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From Products Liability Law Daily, November 7, 2016

Exclusion of expert testimony for late report disclosure too harsh a sanction

By John W. Scanlan, J.D.

The exclusion of an expert’s second report on alleged defects in a fishing boat’s outboard motor because the report was disclosed after the deadline was disproportionately harsh given that the dredging contractor did not obtain discovery from the motor manufacturer prior to the deadline and the report was critical for the contractor’s case, the U.S. Court of Appeals for the Fifth Circuit held in reversing the lower court’s grant of summary judgment to the motor manufacturer (C.F. Bean L.L.C. v. Suzuki Motor Corp., November 4, 2016, Prado, E.).

The owner of a recreational fishing boat was killed when the outboard motor struck an underwater dredge pipe, causing the motor’s swivel bracket to break and the motor to rotate up into the boat and strike him. His estate brought an action against C.F. Bean, LLC, Bean Meridian, LLC, and Archer Western Contractors, LLC (collectively, "Bean"), the companies responsible for dredging operations there. The contractors settled with the estate, and C.F. Bean pleaded guilty in a criminal proceeding. While these claims were pending, Bean filed a third party complaint against Suzuki Motor Corp., the maker of the motor, seeking indemnity and contribution based on products liability. The district court excluded two reports by a mechanical engineering expert for Bean and granted summary judgment to Suzuki on the ground that Bean could not support its claims without expert testimony. Bean appealed.

Expert reports/timeliness. The first report properly was excluded because it was conclusory. It did not address the allegedly defective nature of the motor and did not relate the defect to the data. The Fifth Circuit agreed with the district court that the second report was untimely. It was attached to Bean’s opposition to Suzuki’s motion to exclude the first report, and it was filed more than seven months after the deadline for designating rebuttal experts. This second report was not a mere supplement to the first; the first report was not "full and complete," and the second report’s analysis and opinions were largely new.

However, the district court’s exclusion of the second report for untimeliness was an abuse of discretion. Bean had a reasonable explanation for failing to disclose the second report by the disclosure deadline: it could not obtain discovery from Suzuki until Suzuki answered the third-party complaint, which took place after the expert disclosure deadline. The second report was based upon driftwood tests conducted by Suzuki, technical reports, and deposition testimony that were unavailable to Bean as of the deadline. It was not unreasonable for the expert to wait to form his opinions about the allegedly defective nature of Suzuki’s motor until after receiving discovery from Suzuki. While Bean should have requested an extension of the expert disclosure deadline, the Fifth Circuit observed that it had timely designated the expert, and the district court made no finding of bad faith on Bean’s part. Furthermore, the report was critical to the case, as its exclusion resulted in summary judgment against Bean for lack of expert testimony. Finally, although allowing the expert to testify would result in prejudice to Suzuki, a continuance would have cured the prejudice because Suzuki would have time to produce a rebuttal report and re-depose the expert.

A dissenting opinion filed by Judge Jones asserted that exclusion of the second report was not an abuse of the district court’s discretion, finding Bean’s explanation "disingenuous" as it did not file the report for nearly four months after receiving Suzuki’s responses to its discovery requests that provided the basis for that report and did not explain why it had not requested an extension of the deadline.

Additional testing. The district court’s refusal to allow Bean to reopen discovery for additional testing of the motor was not an abuse of discretion. Bean argued that it had repeatedly asked the Coast Guard for access to test the motor, but was denied due to the parallel criminal investigation that was underway. While it may have been futile to request access to the motor during the criminal investigation, Bean could have requested a stay of the civil case instead. However, the Fifth Circuit instructed the district court that on remand, it should consider whether discovery should be reopened for the limited purposes of allowing Suzuki to rebut and re-depose the second expert and to allow Bean to test the motor.

The case is No. 16-60008.

Attorneys: Andre J. Mouledoux (Mouledoux, Bland, Legrand & Brackett, LLC) for C.F. Bean, LLC. and Bean Meridian, LLC. Frank John Dantone, Jr. (Henderson Dantone, P.A.) for Archer Western Contractors, LLC. Colvin G. Norwood, Jr. (McGlinchey Stafford, PLLC) for Suzuki Motor Corp.

Companies: C.F. Bean, LLC; Bean Meridian, LLC; Archer Western Contractors, LLC; Suzuki Motor Corp.

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