Alves v. Mazda Motor of America, Inc.

• Decision Date: 21 August 2006
• Docket Number: C.A. No. 02-11136-MLW.
• Citation: 448 F.Supp.2d 285
• Parties: Eduarda ALVES, Plaintiff, v. MAZDA MOTOR OF AMERICA, INC., Mazda Motor Corporation, Defendants.
• Court: U.S. District Court — District of Massachusetts

448 F.Supp.2d 285

Eduarda ALVES, Plaintiff, v. MAZDA MOTOR OF AMERICA, INC., Mazda Motor Corporation, Defendants.

C.A. No. 02-11136-MLW.

United States District Court, D. Massachusetts.

August 21, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Nicholas A. Felici, Feinberg & Felici, Burlington, MA, for Plaintiff.

Marie E. Chafe, Peter M. Durney, Cornell & Gollub, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

WOLF, District Judge.

I. SUMMARY

Plaintiff Eduarda Alves seeks damages from Mazda Motor of America and Mazda Motor Corporation as a result of an injury she suffered when her Mazda automobile collided with another vehicle in 2000. As described in detail in this Memorandum, the court repeatedly extended the deadline for discovery and, particularly, for Alves' expert disclosures required by Federal Rule of Civil Procedure 26(a)(2).

Alves failed to make the required expert disclosures by the last, March 1, 2005, deadline. The defendants filed a third motion, pursuant to Federal Rule of Civil Procedure 37(c)(1), to exclude the expert evidence Alves belatedly proffered. Defendants also moved for summary judgment.

As the First Circuit has regularly and recently explained, the exclusion of expert evidence is the required sanction for a violation of Rule 26(a)(2) in the ordinary case. Consideration of the relevant factors demonstrates that it is a particularly appropriate sanction in this case.

Even with Alves' expert evidence, defendants' motion for summary judgment appears meritorious. It is clearly meritorious when, as here, that expert evidence is excluded. Therefore, defendants' motions are being allowed and judgement will enter for the defendants.

II. FACTS

Unless otherwise indicated, the undisputed facts include the following. On October 12, 2000, Alves was injured in an automobile accident while riding in the 1994, Mazda 626 car that she owned. Alves alleges that the accident occurred at a low speed and that the air bag in her vehicle should not have deployed. However, the air bag did deploy during the accident. Alves, who is a short woman, alleges that it hit her in the eyes and caused her to become blind.

This case was initiated in the courts of the Commonwealth of Massachusetts and removed to this court on June 6, 2002. Alves is now suing defendants Mazda Motor Corporation and Mazda Motor of America, based on three theories: negligent and defective design (Counts I and IV), failure to warn (Counts II and V), and breach of implied warranty (Counts III and VI).

Alves' vehicle, and therefore much of the evidence in this case, has been lost. After the accident, Alves was hospitalized and, according to her responses to interrogatories, she does not know what happened to her vehicle. Pl. Opp. to Mot. for Sum. Jdgmt. (Dkt. No. 107) Ex. L at 14. The parties agree that the vehicle was eventually declared a total loss by Alves' insurance company and that the insurance company sold the vehicle to a salvage company, which exported it to Guatemala. Alves' attorney, Nicholas Felici, claims that before the insurance company sold it, he requested permission to inspect the vehicle, but received no response. The parties agree that the vehicle was sold before the, defendants were informed of the accident. Therefore, they had no opportunity to inspect it.

A scheduling conference was held on February 13, 2003. After consulting the parties, the court issued a Scheduling Order which provided that: any additional proposed party was to be served by February 28, 2003; Alves was to designate her expert(s) and file the expert report(s) required by Federal Rule of Civil Procedure 26(a)(2) by May 30, 2003, and the sole defendant at that time, Mazda Motors of America, was to do the same by July 25, 2003; all discovery was to be completed by December 31, 2003; and, if the case was not otherwise resolved, trial would commence on March 8, 2004. Feb. 13, 2003 Scheduling Order (Dkt. No. 15).

During the more than four years that this case has been pending in this court, Alves' counsel, Felici, has repeatedly missed the deadlines the court set for Alves to disclose her expert reports. Initially, the May 30, 2003 deadline for Alves' expert disclosure passed, but the plaintiff did not disclose her experts as ordered. See Joint Motion to Extend Expert Deadlines (Dkt. No. 22) 113. On June 2, 2003, the plaintiff served an "Expert Designation" stating that the plaintiff intended to call an engineer named Ralph Ridgeway to testify on her behalf and that "[p]ending what he learns in discovery, Mr. Ridgeway is expected to opine that a properly designed and properly functioning air bag would not have deployed under the scientific facts and circumstances of this low impact collision thereby causing the Plaintiffs injuries." Def. 56.1 Stat. (Dkt. No. 105) Ex. A at 1-2. However, that designation did not include a report by Ridgeway or any of the other information required by Federal Rule of Civil Procedure 26(a)(2).

After the plaintiff had missed her deadline for disclosure but before the defendant's deadline to disclose experts, the parties on July 14, 2003, filed a joint motion to extend the times at which they were required to make Rule 26(a)(2) disclosures. See Joint Motion (Dkt. No. 22). The court granted the motion, giving Alves until August 14, 2003, to make them. See July 29, 2003 Electronic Order. Alves, however, did not meet this deadline either. Defendant's Rule 56.1 Statement (Dkt. No. 105) ("Def. 56.1 Stat.") ¶ 6; Plaintiffs Rule 56.1 Statement (Dkt. No. 108) ("Pl. 56.1 Stat.") ¶ 5.

On October 15, 2003, about seven months after the deadline for serving all proposed parties, the plaintiff filed a motion to add a second defendant to the case. See Feb. 13, 2003 Scheduling Order; Mot. to Amend Complaint (Dkt. No. 25). According to Alves, she had recently discovered that the sole defendant, Mazda Motor of America, had not manufactured or installed the air bag in her vehicle, and she therefore sought to add Mazda Motor Corporation, a Japanese company that she then believed was the manufacturer.

Mazda Motor Corporation of America opposed the motion to amend. It argued that from the beginning of the case it had denied that it designed or manufactured Alves' vehicle and that it had stated in its corporate disclosure statement that Mazda Motor Corporation had designed it. The defendant noted that the plaintiff's motion was untimely and that adding a third party would "radically remake the litigated issues of this case, significantly affect the defendant's trial strategy, and greatly extend discovery deadlines." Def. Opp. (Dkt. No. 26) at 5. As described earlier, the deadline for discovery was then December 31, 2003. Therefore, allowing Alves to add a new defendant at that stage threatened to catapult the case back to the beginning.

Tile court denied Alves' motion to amend, essentially for the reasons stated in the defendant's opposition. See Dec. 29, 2003 Order (Dkt. No. 30). She subsequently filed a motion to reconsider.

On January 12, 2004, the defendant filed a motion to preclude the plaintiff's proposed expert, Ridgeway, from testifying or otherwise providing evidence, because Alves had repeatedly missed the deadline to disclose his report and still had not done so. See Motion to Preclude Testimony of Pltf's Expert Ralph Ridgeway, and the Use of Any Information Not Timely Disclosed in Acc. With Rule 26(a)(2)(B) (Dkt. No. 33).

At a hearing on June 3, 2004, the court relented and allowed Alves to amend her complaint to add Mazda Motor Corporation as a defendant. At that hearing, the court also addressed the defendant's motion to preclude. Since discovery in this case was essentially starting over, the court denied the defendant's motion to preclude without prejudice. See June 4, 2004 Order (Docket No. 45). At an October 12, 2004 conference, the court issued `a new Scheduling Order (Dkt. No. 66). The plaintiff was ordered to make her Rule 26(a)(2) expert disclosures by March 1, 2005. Id.

However, the plaintiff did not meet this third deadline for expert disclosures either. Although she made a "preliminary disclosure" on February 28, 2005, that disclosure did not include the expert report required by Rule 26(a)(2). See Pl. Prelim. Expert Discl. (Dkt. No. 72). In her "preliminary disclosure," Alves stated that one of the defendants was "presently providing scientific discovery including crash test videotapes as well as air bag specifications and manuals." Id. As a result, Alves said she would file the report required under Rule 26 after reviewing this discovery, "including deposition of the Rule 30(b)(6) safety engineer for Mazda Motor Corporation." Id. at 2.

On March 24, 2005, more than three weeks after the plaintiff's deadline to make Rule 26 expert disclosures, Alves sent the defendants a notice of deposition under Rule 30(b)(6), seeking to depose a corporate officer about safety issues. See Def. Mot. For Protective Order (Dkt. No. 73) at 4. The defendants responded on April 19, 2005, by filing a motion for a protective order seeking to require the plaintiff to depose Mazda Motor Corporation employees in Japan. Id.

On April 1, 2005, defendants made their expert disclosure as required by the October 12, 2004 Scheduling Order, despite the fact that Alves had not done so first as the court had ordered. Therefore, defendants' experts could not address Alves' expert's specific contentions as the court contemplated when it issued the Scheduling Order.

On April 11, 2005, the plaintiff provided a "preliminary" report from Ridgeway to supplement the plaintiff's February 28, 2005, "preliminary" disclosure. See Def. 56.1 Stat. (Dkt. No. 105) 129 and Ex. Q On May 13, 2005, the defendants filed a second motion to preclude the plaintiff's expert because the plaintiff had disclosed him late. See Memo. in Support of Motion to Preclude (Dkt. No. 81).

Before filing an opposition to the motion to preclude, Alves'...