Great Northern Insurance Company et al v. Brentlinger Enterprises et al

Filing 88

ORDER denying 45 and 49 Motion to strike and exclude opinions; granting 50 Motion for Leave to File sur-reply; granting 62 Motion for Leave to File supplemental sur-reply. Signed by Magistrate Judge Mark R. Abel on 07/15/2014. (sr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Great Northern Insurance Company, et
al.,

:
:

Civil Action 2:11-cv-01153

:

Judge Marbley

:

Magistrate Judge Abel

Plaintiffs
v.
Brentlinger Enterprises, et al.,
:
Defendants

ORDER
This matter is before the Magistrate Judge on defendants BMW of North America
LLC (“BMW NA”) and Bayerische Motoren Werke AG (“BMW AG”)’s December 17,
2013 motion to strike and exclude the opinions of plaintiff’s untimely and improper
rebuttal expert, Dr. Michael A. Steele (doc. 45) and their January 16, 2014 motion to
exclude for spoliation (doc. 49).
As a preliminary matter, plaintiffs’ January 17, 2014 unopposed motion for leave
of court to file a sur-reply (doc. 50) and March 26, 2014 unopposed motion for leave to a
supplemental sur-reply (doc. 62) are GRANTED.
I.

Background

On May 30, 2007, Jean Patrick leased a new BMW 328xi. On March 16, 2010, Ms.
Patrick parked the vehicle in the garage attached to her home. Sometime thereafter, a

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fire started in the garage causing substantial destruction to the vehicle and residence.
This case is a subrogation action brought by Ms. Patrick’s insurer in an attempt to
recoup the amounts paid to the Patricks as a result of the fire.
On March 17, 2010, plaintiff retained S-E-A Ltd. (“SEA”) to investigate the fire.
On April 5, 2010, after a preliminary investigation, the vehicle was transported by SEA
to its facility for preservation as evidence, where it has remained in SEA’s sole
possession.
On May 5, 2010, the parties to this matter conducted a joint inspection of the
vehicle. During the inspection, under engine compartment covers were removed to
facilitate examination. Material removed from engine compartment was bagged and
marked as evidence by SEA personnel. Under vehicle body covers running the length of
the vehicle were not removed at this time.
On August 2, 2013, the Court ordered plaintiffs to make their expert disclosures
by September 30, 2013. Defendants were ordered to make their responsive expert
disclosures by October 30, 2013.
On September 27, 2013, plaintiff produced an expert report prepared by SEA.
The primary focus of SEA was to identify the ignition source for the fire. Plaintiff
claims that the natural aerodynamic properties of the vehicle’s design allow for the
collection road debris in the engine compartment near the exhaust components during
normal vehicle operation. Plaintiffs maintains that all BMW 328xi vehicles are
unreasonably dangerous because of the risk that accumulated debris could catch fire.
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According to the SEA report, the cause of the fire was the accumulation of combustible
materials on the area of a heat shield or cross member positioned under the exhaust
piping on the right side of the engine compartment. The report further stated that there
was no evidence of rodent activity and that the foliage was not purposefully
accumulated by a rodent.
In light of these opinions, defendants requested access to the vehicle, and an
inspection was scheduled for November 1, 2013. Plaintiffs agreed to allow defendants to
produce their expert reports on November 8, 2013.
On November 1, 2013, the vehicle was inspected by individuals on behalf of
defendants at the SEA facility and pursuant to the terms of a previously agreed-to
protocol. The inspection was monitored by SEA personnel. During the inspection,
SEA personnel lifted the vehicle with a forklift to allow under-vehicle inspection. The
forklift forks fractured an under vehicle body cover that had not been previously
removed. When the cover fractured, the remains of a rodent fell out, which consisted of
some hair and bones.
Dr. Gates, defendants’ expert, examined the material collected at the May 5, 2010
inspection and the rodent remains discovered at the November 1, 2013 inspection. Dr.
Gates discovered a bi-colored, mammal hair in the debris collected on May 5, 2010. The
bones appeared to be the partial remains of a squirrel. The hair appeared to be bicolored. Dr. Gates opined that the remains appeared to be directly related to the
mammalian hair collected on May 5, 2010. He concluded that SEA’s conclusion that
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rodent activity was not a factor in the case of debris accumulation was incorrect.
Defendants’ liability experts prepared reports that were submitted to plaintiffs’ counsel
on November 8, 2013.
On December 16, 2013, defendants received plaintiffs’ rebuttal expert testimony
disclosure, but no report was attached to the expert disclosure. Plaintiffs offer the
testimony of Dr. Michael A. Steele, who has a Ph.D. in biology, to rebut the findings and
opinions of Dr. Gates.
II.

Motion to Strike Dr. Michael A. Steele as a Rebuttal Expert
A.

Defendants

Defendants maintain that the Court’s August 2, 2013 Order provided a deadline
of September 30, 2013 for plaintiffs’ experts and that plaintiffs were obligated to disclose
any experts it intended to use by that date. Rule 26(a)(2)(B) also requires such
disclosures be accompanied by written reports. Rebuttal experts are those experts who
offer testimony if the evidence 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).
Defendants argue that the existence of rodent activity was not a subject matter
first identified in the conclusions of the BMW experts. Rather, the existence of rodent
activity was identified in the SEA report. Experts retained and proffered by BMW
evaluated the evidence and formed opinions in light of the opinions put forth by
plaintiff’s experts. Defendants point to the fact that SEA has been involved in this case
since the day after the fire, and it has maintained sole possession of the vehicle since
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April 2010. SEA ignored the physical evidence in the case and proffered conclusions
without conducting a full and complete investigation. Defendants contend that plaintiff
should not be permitted to offer new expert opinions evaluating and analyzing
evidence that they initially chose to ignore.
Defendant further argues that plaintiff failed to produce the expert report as
required by Rule 26(a)(2)(B), and this Court may exclude the proposed expert for failing
to disclose it. Plaintiff’s failure to produce the required report has prevented defendant
from obtaining rebuttal testimony. Defendants also maintain that plaintiff’s disclosure
was untimely. Plaintiff had thirty days to produce any rebuttal expert disclosures and
reports. Plaintiff identified Dr. Steele on December 16, 2013, well outside the 30-day
time for doing so, and the disclosure was not accompanied by Dr. Steele’s report.
Defendants argue that the untimely nature of plaintiffs’ expert disclosure is
neither substantially justified nor harmless. Plaintiffs, by and through SEA, have
maintained sole possession of the vehicle since shortly after the fire. The squirrel
remains at issue were not identified until the November 1, 2013 inspection. Because the
inspection was not scheduled until November 1, 2013, plaintiff agreed to allow
defendants to provide the reports of its liability experts on November 8, 2013.
Defendants worked diligently to meet the agreed upon deadline. Although plaintiff had
until December 9, 2013 in which to disclose the identity of any rebuttal expert and to
provide the mandatory report, plaintiff did not identify Dr. Steele until December 16
and failed to provide a report at that time. Dr. Steele’s report was not provided until
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January 2, 2014, when it was attached to plaintiff’s response to defendant’s motion to
exclude and strike plaintiff’s rebuttal expert, fifty-five days after the defendants’ expert
disclosures and reports were provided.
Defendants further argue that plaintiffs failed to even mention the potential of
disclosing a rebuttal expert until defendants had incurred substantial expense
preparing for and undertaking an unsuccessful mediation. Defendants maintain that
they were denied to opportunity to obtain appropriate rebuttal testimony.
Defendants also argue that several of Dr. Steele’s opinions are not responsive to
Dr. Gates’s opinions. For instance Dr. Steele states that Dr. Gates opined that the
material ignited by the exhaust components of the vehicle were likely deposited
adjacent to the exhaust system by the fox squirrel. Defendants argue that Dr. Gates’
reports do not contain the opinion attributed to him by Dr. Steele. As a result,
defendants maintain that conclusions premised on this inaccurate assertion must be
excluded. Defendants further maintain that Dr. Gates never asserted that the area
surrounding SEA’s facilities would be devoid of squirrel activity, nor did he identify
any mud and roots associated with the bones of the fox squirrel. Defendants maintain
no such mud or roots exist, and Dr. Steele’s conclusions with respect to these assertions
should be excluded.
B.

Plaintiffs

According to plaintiffs, Dr. Steele will provide testimony and opinions on the
same subject matters identified by BMW’s expert, Dr. Gates, i.e., whether the squirrel
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remains found on November 1, 2013 establish that a squirrel was present in the BMW
prior to the fire of March 16, 2010. Plaintiffs maintain that their position remains that the
evidence examined by SEA and the BMW experts in 2010 showed no evidence of any
nesting created by rodents in the area of the car where the fire began.
Rebuttal evidence is that which solely rebuts evidence on a subject matter
identified in the conclusions offered by another party’s expert. Plaintiff maintains that
the testimony of Dr. Steele is classic rebuttal testimony in that it is intended to rebut Dr.
Gates’s opinion that the squirrel remains found on November 1, 2013 are indicative of
nest building activities occurring at the time of the fire in the area of the vehicle’s
exhaust system and which caused the fire in the vehicle. Dr. Steele’s testimony is not
intended to supplement, enhance or change the opinions of the SEA experts. Instead,
Dr. Steele responds to Dr. Gates’s report as follows:
•

Whether the fox squirrel remains were found in a position in the vehicle
which would be a path of refuge that began in the vehicle while the fox
squirrel was also in the vehicle;

•

whether a fox squirrel would likely build a nest next to a heated exhaust
system capable of generating temperatures in to 600° to 700° range;

•

whether the size of a fox squirrel would permit a fox squirrel access to the
condensed area within the vehicle where all experts agree the fire
originated and where the foliage was located;

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•

whether the outdoor storage of the burnt vehicle was stored after
inspection would explain the presence of fox squirrel remains discovered
in November 2013;

•

whether a fox squirrel was more than likely than not to enter a garage of
an occupied home and build a nest in a vehicle was operated on a regular
basis; and,

•

whether a fox squirrel would remain in the car while it was on fire and
while the vehicle was stopped permitting the squirrel to escape through
the same openings from which it entered.

Plaintiffs maintain that these areas of testimony directly rebut the opinions and
conclusions of Dr. Gates.
Plaintiffs argue that defendants are not prejudiced by the rebuttal testimony of
Dr. Steele and that the late disclosure was harmless. Defendant produced their expert
report on November 8, 2013, and plaintiffs identified Dr. Steele just eights days after the
applicable deadline. After plaintiffs extended a courtesy to the defendants for a sevenday extension, defendants argue that eight days is too long. Plaintiffs contend that
defendants can show no actual prejudice. Defendants can depose Dr. Steele and have
Dr. Gates respond to Dr. Steele’s opinions and conclusions when he provides his own
testimony. If defendants wishes to rebut the positions advanced by Dr. Steele, the Court
may permit defendants to issue a sur-rebuttal report in response to Dr. Steele’s report or
deposition.
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C.

Discussion

Rule 37(c)(1) of the Federal Rules of Civil Procedure provides that “[i]f a party
fails to provide information or identify a witness as required by Rule 26(a) . . ., 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.” Rule
26(a)(2)(D)(ii) requires a party to makes it expert disclosures within 30 days after the
other party’s disclosure“if the evidence 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). “The sanction of exclusion is automatic and mandatory unless the sanctioned
party can show that its violation of Rule 26(a) was either justified or harmless.” Salgado
v. General Motors Corp., 325 F.3d 735, 742 (7th Cir. 1998). The burden lies with the
potentially sanctioned party to prove harmlessness. Roberts ex rel. Johnson v. Galen of
Virginia, Inc., 325 F.3d 776 (6th Cir. 2003).
Plaintiffs have not provided any explanation for the Court to determine whether
their untimely disclosure was substantially justified. Rather, plaintiffs maintain that
their untimely disclosure was harmless. In their March 26, 2014 motion to supplement
their reply, plaintiffs noted that the parties’s joint motion to extend the deadline for
completing expert depositions until April 30, 2014 was granted. BMW deposed all five
of the plaintiff’s liability experts, including Dr. Steele prior to producing their own
experts for deposition. As a result, plaintiffs contend that their belated disclosure was
harmless and BMW have not been prejudiced. Because plaintiffs’ untimely disclosure
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was harmless, defendants BMW’s December 17, 2013 motion to strike and exclude the
opinions of plaintiff’s untimely and improper rebuttal expert, Dr. Michael A. Steele
(doc. 45) is DENIED.
III.

Motion to Exclude for Spoliation
A.

Defendants

On March 17, 2010, the day after the fire, plaintiffs retained SEA to initiate an
investigation of the fire. On April 5, 2010, after a preliminary inspection, the vehicle was
transported by SEA to its facility for further evaluation and preservation. Since April 5,
2010, the vehicle has remained in SEA’s sole possession.
As early as May 5, 2010, when organic debris was found in the engine
compartment, SEA was investigating how the debris entered the engine compartment.
According to SEA Project Engineer, Nicholas E. Biery, Ph.D., P.E., the foliage was
examined and found to contain no evidence of rodent activity. Dr. Biery noted that no
rodent hairs, tooth marks, bones or droppings were observed. BMW argues that
plaintiff clearly understood the importance of evidence rodent activity in the vehicle.
Despite having a large warehouse at its disposal, SEA decided to store the
vehicle outdoors. SEA’s storage decisions took place prior to defendants being in a
position to understand plaintiff’s allegations. Even if defendants had inspected the
vehicle on the same day that this case was initiated and found signs of rodent activity, it
still would have been too late to prove those signs were present at the time of the fire
because of the negligent action of storing the vehicle outdoors.
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Following the November 1, 2013 inspection, Dr. Gates examined the debris
collected during the May 5, 2010 inspection and the rodent remains discovered in
November 2013. According to Dr. Gates, the remains appeared to be directly related to
a mammalian hair collected in May 2010. In response to Dr. Gates’ report, Dr. Steele
concluded that it was more likely than not that the rodent whose remains are at issue
colonized the vehicle while it was being preserved by SEA. If Dr. Steele’s opinions are
assumed to be correct, then plaintiff has admitted that it failed to preserve central
evidence that it allowed evidence to become contaminated in a fashion that is
detrimental to the case.
Defendant argues that plaintiffs should be sanctioned for their failure to preserve
evidence over which they had control. Defendants maintain that the evidence was
destroyed with a culpable state of mind and that the destroyed evidence was relevant to
their defense. Defendants maintain that even negligent conduct may warrant spoliation
sanctions. Plaintiffs understood the potential for litigation involving the vehicle within a
short time after the fire. Plaintiffs immediately retained subrogation attorneys who
retained engineers to take possession of and evaluate the vehicle. There is no dispute
that the vehicle is the most important piece of evidence in the case and plaintiffs
understood this as early as March 2010. Plaintiffs also understood that the presence of
rodent activity in the vehicle was a potential defense available to defendants. As a
result, SEA set out to disprove the existence of rodent activity in the vehicle. Despite

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this knowledge, plaintiff chose to store the vehicle, unwrapped and unprotected,
outdoors for several months during the summer.
Defendants seek to preclude plaintiffs’ expert, Dr. Steele, from offering opinions
with regard to whether the rodent remains were or were not likely present in the
vehicle at the time of the fire. BMW argues that Dr. Steele’s argument is only available
to plaintiffs as a direct result of spoliation of evidence and that plaintiffs should not be
permitted to use their malfeasance to their own benefit.
BMW further argues that spoliation is the significant alteration or evidence or
failure to preserve property for another’s use as evidence in pending or reasonably
foreseeable litigation. Here, plaintiffs are arguing that significant alteration of evidence
took place while the evidence was in their possession. BMW agrees with plaintiffs’
assertion that this is not the typical case of spoliation because the significant alteration
of evidence is being utilized by plaintiffs in an attempt to discredit defendants’
evidentiary finding.
B.

Plaintiffs

Plaintiffs argue that although BMW claims that they spoiled evidence, the
physical evidence upon which BMW relies was present when BMW’s experts inspected
the vehicle on November 1, 2013. Plaintiffs maintain that there is nothing in the record
that suggests that plaintiffs, either negligently or knowingly, destroyed any evidence or
that any evidence relevant to BMW’s defense was previously present in the vehicle but

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later destroyed. Plaintiffs argue that the specific relief requested by BMW does not flow
from or is in anyway related to its claims of spoliation of evidence.
After plaintiffs noted BMW of the fire, BMW assigned its engineers and
independent fire experts to inspect the vehicle on April 5, 2010. The inspection occurred
at the scene of the fire. Following that inspection, the vehicle was moved to the SEA
facility. It was inspected on May 5, 20101 pursuant to a protocol developed by the SEA
and approved by BMW. After that time, BMW and its experts inspected, evaluated,
photographed and removed debris and other components from the vehicle. At no time
during that 2010 inspection did any consultant observe any evidence that appeared
related to rodent activity.
Plaintiffs maintain that it was not until November 2013 that the evidence relied
upon by Dr. Gates was discovered. BMW argues that plaintiffs somehow intended to
destroy evidence which none of the parties knew existed until November 2013.
Plaintiffs argue that BMW is asking this Court to conclude, without any supporting
evidence, that in 2010 plaintiffs anticipated BMW’s “squirrel defense” and purposefully
stored the vehicle outside so a new squirrel could gain access to the vehicle and allow
plaintiffs to argue that the squirrel entered the vehicle after the fire to rebut BMW’s
position. Although BMW inspectors investigated the vehicle twice in 2010, BMW never

1

Plaintiffs’ motion states it was inspected on May 5, 2013, but other references to
the May inspection indicate that it occurred in 2010.
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directed, requested, or insisted that the vehicle be preserved in any special manner for
further inspections.
Plaintiffs argue that a request for sanctions based upon an allegation of
intentional spoliation of evidence must be based on more than speculation. Plaintiffs
further argue that no spoliation of evidence occurred and that no sanctions are
warranted. Plaintiffs also note that BMW’s motion is not supported by any affidavit,
deposition testimony or any other evidence that suggests that plaintiffs destroyed
evidence or acted with a culpable state of mind. Plaintiffs further maintain that
defendants have not been prejudiced with respect to this matter because it has retained
a squirrel expert and an insect expert to offer opinions related to the alleged rodent
activity and the time frame for this alleged activity.
C.

Discussion

This Court possesses inherent authority to sanction bad faith conduct without
regard to whether such conduct could be sanctioned under other applicable rules or
statutes. See First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 513 (6th
Cir. 2002). Determination of the correct sanction for discovery misconduct is left to the
broad discretion of the trial court. National Hockey League v. Metropolitan Hockey Club,
427 U.S. 639, 642 (1976). Courts must consider the state of mind of the party who
destroys evidence when determining whether the imposition of sanctions is
appropriate. Courts evaluate conduct on a “continuum of fault,” ranging “from
innocence through the degrees of negligence to intentionality.” Adkins v. Wolever, 554
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F.3d 650, 652 (6th Cir. 2009)(quoting Welsh v. United States, 844 F.2d 1239, 1246 (6th Cir.
1988)). Absent exceptional circumstances, courts generally do not dismiss an action or
give an adverse inference instruction without consideration of whether the party acted
in bad faith.
The party seeking a spoliation instruction must demonstrate that it was
prejudiced by the loss of the information. There must be some showing of a nexus
between the missing information and the issue on which the instruction is requested.
Consolidated Aluminum Corp. v. Alcoa, Inc. 244 F.R.D. 335, 346 (M.D. La. 2006). Some
evidence must be presented corroborating the assumption that the missing evidence
would have been favorable to the plaintiff's case. Id. at note 24 (citing Hamre v. Mizra,
No. 02Civ.9088, 2005 WL 1083978 (S.D.N.Y. May 9, 2005).
Here both parties had access to the vehicle just seven weeks after the fire. Their
experts conducted a joint inspection, and defendants’ experts accessed those areas of the
vehicle they believed relevant to an inquiry into the source and origin of the fire.
Nothing would have prevented them from then accessing the areas accidentally opened
up three years later. It would seem unfair to hold plaintiff solely accountable for not
making an examination on or before May 5, 2010 that defendants’ experts could have
made then had they so chosen. As it was, both sides completed their inspections of the
vehicle in early may 2010, and there was no reason to believe that when the vehicle was
stored that either side would need to later open up other under vehicle compartment
areas.
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In any event, it appears that leaving the vehicle vulnerable to squirrel activity
could have disadvantaged plaintiffs more than defendants. It will be for the jury to
evaluate the experts’ opinion concerning the time frame of the squirrel activity. In any
event, plaintiffs appear to have created a situation that makes them vulnerable to
defendants’ “squirrel defense.” Without some evidence corroborating defendant’s
assumption that potential alteration to the vehicle would have been favorable to the
plaintiff's case, sanctions are not warranted. If, as plaintiffs suggest, the vehicle
contained no evidence of rodent activity in 2010, then allowing the introduction of
squirrels into the vehicle creating evidence to counter plaintiff’s assertion regarding the
lack of rodent activity is more damaging to plaintiff’s case.
Defendant BMW’s January 16, 2014 motion to exclude for spoliation (doc. 49) is
DENIED.
IV.

Conclusion

Defendants BMW of North America LLC (“BMW NA”) and Bayerische Motoren
Werke AG (“BMW AG”)’s December 17, 2013 motion to strike and exclude the opinions
of plaintiff’s untimely and improper rebuttal expert, Dr. Michael A. Steele (doc. 45) and
their January 16, 2014 motion to exclude for spoliation (doc. 49) are DENIED. Plaintiffs’
January 17, 2014 unopposed motion for leave of court to file a sur-reply (doc. 50) and
March 26, 2014 unopposed motion for leave to a supplemental sur-reply (doc. 62) are
GRANTED.

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Under the provisions of 28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R. Civ. P., and
Eastern Division Order No. 91-3, pt. F, 5, either party may, within fourteen (14) days
after this Order is filed, file and serve on the opposing party a motion for
reconsideration by the District Judge. The motion must specifically designate the
Order, or part thereof, in question and the basis for any objection thereto. The District
Judge, upon consideration of the motion, shall set aside any part of this Order found to
be clearly erroneous or contrary to law.

s/Mark R. Abel
United States Magistrate Judge

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