Elliot v. Amadas Indus., Inc., Civil Action No. 2:10–CV–2–KS–MTP.
| Decision Date | 01 March 2011 |
| Docket Number | Civil Action No. 2:10–CV–2–KS–MTP. |
| Citation | 84 Fed. R. Evid. Serv. 1057,796 F.Supp.2d 796 |
| Parties | James ELLIOT and Dorothy Elliot, Plaintiffs v. AMADAS INDUSTRIES, INC., Deere & Company, and Unidentified Entities 1 Through 10, Defendants. |
| Court | U.S. District Court — Southern District of Mississippi |
OPINION TEXT STARTS HERE
Francis McRae Turner, III, F.M. Turner, III, PLLC, Hattiesburg, MS, for Plaintiffs.
B. Stevens Hazard, Jason H. Strong, Michael R. Kelly, Daniel, Coker, Horton & Bell, Jackson, MS, for Defendants.
The Court now addresses several motions filed by Defendants: Defendants' joint Motion to Strike Expert Testimony of Jack Sparks [44]; Defendants' joint Motion to Exclude Expert Testimony of Jack Sparks [46]; and Defendants' joint Motion for Summary Judgment [48]; Defendant Deere & Company's (“Deere”) Motion for Summary Judgment [51]; Defendants' joint Motion to Exclude Certain Opinions of Lynn Esko [53].
For the reasons stated below, the Court:
1) grants in part Defendants' joint Motion to Strike Expert Testimony of Jack Sparks [44];
2) grants Defendants' joint Motion to Exclude the Expert Testimony of Jack Sparks [46];
3) grants Defendants' joint Motion for Summary Judgement [48];
4) finds as moot Defendant Deere's Motion for Summary Judgment [51]; and
5) finds as moot Defendants' joint Motion to Exclude Certain Opinions of Lynn Esko [53].
This product liability case arises from an accident involving a 2002 model Amadas 9900 self-propelled peanut combine. The Amadas 9900 1 functions as follows. Unearthed peanut vines are taken into the combine through the header at the front of the machine. Rotating cylinders then feed the vines into the picking chamber behind the cab. The separator mechanism is housed within the picking chamber. It is comprised of several rotating cylinders with metal teeth. When the separator is activated, these cylinders rotate at high speeds.2 The separator removes the peanut pods from the vine and cuts the vine into small segments. The segments of vine are routed to the back of the combine by the rotating cylinders, where they are deposited on the ground. The peanut pods fall into a stemmer, which removes their stems. The harvested peanut pods are then blown up into the basket, which rests on top of the picking chamber and behind the cab.
Plaintiff James Elliot was a farm worker at M & M Farms. On September 13, 2007, he and his employer, Joe Morgan, were repairing an Amadas 9900 combine. In order to access the part which needed to be repaired, Morgan and Elliot had raised the basket. It was also necessary for them to stand inside the picking chamber, on top of the separator cylinders. After they had finished their repairs, Morgan entered the combine's cab. Elliot alleges that Morgan entered the cab to turn the engine off, as it had been idling while they made their repairs. However, Morgan alleges that he entered the cab to turn the engine on, to observe their repairs as the engine idled. Regardless, there is no dispute that Morgan entered the cab and activated the combine's separator while Elliot was standing on the cylinders. Elliot was pulled into the separator mechanism and seriously injured, resulting in the amputation of both of his legs below the knees, a full loss of vision in one eye, and a partial loss of vision in the other eye, among other injuries.
Plaintiffs filed their Complaint in the Circuit Court of Forrest County, Mississippi, on September 11, 2009. Therein, they alleged both strict liability and negligence theories under the Mississippi Products Liability Act (“MPLA”). They further claimed that Defendants breached express and implied warranties. Finally, they asserted warning and design defect claims. Defendants removed the case to this Court on January 4, 2010[1].
The Court entered a Case Management Order on March 4, 2010[9], ordering that Plaintiffs were to designate their experts on or before September 2, 2010; that Defendants were to designate their experts on or before October 1, 2010; and that all discovery was to be completed by December 1, 2010. On September 2, 2010—their designations deadline—Plaintiffs filed a Motion to Extend the Expert Designation Deadlines [25]. Therein, Plaintiffs represented that their experts required additional time to complete their investigations and prepare their reports. Plaintiffs requested that the Court extend their designations deadline to October 1, 2010, and extend the Defendants' designations deadline to November 1, 2010. However, Plaintiffs failed to disclose to the Court that their counsel had only just retained Jack W. Sparks as an expert in this matter—on the same day they requested the extension.
On September 3, 2010, the Court granted Plaintiffs' extension via text order. Plaintiffs filed their Initial Designation of Experts [27] on October 1, 2010. Plaintiffs identified Jack W. Sparks as one of their experts. They represented that he was expected to testify concerning the design, manufacture, and operating controls of the combine involved in the accident, as well as the operating instructions and warnings given by Defendants, and they attached his “Preliminary Report” [27–2].
It is undisputed that Sparks did not inspect the combine prior to the submission of the preliminary report attached to Plaintiffs' designations. Sparks examined Plaintiffs' Complaint, Defendants' Answer, the parties' pre-discovery disclosures, Plaintiffs' discovery responses, Plaintiffs' medical records, and photographs of the combine at issue in preparing the preliminary report. Sparks additionally examined operating manuals and other documents relating to combine models other than the one involved in this case.
On November 1, 2010, Defendants filed their Designation of Experts [32]. Therein, they identified Stanley Brantley, President of Defendant Amadas Industries, Inc. (“Amadas”). Defendants asserted that they may call Brantley as an expert witness as to a variety of issues concerning the Amadas 9900 combine. Defendants also identified Charles F. Brundage as a potential expert witness in the areas of engineering, mechanical design analysis, operation, warnings and safety regarding agricultural combines and the combine involved in this case. Among other issues, Defendants expected both Brantley and Brundage to specifically address the opinions of Plaintiffs' expert, Sparks.
On November 12, 2010, Defendants filed their Emergency Motion to Compel Deposition of Jack Sparks [33]. Defendants asserted that they had e-mailed Plaintiffs' counsel on October 12 and 18, 2010, to request deposition dates for Sparks. Plaintiffs' counsel advised that Sparks was out of town until November. Defendants' counsel sent e-mails on November 3 and 9, 2010, but they received no reply. Therefore, as the discovery period was set to expire December 1, 2010, and the motions deadline was set for December 15, 2010, Defendants requested that the Court order Plaintiffs to immediately provide dates in November on which Defendants could depose Sparks.
The Court conducted a telephonic motion hearing for November 17, 2010. On that same day, the Court extended the discovery deadline to December 31, 2010, to allow the parties to schedule and complete depositions of designated experts [34]. The Court explicitly ordered that the discovery deadline was not extended for any other purpose. The Court also extended the motions deadline to January 14, 2010, for dispositive motions and Daubert motions. On November 19, 2010, Defendants noticed the deposition of Sparks for December 20, 2010[35].
Sparks testified that he contacted Plaintiffs' counsel to arrange for an inspection of the combine within the two weeks prior to his deposition. He inspected the combine at issue on December 18, 2010—two days prior to the deposition. He prepared a supplementary report [45–11] on December 19, 2010, and he was deposed on December 20, 2010 [45–7]. It is undisputed that Defendants did not receive Sparks' supplemental report until his deposition on December 20, 2010—over two months after Plaintiffs' designation deadline, and almost three weeks after the discovery deadline had passed.
Defendants argue that the opinions expressed in Sparks' supplemental report are untimely. Therefore, Defendants request that the Court strike his expert testimony in whole. Alternatively, they request that the Court strike the untimely portions of his testimony. Plaintiffs respond that Sparks' supplemental report is not untimely insofar as it does not contradict his preliminary report, withdraw any portion of the preliminary report, or include any opinion not previously disclosed in the preliminary report. Plaintiffs further argue that Defendants have not shown that they would be prejudiced if the Court allowed the disputed expert testimony.
The Court must first determine whether Plaintiffs complied with the Court's scheduling orders. Then, in the event that they did not, the Court must determine whether striking Sparks' testimony is an appropriate sanction. As always, the Court possesses broad, substantial discretion in discovery-related matters. Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 569 (5th Cir.1996). Indeed, the Court has the power to control its docket “by refusing to give ineffective litigants a second chance to develop their case.” Reliance Ins. Co. v. La. Land & Exploration Co., 110 F.3d 253, 258 (5th Cir.1997) (citing Turnage v. Gen. Elec. Co., 953 F.2d 206, 208–09 (5th Cir.1992)).
The Court must first determine whether Sparks' supplemental report was timely. Rule 26 provides that “a party must disclose to the other parties the identity of any witness it may use at trial to present” expert testimony. Fed.R.Civ.P. 26(a)(2)(A). “Unless otherwise stipulated or ordered by the court,...
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