The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
In this diversity action, Plaintiff David Lent, seeks recovery in products liability against three defendants: Signature Truck Systems, Inc. ("Signature"), Muncie Power Products, Inc. ("Muncie"), and Base Engineering, Inc. ("Base"). Seeking indemnification and/or contribution, each Defendant has filed a third party claim against Lent's employer, Ferrellgas, Inc. ("Ferrellgas"),*fn1 and cross-claims against one another.
Six motions are presently before this Court: Base's and Signature's Motion to Strike Lent's Supplemental Expert Report (Docket Nos. 147 and 149) and Summary Judgment Motions by Signature (Docket No. 165), Muncie (Docket No. 161), Ferrellgas (Docket No. 162), and Base (Docket No. 163). As part of their motions for summary judgment, Base and Muncie also seek to exclude Lent's experts. For the following reasons, the motions to strike the supplemental report are denied, the motions to exclude Lent's experts are granted in part and denied in part, and the motions for summary judgment by Signature, Muncie, and Base are granted in part and denied in part. Finally, Ferrellgas' summary judgment motion is denied.
On December 10, 2003, David Lent was working in his capacity as a propane truck delivery driver for Ferrellgas. Between 1:30 p.m. and 2:00 p.m. on that day, Lent was on a routine delivery in Cassadaga, New York, pumping propane into a customer's tank. (Signature's Statement of Facts ¶ 87; Docket No. 159-40.)*fn2 After he had successfully pumped about 17 gallons into the customer's tank, he noticed that the rate of flow from his truck to the customer's tank began to slow. (Lent Affidavit ¶ 22; Docket No. 189-3.) Trying to fix the problem, he began to check a number of things on the truck. (Id. ¶ 23.) When nothing corrected the problem, he tried to check the position of the air actuator lever for the belly valve located under the truck, which he thought might be the source of the problem. (Id. ¶ 23.) Lent states that he kneeled next to the truck's rear wheels, bent down under the frame rail, and looked under the truck. (Id. ¶ 24.) Suddenly he heard the power take-off (commonly referred to as a "PTO"), designed by Muncie, engage. The PTO, attached to a spinning drive shaft, distributes power to the propane pump. No one can be certain why the PTO activated, but the next thing Lent knew he felt a tug at the back of his jacket. (Id.) Although he has no recollection of the specific events, it appears that his jacket got caught in the PTO drive shaft and he was pulled underneath the truck and into the revolving PTO shaft. (Id.) As a result of this entanglement, in addition to injuries to his left arm, Lent suffered severe injuries to his right arm that ultimately required amputation below the shoulder.
During the course of these events, Lent carried with him a remote control device, designed and manufactured by Base ("Base remote" or "remote"), which could remotely shut off the truck engine, engage the PTO, unwind the hose, or throttle the engine (to increase pump production). (Hahn Report; Docket No. 163-6.) While the engine stop function is mandated by federal regulations, the other options on the remote are optional. See 49 C.F.R. § 173.315.
Lent initiated this action by filing a complaint in New York State Supreme Court on July 12, 2006 against Defendants Signature, Base, and Muncie. (Docket No. 1-2.) Defendants removed to this Court on August 24, 2006. (Docket No. 1.) Base served its answer and cross-claim against its co-defendants on August 25, 2006. (Docket No. 4.) Signature and Muncie also answered and filed cross-claims against each other and Base. (Docket Nos. 11, 12, 20.) Subsequently, all Defendants filed and served their respective third-party claims against Ferrellgas. (Docket Nos 25,26,29.) Ferrellgas, in turn, filed its respective answers on February 27, 2007. (Docket Nos. 42-44.)
Base and Muncie move to exclude Lent's experts altogether (Docket Nos. 161, 163.) Base, alternatively, seeks to exclude Hahn's and Dr. Chaplin's supplemental report. (Docket No. 147.) Signature joins the latter action. (Docket No. 149.) All parties, save Lent, move for summary judgment.
A. Motions to Exclude Hahn's and Dr. Chaplin's Supplemental Reports
On April 26, 2010, Magistrate Judge Hugh Scott entered an amended scheduling order (Docket No. 139) that set a September 15, 2010 deadline for the submission of expert reports. A month later, on October 15, 2010, Lent delivered supplemental reports from his experts James Hahn and Jonathan Chaplin. Due to this delay, Base and Signature have moved to exclude Lent's supplemental expert report as untimely under Fed. R. Civ. P. 37(c)(1).
Hahn's supplemental report explains the feasibility of an "enable" button design on the Base remote*fn3 , while Dr. Chaplin's report describes two differences concerning his proposed "truck mounted isolation power switch,"*fn4 which is detailed in his initial report. In essence, Base and Signature take issue with the designs outlined in the supplemental reports because they differ from the original reports and were submitted after the close of expert discovery.
Fed. R. Civ. P. 37(c)(1) provides that a party who, without justification, fails to disclose information required by Fed. R. Civ. P. 26 shall not be permitted to use that evidence at trial, unless such information is considered harmless. McNerney v. Archer Daniels Midland Co., 164 F.R.D. 584, 587 (W.D.N.Y.1995). Fed. R. Civ. P. 26(a)(2)(D) requires that expert disclosures be "made at the time and in the sequence that the court orders." Preclusion of a proposed expert's testimony and report, disclosed in violation of a scheduling order is a proper sanction where the tardy expert report is offered in opposition to summary judgment. Trilogy Commc'ns, Inc. v. Times Fiber Commc'ns, Inc., 109 F.3d 739, 744-45 (Fed. Cir. 1997) (finding exclusion justified where party fails to provide adequate explanation for failure to timely provide expert disclosure in accordance with scheduling order). However, preclusion is not mandated. Compare Trilogy with Lory v. General Elec. Co., 179 F.R.D. 86, 89 (N.D.N.Y.1998) (observing that although the district court was authorized under Fed. R. Civ. P. 16(f) to preclude plaintiff's expert witness report as a sanction for failing, without good cause, to timely disclose such report, as the untimely disclosure was plaintiff's single instance of noncompliance, such harsh sanction was not warranted).
This Court recognizes that preclusion of expert testimony, particularly in a products liability case, is a "drastic remedy" and should be applied only where the "party's conduct represents flagrant bad faith and callous disregard for the federal rules." McNerney, 164 F.R.D. at 587 (internal citation omitted).
In making this determination, courts consider several factors, including: (1) the reason for the failure to timely disclose, (2) the importance of the testimony, (3) potential prejudice in allowing the testimony, and (4) the availability of a continuance to cure such prejudice. Arnold v. Krause, Inc., 232 F.R.D. 58, 68 (W.D.N.Y. 2004).
As an initial matter, it is noteworthy that the reports in question are, in fact, supplemental. Unlike the cases on which Defendants rely, Lent did not fail to conduct any discovery whatsoever, as in Arnold; nor did he fail to disclose any experts before the ordered deadline, as in Exxon Corp. v. Halycon Shipping Co., 156 F.R.D. 589 (D.N.J. 1994).
To the extent that courts have found supplemental reports unduly prejudicial and subject to preclusion or sanction, they have done so where the supplemental report contained new theories of liability or included vast amounts of new information. See, e.g., Rambus v. Infineon Techs. AG, 145 F. Supp 2d 721 (E.D. Va. 2001) (precluding an expert's supplemental report that was submitted a week before trial because it contained new topics never previously disclosed); Henderson v. Nat'l R.R. Passenger Corp., 412 Fed. Appx. 74, 83 (10th Cir. 2011) (upholding district court's judgment to strike supplemental report where the supplemental report added "180 pages of information" to a report which was originally only sixteen pages).
Although Lent offers a limited explanation as to the reasons for his late submission (noting only that he submitted the supplemental report "out of an abundance of caution to eliminate any misunderstanding" about the alternative designs), after reviewing the original and supplemental reports, this Court is satisfied that the supplemental reports do not unduly prejudice Defendants.
In his initial report, Hahn opined that Base should have added an enable button to its remote and detailed the type of exhibits he would use to illustrate his testimony. In the supplemental report, Hahn presents some of the those exhibits in more specificity. Also, to demonstrate its feasability, Hahn attaches a photo which depicts Base's own remote with an enable switch located on the front of the device. Of course, Base should be intimately aware of the functionality of its own product and is not prejudiced by this addition; nor does it need to depose Hahn in an effort to understand how it works. Moreover, Hahn had already been deposed on these matters and he described how the alternative designs would work. (Hahn Deposition, pp. 57-66; Docket No. 181; Exhibit C.)
Dr. Chaplin's supplemental report differs in two ways. First, the "on/off" switch described in his initial report disabled the PTO, hose reel, and throttle functions, while the design in the supplemental report disables only the PTO function. Second, inadvertent depressing of the PTO button with the "on/off" switch in the "off" position not only prevents the PTO from starting, but, in the supplemental report, it turns off the truck engine, too. These changes are not so substantial as to prejudice Defendants. Like Hahn, Defendants had a full opportunity to depose Dr. Chaplin on the substance of his proposed design. These minor changes, offered well in advance of trial, do not require the added expense and delay of further discovery, and they undoubtedly do not warrant the "drastic remedy" of preclusion.
Therefore, Base's and Signature motions to exclude the supplemental reports are denied.
B. Motions to Exclude Lent's Expert Witnesses
Not to be confused with the motion to exclude Lent's expert witnesses' supplemental report, Base, this time accompanied by Muncie, seeks to exclude the entirety of Hahn's, Dr. Chaplin's, and Lent's third expert witness, Dr. Igor Paul's testimony.
The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence, which reads:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
The proponent of expert testimony has the burden of demonstrating by a preponderance of the evidence that the testimony is competent, relevant, and reliable. See Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 592, n. 10, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).10; Koppell v. New York State Bd. of Elections, 97 F. Supp. 2d 477, 479 (S.D.N.Y .2000); Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987)). If the expert is deemed competent (otherwise referred to as "qualified"), the trial court must then determine, pursuant to its "gatekeeping" function, whether the proffered expert testimony is "relevant" and "reliable." See Fed. R. Evid. 702 (Advisory Committee Notes, 2000 amendment) (noting that trial judges have "the responsibility of acting as gatekeepers to exclude unreliable expert testimony").*fn5
Evidence is relevant if the testimony tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable. Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 264 (2d Cir. 2002). If the evidence is relevant, the trial court must then determine "whether the proffered testimony has a ...