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Meyer v. Currie Tech Corp.

United States District Court, D. Nebraska

December 19, 2018

MARCIE MEYER and MICHAEL MEYER, Plaintiffs,
v.
CURRIE TECH CORP. and ACCELL NORTH AMERICA, INC., Defendants.

          MEMORANDUM AND ORDER

          ROBERT F. ROSSITER, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on defendants Currie Tech Corp. (“Currie Tech”) and Accell North America, Inc.'s (“Accell” and collectively, “Currie”) “Daubert Motion in Limine” (Filing No. 108). Currie seeks to strike and exclude from evidence certain materials submitted by plaintiffs Marcie Meyer and Michael Meyer's (“Meyer” and collectively, the “Meyers”) experts. The Meyers oppose (Filing No. 119) the motion. With jurisdiction under 28 U.S.C. § 1332(a)(1), the Court grants Currie's motion in part and denies it in part.[1]

         I. BACKGROUND

         In February 2015, Meyer purchased a Currie Electro-Drive Kit 3 electric bike conversion kit (“kit”) sold by Currie Tech on Amazon. In March, he installed the kit on his Stumpjumper mountain bike. On March 21, 2015, Meyer was severely injured in a bike accident. The Meyers blame the accident on the kit.

         On November 11, 2016, the Meyers sued Currie in the District Court of Douglas County, Nebraska, alleging strict liability, negligence, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, and breach of representation. On December 12, 2016, Currie removed (Filing No. 1) the case to this Court based on diversity jurisdiction. See 28 U.S.C. § 1332(a).

         The Meyers have designated three engineers as expert witnesses: Braden Kappius (“Kappius”), L. Scott Marshall (“Marshall”), and Eric Van Iderstine (“Van Iderstine”).[2]On May 18, 2018, the Meyers timely produced reports containing opinions from all three experts. McSwain also produced two reports to rebut the evidence identified by Currie's experts. In September 2018, Currie deposed the Meyers's experts.

         Currie moves “to strike and exclude from the evidence in this case any and all reports, opinions, and deposition testimony offered by” the Meyers's experts. According to Currie, those materials should be excluded because they are untimely, see Fed. R. Civ. P. 26(a)(2) and 37, unreliable, see Fed. R. Evid. 702; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589-92 (1993), or both.[3] The Court discusses each issue in turn.

         II. DISCUSSION

         A. Timeliness and Disclosure

         1. McSwain's Supplemental Rebuttal Report

         Rule 26(a)(2)(B) requires an expert witness to provide a written report that contains, among other things, “a complete statement of all opinions the witness will express and the basis and reasons for them” and “the facts or data considered by the witness in forming them.” As noted, the Meyers provided expert reports from McSwain and Kappius on May 18, 2018. Currie disclosed its expert reports on July 2, 2018.

         Under Rule 26(a)(2)(D)(ii), a party may present evidence “intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C).” But, “[a]bsent a stipulation or a court order, ” neither of which is present here, they must do so “within 30 days after the other party's disclosure.” Id.

         In this case, McSwain issued a Rebuttal Report (“Rebuttal Report”) on July 25, 2018. Several weeks later, Van Iderstine provided a supplement to his rebuttal (“Supplemental Rebuttal Report”) in a letter dated September 13, 2017. In that report, Van Iderstine states, “An exemplary Mongoose Switchback bicycle was examined and measured to demonstrate the characteristics required for assembly of the exemplar Currie Tech Kit 3 front wheel and nuts, as shown in Enclosures 1 and 2.” After giving some detailed measurements, Van Iderstine opines,

The fact that the absolute size of the exemplar Mongoose fork-end exceeded the Currie Tech dimension, yet did not have the clearance for the nut, reinforces my opinion that the Currie Tech Installation Guide designated a 25mm footprint for the nut and was prompting the reader/installer to ensure that there was proper clearance for the nut.

         Van Iderstine explains that the Supplemental Rebuttal Report “includes additional findings and observations that were reached to a reasonable degree of engineering certainty” and that his conclusions in his initial report did not change.

         Noting that Van Iderstine's additional opinions came long after the thirty-day deadline, Currie seeks to strike and exclude the Supplemental Rebuttal Report as an untimely disclosure under Rule 37(c)(1). See Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1008 (8th Cir. 1998) (“[F]ailure to disclose in a timely manner is equivalent to failure to disclose.”). Rule 37(c)(1) authorizes the Court to sanction a party for failing to provide information or identify a witness as required by Rule 26(a), including by not allowing the party “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.” “When fashioning a remedy, the district court should consider, inter alia, the reason for noncompliance, the surprise and prejudice to the opposing party, the extent to which allowing the information or testimony would disrupt the order and efficiency of the trial, and the importance of the information or testimony.” Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008). “[T]he exclusion of evidence is a harsh penalty and should be used sparingly.” Id. (quoting ELCA Enters. v. Sisco Equip. Rental & Sales, 53 F.3d 186, 190 (8th Cir. 1995)).

         Currie argues exclusion is appropriate in this case because Van Iderstine's late disclosure came shortly after the Meyers told the Court their expert disclosures were complete and opposed Currie's Motion to Extend Deadlines and Continue the Trial (Filing No. 71) because trial had already been delayed multiple times.[4] Currie reports that the Court's October 15, 2018, deposition deadline prevented Currie from rescheduling the McSwain engineers' September 21, 2017, depositions to allow sufficient time to review the new information. According to Currie, excluding the Supplemental Rebuttal Report is proper “because a continuance to allow a fair review, evaluation, and cross examination regarding these opinions would require postponement of an already much-delayed trial.”

         In their brief response to this issue, the Meyers do not challenge Currie's timeline or otherwise dispute that the Supplemental Rebuttal Report was untimely. They also do not give any reason for their noncompliance or explain the importance of Van Iderstine's additional opinion. Instead, they simply argue “the report adds no new information that prejudices” Currie because it “confirms” and “reinforces” Van Iderstine's previous opinion.

         That argument cuts both ways. An untimely opinion that “confirms” and “reinforces” a timely opinion may not cause great prejudice, but it is also not so important as to provide a compelling basis for excusing the very late disclosure and resulting prejudice. See Id. While the delay in disclosing Van Iderstine's additional testing and one-page report may not have caused Currie substantial harm, the Court is unable to say it is harmless under the circumstances of this case. “In determining whether a severe sanction is justified, the district court may consider the resulting prejudice to the other ...


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