Opinion
Civil Action No. 99-1426 Section "N".
May 18, 2000.
ORDER AND REASONS
Before the Court are three motions: (1) defendants' Motion to Dismiss Plaintiff's Claims for Lost Earnings and Loss of Earning Capacity; (2) defendants' Motion in Limine to Exclude the Expert Testimony of Dr. Rennie Culver and Elliot Bain; and (3) defendants' Motion in Limine to Exclude Plaintiff's Metallurgical Expert, David Mitchell. For the following reasons, defendants' Motion to Dismiss is GRANTED, defendants' Motion to Exclude. Dr. Culver and Mr. Bain is DENIED, and defendants' Motion to Exclude Mr. Mitchell is GRANTED.
BACKGROUND
This case arises out of plaintiff's fall on May 10, 1998 from a ladder manufactured by defendant R.D. Werner Company ("Werner"). The ladder in question is a six-foot tall aluminum step ladder, classified as Model No. 356. It carries a Type III duty rating for "light duty/household use," and has a load capacity of two hundred pounds. Plaintiff claims that she injured her right wrist as a result of the fall, causing her to be unable to work as a word processor. Plaintiff brought suit against Werner under La. Rev. Stat. 9:2800.56, seeking compensatory damages including loss of past and future wages and loss of earning capacity.
LAW AND ANALYSIS
I. Defendants' Motion to Dismiss Plaintiff's Claims for Lost Earnings and Loss of Earning Capacity
Pursuant to Fed.R.Civ.P. 37(d), defendants move this Court to dismiss plaintiff's claims for lost earnings and lost earning capacity on the ground that plaintiff failed to comply with the Order of a United States Magistrate Judge to produce certain income tax returns by December 23, 1999. Initially, defendants sought plaintiff's tax returns through a request for production of documents served on May 14, 1999. In her response, plaintiff stated that executed authorizations were attached, but defendants claim that no authorizations were provided. Defendants also state that during plaintiff's deposition on September 14, 1999, plaintiff testified that she filed income tax returns in 1995, 1996 and 1997, and that her brother was preparing a return for 1998. Further, plaintiff's counsel agreed to provide copies of plaintiff's tax returns to defense counsel. Defendants' assertions are supported by evidence before this Court.
After plaintiff failed to produce the requested returns, defendants filed a Motion to Compel, which was granted by a United States Magistrate Judge on December 1, 1999. Plaintiff was ordered to produce her tax returns by December 11, 1999. Defendants explain that plaintiff was later given one final extension of time through December 23, 1999, to prepare and file certain tax returns after the Court learned that she had neither prepared nor filed them. At the same time, defendants claim that plaintiff was warned by the Magistrate Judge that failure to produce the returns in question would result in sanctions, including the possibility of dismissal of plaintiff's claims for economic damages. Defendants now claim that they are unable to assess plaintiff's actual past level of earnings and will be unable to rebut plaintiff's claims of lost earnings and lost earning capacity without production of the requested tax returns.
In response, plaintiff submits a "memorandum of law" containing no law at all. Instead, plaintiff argues that dismissal of her economic claims would be a "grave miscarriage of justice." Plaintiff argues that her medical and psychological conditions have prevented her counsel from doing his work. Second, plaintiff argues, for the first time, that she cannot produce that which she cannot locate, and that she cannot find copies of her tax returns. Plaintiff contends that defendants have authorizations to obtain copies of the returns in question, that defendants have knowledge of plaintiff's previous employers from her deposition testimony, that her earning histories from such employers have been available for months, and that additional earning information was provided by plaintiff's experts. In addition, plaintiff cites Fed.R.Civ.P. 1 in an effort to establish that defendants have failed to play by the spirit of the Federal Rules of Civil Procedure. Plaintiff claims "[t]he rules are not an end in themselves." Nonetheless, plaintiff now admits that she did not file a federal income tax return for 1996, 1997, or 1998. Plaintiff maintains that she did file an income tax return for 1995.
Fed.R.Civ.P. 37 permits this Court to sanction a party for failure to respond to discovery requests. This case presents a situation in which a plaintiff has willfully and repeatedly failed to produce specific documents in violation of orders of the Court issued by the assigned magistrate and district judges. Plaintiff was ordered on two occasions to produce copies of her filed tax returns in December, 1999. Then, during a Pre-trial Conference in February, 2000, plaintiff was ordered by the District Judge to produce copies of filed tax returns or to prepare past due returns and file them immediately. Because plaintiff was afforded ample time to produce copies of tax returns that were filed previously or alternatively, to prepare and file returns for previous years, and she has simply chosen not to do so, the Court finds that sanctions are warranted. In addition, Louisiana law requires a plaintiff to produce independent supporting evidence of income to recover economic damages associated with alleged lost wages. See Birdsall v. Regional Elec. Contsr., Inc., 710 So.2d 1164, 1170 (La.Ct.App. 1st Cir. 1998) (stating "to allow a plaintiff to recover damages for lost wages when there is no independent support of plaintiff's claim is highly speculative."). Thus, plaintiff's claims for economic loss and loss of earning capacity are hereby dismissed.
II. Defendants' Motion in Limine to Exclude the Expert Testimony of Dr. Rennie Culver and Elliot Bain
Defendants move this Court to exclude the expert testimony of psychiatrist Dr. Rennie Culver and accountant Elliot Bain on the ground that plaintiff failed to furnish the written reports of these experts in a timely manner. As the final Pre-trial Conference in this matter was scheduled on February 10, 2000, pursuant to the Court's Minute Entry, plaintiff was required to furnish to defendants written reports of all experts no later than November 12, 2000, the date which is ninety days prior to the final Pre-trial Conference. Defendants claim that plaintiff did not furnish the reports of Bain and Culver until November 17, 1999. Defendants cite Fed.R.Civ.P. 16(f) as authority for this Court to sanction plaintiff's failure to comply with a pre-trial scheduling order by excluding evidence. Defendants also cite several decisions rendered by the Fifth Circuit Court of Appeal and district courts within the Eastern District of Louisiana in which the exclusion of expert testimony was ordered to sanction untimely submission of expert reports.
In response, plaintiff asserts that defendants have shown no prejudice from the delay. Further, plaintiff claims that defendants knew the identity of these witnesses "for a long time." Plaintiff states that defendants deposed these expert witnesses at length, and refers the Court to deposition testimony recorded on November 17, 1999. Finally, plaintiff contends that the Court's exclusion of expert testimony "would be a grave miscarriage of justice." Plaintiff even goes so far as to claim that the Court's scheduling order should not "be so rigid as to frustrate the process" of resolving disputes.
Plaintiff characterizes the delay as one of only 5 days, including Saturday and Sunday, so that the reports were late by only three working days.
Plaintiff refers the Court, however, to plaintiff's Witness List filed on December 13 1999, nearly a month after the expert reports were disclosed to defendants.
The Fifth Circuit has provided a four-part test, based on Fed.R.Civ.P. 37, for reviewing a district court's exclusion of expert witness testimony. See Barrett v. Atlantic Richfield Co., 95 F.3d 375, 380 (5th Cir. 1996); see also Heidtman v. County of El Paso, 171 F.3d 1038, 1040 (5th Cir. 1999). Under this test, an appellate court will determine whether a district court abused its discretion by examining four factors: (1) the party's explanation, if any, for failure to comply with a scheduling order; (2) the prejudice to the opposing party of allowing the witness to testify; (3) the possibility of curing such prejudice by granting a continuance; and (4) the importance of the witnesses' testimony. See Barrett, 95 F.3d at 380. While plaintiff provides no explanation at all for why the reports were late, and plaintiff never asked for an extension of time, the Court finds that there is no real and material prejudice to defendants as a result of plaintiff's delay in rendering expert reports. Furthermore, the trial of this matter was continued, therefore allowing defendants more than ample time to prepare rebuttal testimoney and argument. The continuance serves as a cure for any minimal prejudice that could have resulted. Thus, the Court declines to exclude Dr. Culver's and Bain's testimony and/or reports at trial. Counsel are advised, however, that no additional violations of the Court's scheduling orders and/or scheduled deadlines will be tolerated.
III. Defendants' Motion in Limine to Exclude Plaintiff's Metallurgical Expert
Defendants move this Court to exclude plaintiff's expert witness David Mitchell, a metallurgical engineer, pursuant to Fed.R.Evid. 702 and the holdings of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Plaintiff's expert intends to testify to the issue of whether the ladder in question was unreasonably dangerous in design. In his reports, Mitchell compares Model No. 356, the model of the ladder on which plaintiff was allegedly injured, with another ladder manufactured by defendants that is rated for medium duty/commercial use and carries a higher load capacity of two hundred-twenty-five pounds. Mitchell concludes that the light duty ladder "was unreasonably dangerous for its intended purpose in that ladder flexure was unforgiving of the normal and reasonably anticipatable movements of a normal human attempting to utilize it in a normal manner." In essence, Mitchell concludes that the ladder's "flexure" was unable to tolerate plaintiff's loss of balance.
Defendants argue that Mitchell's testimony has no technically reliable basis. Defendants argue that Mitchell's testimony should be excluded based on the following facts: (1) Mitchell is not a mechanical engineer; (2) he has never designed nor overseen the assembly of a stepladder; (3) he has never subjected a stepladder, or the ladder in question, to the full protocol of tests required by industry standards; (4) he has not served on the committees creating those standards; (5) he has not studied in the field of accident reconstruction; and (6) while his expertise is in metallurgy, he did not perform metallurgical testing on the ladder in question, or any other ladder. In addition, defendants assert that Mitchell has made no attempt to measure the level of "flexure" in the stepladder in question. Defendants also claims that "flexure" is a term that Mitchell devised to characterize certain movements in the stepladder caused by the activities of the user, and that the term is neither used within the industry standards nor any other known publication.
Defendants also argue that Mitchell must be able to demonstrate a scientific relationship between the ladder's "flexure" or rigidity and the ability of that condition to counter-act a loss of balance in order to satisfy the requirements of a Daubert inquiry. Defendants assert that Mitchell's "meager" level of analysis, characterized as "technically suspect, overwhelming conjectural and grossly unreliable," is insufficient to determine what activities might produce "flexure," let alone what level of "flexure" would produce an irrecoverable loss of balance. In sum, defendants contend that Mitchell should not be allowed to testify about such an abstract condition because he did not first test the ladder and he did not find that any ladder condition fails to comply with the minimum industry standards.
In response, plaintiff urges several repetitive, incoherent, and unintelligible arguments, among which the Court finds not one convincing. In fact, plaintiff's conclusions add new meaning to the phrase non sequitur, and her arguments for admissibility are specious, at best. First, and quite simply, the Court fails to discern the relevance of Mitchell's experience in the field of bicycle design to the case at hand, which involves neither a fall from a bicycle, nor failure of a bicycle frame, but a simple fall from a step ladder. Despite the fact that plaintiff reiterates to no end that Mitchell is Vice-Chairman and Section Chairman of the Bicycle Standards Subcommittee, the Court is baffled by plaintiff's claim that it is "a fair inference" that if Mitchell understands the basic engineering principles of bicycles, which is in no way established by the sheer fact that he has a position on the Bicycle Standards Subcommittee, he understands the basic engineering principles of aluminum ladders. Second, after a review of the deposition excerpts submitted by plaintiff, the Court can only conclude that plaintiff grossly mischaracterizes Mitchell's "ladder engineering experience." Mitchell's deposition testimony states that 90 percent of the activities performed by his consulting company in the forensic or litigation capacity are bicycle-related.
Plaintiff further states, "With respect to counsel for defendant, it is fairly obvious that a witness who makes his living testifying about bicycles meets the minimum requirements for testimony about ladders." This conclusory statement is so illogical that it deserves no further comment.
Third, the Court finds no evidence that "flexure" is a well-established engineering concept, or that, there is an established connection between flexure and ladder stability. Plaintiff argues "Mitchell's opinions rests on broad scientific principles as well as common sense." Mitchell does not establish generally what actions cause flexure or what amount of flexure results in irrecoverable ladder instability. Mitchell's opinion even fails to establish what amount of "flexure" poses an unreasonably dangerous design of the stepladder in question. He simply argues that the other ladder would have provided plaintiff "a much more stable means to accomplish her task." In addition, the Court fails to see how the fact that Mitchell took measurements of the accident site and ladder leads to the conclusion that his opinions rest on a sound foundation of scientific investigation. Even further, plaintiff's argument that Mitchell used the principles and evaluation concepts of the American Society for Testing and Materials is unavailing. It is undisputed that Mitchell did not subject the ladder in question to the protocol of industry standards established by the American National Standard Institute.
To the extent that the latter is true, Mitchell's testimony need not meet the requirements of Fed.R.Evid. 702, but may be sought to be introduced under Rule 701, which plaintiff attempts to do in her supplemental opposition. There, plaintiff argues that "[I]t does not take an engineer to climb one ladder, climb the other, and reach the opinion that the one which costs ten dollars less is far less stable and far more rickety." If that opinion is warranted, the Court agrees with plaintiff's assertion. Such an assertion is not, however, relevant to the case at hand, as the issue before the Court is whether there existed an alternative design for the ladder that was capable of preventing plaintiff's injury. Moreover, Rule 701 is not intended to extend to general assertion about how a ladder "should" react in terms of flexure to a loss of balance. Thus, Mitchell's testimony is also excluded under Fed.R.Evid. 701.
Functioning as gatekeepers, district courts play the role of ensuring that only relevant and reliable expert testimony is presented to a jury.See Rushing v. Kansas City Southern Ry. Co., 185 F.3d 496, 506 (5th Cir 1999). "[T]he heart of Daubert is relevance and reliability. As long as some reasonable indication of qualifications is adduced, the court may admit evidence without abdicating its gate-keeping function." Id. at 507. Here, however, the court can adduce no reasonable indication of qualifications. The Court is "to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Black v. Food Lion, Inc., 171 F.3d 308, 310 (5th Cir. 1999) (quoting Kumho, 526 U.S. at 152, 119 S.Ct. at 1176). Moreover, as has been noted by other courts, "nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." Id. at 311. Because the expert opinion of Mitchell fails to address the central issue of this case at sufficient level of intellectual rigor in the field of ladder design, and his testimony is not probative of whether plaintiff states a claim under La. Rev. Stat. 9:2800.56, his testimony is properly excluded. Accordingly,
In making this conclusion, the Court considered the so-called Daubert factors: (1) whether the expert's theory can be or has been tested; (2) whether the theory has been subjected to peer review and publication (3) the known or potential rate of error of a technique or theory when applied; (4) the existence or maintenance of standards and controls; (5) the degree to which the technique or theory has been generally accepted in the scientific community. See Daubert, 509 U.S. at 593-95, 113 S.Ct. 2796-97.
IT IS ORDERED that defendants' Motion to Dismiss Plaintiff's Claims for Lost Earnings and Loss of Earning Capacity is GRANTED.
IT IS FURTHER ORDERED that defendants' Motion in Limine to Exclude the Expert Testimony of Dr. Rennie Culver and Elliot Bain is DENIED.
IT IS FURTHER ORDERED that defendants' Motion in Limine to Exclude the Testimony of Plaintiff's Metallurgical Expert, David Mitchell, is GRANTED.