Flynn et al v. American Honda Motor Co., Inc. et al

Filing 142

MEMORANDUM AND ORDER re: 131 Joint MOTION to Strike Plainiffs' Airbag Expert's Affidavit Asserting New Opinions to Oppose Defendants' Motions for Summary Judgment,(Signed by Judge Keith P Ellison) Parties notified.(sloewe, 4) Modified on 12/8/2014 (sloewe, 4).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOSEPH B. FLYNN, INDIVIDUALLY AND §
AS PERSONAL REPRESENTATIVE OF §
THE ESTATE OF JACQUELINE RENEE §
§
FLYNN, DECEASED, and MARIE
§
ESTHER (FLYNN) SOORD,
INDIVIDUALLY,
§
§
Plaintiffs,
§
VS.
§
§
AMERICAN HONDA MOTOR CO. INC., §
et al.,
§
§
Defendants.
§

CIVIL ACTION NO. 4:11-CV-3908

MEMORANDUM AND ORDER
Pending before the Court are three Motions for Summary Judgment, filed, respectively,
by Defendant American Honda Motor Co., Inc. (Doc. No. 116), Defendants Continental GmbH
and Continental Automotive Guadalajara, Mexico, S.A. de C.V. (Doc. No. 117), and Defendant
Siemens Corporation (Doc. No. 118). Plaintiffs filed one Response in opposition to all three
Motions for Summary Judgment. (Doc. No. 126.) Accompanying their Response, Plaintiffs
filed an undated Affidavit of Geoffrey L. Mahon, P.E. (hereinafter “Mahon Affidavit”). (Exh. B,
Doc. No. 126-2.) Mr. Mahon is one of Plaintiffs’ expert witnesses in this case.
Defendants have filed Joint Objections to Plaintiffs’ Summary Judgment Evidence (Doc.
No. 130), and a Joint Motion to Strike the Mahon Affidavit (Doc. No. 131). For the reasons
stated herein, Defendants’ Motion to Strike is DENIED.

Defendants’ Objections are

SUSTAINED IN PART and OVERRULED IN PART. The Mahon Affidavit shall be stricken
from the record in part, as described below.

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I.

PROCEDURAL BACKGROUND
Plaintiffs filed suit against American Honda Motor Co., Inc., Siemens Corporation, and

numerous other Defendants on November 7, 2011, for claims arising out of the death of
Jacqueline Flynn. Plaintiffs allege that when Ms. Flynn’s 2001 Honda Civic was hit by a pickup
truck on January 13, 2010, her airbags did not deploy on time, resulting in her death. (Doc. No.
1.)
In the two years since this suit was filed, the parties have engaged in extensive discovery,
including investigations by and depositions of numerous expert witnesses. Plaintiffs designated
Geoffrey Mahon as one of their expert witnesses and on January 15, 2014, Mr. Mahon produced
a report stating his opinion that the airbags in Ms. Flynn’s vehicle “deployed later than the
required time.” (Doc. No. 131, Exh. 2.) Mr. Mahon was deposed over two days in April, 2014.
On October 2, 2014, Defendants American Honda Motor Co., Inc., Continental GmbH,
and Continental Automotive Guadalajara, Mexico, S.A. de C.V. filed Motions for Summary
Judgment. (Doc. Nos. 116 and 117.) In part, Defendants argue that Plaintiffs lack the evidence
necessary to make out a design defect claim because Mr. Mahon did not testify to a safer
alternative design, as required by Texas law. Plaintiffs responded to Defendants’ Motions on
November 6, 2014. (Doc. No. 126.) Attached to their Response, Plaintiffs filed a seven-page
Affidavit from Mr. Mahon. The Mahon Affidavit offered, among other things, Mr. Mahon’s
opinion that “there are safer alternative designs of the Honda airbag system; that such designs are
economically feasible; and that such designs would have reduced the risk of harm in this case.”
(Doc. No. 126, Exh. B.)
Defendants have filed a Motion to Strike the Mahon Affidavit in its entirety. (Doc. No.
131.)

They argue that many of the opinions contained in the Mahon Affidavit have not

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previously been disclosed and therefore are improper. Defendants ask the Court to strike the
Affidavit in its entirety as a sanction and to award Defendants their attorneys’ fees and costs in
filing the Motion to Strike. In addition, Defendants have filed forty-six specific Objections to
the Mahon Affidavit. (Doc. No. 130.)
In response to Defendants’ Objections and Motion to Strike, Plaintiffs argue that “most,
if not all” of the matters identified by Defendants as new were discussed in Mr. Mahon’s January
15, 2014, Expert Report. (Doc. No. 137 at 3.) Plaintiffs further argue that Defendants waived
their right to object to the information contained in the Mahon Affidavit because they had the
opportunity to ask questions that would illicit such information at Mr. Mahon’s deposition, but
they failed to do so. (Id. at 4-5.)
II.

MOTION TO STRIKE AND OBJECTIONS
Under the Federal Rules of Civil Procedure, parties are required to make significant

disclosures of expert testimony and the basis for that testimony prior to trial. Fed. R. Civ. P.
26(a)(2)(A). Rule 26 requires that an expert witness must provide a written report containing “a
complete statement of all opinions the witness will express and the basis and reasons for them.”
Fed. R. Civ. P. 26(a)(2)(B)(i) (emphasis added). The purpose of the expert report is to “avoid the
disclosure of ‘sketchy and vague’ expert information, as was the practice” under the previous
version of the Rule. Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546,
571 (5th Cir. 1996). Moreover, the expert disclosures and reports must be made “at the times
and in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D). A district court has
“broad discretion to preserve the integrity and purpose of the pretrial order.” Borden v. United
States, 537 F. App'x 570, 574 (5th Cir. 2013).
Rule 37(c) provides the appropriate sanctions for violation of the disclosures required by

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Rule 26(a). If a party “fails to provide information . . . 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 . . . unless the
failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Courts also may
award attorneys’ fees and reasonable expenses under Rule 37.
The Fifth Circuit has suggested four factors for district courts to consider in exercising
the discretion to enforce a pretrial scheduling order. Borden v. United States, 537 F. App'x at
574. These factors are: “(1) the explanation for the failure to [submit a complete report on
time]; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; (4)
the availability of a continuance to cure such prejudice.” Id.
In this case, the Plaintiffs have provided no explanation for the failure to submit a
complete report on time – in fact, Plaintiffs insist the Mahon Affidavit does not include
previously undisclosed opinions. The Court cannot agree. After reviewing Mr. Mahon’s
January 15 Report, the transcript of his two-day deposition, and the Mahon Affidavit, the Court
concludes that significant portions of the Affidavit provide new, and therefore improper,
opinions. The testimony is no doubt important – indeed, it may prove critical to the Plaintiffs’
case – but allowing it would result in considerable prejudice to the Defendants. Moreover,
although a continuance may be able to cure such prejudice, the Court has moved the date for
closing discovery and the date of trial three times. (Doc. Nos. 89 and 91; Minute Entry, June 2,
2014.) Without any explanation from Plaintiffs as to why discovery should be re-opened, the
Court must exclude the new testimony. The Court is always reluctant to exclude from trial
information that could be helpful to the jury in reaching a verdict. But, the Court is even more
reluctant to allow trial testimony and exhibits proffered long after the pertinent deadlines for
production have passed, and in defiance of other parties’ reasonable reliance on those deadlines.

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It is true, however, that some portions of the Mahon Affidavit give clarification of
previously disclosed opinions and do not provide new evidence. To the extent that the opinions
in the Mahon Affidavit do not go beyond “proving up” the opinions contained in his January 15
report and discussed in his deposition, the Court will allow their inclusion. See Sobrino-Barrera
v. Anderson Shipping Co., 495 F. App'x 430, 433 (5th Cir. 2012) (concluding the district court
did not abuse its discretion in excluding an affidavit because it contained opinions that went
beyond “proving up” the opinions contained in the affiant’s expert report). Defendants’ Motion
to Strike the Mahon Affidavit in its entirety and for attorneys’ fees therefore is DENIED.
Instead the Court will hereby SUSTAIN Defendants’ Objections insofar as they object
to new opinions contained in the Mahon Affidavit. The following Objections are SUSTAINED:
Objections 4, 7, 9, 10, 11, 12, 13, 14, 15, 18, 21, 22, 25, 26, 28, 30, 32, 36, 38, 39, 40, 42, and
44. All remaining Objections except for Objection 2 are hereby OVERRULED. The Court
DEFERS ruling on Objection 2, which asks the Court to consider striking Mr. Mahon’s
statement that he has never been challenged successfully in a case where he provided expert
opinions.
III.

CONCLUSION
The Court, having DENIED Defendants’ Motion to Strike and SUSTAINED IN PART

and OVERRULED IN PART Defendants’ Objections to the Mahon Affidavit, hereby
ORDERS that the following text (with paragraphs as numbered in Doc. No. 130, Exh. 1) shall
be stricken from the Mahon Affidavit:


From paragraph 13: “Failure to properly test a new platform with a new crash sensing
system should be considered negligence on the part of Honda.”;



Paragraph 14 in its entirety;

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

From paragraph 15: “In fact, I offered a design which included jerk in the algorithm as
described in my patent 5,610,817. What I did not provide was the calibration values of
the design which requires the crash test data from the crashes Honda never ran.” and
“There is no question that a jerk based sensor would sense small offset impacts, including
the subject event, timely.”; and



Paragraphs 16 through 34 in their entirety.
IT IS SO ORDERED.
SIGNED in Houston, Texas, on this 8th day of December, 2014.

KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE

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