Farkas v. Addition Mfg. Techs., LLC, 4:17-CV-761 RLW

• Decision Date: 07 December 2018
• Docket Number: No. 4:17-CV-761 RLW,4:17-CV-761 RLW
• Parties: TIMOTHY FARKAS, Plaintiff, v. ADDITION MANUFACTURING TECHNOLOGIES, LLC f/k/a MCKEE-ADDISON TUBE FORMING, INC., AM INDUSTRIAL GROUP, LLC, and OVERTON INDUSTRIES, INC., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

TIMOTHY FARKAS, Plaintiff, v. ADDITION MANUFACTURING TECHNOLOGIES, LLC f/k/aMCKEE-ADDISON TUBE FORMING, INC., AM INDUSTRIAL GROUP,LLC, and OVERTON INDUSTRIES, INC., Defendants.

No. 4:17-CV-761 RLW

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

December 7, 2018

MEMORANDUM AND ORDER

This matter is before the court on Defendant Addition Manufacturing Technologies, LLC's Motion to Strike Plaintiff's Rule 26(a)(2)(B) Expert Disclosure and Motion to Exclude Plaintiff's Rule 26(a)(2)(B) Expert (ECF No. 53), Defendant Addition Manufacturing Technologies, LLC's Motion to Strike Plaintiff's Rule 26(a)(2)(C) Expert Disclosures and Motion to Exclude Plaintiff's Rule 26(a)(2)(C) Experts (ECF No. 57), Defendant Overton Industries, Inc.'s Motion for Summary Judgment (ECF No. 63), Defendant Addition Manufacturing Technologies, LLC's Motion to Exclude Plaintiff's Rule 26(a)(2)(B) Expert Dr. J. Kenneth Blundell (ECF No. 85), Defendant Addition Manufacturing Technologies, LLC's Motion for Summary Judgment (ECF No. 87). These matters are fully briefed and ready for disposition.

BACKGROUND

Plaintiff Timothy Farkas ("Farkas") alleges that he suffered an injury on April 24, 2015 to his left hand while operating a McKee Addison FM-70 ID-OD RS tube forming machine ("the Machine") as part of his employment with Bohn & Dawson, a metal tube fabricating company in St. Louis, Missouri. The Machine was designed and manufactured by Defendant Addition Manufacturing Technologies, LLC ("Addition") sometime in 1992.

After a couple changes in ownership, AM Industrial Group, LLC ("AM Industrial") purchased the Machine from Pearl Equipment on August 18, 2010, and then sold the Machine to Bohn & Dawson on May 28, 2013.¹ In September 2014, Defendant Overton Industries, Inc. ("Overton") manufactured clamp blocks for Bohn & Dawson under part number B16-F2155-00. The clamp blocks were designed to be interchangeable with other tube end forming machines and were not designed specifically for use in the Machine at issue.

Using the Machine, an operator places a metal tube into the Machine and presses a button to activate the Machine. Then, a set of clamp blocks tighten around the tube and hold it in place while a hydraulic ram forms the end of the tube to the specifications Bohn & Dawson needed.

On April 24, 2015, Farkas was injured when his hand was crushed by the Machine's clamps. Farkas suffered injuries to his pointer finger and middle finger on his left hand. Farkas asserts claims for strict liability and negligence on theories of design defect and failure to warn against all defendants.

DISCUSSION

I. MOTIONS TO STRIKE/DAUBERT

A. Defendant Addition Manufacturing Technologies, LLC's Motion to Strike Plaintiff's Rule 26(a)(2)(B) Expert Disclosure and Motion to Exclude Plaintiff's Rule 26(a)(2)(B) Expert (ECF No. 53) and Defendant Overton Industries, Inc.'s Joinder in Defendant Addition Manufacturing Technologies, LLC's Motion to Strike Plaintiff's Rule 26(a)(2)(B) Expert and Memorandum in Support (ECF No. 61)

Farkas's expert, Dr. Blundell, provided a January 30, 2018 report that contained four conclusions. Addition² noticed Dr. Blundell's deposition for March 6, 2018. Moments before the deposition of Dr. Blundell, defendants were provided Dr. Blundell's "new" opinions and conclusions, which superseded his conclusions in his January 30, 2018 report. Addition asks this Court to strike Farkas' expert witness, Dr. Blundell, because:

• Dr. Blundell's January 30, 2018 preliminary report was incomplete and did not include all of Dr. Blundell's opinions as required under Rule 26(a)(2)(B);

• Dr. Blundell's January 30, 2018 preliminary report was prepared without review of sufficient facts or data as required under Federal Rule of Evidence 702(b);

• Dr. Blundell's opinions changed from his January 30, 2018 report to the date of his March 6, 2018 deposition; and

• Dr. Blundell's new opinions were not timely disclosed to Defendants.

Addition asks for the Court to strike the opinions and testimony of Dr. Blundell and to award it reasonable attorney's fees associated with Dr. Blundell's deposition pursuant to Rule 37(c)(1)(A).

In response, Farkas argues that Dr. Blundell supplemented his opinion only because Addition produced a "key document" more than a month late, and 21 days after Dr. Blundell was required to issue his report. (ECF No. 59). The "key document" was a safety notice Addition issued 16 years ago, admitting the Machine was defective because it allowed operators to place their hands between the clamping jaws of the Machine while accessing the footswitch. See ECF No. 59-1. Farkas claims Dr. Blundell formed his supplemental conclusions on March 6, 2018 because Addition failed to timely respond to discovery requests and belatedly produced the safety notice.

The Court denies the Motion to Strike Dr. Blundell as a witness. The Court holds Farkas has provided a valid explanation for Dr. Blundell's amended expert report, which was timely supplemented under the circumstances. In addition, the Court determines Dr. Blundell's arguably belated supplemental report will not significantly prejudice Addition or disrupt the trial schedule in this case, given the lengthy time period from when the report was issued to the trial date. Therefore, the Court denies Addition's Motion to Strike.

B. Defendant Addition Manufacturing Technologies, LLC's Motion to Strike Plaintiff's Rule 26(a)(2)(C) Expert Disclosures and Motion to Exclude Plaintiff's Rule 26(a)(2)(C) Experts (ECF No. 57)

Addition asks this Court to strike Farkas' Rule 26(a)(2)(C) expert witnesses of Dr. Christopher J. Dy, Dr. David Seltzer, Dr. David M. Brown and Paramedic Kevin Carman. In Farkas' Rule 26 expert disclosures, Farkas stated that his experts "may provide testimony as to the cause ... of Plaintiff's injuries and disabilities..." Farkas' counsel later clarified that none of his Rule 26(a)(2)(C) experts would testify regarding causation. However, Dr. Dy testified as to causation at his deposition. As a result, Addition seeks an order excluding Dr. Christopher J. Dy,Dr. David Seltzer, Dr. David M. Brown and Paramedic Kevin Carman from testifying as to causation pursuant to Rule 37(c)(1) and the Court's requirements. See also ECF No. 69.

Farkas argues that the "sudden onset doctrine" allows his treating physicians to opine where there is "no question about the cause of the injury." (ECF No. 62 at 1). Farkas claims his treating physicians should be permitted to testify regarding causation determinations reached during his care and treatment. (ECF No. 62 at 2).

Under the sudden onset doctrine, a causal connection may be inferred if the injury "develops coincidentally with the negligent act," such as broken bones, immediate, continuing back pain, or an obvious wound. DeMoulin v. Kissir, 446 S.W.2d 162, 165 (Mo.Ct.App.1969); Lidge v. Sears, Roebuck & Co., 318 F. Supp. 2d 830, 836 (W.D. Mo. 2004). The testimony of a lay witness is sufficient to establish the nature, cause and extent of an injury "when the facts fall within the realm of lay understanding." Williams v. Jacobs, 972 S.W.2d at 340; Griggs v. A.B. Chance Company, 503 S.W.2d 697, 704 (Mo. Ct. App. 1973). However, when the injury is a "sophisticated injury, which requires surgical intervention or other highly scientific technique for diagnosis, and particularly where there is a serious question of pre-existing disability and its extent, the proof of causation is not within the realm of lay understanding." Williams, 972 S.W.2d at 340; quoting Griggs v. A.B. Chance Co., 503 S.W.2d at 704; see also Super v. White, 18 S.W.3d 511, 516 (Mo. Ct. App. 2000); Soper v. Bopp, 990 S.W.2d 147, 157 (Mo. Ct. App. 1999). "Evidence of medical expenses and subjective complaints of pain will not suffice in proving the existence or nature of an alleged injury which is not readily discernable." Lidge, 318 F. Supp. 2d at 836 (citing Pihsiou Hsu v. Mound City Yellow Cab Co., 624 S.W.2d 61, 63 (Mo. Ct. App. 1981)).

The Court holds testimony regarding the serious and immediate damage to Farkas' fingers and hand are covered under the "sudden onset doctrine." Therefore, Farkas does not need to provide a report for Dr. Dy and similar treating physicians to testify as to the amputation and treatment of his hand and finger injury, and Farkas will not be required to provide an expert report as to causation. In contrast, any other ailments for which the source of injury is not obvious and not confined to Farkas' left fingers and hand do not fall within the sudden onset doctrine. Therefore, the Court requires any physician testimony regarding causation of such injuries to be accompanied by an expert report under Fed. R. Civ. P. 26(a)(2)(B). For example, any testimony regarding the cause of Farkas' left shoulder injury would need an expert opinion and report.

C. Motion to Exclude Dr. J. Kenneth Blundell by Addition Manufacturing Technologies, LLC (ECF No. 85)

1. Standard of Review

The admission of expert testimony in federal court is governed by Federal Rule of Evidence 702:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

A district court acts as a "gatekeeper" when screening expert testimony for relevance and reliability. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590-93 (1993); Russell v. Whirlpool Corp., 702 F.3d 450, 456 (8th Cir. 2012). To satisfy the reliability requirement, the party offering the expert testimony "must show by a preponderance of the evidence both that the...