United States District Court, Northern District of New York
PETER T. ENGLER and TRACEY ENGLER,
MTD PRODUCTS, INC. and CUB CADET, LLC, Defendants.
HORIGAN, HORIGAN LAW FIRM TIMOTHY HORIGAN, ESQ., For Plaintiffs.
BAILEY, KELLEHER LAW FIRM JOHN W. BAILEY, ESQ., For Defendants.
WEGMAN, HESSLER LAW FIRM PATRICK J. QUALLICH, ESQ., For Defendants.
MEMORANDUM-DECISION AND ORDER
Christian F. Hummel, U.S. Magistrate Judge.
Plaintiffs Peter T. Engler (“Engler”) and Tracey Engler (collectively “plaintiffs, ” where appropriate) bring this product liability action pursuant to the Court’s diversity jurisdiction under 28 U.S.C. § 1332 against defendants MTD Products, Inc., which designed, manufactured, distributed, tested, sold, marketed, and assembled the Cub Cadet lawnmower, and Cub Cadet, LLC (collectively “MTD” where appropriate). Dkt. No. 30-1, at 35. Pending before the Court are several motions filed by MTD. MTD has filed (1) a motion for summary judgment (Dkt. No. 29); (2) a request to preclude from consideration in opposition to their motion for summary judgment an affidavit of plaintiffs’ proposed expert (Dkt. No. 39), pursuant to Federal Rules of Civil Procedure (Fed. R. Civ. P.) 26(a)(2)(B) and 37(c)(1) (Dkt. No. 44-1, at 7-11); and (3) a motion to preclude plaintiffs’ proposed expert witness from testifying at trial pursuant to Fed.R.Civ.P. 704. Dkt. No. 43. This Memorandum-Decision and Order addresses defendants’ request to exclude Dkt. No. 39 from consideration on the motion for summary judgment. For the following reasons, MTD’s request is granted in part and denied in part.
A. Relevant Facts
As relevant here, on July 28, 2011, plaintiff Peter T. Engler mowed his home’s front lawn using a Cub Cadet riding lawn mower. Engler Dep. (Dkt. No 30-2, at 2-137), at 57. After taking a short break, Engler started the lawnmower and drove down his driveway, turning right, heading toward his in-laws’ residence located approximately three-quarters of a mile down the road. Id. at 12, 123-125, 134, 154. Engler had driven the lawnmower to his in-laws’ home without issue about a month earlier. Id. at 12, 64-65, 124. A few seconds after turning out of his driveway, Engler realized that the shift lever “wasn’t in gear anymore” and that the lawnmower was picking up speed without his depressing the gas pedal. Id. at 132-33, 135. Engler realized the mower was not in gear because the lawnmower did not react when he pressed the gas pedal or pushed up the throttle. Id. at 132. He twice attempted to push the shift lever into forward gear, but it did not engage. Id. at 137. Engler also attempted to hit the brakes but this did not stop or slow down the lawnmower. Id. at 131, 142-44. Engler then turned the steering wheel slowly to the left to attempt a gradual right turn into his neighbor’s driveway. Id. at 131, 146. Engler was unable to complete this turn and fell from the lawnmower about two feet from his neighbor’s driveway. Id. at 158, 162.
B. Relevant Procedural Background
Parties agreed, through signing a Uniform Pretrial Scheduling Order (“Uniform Order”), that the deadlines stipulated to in the order supersede the deadlines set forth in Fed.R.Civ.P. 25(a)(3) . . .” Dkt. No. 8, at 1. Through this order, discovery was to close on May 2, 2014. Id. The parties submitted a joint letter request seeking to extend the discovery deadline until May 29, 2014 “for the limited purpose of conducting the deposition of Mr. [Ernest J.] Gailor, ” (“Gailor”) the plaintiffs’ proposed expert witness. Dkt. No. 20, at 1. The Court granted the extension of discovery for this limited purpose. Dkt. No. 21. The Uniform Order further set forth that “no later than 90 days prior to the discovery deadline set in [the order], plaintiffs shall identify any expert(s) and . . . shall serve on the other parties the expert’s written report pursuant to Fed.R.Civ.P. 26(a)(2)(B)” Id. at 2. Moreover, “no later than 45 days prior to the discovery deadline . . . defendant(s) shall identify any expert(s) and . . . shall serve on the other parties the expert’s written report pursuant to Fed.R.Civ.P. 26(a)(2)(B).” Dkt. No. 8, at 2. Parties further agreed that “[n]o later than 30 days prior to the discovery deadline set [in the order], all parties must identify all experts who will contradict or rebut evidence . . . and . . . shall serve on the other parties such experts written report pursuant to Fed.R.Civ.P. 26(a)(2)(B).” Under the Federal rules, statements supplementing an expert’s report are due before the close of discovery as set by the parties. Fed.R.Civ.P. 26(e)(2). The duty to supplement “extends both to information included in the report and to information given during the expert’s deposition.” Id.
Plaintiffs’ proposed expert witness completed an initial expert report, dated April 3, 2013. Dkt. No. 30-1, at 103. He inspected the mower on December 6, 2011. Id. MTD was provided this report on October 31, 2013, along with Gailor’s Curriculum Vitae. Dkt. No. 30-1, at 100-105. MTD’s proposed expert witness, Daniel J. Martens (“Martens”), Vice President, Product Development & Safety at MTD, performed an inspection of the subject lawnmower and accident site on March 12, 2014. Dkt. No. 30-2, at 129. He also reviewed the owner’s manual and warnings provided with Cub Cadet mowers. Id. at 122-28. He provided a report on his findings to MTD, dated March 17, 2014. Id. at 122. Martens was deposed on April 1, 2014. Dkt. No. 38-3, at 13-18. On April 29, 2014, plaintiffs provided MTD with a second report from Gailor, dated April 25, 2014. Dkt. No. 43-2. Gailor was deposed on May 29, 2014. Dkt. No. 30-2, at 1. On September 29, 2014, plaintiffs provided MTD an affidavit authored and signed by Gailor, dated September 26, 2014. Dkt. No. 39.
C. Testimony and Submissions of Plaintiffs’ Proposed Expert
In his initial report, dated April 2, 2013, Gailor stated that he visually inspected the lawnmower on December 6, 2011 in order “to assess the condition of the new machine.” Dkt. No. 30-1, at 103. Gailor contended that the brake system in the subject lawnmower “is a simple disc/caliper system.” Id. Gailor opined that “the calipers did not firmly engage the brake disc” which “allowed the machine to roll forward even when the brake was engaged. The brake appeared to be out of adjustment.” Id. Gailor also observed that the operator’s manual had “no instruction for the adjustment of the brake, ” concluded that “[b]rake adjustment must be made by a service technician, ” and provided that “[t]he brake is initially adjusted at the factory and shipped to distributors.” Id. Finally, Gailor noted that the manual “cautions against using the machine on a cross slope that exceeds 15 degrees” and that “Engler was driving down a street with a 22 degree down slope and no appreciable cross slope.” Id.
Gailor testified at a deposition on May 29, 2014. Dkt. No. 30-2 at 61-137. As relevant here, Gailor testified that he made a request to defendants’ attorney to take apart the lawnmower to inspect the parts on December 6, 2011. Id. at 81. He stated that he was told he could not disassemble the mower. Id. at 67-68. He stated further that he was not aware that defendants’ expert disassembled the lawnmower until he received Martens’ report and photographs. Id. at 81. Gailor contended that, at the time he inspected the mower in 2011, the brakes had “ceased to function.” Id. at 89. He stated that the amount of wear on the brakes was more than expected given the low number of hours of use on the mower. Id. at 93. He agreed with Martens’ conclusion that the mower’s brakes had the equivalent of 300 hours of use. Id. He also agreed that the “abnormal wear” in the mower’s system was “confined to the brake pads.” Id. at 94. Gailor agreed that if the brake pads on the tractor were readjusted, the brakes would be fully functional, but clarified that even if the brakes were readjusted, he did not believe that “the readjustment would stay in place very long before the rest of the pad would start to deteriorate.” Id. at 95. Gailor did not know what caused the brake pads to come out of adjustment. Id. at 96. He defined “out of adjustment” as the “pads were not fully engaging the discs . . . .” because the outer pad “was too far away or worn to the point where it was too far aware [sic] from the face of the disc.” Id. Gailor concluded that there existed premature wear of the brake pads. Id. at 98. However, he stated that he did not know the cause of the premature wear. Id. at 99.
Gailor testified regarding the owner’s manual. Dkt. No. 30-2, at 100-101. He stated that the manual provided that brake adjustments are to be completed by a service professional. Id. He testified that an operator needs an instruction or warning to take a mower to a service professional to have an adjustment if depressing the brake pedal did not bring the tractor to a complete stop. Id. at 99. Gailor further testified that such warning was “already there” in the operator’s manual. Id. at 100-101. In response to an inquiry whether “there is any other instruction or warning that should have been on the product itself as it relates to brakes, ” Gailor responded in the negative. Id. at 102. He responded “I don’t believe so” when asked if there was “any other instruction or warning that should have been in the manual as it relates to the adjustment of the brakes.” Id. Further, when he was asked whether there were “any other criticisms that [he had] of any of the instructions or warnings” other than what he had set forth in his report, Gailor replied, “no.” Id. at 105-106.
Finally, in an affidavit sworn to on September 26, 2014, Gailor stated that “[a]fter being provided with the deposition testimony of the defense expert, Daniel Martens, and photographs taken during his inspection, I was able to supplement my initial report.” Dkt. No. 39, at 3 ¶ 7. He provided that the brake pads experienced “greatly premature failure” in that the deterioration seen in photographs of the brake pads is “not expected, or even remotely acceptable wear for a lawn tractor braking system only a year old and with only 27 hours of use.” Id. Gailor concluded that “[i]n order to exhibit this type of wear in such a small amount of time, these brake pads had to be defective in their manufacture or integrity.” Id. at 7. He further concluded that “[t]he premature failure of the brake pads eliminated any opportunity for [plaintiff] to stop the machine, and is the sole proximate cause of his inability to do so.” Id. Gailor stated that “[w]hether the brakes were functioning properly and whether they were in proper adjustment is immaterial to their failure. The failure of the brakes in this case was due to premature wear, meaning the brake pads were defective.” Id. at 5.
Gailor also contended that the operator’s manual did not have instructions for an owner to adjust brakes and that there is no warning or highlighting provided for brake adjustment. Dkt. No. 45, at 7. He concluded that “this omission indicates to the user that brake adjustment is not important. Id. Gailor noted that the “only mention of testing the braking mechanism is a mention of ‘Parking Brake Adjustment’” which states that brakes may need an adjustment “‘if the tractor does not come to a complete stop when the brake pedal is completely depressed, of [sic] if the tractor’s rear wheels can roll with the parking brake applied and the ...