised before Judge Christensen prior to the first trial, and both were denied.
(See Docs. 80, 125.) As explained below, Ms. Hoffman's testimony will be
limited to that disclosed in November 2014 report.
On January 16, 2015-approximately two months after the expert disclosure
deadline-Speaks supplied Mazda with new materials supporting Ms. Hoffman's
original report, consisting of 74 photographs and three pages of notes
documenting an additional surrogate study that Ms. Hoffman completed on or
about January 6, 2015. (Doc. 229 at 2.) Mazda objected to the supplementation as
untimely, (Doc. 59), and, on March 16, 2015, Judge Christensen granted Mazda's
motion to preclude Ms. Hoffman from testifying as to the evidence and opinions
disclosed in January 2015, (Doc. 80). Ms. Hoffman testified at the October 2015
trial. (See Trial Tr., Vol. II.)
Following remand, a second preliminary pretrial conference was held on
October 4, 2017, and an updated Scheduling Order was entered, setting a
discovery deadline of December 1, 2017. (Doc. 226,
1.) Discovery was
limited, however, "to updated medical and employment records." (Id.) Per the
parties, no deadlines were set for expert disclosures because they were considered
"completed." (See id.) Nevertheless, Speaks now seeks to "supplement" Ms.
Hoffman's report with the January 2015 material, as well as a more recent report,
dated November 27, 2017. (See Doc. 229-1.) She insists that Mazda would not be
prejudiced as it has time to review the materials. Mazda, on the other hand, argues
that Speaks' request was already adjudicated by Judge Christensen, and that the
late disclosures are barred by Rule 26. Mazda has the better argument.
Mazda first argues that because Speaks' motion requests reconsideration of
Judge Christensen's March 2015 Order, (see Doc. 80), she was required to seek
leave and must show:
the facts or applicable law are materially different from the
facts or applicable law that the parties presented to the
court before entry of the order for which reconsideration is
despite the exercise of reasonable diligence, the party
applying for reconsideration did not know such fact or law
before entry of the order; or
new material facts arose or a change of law occurred after entry
of the order.
L.R. 7.3(b). Here, the only changed circumstance is the fact the matter has been
remanded for a new trial. Indeed, Speaks seeks to "supplement" Ms. Hoffman's
disclosure in almost the exact same fashion-including much of the same
material-as she did prior to Judge Christensen's 2015 Order. Remand alone did
not reopen the opportunity for expert disclosure or further discovery. See
Millenkamp v. Davisco Food Jnt'l Inc., 2009 WL 3430180, at *2 (D. Idaho Oct.
22, 2009) (recognizing that "[t]he fact that a new trial has been set does not restart
the entire case"). And, "where litigants have once battled for the court's decision,
they should neither be required, nor without good cause permitted, to battle for it
again." Disimone v. Browner, 121F.3d1262, 1266-67 (9th Cir. 1997) (quotation
marks and citation omitted). But, even assuming remand gave Speaks a second
bite at the apple, she is still not entitled to relief under Rule 26.
Supplemental Report under Rule 26(e)
Speaks identifies Ms. Hoffman's late disclosure as "supplemental."
However, under Rule 26(e)(l) a supplemental report may only be filed: "1) upon
court order 2) when the party learns that the earlier information is inaccurate or
incomplete; or 3) when answers to discovery requests are inaccurate or
incomplete." Keener v. United States, 181 F.R.D. 639, 640 (D. Mont. 1998).
Unless Speaks is conceding that the disclosure made on November 17, 2014, was
inaccurate or incomplete, neither the January 2015 nor the November 2017
disclosure is a supplemental disclosure under the rules. Rather, "[w]hat is set forth
in the [later] report[s] is the information, reasoning and opinions that Rule 26
requires be disclosed in the critical initial disclosure." Id. Speaks' late disclosure
is therefore not permitted by Rule 26(e).
Evidence is "rebuttal" evidence if it is "intended solely to contradict or rebut
evidence on the same subject matter identified by another party under Rule
26(a)(2)(B) or (C)" and the disclosure is made "within 30 days after the other
party's disclosure." Fed. R. Civ. P. 26(a)(2)(D)(ii). Speaks' proposed disclosure
fails on both fronts. First, while it partially addresses Mazda's expert testimony,
(see Doc. 229-1 at 2 ("This letter will serve as my rebuttal of the opinions
expressed by Dr. Scott in his November 19, 2014 report and March 5, 2015
deposition.")), it also encompasses an independent survey of the car and
circumstances of the accident, (see Attachments, Doc. 59). Second, the final
disclosure date of Dr. Scott's expert testimony (Mazda's expert) was November
19, 2014. Speaks' "rebuttal" was therefore due by December 2014, but was not
disclosed until almost three years later. Speaks' late disclosure does not qualify as
rebuttal evidence as to be admissible under Rule 26.
Rule 3 7(c)( 1) "gives teeth" to Rule 26' s expert disclosure requirements "by
forbidding the use at trial of any information ... that is not properly disclosed."
Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir.
2001). However, "[t]he information may be introduced ifthe parties' failure to
disclose [it] ... is substantially justified or harmless." Id. Speaks does not
provide any justification for the late disclosure, merely arguing that Mazda is not
prejudiced because trial is still months away. Her only recourse is then to show
that the lack of timely disclosure was harmless. Mazda insists that the late
disclosure threatens the other deadlines set by the Court and would potentially
require additional discovery despite the fact the discovery deadline on remand
(which only allowed for limited discovery) ran on December 1, 2017.
"Courts set such schedules to permit the court and the parties to deal with
cases in a thorough and orderly manner, and they must be allowed to enforce them,
unless there are good reasons not to." Wong v. Regents ofU of Cal., 410 F.3d
1052, 1062 (9th Cir. 2005). "Disruption to the schedule of the court and other
parties [due to late disclosures] is not harmless." Id. Speaks had numerous
opportunities to raise her expert disclosure issues. The case was remanded in July
201 7 and the Court held a preliminary pretrial scheduling conference in October
2017. But, Speaks waited until directly prior to the close of discovery and
approximately one month before the motions deadline to seek relief. See
Millenkamp, 2209 WL 3430180, at *4 ("Had the parties desired to reopen
discovery and dispositive motions [on remand], they should have asked leave of
the Court to do so."). And, as Mazda argues, while Mazda deposed Ms. Hoffman
in 2015, the report includes more recent information and entirely new comments
as to Dr. Scott's opinions. Because Speaks' late disclosure is neither substantially
justified nor harmless, her motion to supplement is denied.
Sufficiency of the Initial Disclosure
Mazda moves, as it did before Judge Christensen, to exclude Ms. Hoffman
from testifying as an expert on separate grounds, now asserting that her testimony
during the October 2015 trial confirmed that she lacks sufficient facts to support a
specific injury causation opinion. (Doc. 238.) Because Ms. Hoffman's November
2014 disclosure and opinions meet the threshold requirements of Rule 702 and
Daubert, 1 she is permitted to testify to the contents of that disclosure.
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
As a preliminary matter, Mazda's motion suffers from the same procedural
hurdle as Speaks': Mazda's motion to exclude was previously ruled on by Judge
Christensen, (see Doc. 125), requiring Mazda also meet the requirements of Local
Rule 7.3. However, unlike Speaks, Mazda has at least some argument that the
content of Ms. Hoffman's actual trial testimony constitutes a material change in
facts. Even so, complete exclusion of Ms. Hoffman's testimony is not warranted.
Pursuant to the Federal Rules of Evidence, "[a] witness who is qualified as
an expert by knowledge, skill, experience, training, or education may testify in the
form of an opinion or otherwise if[, inter alia,] ... the testimony is based on
sufficient facts or data." Fed. R. Evid. 702(b). Mazda argues that Ms. Hoffman's
report does not include sufficient facts and data as to opine whether Speaks
suffered injuries while wearing the belt routed over her shoulder. Mazda cites to
Ms. Hoffinan' s trial testimony wherein Ms. Hoffman concedes that the basis for
her conclusion that the belt was routed over the shoulder was a nursing note "that
may have been misinterpreted" and Speaks' testimony as to the belt's placement.
(See Doc. 239-1at4.) However, the trial testimony merely emphasizes that the
placement of the belt remains a disputed issue of fact. That dispute existed at the
time Judge Christensen made his original ruling. (See Doc. 125 at 10-14.) As in
the first trial, Mazda can cross-examine Ms. Hoffman as to the validity of her
conclusions by challenging her assumptions regarding the placement of the belt.
Mazda's motion is denied.
IT IS ORDERED that Speaks' motion to supplement (Doc. 228) and
Mazda's motion to exclude (Doc. 238) are DENIED. While Ms. Hoffman may
testify at trial, her testimony is limited to the opinions disclosed in her initial
report (dated November 2014).
_}!j_);r;y of February, 2018.
. Mol oy, District Judge
ates D strict Court
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