United States District Court, D. Arizona
Russel Holland, United States District Judge.
Neuson Sales Americas LLC moves to strike three of
plaintiffs' experts. This motion is opposed. Oral argument was
not requested and is not deemed necessary.
9, 2016, Steven Wood was operating a power trowel that hit a
metal stake, spun out of his hand, and struck plaintiff
Antonio Meza in the head. Meza suffered a traumatic brain
injury and required extensive medical treatment immediately
after the accident and will continue to require extensive
medical treatment for the remainder of his life. Wacker is
the manufacture of the power trowel in question.
his wife, and children commenced this action on April 13,
2017. In their amended complaint, plaintiffs assert a strict
product liability claim and a negligence claim against
initial expert disclosure included opinions from Lanny Berke,
a mechanical and safety engineer, on product defect issues
including product warnings and opinions from John Buehler, an
economist. Berke opined that the power trowel and the
owner's manual for the power trowel did not contain
adequate warnings. Buehler stated that his opinion as to the
present value of the future cost of care for Meza was based
on a life expectancy taken from the National Center for
Health Statistics' Life Tables. Wacker's expert
disclosure included opinions from Roger McCarthy on product
warnings and opinions from Dr. Scott Kush on life expectancy.
Plaintiffs' rebuttal expert disclosure included opinions
from Lila Laux on product warnings and Dr. Michael D. Freeman
on life expectancy.
also recently disclosed Dr. Eric Foltz as a witness. Dr.
Foltz is a treating physician who “is expected to
testify that [his] treatment and charges were reasonable and
necessitated by the incident at issue.”
now moves to strike Laux, Dr. Freeman, and Dr. Foltz as
witnesses and to exclude them from testifying at trial.
argues that Laux, Dr. Freeman, and Dr. Foltz were not timely
disclosed. “A party that does not timely identify a
witness under Rule 26 may not use that witness to supply
evidence at a trial ‘unless the failure was
substantially justified or is harmless.'”
Ollier v. Sweetwater Union High School Dist., 768
F.3d 843, 861 (9th Cir. 2014) (quoting Fed.R.Civ.P.
Laux and Dr. Freeman, Wacker does not argue that plaintiffs
did not disclose these experts and their reports by the
deadline for expert rebuttal reports. Rather, Wacker argues
that plaintiffs were required to disclose these two experts
as part of their initial expert disclosure. In short, Wacker
is arguing that Laux and Dr. Freeman are not proper expert
argument is based on California v. Kinder Morgan Energy
Partners, L.P., 159 F.Supp.3d 1182 (S.D. Cal. 2016).
Kinder Morgan involved the “remediation of the
166 acres underlying and surrounding Qualcomm Stadium and its
adjoining parking lots. . . .” Id. at 1188.
The City of San Diego asserted continuing public nuisance,
private nuisance, and trespass claims against Kinder Morgan.
Id. For these claims, the City sought the following
(1) “water damages”-including the loss of use of
the Mission Valley aquifer as a source of potable water and
for underground water storage; (2) “real estate
damages”-based on the property's fair rental value
for redevelopment projects; and (3) “restoration
damages”-to restore the property to its original,
pre-contamination condition, i.e. “background.”
Id. As part of its expert rebuttal disclosure, the
City disclosed two reports from Dr. Huntley, “an expert
in groundwater hydrology, ” as “purported
rebuttal to Kinder Morgan's expert hydrogeologist, Joseph
Scalmanini, and Kinder Morgan's water treatment expert,
Stephen Johnson.” Id. at 1191. Kinder Morgan
moved to exclude Dr. Huntley's opinions, arguing in part
that his opinions were not rebuttal evidence. Id.
The court found “that Dr. Huntley's opinion and
testimony ‘do not solely contradict or rebut' the
Scalmanini and Johnson reports[, ]” and thus
“they are not proper rebuttal.” Id.
(quoting Fed.R.Civ.P. 26(a)(2)(D)(ii)). Kinder Morgan argued
that the City's failure to disclose Dr. Huntley earlier
was not substantially justified, and the court agreed.
Id. The court explained that the City's
failure to disclose a water expert, and Dr. Huntley in
particular, by the March 11, 2011 initial expert disclosure
deadline is indefensible. “Normally, parties are
expected to present all of their evidence in their case in
chief.” The use of the groundwater underneath the
property as a source ...