Fedrick v. Mercedes-Benz Usa, LLC

• Decision Date: 28 March 2005
• Docket Number: No. 1:03-cv-3787-WSD.,1:03-cv-3787-WSD.
• Citation: 366 F.Supp.2d 1190
• Parties: Betty FEDRICK, Plaintiff, v. MERCEDES-BENZ USA, LLC, Defendant.
• Court: U.S. District Court — Northern District of Georgia

366 F.Supp.2d 1190

Betty FEDRICK, Plaintiff, v. MERCEDES-BENZ USA, LLC, Defendant.

No. 1:03-cv-3787-WSD.

United States District Court, N.D. Georgia, Atlanta Division.

March 28, 2005.

Eric Scott Fortas, Krohn & Moss, Atlanta, GA, for Plaintiff.

Jonathan R. Friedman, McKenna, Long & Aldridge, LLP, Atlanta, GA, for Defendant.

ORDER

DUFFEY, District Judge.

This matter is before the Court on Defendant Mercedes-Benz USA, LLC's ("MBUSA") Motion for Summary Judgment [16], MBUSA's Motion to Strike Portions of Plaintiff Betty Fedrick's ("Plaintiff") Affidavit [25], Plaintiff's Motion for Leave to File a Surreply in Opposition to MBUSA's Motion for Summary Judgment [28], MBUSA's Motion to Exclude the Expert Witness Testimony of John Taylor [31], Plaintiff's Motion for Leave to File a Surreply in Opposition to MBUSA's Motion to Strike [35], Plaintiff's Motion for Leave to File Additional Evidence of Damages [41], and Plaintiff's Motion for Disclosure of Danny Candler [42].

I. BACKGROUND

A. Factual Background

On January 6, 2003, Plaintiff purchased a 2003 Mercedes-Benz E320W (the "car") from Mercedes-Benz of South Atlanta (the "Dealership"). (Def.'s Statement of Material Facts ("DSMF") [16] ¶ 1.) The car was sold subject to a limited warranty. (DSMF ¶ 2.) The warranty provided MBUSA would make "any repairs or replacements necessary, to correct defects in material or workmanship arising during the warranty period."¹ (Mot. for Summ. J., Ex. E at 13.)

Plaintiff alleges the car suffered from three mechanical problems after she purchased it: (1) a problem with the air conditioner; (2) an unspecified electrical problem; and (3) an intermittent problem with the radio.² (DSMF ¶ 3.) Plaintiff testified she no longer experiences any problem with the car's air conditioner and her submission indicates this problem was repaired on the first visit in which she brought the problem to the Dealership's attention. (Pl. Dep. at 24-27, 37-38.) With respect to the alleged electrical problem, Plaintiff concedes the car does not "suffer from any `electrical' problems separate and apart from the problems she alleges about the radio." (DSMF ¶¶ 6-7; Resp. to DSMF ¶¶ 6-7.) Thus, the focus of Plaintiff's claims is the alleged problem with the car's radio. Robert Gerlach, an Mercedes-Benz Technical Specialist, testified that the alleged problem with the radio in Plaintiff's car would be resolved by replacing or updating the audio gateway described in an April 7, 2004 Star Bulletin published by MBUSA. (DSMF ¶ 13.)

From June 17, 2003, to January 26, 2004, Plaintiff took the car to the dealership for repairs on six (6) occasions. (Resp. to Mot. for Summ. J. [20] at 2; Pl.'s Statement of Material Facts ("PSMF") [22] ¶ 6.) She did not pay for any of the work performed on the car when it was serviced. (DSMF ¶ 9.) On May 24, 2004 Plaintiff took the vehicle for the dealership for an expert vehicle inspection. (Id. at ¶ 11.) During a thorough inspection and test drive, Mr. Gerlach did not observe the alleged radio defect. (Id.) According to his report, the car functioned normally and had no problems. (Id.) Plaintiff brought her car to the Dealership on June 15, 2004, claiming again that her radio was intermittently inoperable. (Id. at ¶ 14.) The Dealership performed the repair to the radio described in the April 7, 2004 Star Bulletin. (DSMF ¶ 15.)

Following the June 15, 2004 repair, Plaintiff returned the car to the Dealership only once. That occasion was on August 16, 2004. (Resp. to Mot. for Summ. J., Ex. J.) The following work was performed on the car: the brake pads were replaced, an engine hesitation problem was addressed, and a quality control inspection was performed. (Id.) Plaintiff did not complain about the radio during this visit. (Id.)³

Plaintiff admits that, since its purchase in January 2003, she drives the car "on a daily basis" and that the vehicle provides safe and reliable transportation. (DSMF ¶ 8.) In the first one and one-half years she owned the car, she drove it over 31,000 miles. (Id. at ¶ 9.)

B. Procedural History

Plaintiff filed her Complaint on November 2, 2003.⁴ She alleges her car is defective and asserts claims for breach of express and implied warranties under Georgia law, as well as revocation of acceptance under Georgia law and the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. She seeks damages and attorney's fees. The parties proceeded through discovery and, on July 26, 2004, MBUSA filed its Motion for Summary Judgment and Memorandum of Law in Support ("Mot. for Summ. J.") [16]. Plaintiff filed her response in opposition to MBUSA's motion on August 19, 2004 ("Resp. to Mot. for Summ. J.") [20],⁵ and MBUSA replied on September 7, 2004[27].

II. DISCUSSION

A. The Parties' Non-Dispositive Motions⁶

1. MBUSA's Motion to Exclude the Expert Witness Testimony of John Taylor

MBUSA moves the Court to exclude the expert witness testimony of John Taylor because (1) Plaintiff failed to timely designate Mr. Taylor as an expert witness, and (2) Plaintiff's untimely designation failed to meet the requirements of Rule 26 of the Federal Rules of Civil Procedure. (Mot. to Exclude at 4.) Plaintiff does not refute that her designation of Mr. Taylor was untimely and deficient, but alleges exclusion of his testimony is unwarranted because MBUSA has failed to show it was prejudiced by the untimely and deficient designation. (Resp. to Mot. to Exclude at 1.)

The requirements of Local Rule 26.2(C) with respect to the timing of expert witness designations are straightforward. The rule provides:

Any party who desires to use the testimony of an expert witness shall designate the expert sufficiently early in the discovery period to permit the opposing party the opportunity to depose the expert and, if desired, to name its own expert witness sufficiently in advance of the close of discovery so that a similar discovery deposition of the second expert might also be conducted prior to the close of discovery.

Any party who does not comply with the provisions of the foregoing paragraph shall not be permitted to offer the testimony of the party's expert, unless expressly authorized by court order based upon a showing that the failure to comply was justified.

L.R. 26.2(C), N.D.Ga. See generally Gainor v. Douglas County, Ga., 59 F.Supp.2d 1259, 1296-97 (N.D.Ga.1998) (excluding expert testimony pursuant to Local Rule 26.2(C) where party "clearly failed to comply with [the Local Rule] by not making [its expert] available to be deposed sufficiently early in discovery so that defendants could decide whether they wishes to retain a counter-expert, allow that expert to prepare his expert report, and make that expert available for deposition within the discovery period.").

Discovery in this case closed on July 6, 2004. MBUSA's motion for summary judgment was filed on July 26, 2004. Plaintiff did not identify Mr. Taylor as an expert witness until September 27, 2004, more than two and one-half months after the close of discovery and two months after MBUSA's summary judgment motion.⁷ This designation was not made sufficiently early in the discovery period to permit MBUSA the opportunity to depose Mr. Taylor and, if desired, to name its own expert witness sufficiently in advance of the close of discovery so that a similar discovery deposition of the second expert might also be conducted prior to the close of discovery. Accordingly, Plaintiff's designation of Mr. Taylor failed to comply with the requirements of Local Rule 26.2(C).

Plaintiff's designation also failed to comply with the parties' agreement regarding the timing of expert witness designations. The parties in their Joint Preliminary Report and Discovery Plan set out a specific schedule for the disclosure of expert witnesses. (Joint Preliminary Report [5] at ¶ 11.) Included in this schedule was the requirement that "Plaintiff shall identify and disclose in accordance with Fed.R.Civ.P. 26(a)(2) all experts who will testify at trial on or before April 5, 2004." (Id.) The parties' schedule was adopted as an order of this Court on January 14, 2004[6]. Plaintiff did not identify Mr. Taylor as an expert witness until September 27, 2004, more than five (5) months after the Court-ordered deadline.

Finally, Plaintiff's expert-witness designation failed to comply with the requirements of Rule 26 regarding the content of an expert report. Rule 26 requires a party's expert witness disclosure to be accompanied by written report prepared and signed by the witness. Fed.R.Civ.P 26(a)(2)(B). The expert report must include, among other things, "any exhibits to be used as a summary of or support for the opinions; ... the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years." Id. The expert report attached to Plaintiff's expert witness designation did not include the exhibits used to support Mr. Taylor's opinion, the compensation he was paid for his study and testimony, or a listing of any other cases in which he has testified at trial or deposition in the preceding four years.

Plaintiff admits her designation of Mr. Taylor was untimely and did not comply with Rule 26. (Resp. to Mot. to Exclude at 2.) Except for her vague allegation that "Mr. Taylor was disclosed to [MBUSA] at the earliest possible time by the Plaintiff," she offers no justification for her failure to comply with the requirements of Local Rule 26.2 or Rule 26. (Resp. to Mot. to Exclude at 1.) She argues the exclusion of Mr. Taylor is unwarranted, however, because MBUSA has not demonstrated the untimely and insufficient designation resulted in material prejudice to MBUSA. (Id. at 1-2.) This argument is without merit. Where a party fails to comply with Local Rule 26.2(C) in designating its expert witness, the party "shall not be permitted to offer the testimony of [its] expert, unless expressly...