State Farm Mut. Auto. Ins. Co. v. Newmar Corp.

Decision Date14 June 2021
Docket NumberNo. 1:20-CV-00436-WJ-JHR,1:20-CV-00436-WJ-JHR
Citation543 F.Supp.3d 1079
Parties STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and State Farm Fire and Casualty Company, Plaintiffs, v. NEWMAR CORPORATION; Daimler Trucks North America LLC, and John Doe, Defendants.
CourtU.S. District Court — District of New Mexico

Julia Hosford Barnes, Julia Hosford Barnes, P.C., Santa Fe, NM, for Plaintiffs.

Christopher J. Tebo, Jeramy Schmehl, Ray, Pena, McChristian, PC, Albuquerque, NM, for Defendant Newmar Corporation.

Cheyenne Moore, Pro Hac Vice, Darin J. Lang, Nelson Mullins Riley & Scarborough LLP, Denver, CO, for Defendant Daimler Trucks North America LLC.



THIS MATTER comes before the Court on the following motions filed by Defendant Daimler Trucks North America, LLC ("DTNA"):

Motion to Exclude Testimony and Opinions of Plaintiffs’ Expert Lucas Edwards, filed April 6, 2021 (Doc. 44 ). The Court find that this motion is well-taken to the extent it requests that the Court find that the report produced by EFI Global contains only Mr. Edwards’ opinions. The remainder of this motion is not-well taken. Accordingly, this motion is GRANTED IN PART and DENIED IN PART.
Motion to Exclude Testimony and Opinions of Plaintiffs’ Expert Ryan Scalf, filed April 6, 2021 (Doc. 45 ). The Court finds that this motion is not well-taken and is therefore DENIED.
Motion for Summary Judgment, filed April 6, 2021 (Doc. 46 ). The Court finds that this motion is not well-taken and is therefore DENIED.

This is a subrogation action arising out of an August 21, 2020 incident involving Plaintiffs State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Company's ("Plaintiffs" or "State Farm") insureds, Truman and Lynn Esmond (collectively the "Esmonds" or "Insureds"). See Doc. 46-1, Statement of Undisputed Material Facts ("SUMF").1

The Esmonds were traveling on Interstate 40 between Albuquerque and Gallup, New Mexico in their 2018 Newmar Ventana LE Model 3717 RV (VIN 4UZACHFC8KCKP8377) (the "RV"). SUMF ¶¶ 2, 5. The RV was designed and manufactured by Defendant Newmar Corporation. Id. ¶ 3. The RV's chassis, a component part of the RV that includes the brake system, was manufactured by DTNA. Id. ¶ 4.

At the time of the incident, Lynn Esmond was driving the RV, which was towing the Esmonds’ 2013 Honda CR-V. Id. ¶ 6. The Esmonds heard a "pop" from the rear of the RV and Ms. Esmond pulled over to the side of the road and turned off the engine. Id. ¶¶ 6, 7. Truman Esmond exited the RV from the passenger side and saw flames coming from the back of the RV on the driver's side. Id. ¶ 7. The fire department arrived on the scene and extinguished the fire but the RV and much of its contents, as well as the 2013 Honda CR-V, sustained fire damage. Id. ¶ 8. On the day of the incident, the Esmonds did not observe any warning indicators or experience any electrical or mechanical problems or concerns with the braking system. Id. ¶ 9. After extensive testing of the RV and some of its component parts, the cause of the fire is still undetermined. Id. ¶ 10.

State Farm paid insurance benefits to the Esmonds as a result of the losses and damages caused by the fire. Id. ¶ 11. Now Plaintiffs claim they are subrogated to the rights of the Insureds to the extent of their payment of insurance benefits to the Esmonds. Id. ¶ 14. As it pertains to the claims asserted against DTNA, Plaintiffs contend the fire was caused by the RV's chassis and embedded brake system, which Plaintiffs allege were defective and unreasonably dangerous. Id. ¶ 12. Plaintiffs assert against DTNA claims of strict products liability, negligence, and breach of implied warranties. Id. ¶ 13.

I. The Court Strikes the Affidavits of Clay Bailey (Doc. 51) and Timothy C. Behrens (Doc. 54)

As a preliminary matter, the Court will first determine whether in ruling on DTNA's motions it may consider the affidavits of Clay Bailey, Lucas Edwards, Ryan Scalf, and Timothy Behrens. Docs. 51, 52, 53, 54. Plaintiffs filed these four affidavits in conjunction with their April 28, 2021 response briefs. DTNA asserts that the affidavits, filed approximately five months after the deadline for expert disclosures, must be disregarded because they contain new opinions not contained in State Farm's expert disclosures and reports. The Court agrees with DTNA to the extent it argues the Bailey and Behrens affidavits are untimely and improper.

On September 9, 2020, the Court issued an Order setting case management deadlines and discovery parameters (the "Scheduling Order"). Doc. 23. The Scheduling Order imposed a December 9, 2020 deadline for PlaintiffsRule 26(a)(2) expert disclosure, which included disclosure of "the names of all expert witnesses ... the subject matter on with the experts will present evidence, and a summary of the facts and opinions to which the experts are expected to testify ..." and the corresponding "expert report." Id. at 2 n.2. (citing Fed. R. Civ. P. 26(a)(2) ). The Scheduling Order also imposed an April 30, 2021 discovery deadline. Id. at 2.

Meeting the expert disclosure deadline, Plaintiffs filed a notice identifying the following experts: (a) Timothy Behrens, Lucas Edwards, Clay Bailey, Brian Beasley, all employed by EFI Global (collectively the "EFI Global team") and (b) Ryan Scalf of Metals Engineering and Testing Laboratories. Doc. 28. Plaintiffs contemporaneously disclosed two expert reports, an engineering report produced by EFI Global on December 4, 2020 (the "Engineering Report") (Doc. 46-2)2 and a metallurgical report produced by Metals Engineering and Testing Laboratories on March 3, 2020 (the "Metallurgical Report") (Doc. 46-5).3

Plaintiffs’ notice of expert disclosure includes the perfunctory statement:

[t]he experts will testify as to the examination of the Newmar coach and component parts within it that caused the coach to catch fire.... The findings show that the left brake drum shows evidence of excessive overheating consistent with frictional overheating from the brake shoes dragging against the drum over an extended period of time. The right brake drum did not exhibit this type of evidence. Their findings are that a brake system issue caused the fire as opposed to tire failure or other similar issue.

Doc. 28. However, as the Court will discuss further, the contents of the two timely disclosed expert reports do not align perfectly with this notice, nor do these reports contain the opinions of Clay Bailey or Timothy Behrens. When viewed under the totality of the circumstances, the opinions expounded by Mr. Bailey and Mr. Behrens in their untimely affidavits go beyond the bounds of the disclosed expert reports.

Plaintiffs contend that DTNA is bringing a Daubert challenge against State Farm's team of experts. Consequently, State Farm devotes much of its Response brief to an in-depth and largely irrelevant discussion of the team members’ qualifications and their application of a reliable, accepted methodology to the investigation. DTNA does not dispute qualifications or methodology used, and instead challenges these affidavits on procedural grounds, specifically Federal Rules of Civil Procedure 26 and 37.

Fed. R. Civ. P. 26(a)(2) governs the disclosure of expert witnesses. AIG Aviation Ins. v. Avco Corp. , No. 09-CV-352 BB/LFG, 2011 WL 13174496, at *1 (D.N.M. Mar. 14, 2011). Under the rule, disclosure of testifying experts must be accompanied by a written report—prepared and signed by the witness, which "must contain ... a complete statement of all opinions a witness will express and the basis and reasons for them ...’ " Id. (quoting Fed. R. Civ. P. 26(a)(2)(B) ) (emphasis added). These written reports are intended "to set forth the substance of the direct examination." AIG Aviation Ins. , 2011 WL 13174496, at *1. An expert report must not be sketchy, vague or preliminary; it must be detailed and complete, including how and why the expert reached a particular result, not merely the expert's conclusory opinions. Fed. R. Civ. P. 26(a)(2)(B) Adv. Comm. Note (1993); In re Motor Fuel Temperature Sales Practices Litig. , No. 07-1840-KHV, 2011 WL 5506259, at *1 (D. Kan. Nov. 10, 2011). In addition to a party's initial duty to fully disclose "all opinions" that an expert will offer at trial, a party is also "under a duty to supplement at appropriate intervals any disclosures made if it learns that in some material respect the information previously disclosed was incomplete or incorrect, and if the additional or corrected information has not otherwise been disclosed to the parties during the discovery process." Beller ex rel. Beller v. United States , 221 F.R.D. 696, 701 (D.N.M. 2003). However, the purpose of supplementation is to correct inadvertent errors, not to allow a party to engage in "gamesmanship" by creating a "new and improved" expert report in order to gain tactical advantage or by bolstering opinions to avert a dispositive motion or an expert challenge. Rodgers v. Beechcraft Corp. , No. 15-CV-129-CVE/PJC, 2016 WL 7888048, at *2 (N.D. Ok. Sept. 20, 2016) (citing Beller , 221 F.R.D. at 701 ). The duty to supplement does not give license to sandbag one's opponent with claims and issues which should have been included in the expert witness's report, and does not allow a party to file supplements intended to "deepen" or "strengthen" its own expert's prior Rule 26(a)(2)(B) report. Leviton Mfg. Co., Inc. v. Nicor, Inc. , 245 F.R.D. 524, 528 (D.N.M. 2007) (internal citations and quotations omitted); see also Vigil v. Burlington N. & Santa Fe Rwy. Co. , 521 F.Supp.2d 1185, 1207 (D.N.M. 2007).

Rule 37(c)(1) provides an incentive for full disclosure, namely, that a party "will not ordinarily be permitted to use on direct examination any expert testimony not so disclosed." AIG Aviation...

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