Meza v. Wacker Neuson Sales Americas LLC

          ORDER

          H. Russel Holland, United States District Judge.

         Motion to Strike

         Wacker Neuson Sales Americas LLC moves to strike three of plaintiffs' experts.^[1] This motion is opposed.^[2] Oral argument was not requested and is not deemed necessary.

         Background

         On July 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.

         Meza, 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 Wacker.

         Plaintiffs' 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.^[3] 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.^[4] 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.

         Plaintiffs 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.”^[5]

         Wacker now moves to strike Laux, Dr. Freeman, and Dr. Foltz as witnesses and to exclude them from testifying at trial.

         Discussion

         Wacker 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. 37(c)(1)).

         As for 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 rebuttal witnesses.

         Wacker's 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 damages:

(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 ...