Teeples v. BIC U.S., Inc.
| Decision Date | 15 July 2022 |
| Docket Number | 3:20-cv-941 |
| Parties | DEBORAH S. TEEPLES, Administrator Ad Litem for CHARLOTTE S. BOZE, Plaintiff, v. BIC USA, Inc., Defendant. |
| Court | U.S. District Court — Middle District of Tennessee |
MEMORANDUM AND ORDER
This matter is before the Court on two opposing motions, both concerning admission of expert witness disclosure. Defendant BIC USA, Inc. (“BIC”), filed a “Motion to Exclude Late-Disclosed Expert Witness Information, for Discovery Conference, to Temporarily Stay Discovery, and Modify Agreed Case Management Order” (“the Motion to Exclude”) (Docket No. 36). Eight days later Plaintiff, Deborah S. Teeples, filed a “Motion for Leave to Serve Plaintiff's Rebuttal Expert Witness Disclosure and Report” (“the Motion for Leave”) (Docket No. 38). Defendant has filed a Response and Objection to Plaintiff's Motion for Leave. Docket No. 41. Plaintiff has filed a Reply. Docket No. 42. The parties subsequently filed a “Joint Status Report and Motion for Modification of Case Management Order and Continuance of Trial Date” (“the Joint Motion”) (Docket No. 43) seeking suspension of all dates in the current Amended and Agreed Case Management Order (Docket No. 31) and conference to modify the scheduling order and select a new target trial date.
Defendant submits that the Court should bar Plaintiff from disclosing any further expert witness information since the deadline for expert witness disclosure, January 31, 2022, set by the current Agreed Amended Case Management Order (“the Case Management Order”) (Docket No. 31) has passed. Plaintiff seeks to admit the disclosure and report of Lila F. Laux, Ph.D. (“Dr. Laux”) (Docket No. 38-3), after the expert disclosure deadline established by the Case Management Order. Docket No. 38, p. 1. Plaintiff argues that her filing of Dr. Laux's disclosure and report is: (1) timely under Fed.R.Civ.P. 26(a)(2)(D)(ii) as rebuttal evidence to Defendant's expert witness disclosures and reports (Docket Nos. 33, 41-1) because Dr. Laux's disclosure and report was served within thirty days of Defendant's disclosure; and (2) permitted by the Case Management Order because she has shown “good cause” for seeking a rebuttal expert report and opinion, which is all the Case Management Order expressly requires. Docket No. 38, pp. 2-4; Docket No. 31. For the foregoing reasons, Defendant's Motion is DENIED in part and GRANTED in part, and Plaintiff's Motion is GRANTED.
This is a products liability and negligence action wherein Defendant allegedly produced and sold Plaintiff a defective lighter and failed to provide adequate warnings of the dangers it posed. Docket No. 1, pp. 11-12. Plaintiff further claims the lighter failed to extinguish when it was designed to, and, as a result, the lighter set fire to Plaintiff's clothes, severely burning her. Id. at 9. At issue in the instant motion is Plaintiff's late designation of an expert witness, Dr. Laux, well past the deadline established in the Case Management Order. Docket No. 38, p. 1. The Court issued an Initial Case Management Order on January 15, 2021, which required Plaintiff to disclose all expert witnesses and expert reports on or before October 15, 2021. Docket No. 17, p. 3. A subsequent order set the case for trial on December 6, 2022. Docket No. 18, p. 1. The parties later agreed to amend the initial case management order, creating the Case Management Order. Docket No. 31. The amendments extended, inter alia, Plaintiff's expert disclosure deadline to January 30, 2022.[1] Id. at 1. No express deadline was set for supplemental expert reports or rebuttal experts in either the initial or the amended case management order, but both orders included the language: “No supplemental expert reports or rebuttal experts shall be allowed, except upon order of the Court for good cause shown.” Docket No. 17, p. 3; Docket No. 31, p. 2 (emphasis added). The Case Management Order additionally set May 15, 2022, as the expert deposition deadline and May 30, 2022, as the dispositive motion deadline. Docket No. 31, p. 2.
In accordance with the Case Management Order, Plaintiff timely disclosed one expert witness, Mr. Peter Layson, and provided an accompanying expert report compliant with Fed.R.Civ.P. 26(a)(2)(B) on January 31, 2022. Docket No. 36, p. 1. Mr. Layson is a forensic scientist and engineer retained by Plaintiff to perform forensic evaluation of the subject lighter to determine if it contained any defects or deficiencies that could have caused Plaintiff's injuries. Docket No. 41-2, p. 3. In the following weeks, Mr. Layson virtually attended a joint inspection of the subject lighter and received the data gathered during the inspection. Docket No. 41-3, p. 5. On March 30, 2022, Defendant timely disclosed and provided reports by four liability experts. Docket No. 36, p. 2. These included: Mr. Jeffry Kupson, the Compliance Quality Director of BIC, who concluded the lighter had been “abused” and contaminated with a sticky liquid which led to its non-extinguishment on the day of Plaintiff's injuries (Docket No. 41-1, p. 16); Dr. Daniel Gottuk, a fire dynamics and forensic fire detection expert, who concluded the same and that the lighter cannot be shown definitively to have caused Plaintiff's injuries (Docket No. 41-1, p. 44); Dr. Richard Roby, a combustion science and engineering expert, who concluded that a cigarette, not BIC's lighter, caused Plaintiff's clothes to ignite (Docket No. 41-1, p. 62); and Dr. Jack Auflick, a human factors and engineering psychology expert, who offered conclusions about Plaintiff's failure to appreciate the warnings and hazards associated with the lighter in question.
As both parties negotiated deposition dates for each other's expert witnesses, Plaintiff informed Defendant that Mr. Layson would be providing a supplemental report, which would fold in the newly gathered information from the joint inspections to his original report's findings. Docket No. 36, p. 2. Defendant objected to Plaintiff but Plaintiff did not respond, prompting Defendant to file the Motion to Exclude on April 25, 2022, to prevent Plaintiff from submitting a supplemental report.
On May 2, 2022, ninety-one days after Plaintiff's disclosure deadline and thirty-three days after Defendants' disclosure, Plaintiff filed its Motion for Leave to disclose a new “rebuttal” expert, Dr. Laux. Docket No. 38, p. 2. Dr. Laux describes her report as “provid[ing] rebuttal to the human factors, and warning issues, raised in Defendant BIC USA, Inc.'s Expert Disclose and Reports,” specifically those of Dr. Auflick and Mr. Kupson. Docket No. 38-3, p. 5. Defendants filed a Response and Objection to Plaintiff's Motion for Leave (Docket No. 41), to which Plaintiff filed a Reply (Docket No. 42).
The parties have since entered an Agreed Order (Docket No. 40) allowing Mr. Layson to submit one supplemental report addressing the data received after the submission of his initial expert report[2] but leaving the admissibility of Dr. Laux's report for the Court to determine. Because the Case Management Order allows submission of supplemental expert witness reports by agreement of both parties, the Court denies Defendant's Motion to Exclude insofar as it requests the Court exclude the supplemental report of Mr. Layson. Plaintiff's Motion for Leave, as well as the remainder of Defendant's Motion to Exclude, is discussed below.
Fed. R. Civ. P. 26(a)(2)(D)(i) - (ii) (emphasis added). Rebuttal evidence is evidence intended to “explain or controvert evidence produced by an adverse party.” Jernigan v. Paasche, 637 S.W.3d 746, 760 (Tenn. Ct. App. 2021) (quoting Godbee v. Dimick, 231 S.W.3d 865, 877 (Tenn. Ct. App. 2006)).
Local Rule 39.01(a)(5)(D) for the Middle District of Tennessee sets the following rule for allowing rebuttal experts: “No rebuttal expert witnesses shall be permitted at trial, absent timely disclosure in accordance with these Rules and leave of Court.” The rules only require that “Expert witness disclosures must be made in timely accordance with any order of the Court, or if none, in accordance with Fed.R.Civ.P. 26(a)(2).” L.R. 39.01(a)(5)(C).
Under Fed.R.Civ.P. 37(c)(1), when a party fails to provide information or identify a witness as required by Fed. R. Civ P. 26(a) or (e), that party is presumptively not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. Nonetheless, the appropriate sanction for such a violation remains in the discretion of the trial court. Sommer v. Davis, 317 F.3d 686, 692 (6th Cir. 2003). To resolve the issue presented by the present motions, the Court must answer three questions: 1) whether the Plaintiff violated Rule 26(a) by not making a timely disclosure of her expert witness; if so, 2) whether the failure to disclose was substantially justified or harmless; and, if not, 3) what sanction should be imposed. Campbell v. Cheatham Cnty., No. 3:19-cv-0151...
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