Dreyer v. Ryder Automotive Carrier Group, Inc.

• Decision Date: 14 April 2005
• Docket Number: No. 98-CV-0082A.,98-CV-0082A.
• Citation: 367 F.Supp.2d 413
• Parties: Steven D. DREYER and Roberta M. Dreyer, Plaintiffs, v. RYDER AUTOMOTIVE CARRIER GROUP, INC., Ryder Automotive Operations, Inc. d/b/a Delavan, Delavan Industries, Inc., Ryder System, Inc. and Ryder Automotive Carrier Services, Inc., Defendants.
• Court: U.S. District Court — Western District of New York

Page 413

367 F.Supp.2d 413

Steven D. DREYER and Roberta M. Dreyer, Plaintiffs, v. RYDER AUTOMOTIVE CARRIER GROUP, INC., Ryder Automotive Operations, Inc. d/b/a Delavan, Delavan Industries, Inc., Ryder System, Inc. and Ryder Automotive Carrier Services, Inc., Defendants.

No. 98-CV-0082A.

United States District Court, W.D. New York.

April 14, 2005.

Marcus Andreozzi & Fickess, LLP, Attorneys for Plaintiffs, David P. Marcus, of Counsel, Amherst.

Larson & Larson, P.C., Attorneys for Defendants, David E. Larson, of Counsel, Leawood, KS.

Hiscock & Barclay, LLP, Attorneys for Defendants, Samuel J. Burrano, Jr., of Counsel, Buffalo.

DECISION AND ORDER

ARCARA, Chief Judge.

INTRODUCTION

Plaintiffs Steven and Roberta Dreyer brought this action in products liability alleging that the defendants' autohauler is defectively designed because it lacks a fall protection system. Steven Dreyer ("Dreyer") operated the autohauler and during the unloading process he fell from the upper level and sustained several injuries for which he seeks compensation. Roberta Dreyer seeks damages for loss of consortium. Defendants contend that the autohauler is not defectively designed, that it is reasonably safe, that no alternative, safer designs are feasible and that Dreyer's own negligence was the cause of his fall. This matter is scheduled for jury trial to commence on April 18, 2005.

BACKGROUND

Pending before the Court are several motions concerning the admissibility of expert testimony at trial, including defendants' objections to the Magistrate Judge's Decision and Order disqualifying defendants' expert, Dr. Charles Proctor ("Proctor"), defendants' motion to file Dr Proctor's supplemental expert report, defendants' motion to disqualify plaintiffs' expert, Linda Weseman ("Weseman"), and defendants' motion to strike Weseman's supplemental expert reports. Defendants also filed several procedural motions relating to these substantive motions.

DISCUSSION

A. Objections to Decision and Order Disqualifying Defendants' Expert

The Magistrate Judge's Decision and Order concerns a non-dispositive motion and will not be reversed by this Court unless it is "clearly erroneous or contrary to law." See 28 U.S.C. § 636(b)(1)(A); Nikkal Industries, Ltd. v. Salton, Inc., 689 F.Supp. 187, 189 (S.D.N.Y.1988) (Magistrate's conclusions on motion to disqualify expert witness subject to the "clearly erroneous or contrary to law" standard of review). A finding is "clearly erroneous" when "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).

On July 27, 2002 plaintiffs filed a motion to exclude Proctor's expert opinions. On February 9, 2005 Magistrate Judge Leslie G. Foschio issued a Decision and Order in which he concluded that Proctor's opinions should be excluded because defendants failed to show (1) that Proctor was qualified to opine on whether the autohauler was negligently designed and whether Dreyer's negligence caused his injuries; (2) that Proctor's conclusions are relevant to the issues before the jury; and (3) that Proctor had a technical basis for his conclusions and that his conclusions are based on reliable facts and data as required by Rule 702 of the Federal Rules of Evidence and the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

On March 1, 2005 defendants filed a document which asserts objections to and seeks reconsideration of the Magistrate Judge's February 9, 2005 Decision and Order. However, a review of the document reveals no request for reconsideration except that made in the title of the document. The document is an appeal to this Court of the Magistrate Judge's ruling, and it has been treated as such. Plaintiffs oppose defendants' objections, arguing that the objections are untimely and that defendants fail to demonstrate that the Magistrate Judge's decision is clearly erroneous or contrary to law.

1. Timeliness of the Objections

The Magistrate Judge's Decision and Order was issued on February 9, 2005. Defendants filed their objections on March 1, 2005. Plaintiffs argue that the objections are untimely and should not be considered.

Plaintiffs are correct. Rule 72 of the Federal Rules of Civil Procedure provides that objections to a Magistrate Judge's Decision and Order are to be filed "[w]ithin 10 days after being served with a copy of the ... order." Fed.R.Civ.P. 72(a). The 10 days available pursuant to Rule 72 are business days since Rule 6(a) of the Federal Rules of Civil Procedure excludes weekends and legal holidays from the computation of filing periods less than 11 days in length.

In computing any period of time prescribed or allowed by these rules ... [w]hen the period ... prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.

Fed.R.Civ.P. 6(a).

The Advisory Committee Notes to Rule 72 indicate that the 10-day period is subject to Rule 6(e) of the Federal Rules of Civil Procedure which provides:

Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper [is] served upon the party [by mail], 3 days shall be added to the prescribed period.

The additional three days provided for under Rule 6(e) are calendar days, not business days, and are added after the calculation of the 10 days pursuant to Rule 6(a). See Treanor v. MCI Telecom. Corp., 150 F.3d 916, 918-19 (8th Cir.1998); CNPq-Conselho Nacional de Desenvolvimento Cientifico e Technologico v. Inter-Trade, Inc., 50 F.3d 56, 58-59 (D.C.Cir.1995); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993).

In this case, the Magistrate Judge's Decision and Order was filed and sent to the parties on February 9, 2005. Under Rule 72 and Rule 6(a), the 10-day period would have expired on February 24, 2005. Adding the three additional days under Rule 6(e), defendants' objections would have been due on February 27, 2005. However, because that day fell on a Sunday, the objections were due the next business day, Monday, February 28, 2005. See Fed.R.Civ.P. 6(a); Golden Nugget, Inc. v. Chesapeake Bay Fishing Co., 232 F.Supp.2d 631, 634 (E.D.Va.2002).

Defendants' objections were not filed until March 1, 2005, and thus they are untimely.¹

2. Decision and Order Not Clearly Erroneous or Contrary to Law

Even if the defendants' objections had been timely filed, the Court concludes that defendants failed to demonstrate that the Magistrate Judge's decision is clearly erroneous or contrary to law. Defendants' objections are 47 pages in length, and consist of excerpts, without page references, from the Magistrate Judge's 60 page Decision and Order followed by defendants' arguments as to why the excerpted portions are erroneous. Defendants' challenge the Magistrate Judge's decision with respect to Proctor's qualifications, methodology and the relevance of his opinions to the issues that will confront the jury in this case.

The Magistrate Judge concluded that although Proctor is well-credentialed, he lacks qualification or experience relevant to autohaulers such that his opinions go beyond the scope of his area of expertise. As both the Magistrate Judge and defendants note, a review of an expert's qualifications should not be so narrow as to limit the source of experts to only those persons with direct experience in the relevant industry. See Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 81 (2d Cir.1997). However, an expert may opine on matters "within the reasonable confines of his subject area, and cannot render expert opinion on an entirely different field or discipline." Lappe v. American Honda Motor Co., Inc., 857 F.Supp. 222, 227-28 (N.D.N.Y.1994). An otherwise well-credentialed expert's opinion may be subject to disqualification if he fails to employ investigative techniques or cannot explain the technical basis for his opinion. See Mannix v. Chrysler Corp., No. 97-CV-1944, 2001 WL 477291 (E.D.N.Y. March 4, 2001).

A review of Proctor's report indicates that he has extensive education, experience, and teaching experience in mechanical engineering. He has acted as an expert witness many times in the past, and on two prior occasions, in cases concerning injuries during the loading and unloading of autohaulers. He states that he has loaded, unloaded and operated a fully loaded autohauler and has received training in those tasks from Ryder personnel. The Court concludes that, as defendants argue, Proctor has the objective credentials and experience, albeit not directly related to fall protection systems on autohaulers, to qualify him as an expert to testify as to the existence of a design defect. As the Magistrate Judge noted, however, Proctor failed to articulate the technical or scientific basis for his conclusions.

Rule 702 of the Federal Rules of Evidence provides that

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed.R.Evid. 702. Proctor, in his report and as amplified by his deposition testimony, opined that the autohauler was appropriately designed and not defective because Dreyer could have safely loaded and unloaded the vehicles on the autohauler as currently designed. He also concluded...