Griffith et al v. Goodyear Dunlop Tires North America LTD
Filing
234
DECISION AND ORDER DENYING Plaintiffs' 188 189 Motions in Limine; DENYING Defendant's 184 186 190 191 195 196 198 199 Motions in Limine; GRANTING Defendant's 185 187 193 194 197 200 Motions in Limine; GRANTING in Part and DENYING in Part Defendant's 192 Motion in Limine; DIRECTING that Plaintiffs produce to Defendant an expert report from Dr. Reiber that fully complies with Rule 26 (a)(2)(B) within 14 days of the entry date of this decision. Signed by William M. Skretny, United States District Judge on 9/28/2018. (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DANIEL GRIFFITH and DIANE GRIFFITH,
Plaintiffs,
v.
DECISION AND ORDER
11-CV-761S
GOODYEAR DUNLOP TIRES
NORTH AMERICA LTD,
Defendant.
I. INTRODUCTION
Plaintiffs Daniel and Diane Griffith filed this product liability and personal injury
action after a motorcycle crash that occurred on July 29, 2009, in Colusia County,
California.
Plaintiffs claim that a manufacturing defect in the Dunlop D402 motorcycle
tire mounted on the rear wheel of their Harley Davidson motorcycle caused the tire to
suddenly and unexpectedly blowout, causing the crash and Plaintiffs’ personal injuries
and damages.
Defendant Goodyear Dunlop Tires North America (now known as Sumitomo
Rubber USA, LLC) manufactured the tire.
Defendant contends that the tire was not
defective and that the crash was instead caused by Plaintiffs’ improper use and
maintenance of the tire.
There is no dispute that Plaintiffs were injured in the crash.
Defendant, however, disputes the extent of Plaintiffs’ injuries.
California law applies.
Presently before this Court are the parties= motions in limine seeking various forms
of relief.
(Docket Nos. 184-200.) The motions are resolved below.
1
II. DISCUSSION
Familiarity with the facts and underlying arguments raised in the various motions
in limine is presumed.
Motions in limine, when granted, operate to exclude inadmissible or prejudicial
evidence before it is actually offered at trial.
See Luce v. United States, 469 U.S. 38, 40
n. 2, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984).
This aids the trial process by narrowing
evidentiary issues and decreasing trial interruptions.
136, 141 (2d Cir. 1996).
inadmissible on all grounds.
See Palmieri v. Defaria, 88 F.3d
Evidence is excluded before trial only when it is clearly
United States v. Morel, 751 F. Supp. 2d 423, 428 (E.D.N.Y.
2010). A court faced with a motion in limine may defer decision to resolve the motion in
context at trial or may resolve the motion and revisit the ruling if the trial evidence does
not come in as expected.
42).
Morel, 751 F. Supp. 2d at 428 (citing Luce, 469 U.S. at 41-
But even if nothing unexpected occurs at trial, a court may revisit in limine rulings
at any time in the exercise of its discretion. Luce, 469 U.S. at 41-42.
A.
Plaintiffs’ Motions in Limine
1.
Motion to Preclude Defendant’s Expert Witnesses
(Docket Nos. 188, 208, 209)
Plaintiffs seek to preclude the proposed testimony of Defendant’s liability experts
James Gillick, Gary Bolden, and Jay Lawrence under Federal Rule of Evidence 403 on
the basis that their testimony will be needlessly cumulative if all three witnesses testify.
Plaintiffs maintain that there is “substantial overlap” in the proffered testimony of these
three witnesses.
(See Docket No. 172.)
They further maintain that Defendant’s expert
disclosures for Bolden and Lawrence are exactly the same.
2
In response, Defendant states that it has no intention of presenting cumulative
evidence, and in fact, Bolden will testify only if Lawrence is unavailable.
It further notes
that Gillick and Lawrence will testify about their individual opinions, which are based on
their different educations, perspectives, backgrounds, and experiences.
Both Gillick and
Lawrence were deposed in this case.
This Court will not permit repetitious or unnecessarily cumulative evidence to be
presented at trial. At this point, Defendant has expressed its intention to not present
such evidence.
Plaintiffs’ motion to preclude Defendant’s experts (Docket No. 188) is
therefore denied at this time, subject to renewal at trial if cumulative evidence is
presented.
2.
Motion to Preclude Certain Defense Exhibits
(Docket Nos. 189, 207, 210)
Plaintiffs seek to preclude Defendant from using demonstrative animations and
exhibits of various processes performed in the manufacturing plant.
These animations
are listed as Defendant’s Exhibits IIIIII (calendaring process) and JJJJJJ (dip tank
process). Plaintiffs also challenge Defendant’s Exhibit PP, which is a still shot from the
dip tank animation.
Defendant intends to use these exhibits in conjunction with witness
testimony to help explain the manufacturing process of the subject tire to the jury.
Plaintiffs challenge these exhibits on the basis that Defendant failed to disclose
them in discovery, they are not accurate depictions of the processes, and Plaintiffs had
no access to the underlying machinery and processes that are exclusively in Defendant’s
control.
Defendant maintains that because the exhibits are demonstrative only, they
were not required to be disclosed and are not required to be substantially similar to the
3
processes that they represent.
Moreover, Defendant maintains that Plaintiffs may
challenge the accuracy of the animations on cross-examination.
This Court agrees with Defendant that, as demonstrative aides, these exhibits
were not required to be disclosed in discovery, and it is this Court’s understanding that
Plaintiff did not specifically request production of demonstrative exhibits.
It is further this
Court’s understanding that, due to related litigation between counsel in state court,
Plaintiffs’ attorney has been on notice of these animations for several years. This Court
therefore finds no prejudice due to lack of notice.
As to the accuracy of the animations, this Court finds that they need not be
substantially similar to the actual processes because they will be used as demonstrative
exhibits to help the jury understand the actual process, which the witnesses will testify
about. The evidence of the actual processes will be the witnesses’ testimony, not the
demonstrative animations, which will hold no evidentiary value.
For this reason, before
using the demonstrative exhibits, Defendant must elicit testimony or introduce evidence
of the actual processes that the demonstrative exhibits are intended to help explain.
Depending on how the testimony comes in, Defendant may be able to use the
demonstrative exhibits to help explain the processes.
Finally, Plaintiffs’ inaccuracy arguments go to the weight to be afforded the
evidence, not to admissibility.
As such, this Court agrees that Plaintiffs may use cross-
examination to explore the claimed inaccuracies in the animations. Plaintiffs contend,
however, that their ability to cross examine is impaired because they did not receive
discovery on certain portions of the process depicted in the animations, such as various
4
equipment and machinery.
If that is the case, and such discovery was available, this
Court will entertain a motion to strike that portion of the animation or to produce additional
discovery.
At this point, this Court lacks sufficient information to make that
determination.
For now, Plaintiffs’ motion to strike the demonstrative exhibits (Docket
No. 189) is denied, subject to further argument at trial before the use of the exhibits.
B.
Defendant’s Motions in Limine
1.
Motion to Preclude Plaintiffs’ Liability Expert
(Docket Nos. 184, 206, 211)
Defendant seeks to preclude Gary Derian, Plaintiffs’ liability expert, from testifying
at trial.
Defendant challenges Derian’s qualifications and alleges that his opinions lack
any basis in fact, science, or sound methodology, and are therefore unreliable.
Derian is expected to testify that the tire at issue suffered from a manufacturing
defect caused by poor bonding between the tire’s polyester cord and rubber skim stock.
This poor bonding, according to Derian, was caused by a lack of adhesive dip on large
portions of the ply.
Defendant maintains that Derian reached this conclusion by simply
observing the tire in its post-accident state. They contend that he conducted no testing,
failed to rule out alternative causes, and disregarded evidence inconsistent with his
opinion.
District courts have broad discretion in deciding the admissibility of expert
testimony, which is governed by Rule 702 of the Federal Rules of Evidence. See United
States v. Farhane, 634 F.3d 127, 158 (2d Cir. 2011) (citing Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 152, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). The rule
provides as follows:
5
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:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b) the testimony is based upon sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
The proponent of expert testimony has the burden of demonstrating by a
preponderance of the evidence that the testimony is competent, relevant, and reliable.
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 n.10, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993); Koppell v. New York State Bd. of Elections, 97 F. Supp.
2d 477, 479 (S.D.N.Y .2000); Bourjaily v. United States, 483 U.S. 171, 107 S. Ct. 2775,
97 L. Ed. 2d 144 (1987)).
As to competence, the requirements to qualify as an expert witness are construed
broadly: “Liberality and flexibility in evaluating qualifications should be the rule[;] . . . the
expert should not be required to satisfy an overly narrow test of his own qualifications.”
Bunt v. Altec Indus., Inc., 962 F. Supp. 313, 317 (N.D.N.Y. 1997) (quoting Lappe v.
American Honda Motor Co., 857 F. Supp. 222, 226 (N.D.N.Y. 1994)). Nor does an
expert’s knowledge about a particular subject need be precisely informed about all the
details of the issue raised to offer an opinion. Id. (citing Thomas J. Kline, Inc. v. Lorillard,
Inc., 878 F.2d 791, 799 (4th Cir. 1989)).
As to relevance, expert testimony is relevant if it tends to make the existence of
any fact that is of consequence to the determination of the action more probable or less
6
probable.
Fed. R. Civ. P. 401; see also Amorgianos v. Nat’l R.R. Passenger Corp., 303
F.3d 256, 264 (2d Cir. 2002).
If the expert witness is competent and the proffered testimony is relevant, the court
then turns to “whether the proffered testimony has a sufficiently reliable foundation to
permit it to be considered” by the trier of fact.
Amorgianos, 303 F.3d at 265. That is,
the court must assume its “gatekeeper role” and make “a preliminary assessment of
whether the reasoning or methodology underlying the [expert] testimony is scientifically
valid and of whether that reasoning or methodology properly can be applied to the facts
in issue.” Daubert, 509 U.S. at 592-93; see also Fed. R. Evid. 702 (Advisory Committee
Notes, 2000 amendment) (noting that trial judges have “the responsibility of acting as
gatekeepers to exclude unreliable expert testimony”).
In considering the reliability of an expert witness’s opinion, the court must
determine “whether the proffered testimony has a sufficiently reliable foundation to permit
it to be considered” by the trier of fact. Amorgianos, 303 F.3d at 265. Expert testimony
must be based on sufficient facts or data and be grounded in reliable methods and
procedures of science; it cannot be based on unsupported speculation or subjective
belief. Daubert, 509 U.S. at 590. In examining the reliability of the expert’s opinion, the
court’s focus is on the methodology employed, rather than the expert’s conclusions. Id.
at 595; TC Sys. Inc. v. Town of Colonie, N.Y., 213 F. Supp. 2d 171, 175 (N.D.N.Y. 2002).
Defendant challenges Derian’s qualifications on the basis that he has no
experience designing, manufacturing, or evaluating motorcycle tires.
This takes too
narrow a view. Derian is a mechanical engineer who has past experience as a tire
7
engineer and product manager at a major tire manufacturer. While Derian now focuses
his efforts on consulting, he has experience designing and testing passenger tires. This
is sufficient knowledge, skill, experience, and training to provide expert testimony in this
case involving tire construction. See King v. Brandtjen & Kluge, Inc., No. 94 Civ. 4111,
2001 WL 1804345, *2 (W.D.N.Y. June 20, 2001) (noting that an expert “should not be
required to satisfy an overly narrow test of his own qualifications”); Canino v. HRP, Inc.,
105 F. Supp. 2d 21, 27 (N.D.N.Y. 2000) (“[A]ssuming that the proffered expert has the
requisite minimal education and experience in a relevant field, courts have not barred an
expert from testifying merely because he or she lacks a degree or training narrowly
matching the point of dispute in the lawsuit.”).
Moreover, Derian has previously been
found to be qualified to render expert opinions on the design and manufacture of tires.
See, e.g., Cruz v. Kumho Tire Co., Inc., Nos. 8:10-CV-219, 8:12-CV-200, 2015 WL
2193796, at *6 (N.D.N.Y. May 11, 2015)
Next, Defendant does not challenge Derian’s opinion on relevancy grounds, and
this Court finds that Derian’s opinions are directly relevant to the issues in this case.
Finally, Defendant challenges Derian’s opinion that there was a lack of bonding in
the tire caused by a lack of adhesive dip on large portions of the #3 ply as being unreliably
based on only his visual and tactile examination of the tire at issue.
Defendant heavily
criticizes Derian’s opinions and methodology, but it makes an insufficient showing that
Derian’s opinions cannot validly be reached through visual and tactile examination, which
Defendant concedes is a reliable method in certain cases.
(See Docket No. 184-13, p.
18.) Thus, the deficiencies that Defendant identifies in Derian’s data, methodology, and
8
opinions go directly to weight (not admissibility), which Defendant can expose on crossexamination and through its own experts.
See Campbell v. Metro. Prop. & Cas. Ins. Co.,
239 F.3d 179, 186 (2d Cir. 2001) (“gaps or inconsistencies in an expert’s reasoning, or
arguments that an expert’s conclusions are wrong, go to the weight of the evidence, not
to its admissibility”) (citations omitted)); McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1044
(2d Cir. 1995) (finding that an expert’s use or application of a methodology goes to weight,
not admissibility).
In this Court’s view, Defendant has not established that Derian’s
opinions are so divorced from accepted methodology that his expert testimony should be
precluded.
See Gen. Elec. Co., v. Joiner, 522 U.S. 136, 146, 118 S. Ct. 512, 139 L. Ed.
2d 508 (1997) (only where there is “too great an analytical gap between the data and the
opinion proffered should an expert’s opinion be excluded”); see also Daubert, 509 U.S.
at 596 (“[v]igorous 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.).
For all of these reasons, Defendant’s motion to preclude Derian’s expert testimony
(Docket No. 184) is denied.
2.
Motion to Preclude Similar Act Evidence
(Docket Nos. 185, 204, 212)
Defendant seeks to preclude Plaintiffs from introducing evidence of other tirefailure incidents that they claim are similar to the incident in this case.
Defendant first
maintains that Plaintiffs cannot establish that the alleged incidents are substantially
similar because their expert witness (Derian) disclosed no opinions related to the other
9
incidents.
Defendant also argues that the introduction of other similar incidents, even if
demonstrated to be similar and deemed relevant, should be precluded under Rule 403
because any probative value would be substantially outweighed by the danger of unfair
prejudice, confusion of the issues, and the need to conduct a trial-within-a-trial on each
claimed incident.
Plaintiffs indicate that they intend to introduce evidence of four other incidents
involving the same model tire (D402) at issue in this case, two of which were
manufactured within the same week as the tire at issue, perhaps using the same batch
of cords. Presumably Plaintiffs intend to introduce this evidence through Derian, who
they say rendered an expert opinion concerning the other tires after examining the
accident reports and testimony concerning those tires.
Plaintiffs maintain that this
evidence is relevant to demonstrating Defendant’s knowledge of the manufacturing
defect.
Evidence of previous accidents may be admitted at trial only if the proponent
demonstrates relevance by establishing that the previous instances occurred under
circumstances substantially similar to the accident at issue.
See Lidle v. Cirrus Design
Corp., 505 F. App’x 72, 74 (2d Cir. 2012).
At this time, this Court will preclude evidence of previous incidents.
Although
there is insufficient information from which this Court can determine whether the previous
incidents are sufficiently similar—Plaintiffs, for example, do not identify in their response
which previous incidents they intend to introduce at trial—it appears that Plaintiffs have
not disclosed any expert opinions on these other tires.
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That is, Plaintiffs have not
disclosed an expert to testify about the previous incidents and how they are substantially
similar to the one at issue in this litigation.
Contrary to Plaintiffs’ representation that
Derian analyzed and opined about the previous incidents in his expert reports, this Court
cannot locate any discussion of prior incidents in either his report (Docket No. 185-5) or
supplemental report (Docket Nos. 185-5, 185-6).
Consequently, at this time, this Court
will grant Defendant’s motion to preclude similar incidents (Docket No. 185) due to
Plaintiffs’ pretrial failure to demonstrate a path of admissibility.
3.
Motion to Preclude Claims Concerning Past Medical Expenses
(Docket Nos. 186, 204, 213)
Motion to Preclude Certain Expert Testimony, the Testimony of Kaiser
Permanente, and the Testimony of Dr. Louis W. Irmisch III
(Docket Nos. 192, 203, 215)
Defendant seeks to preclude any claim for past medical expenses on the basis
that Plaintiffs have not come forward with admissible expert testimony concerning the
reasonableness of those expenses.
(Docket No. 186.)
In particular, Defendant
maintains that Plaintiffs have failed to identify or depose any individual or entity to
establish the reasonable value of the medical treatment that Plaintiffs received.
In response, Plaintiffs contend that Defendant has been generally aware that the
medical providers are claiming a right of recovery for past medical expenses.
Plaintiffs
further contend that their treating physicians will testify to the reasonableness of the past
medical expenses.
Alternatively, Plaintiffs seek to present two newly-disclosed
witnesses to testify as to the reasonableness of their past medical expenses: (1) a
representative of Kaiser Permanente of Northern California (medical provider); and (2)
11
Dr. Louis William Irmisch, III, an expert witness.
Plaintiffs contend that Defendant is not
prejudiced by these two newly-disclosed witnesses because they have known about the
past medical expenses claim since the inception of the case.
In reply, Defendant moves to preclude the two newly-disclosed witnesses for lack
of disclosure and moves to preclude Plaintiffs’ treating physicians from rendering opinions
concerning the reasonableness of Plaintiffs’ past medical costs.
(Docket No. 192.)
On May 21, 2018, this Court denied Plaintiffs’ request to reopen discovery to
depose medical witnesses, which Plaintiffs elected not to do as a cost-saving measure
mistakenly believing that liability and damages would be bifurcated. (Docket No. 230.)
Now Plaintiffs seek to use two newly-identified damages witnesses, neither of which was
disclosed or deposed during the discovery period.
Consistent with the earlier ruling
(Docket No. 230), this Court finds no good cause for the late disclosure of these damagesrelated witnesses. The representative of Kaiser Permanente of Northern California and
Dr. Louis William Irmisch, III, are therefore precluded.
As to Plaintiffs’ treating physicians, they were properly disclosed as treatingphysician experts. While it does not appear as though Plaintiffs specifically identified the
reasonableness of their past medical expenses as a topic about which their treating
physicians would testify, Defendants have known about the issue of past medical
expenses and the treating physicians were timely disclosed.
no unfair prejudice based on notice.
This Court therefore finds
Consequently, at this point, because it is possible
that Plaintiffs may be able to lay a proper foundation for their treating physicians to
expound upon the reasonableness of their past medical expenses, preclusion is not
12
warranted.
See Morel, 751 F. Supp. 2d at 428 (providing that pretrial preclusion is
warranted only when evidence is clearly inadmissible on all grounds). But Defendant
will have a full and fair opportunity to voir dire the treating physicians on this topic, after
which this Court will determine whether they are sufficiently qualified to testify about the
reasonableness of Plaintiffs’ past medical expenses.
For now, however, preclusion is
unwarranted.
Accordingly, Defendant’s motion to preclude claims for past medical expenses
(Docket No. 186) is denied, and its motion to preclude treating physician testimony, the
testimony of a Kaiser Permanente Northern California representative, and the testimony
of Dr. Louis W. Irmisch, III, (Docket No. 192) is granted in part and denied in part.
4.
Motion to Preclude Claims Concerning Future Medical Expenses
(Docket Nos. 187, 204, 214)
Defendant seeks to preclude Plaintiffs from making any claim for future medical
expenses on the basis that they have identified no testimony or evidence that would
support such a claim.
In response, Plaintiffs advise that they will not pursue future
medical expenses. Accordingly, Defendant’s motion (Docket No. 187) is granted and
any claims concerning future medical expenses are precluded.
5.
Motion to Preclude Plaintiffs’ Damages Expert
(Docket Nos. 190, 202, 216)
Defendant seeks to preclude Plaintiffs’ damages expert, Dr. Ronald Reiber, on the
basis that Plaintiffs have failed to produce an expert report in compliance with Rule 26
(a)(2)(B) of the Federal Rules of Civil Procedure. Alternatively, Defendant seeks to
preclude Dr. Reiber’s testimony on the basis that his opinions are based on erroneous
13
and unsupported assumptions.
Plaintiffs contend that their expert disclosure for Dr.
Reiber, which consists of two cover letters and several tables of figures, meets their
disclosure obligation.
Retained expert witnesses must prepare and sign written reports for production in
discovery.
See Rule 26 (a)(2)(B). Such reports must contain the following information:
(1) a complete statement of all opinions the witness will
express and the basis and reasons for them;
(2) the facts or data considered by the witness in forming
them;
(3) any exhibits that will be used to summarize or support
them;
(4) the witness’s qualifications, including a list of all
publications authored in the previous 10 years;
(5) a list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by
deposition; and
(6) a statement of the compensation to be paid for the study
and testimony in the case.
Id.
Rule 37(c)(1) provides that if a party “fails to provide information or identify a
witness as required by Rule 26 (a) or (e), the party is not allowed to use that information
or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless.” This is a discretionary remedy.
See Design
Strategy, Inc. v. Davis, 469 F.3d 284, 297 (2d Cir. 2006) (holding that preclusion is
discretionary even if “the trial court finds that there is no substantial justification and the
14
failure to disclose is not harmless”).
Factors to be considered in determining whether to
impose sanctions under Rule 37 include “(1) the party’s explanation for the failure to
comply with the [disclosure requirement]; (2) the importance of the testimony of the
precluded witness[es]; (3) the prejudice suffered by the opposing party as a result of
having to prepare to meet the new testimony; and (4) the possibility of continuance.”
Pal,
2008 WL 2627614, at *3 (citing Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006))
(alterations in original).
For the reasons articulated in Defendant’s motion, this Court finds that Plaintiffs’
expert disclosure for Dr. Reiber fails to comply with Rule 26 (a)(2)(B).
Dr. Reiber has
not prepared the type of report contemplated in Rule 26 (a)(2)(B), but rather, has provided
a cover letter to Plaintiffs’ counsel together with a series of charts and calculations.
Docket Nos. 190-2, 190-4.)
This production is inadequate under the rule.
(See
But because
Defendant is generally on notice of Dr. Reiber’s work, preclusion is not warranted.
Plaintiffs are instead directed to produce to Defendant an expert report from Dr. Reiber
that fully complies with Rule 26 (a)(2)(B) within 14 days of the entry date of this decision.
As to Defendant’s alternate request for preclusion on the grounds that Dr. Reiber relied
on unsupported assumptions in his submissions, this goes to the weight afforded the
report, which Defendant may explore on cross-examination.
Defendant’s motion to
preclude Dr. Reiber (Docket No. 190) is denied.
6.
Motion to Preclude Opinion Testimony from Plaintiffs’ Treating
Physicians
(Docket Nos. 191, 203, 217)
Defendant seeks to preclude Plaintiffs’ treating physicians from providing opinion
15
testimony that does not arise out of their treatment of Plaintiffs on the grounds that
Plaintiffs have not produced any expert reports for their treating physicians under Rule 26
(a)(2)(B). In particular, Defendant seeks to preclude Plaintiffs’ treating physicians from
testifying about the cause of Daniel Griffith’s claimed memory loss and the claimed
permanency or future limitations resulting from Diana Griffith’s alleged post-concussive
syndrome and wrist injuries.
Plaintiffs maintain that their treating physicians are not
experts retained for trial and are therefore not required to produce expert reports under
Rule 26 (a)(2)(B).
The identity of any expert witness must be disclosed under Rule 26 (a)(2)(A). For
expert witnesses who are not retained or specially employed to provide expert testimony,
such as Plaintiffs’ treating physicians here, Rule 26 (a)(2)(C) requires only that the
disclosing party state (1) “the subject matter on which the witness is expected to present
evidence under Federal Rule of Evidence 702, 703, or 705,” and (2) “a summary of the
facts and opinions to which the witness is expected to testify.”
See Ramsey v. Nat’l R.R.
Passenger Corp., No. 12cv1999 (MHD), 2015 WL 2168062, at *9 (S.D.N.Y. May 7, 2015)
(noting that treating physicians may testify as to opinions formed during their treatment,
including causation, without submission of an expert report); see also Pokigo v. Target
Corp., No. 13-CV-722A (Sr), 2014 WL 6885905, at *4 (W.D.N.Y. Dec. 8, 2014).
There appears no dispute that Plaintiffs provided the disclosure required by Rule
26 (a)(2)(C).
Plaintiffs’ treating physicians may therefore testify as to their opinions
formed during their treatment, including causation. See Ramsey, 2015 WL 2168062, at
*9. Without knowing how the treating physicians will testify about what opinions they
16
formed and when, this Court cannot rule on Defendant’s request to preclude certain
opinions concerning Daniel Griffith’s claimed memory loss and the claimed permanency
or future limitations resulting from Diana Griffith’s alleged post-concussive syndrome and
wrist injuries.
If at trial Defendant perceives Plaintiffs’ treating physicians’ testimony as
exceeding the scope of their treatment of Plaintiffs, they are free to raise an objection at
that time.
Defendant’s motion to preclude this testimony (Docket No. 191) at this time,
however, is denied.
7.
Motion to Preclude Arguments Related to Tire Recalls and Litigation
(Docket Nos. 193, 204, 218)
Defendant seeks an order precluding Plaintiffs from introducing evidence or
argument relating to tire recalls, since the tire at issue was not the subject of a recall.
In
response, Plaintiffs represent that they do not intend to produce evidence of tire recalls.
Defendant’s motion (Docket No. 193) is therefore granted, and evidence concerning tire
recalls is precluded.
8.
Motion to Preclude Evidence of Media Coverage of the Accident or Tire
Defects
(Docket Nos. 194, 204, 219)
Defendant seeks to preclude Plaintiffs from introducing evidence pertaining to
media coverage of the accident, purported tire defects generally, and other incidents
involving tires, on the basis that such media-coverage evidence is irrelevant, unfairly
prejudicial, and constitutes inadmissible hearsay.
Plaintiffs respond that they are
unaware of any media coverage of the specific accident at issue and they express no
intention of introducing any media-coverage type evidence.
17
Accordingly, Defendant’s
motion (Docket No. 194) is granted, and evidence concerning media coverage as
specified is precluded.
9.
Motion to Preclude Undisclosed Evidence
(Docket Nos. 195, 204, 220)
Defendant seeks to preclude Plaintiffs from referencing or introducing any
documents or other evidence not previously disclosed during discovery.
Plaintiffs
oppose Defendant’s motion as generic, vague, and premature. This Court agrees.
If
Defendant has an objection to a specific piece of evidence based on non-disclosure, it
should raise it at trial. At this time, there has been no showing that a blanket order is
warranted.
Defendant’s motion in limine seeking such an order (Docket No. 195) is
therefore denied.
10.
Motion to Preclude Evidence of Defendant’s Size, Wealth, Ownership
Structure, Financial Status, etc.
(Docket Nos. 196, 204, 221)
Defendant seeks an order precluding Plaintiffs from referencing its corporate
ownership, size, financial status, or nationality on relevancy and prejudice grounds.
While disclaiming any intention to introduce such evidence in a disparaging or prejudicial
way, Plaintiffs nonetheless appear to suggest that some aspects of this evidence may be
relevant and not unfairly prejudicial.
Because this Court cannot make such a
determination without knowing the specific evidence, testimony, or argument at issue, it
cannot enter a pretrial ruling.
If Defendant has an objection to a specific piece of
evidence based on relevance and prejudice, it should raise it at trial. At this time, this
Court is not in a position to issue a blanket order, as requested.
18
Defendant’s motion in
limine (Docket No. 196) is therefore denied.
11.
Motion to Preclude Evidence of Insufficient Warnings
(Docket Nos. 197, 204, 222)
Defendant seeks an order precluding Plaintiffs from introducing evidence or
arguing, either directly or indirectly, that it did not adequately warn them about the weight
limitations applicable to the subject tire.
In Defendant’s view, such evidence is irrelevant
and unfairly prejudicial because this Court previously dismissed Plaintiffs’ failure-to-warn
claim.
that
(See Docket Nos. 149, 150.)
they
intend
to
demonstrate
Plaintiffs oppose Defendant’s motion on the basis
their
compliance
with
the
manufacturer’s
recommendations, including adherence to the weight limitations. That, however, is not
the focus of Defendant’s motion. While evidence concerning Plaintiffs’ compliance with
the warnings may well be relevant, Defendant’s motion is narrower: it only seeks
preclusion of evidence and argument that the warnings were defective or insufficient.
Since Plaintiffs’ failure-to-warn claim has been dismissed, evidence or argument that the
provided warnings were defective or insufficient will be precluded under Rules 402 and
403 of the Federal Rules of Evidence.
Defendant’s motion (Docket No. 197) is therefore
granted.
12.
Motion to Preclude Argument and Evidence Concerning Documents
Not Produced in Discovery
(Docket Nos. 198, 205, 223)
Defendant seeks to preclude Plaintiffs from arguing or offering testimony that it
obstructed discovery or acted unfairly during discovery by not producing records that were
destroyed pursuant to its records-retention policy.
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In response, Plaintiffs maintain that
Defendant failed to produce records in discovery and may have conducted an inadequate
search for responsive documents. They further represent that Defendant never took the
position that documents could not be produced due to its records-retention policy.
On the record before it, this Court cannot determine whether good-faith inquiry into
the absence of documents may be relevant at trial.
Accordingly, the blanket ruling
requested by Defendant cannot be granted. If discovery-related issues arise at trial, this
Court will hear proffers outside the presence of the jury and then determine whether
inquiry is permissible.
13.
For now, Defendant’s motion in limine (Docket No. 198) is denied.
Motion to Preclude “Golden Rule” and Similar Arguments
(Docket Nos. 199, 204, 224)
Defendant seeks an order precluding Plaintiffs from making “Golden Rule,”
“Reptile,” or “send a message” arguments to the jury.
According to Defendant, these
arguments improperly appeal to the jurors’ sympathy or fear by asking jurors to put
themselves in Plaintiffs’ shoes (“Golden Rule”), to return a verdict to protect the general
public (“Reptile”), or to “send a message” to Defendant.
In response, Plaintiffs contend
that they are aware of the bounds of permissible argument and will stay within them.
In this Court’s view, a pretrial order constraining the arguments of counsel is
unnecessary.
applicable rules.
at trial.
This Court expects all counsel to comport themselves within the
If either side has an objection to a specific argument, it should raise it
And counsel are hereby on notice that the presentation of improper arguments
could result in admonishment in front of the jury.
limine (Docket No. 199) is denied.
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At this point, Defendant’s motion in
14.
Motion to Preclude Unpleaded Emotional Damages Claim
(Docket Nos. 200, 204, 225)
Defendant seeks to preclude any claims for damages based on emotional distress
suffered from Plaintiffs observing and perceiving each other’s injuries.
Such claims,
argues Defendant, were not pleaded in the complaint and were not the subject of
discovery.
In response, without any citation to authority, Plaintiffs simply maintain that
this type of emotional distress damages are part of their general claim for pain and
suffering.
Plaintiff has not, however, countered the authority that Defendant presents
indicating that California law, which governs here, recognizes an independent cause of
action—negligent infliction of emotional distress—for emotional distress damages arising
from third-party injuries.
See Thing v. La Chusa, 48 Cal. 3d 644, 667-68, 771 P.2d 814,
829-30 (1989); Molien v. Kaiser Found. Hosp., 27 Cal. 3d 916, 930, 616 P.2d 813, 821
(1980).
Since no such claim is included in Plaintiffs’ complaint, and since no discovery
was conducted on such a claim, Defendant’s motion to preclude (Docket No. 200) is
granted.
III.
CONCLUSION
For the reasons stated above, Plaintiffs’ motions in limine (Docket Nos. 188, 189)
are denied.
In addition, the following of Defendant’s motions in limine are also denied:
Docket Nos. 184, 186, 190, 191, 195, 196, 198, and 199.
The following of Defendant’s
motions are granted: Docket Nos. 185, 187, 193, 194, 197, and 200.
And finally,
Defendant’s motion in limine (Docket No. 192) is granted in part and denied in part.
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IV.
ORDERS
IT HEREBY IS ORDERED, that Plaintiffs’ Motions in Limine (Docket Nos. 188,
189) are DENIED.
FURTHER, that the following of Defendant’s motions in limine are DENIED: Docket
Nos. 184, 186, 190, 191, 195, 196, 198, and 199.
FURTHER, that the following of Defendant’s motions in limine are granted: Docket
Nos. 185, 187, 193, 194, 197, and 200.
FURTHER, that Defendant’s motion in limine (Docket No. 192) is GRANTED in
part and DENIED in part.
FURTHER, that Plaintiffs must produce to Defendant an expert report from Dr.
Reiber that fully complies with Rule 26 (a)(2)(B) within 14 days of the entry date of this
decision.
SO ORDERED.
Dated:
September 28, 2018
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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