Gilley v. CH Robinson Worldwide, Inc. et al

Filing 329

MEMORANDUM OPINION AND ORDER granting Plaintiffs' 300 MOTION to Exclude Defense Expert Thomas M. Lyden's Second Supplemental Report. Signed by Senior Judge David A. Faber on 3/23/2022. (cc: counsel of record) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
Clinton Eugene Gilley, as Administrator
of the Estate of CARL DAVID GILLEY,
Nicole Leigh Le, as Administrator of the
Estate of CHRISTINE TARA WARDEN GILLEY,
and Clinton Eugene Gilley and Nicole
Leigh Le as Co-Administrators of the
Estates of J.G. and G.G., minor children,
Plaintiffs,
v.

CIVIL ACTION NO. 1:18-00536

C.H. ROBINSON WORLDWIDE, INC.,
J&TS TRANSPORT EXPRESS, INC.,
and BERTRAM COPELAND,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is plaintiffs’ motion to exclude a
supplemental expert report.

(ECF No. 300.)

Plaintiffs argue

that the supplement is over a year late and not substantially
justified or harmless.

They further argue that, regardless, the

supplement does not resolve a Daubert problem with the causation
opinion in the report and should be construed as an unavailing
motion for reconsideration of the court’s previous Daubert
ruling.
Defendant C.H. Robinson (“Robinson”) argues that the
supplement is not a motion for reconsideration; rather, it is an
elaboration on the methodology that the expert used to

incorporate new, additional data into his analysis.

Further,

Robinson argues that timing is excusable, substantially
justified, and harmless, and that exclusion would be
inconsistent with the standards this court has applied
previously in this case.

Finally, Robinson argues that there is

no Daubert problem with the supplement even though it provides
an opinion on specific causation of the lack of a median
barrier, which the court found previously not to be the product
of a sufficient methodology.
I. Background
The court will assume familiarity with the factual
background of this case and limit this section to the relevant
procedural history.

Plaintiffs filed this case on April 6, 2018

(nearly four years ago).

Trial and related deadlines have been

continued numerous times.

Like many others, this case had the

misfortune of being pending during the COVID-19 pandemic (and
resulting restrictions on jury trials) and the added misfortune
of (at one point) being scheduled for trial while the court was
in the midst of a forty-day trial in another matter.

Most

recently, trial was continued upon Robinson’s request, over
plaintiffs’ strenuous objection, one day before trial was set to
begin.

Trial is now set to begin on April 12, 2022.

Robinson’s expert Thomas M. Lyden (“Lyden”) served his
second supplemental report (“second supplement”) on plaintiffs
2

on February 8, 2022, about six weeks before trial was then set
to begin.

Plaintiffs filed the instant motion to exclude the

second supplement on February 22, 2022.

It was fully briefed as

of March 11, 2022.
This is not the first motion regarding an expert’s
purported supplemental report in this case.

On November 23,

2020, Robinson filed a motion to strike a purported supplemental
report of one of plaintiffs’ experts.
set for February 17, 2021.

At that time, trial was

While the motion was pending, trial

was continued to July 20, 2021, and again to September 14, 2021.
In ruling on that motion, the court assumed without
deciding that the expert report was not a proper supplement
because it included a new opinion. 1

(See ECF No. 257, at 9.)

In

applying Federal Rule of Civil Procedure 37(c), the court
declined to make a finding as to whether the lateness of the
report was substantially justified.

(See id. at 12.)

Rather,

the court rested its denial of Robinson’s motion on a finding
that the lateness of the motion was harmless given the amount of
time remaining until trial at all relevant times, the
responsibility of litigants to attempt to mitigate claimed
surprise, and the court’s decision to reopen discovery to cure
the potential prejudice.

1

(See id. at 14-15.)

As a supplement, it would have been timely.
3

II. Analysis
There are two separate but related issues relating to the
second supplement:
based.

one evidence-based, one civil-procedure-

The evidence-based issue concerns the effect of the

court’s previous Daubert ruling regarding Lyden’s causation
opinion.

The civil-procedure-based issue is whether the

supplement is permissible under Rule 37. 2
a. Daubert
It is not perfectly clear whether Lyden’s second supplement
is intended to get around the Daubert problem with his specific
causation opinion that the court identified previously.
ECF No. 296, at 17-21.)

(See

The court has ruled that Lyden may not

provide an opinion about whether, under the specific facts of
this case (the variables informing the physics of how the
tractor-trailer would have interacted with a median barrier),
the lack of a barrier 3 caused the collision.

(See id.)

Essentially, this was because the court could not discern a
Plaintiffs have moved for exclusion under both Rule 16 and Rule
37. Because the analysis is essentially the same here under
either rule, and because Robinson does not contend otherwise,
the court will do the analysis under Rule 37.
2

The first iteration of Lyden’s opinion appeared to deem a
cable, concrete, or beam guardrail sufficient. The second
iteration lacked clarity on whether all three would be
sufficient. The third iteration, now, says that because a
“median guardrail” has been effective to date, it would have
“changed the outcome of the subject incident had it been in
place.” (ECF No. 300-4, at 4.)
3

4

methodology that appropriately examined the data necessary to
determine how a particular barrier would have interacted with
the force of the tractor-trailer here.

The court distinguished

between an opinion on the general effectiveness of barriers,
which the court assumed Lyden’s methodology reached, and the
specific causation opinion that his report offered.
Even if it were permitted under Rule 37, the second
supplement does not enable Lyden to offer his specific causation
opinion (in any of its three iterations).

At most, the second

supplement bolsters Lyden’s methodology for opining as to the
general effectiveness of barriers and why certain West Virginia
agencies should have installed one here.

To the extent the

supplement purports to cure the Daubert deficiency previously
identified, it fails to do so.
Robinson does not concede the persistence of a Daubert
deficiency with the second supplement, but it argues that, even
if it does persist, Lyden’s supplement furthers his admissible
testimony:
Mr. Lyden’s opinion serves to help educate the jury
regarding why median barriers are utilized, evidence
which is of assistance to the jury in addressing
whether the Parkways Authority is at fault. Even
without offering an opinion on the ultimate issue of
causation in this instance, Mr. Lyden should be
permitted to teach the jury about highway safety
protocols, the reasons for median barriers and
accepted methodologies utilized for evaluating the
effectiveness of a chosen countermeasure to address
problematic roadways.
5

(ECF No. 306, at 4.)

The court does not discern a Daubert

problem with Lyden teaching the jury about barrier effectiveness
in general.

What Lyden still cannot do, under Daubert and

Federal Rule of Evidence 702, is offer an opinion on how a given
barrier would have affected the trajectory of the tractortrailer’s path here. 4
b. Federal Rule of Civil Procedure 37
When a party has failed to make disclosures required under
Rule 26(a), Rule 37(c) provides that “the party is not allowed
to use that information or witness to supply evidence on a
motion, at a hearing, or at a trial . . . .”

But there are two

exceptions: “(1) when the failure to disclose is ‘substantially
justified,’ and (2) when the nondisclosure is ‘harmless.’”
Southern States Rack & Fixture, Inc. v. Sherwin–Williams Co.,
318 F.3d 592, 596 (4th Cir. 2003)(quoting Fed. R. Civ. P.
37(c)).

“The Advisory Committee viewed these provisions as

‘coupled’ and designed ‘to avoid unduly harsh penalties.’”

8B

Charles Alan Wright & Arthur R. Miller, et al., Federal Practice
and Procedure § 2289.1 (3d ed.).

Robinson believes that it may be able to bridge the specific
causation gap by the time it rests. The court offers no opinion
on this issue but affirms its previous exercise of discretion to
let the evidence play out before ruling on whether Robinson has
failed to establish nonparty fault of the West Virginia Agencies
as a matter of law.
4

6

The burden to show justification or harmlessness under Rule
37(c) lies with the party facing sanctions.

S. States, 318 F.3d

592, 596 (citing Wilson v. Bradlees of New England, Inc., 250
F.3d 10, 21 (1st Cir. 2001)).

District courts enjoy broad

discretion in evaluating whether one of these exceptions applies
to a particular case.

Id. at 597; Disney Enterprises, Inc. v.

Kappos, 923 F. Supp. 2d 788, 796 (E.D. Va. 2013), 923 F. Supp.
2d at 796.

In making this determination, the following factors

should be considered:
(1) the surprise to the party against whom the
evidence would be offered; (2) the ability of the
party to cure the surprise; (3) the extent to which
allowing the evidence would disrupt the trial; (4) the
importance of the evidence; and (5) the nondisclosing
party’s explanation for its failure to disclose the
evidence.
S. States, 318 F.3d at 597.
Discovery sanctions serve both to remedy present rule
violations and to deter future violations.

Since the 1980s,

courts have justified harsh sanctions in the name of deterrence.
Federal Practice and Procedure § 2284.

But despite this

longstanding trend, “it seems fitting that courts should make
the punishment fit the crime and should take care not to impose
a drastic sanction that will prevent adjudication of a case on
its merits except on a clear showing that this course is
required.”

Id.

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Robinson has not met its burden of showing that the second
supplement is substantially justified.

Robbinson argues that,

when the tables were turned and Robinson was the one seeking
exclusion of an untimely expert report, the court found the
report “excusable,” and fairness requires that Robinson receive
the same “leeway.”

(See ECF No. 306, at 5.)

To the extent

Robinson is suggesting that the court found the previous
untimely report substantially justified, that is incorrect.

In

fact, noting it was a close call, the court exercised its
discretion not to reach the question of substantial
justification because the untimeliness in that situation was
harmless.
The second supplement purports to be an update based on
information described as “new material” and “additional
discovery material.”

(ECF No. 300-4, at 2.)

Particularly,

Lyden reviewed crash reports for October 7, 2019, to January 25,
2022.

In Lyden’s first supplement, however, he states that he

reviewed what appears to be the same crash data for “2009-2020.”
(See ECF No. 300-3.)

Also, the date range for the “new

material” goes back just far enough to include the date of the
one tractor-trailer incident post-dating the collision here,
which occurred October 8, 2019.

The argument that the second

supplement is justified based on a need to account for new
information, then, is unconvincing.
8

It is true that Lyden could

not update his report to include all possibly relevant accident
data until close to trial, but the problem is that much of the
data is not new, including the tractor-trailer incident.
Neither has Robinson shown that the timing is harmless.
The second supplement appeared less than two months before
trial. 5

The court had already ruled on a Daubert motion

concerning Lyden’s opinions.

The second supplement is cast as a

clarification of Lyden’s methodology, but that seems to be a
stretch given that he did not previously mention the October 8,
2019 tractor-trailer incident in his original report of April 2,
2020, or his first supplement of October 7, 2020.

Notably,

Robinson does not suggest a way to remedy the surprise to
plaintiffs, nor is a remedy readily apparent to the court.
Allowing the extensive revisions in the second supplement so
late in the day would be unfairly prejudicial.
On the other hand, the October 8, 2019 incident involving a
tractor-trailer has been known to plaintiffs for a long time,
and the court has ruled that it is admissible.
325, at 10-11.)

(See ECF No.

Therefore, allowing Lyden to testify that the

October 8, 2019 incident illustrates his contention regarding
the general effectiveness of median barriers does not seem
unduly prejudicial to plaintiffs.

Plaintiffs will be afforded

With extreme reluctance, the court recently continued the
trial, but it is still less than two months away.
5

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wide latitude on cross-examination to attempt to show why this
data point is unremarkable. 6
III. Conclusion
This court prefers trial on the merits whenever the rules
so permit and has endeavored in its rulings hitherto to promote
that preference.

At the same time, the court is fully cognizant

of the need to avoid unfair prejudice, as evidenced, for
example, in its recent ruling foreclosing plaintiffs from
asserting claims for pre-death terror on behalf of decedent Mrs.
Gilley because the untimely disclosure of those claims was
unfairly prejudicial to defendants.
32.)

(See ECF No. 325, at 31-

The assertion of that claim, like the appearance of the

second supplement, came too late in the day.
For the reasons stated above, the Motion to Exclude Defense
Expert Thomas Lyden’s Second Supplemental Report (ECF No. 300)
is GRANTED.

Nevertheless, neither the boundaries of Daubert nor

a scope of Lyden’s operative report would appear to take all
testimony regarding the general effectiveness of median barriers
off the table, and it likewise does not appear unfairly
prejudicial to allow Lyden to testify regarding the October 8,
2019 tractor-trailer incident near Mile Post 21.
The Clerk is directed to send a copy of this Memorandum
This also would open the door to plaintiffs’ competing
illustration: the Gainesville video. (See ECF No. 325, at 25.)
6

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Opinion and Order to counsel of record.
IT IS SO ORDERED this 23rd day of March, 2022.
ENTER:
David A. Faber
Senior United States District Judge

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