Opinion
Case No. CIV-15-1375-SLP
02-28-2019
Joann Sandy HARRIS and Benjamin Harris, Plaintiffs, v. REMINGTON ARMS COMPANY, LLC, Defendant.
Glenn J. Shrader, Jr., Walker & Walker, Oklahoma City, OK, Michael M. Blue, Blue Law, Edmond, OK, for Plaintiffs. Robert H. Alexander, Jr., Robert W. Ivy, Law Office of Robert H. Alexander Jr. PC, Oklahoma City, OK, Andrew A. Lothson, Dale G. Wills, Swanson Martin & Bell, Chicago, IL, for Defendants.
Glenn J. Shrader, Jr., Walker & Walker, Oklahoma City, OK, Michael M. Blue, Blue Law, Edmond, OK, for Plaintiffs.
Robert H. Alexander, Jr., Robert W. Ivy, Law Office of Robert H. Alexander Jr. PC, Oklahoma City, OK, Andrew A. Lothson, Dale G. Wills, Swanson Martin & Bell, Chicago, IL, for Defendants.
ORDER
SCOTT L. PALK, UNITED STATES DISTRICT JUDGE
Before the Court is Defendant's Motion for Summary Judgment [Doc. No. 52]. It is at issue. See Resp., Doc. No. 56; Reply, Doc. No. 62; Surresponse, Doc. No. 65. Also before the Court is Defendant's Motion to Exclude the Opinion Testimony of Plaintiffs' Liability Expert [Doc. No. 73]. It is at issue as well. See Resp., Doc. No. 83; Reply, Doc. No. 89. Finally, at issue is Defendant's Motion to Strike the New Affidavit of Plaintiffs' Expert, Charles Powell [Doc. No. 90]. See Resp., Doc. No. 113.
Although the filings attributed to Defendant Remington Arms Company, LLC were originally made jointly by it and then-Defendant Wal-Mart Stores East, LP, a stipulation of dismissal with prejudice of Plaintiffs' claims against Wal-Mart was filed subsequently under Federal Rule of Civil Procedure 41(a)(1)(A)(ii). See Stip. of Dismissal, Doc. No. 158. Accordingly, references herein are to Remington as the sole remaining defendant.
Counsel are reminded to comply with Local Civil Rule 7.1(n) in any future filings: "No response or reply brief shall include an exhibit or attachment that is already included with the motion under consideration; reference shall instead be made to the exhibit or attachment to the motion under consideration, using the ECF Document Number."
On January 17, 2019, the Court held an evidentiary hearing at which Plaintiffs' expert witness (Charles Powell) testified and at which the Court heard arguments of counsel regarding whether Mr. Powell's opinions should be excluded. See Minute Sheet of Proceedings, Doc. No. 114. The Court has reviewed Mr. Powell's written report and résumé/curriculum vitae [Doc. No. 89-1], his affidavits [Doc. Nos. 56-1, 65-1, and 83-7], and his deposition testimony [Doc. No. 73-1], in addition to the legal arguments and other exhibits offered by both Plaintiffs and Defendant in the briefs indicated supra.
I. Introduction
Plaintiffs assert products liability claims (both for a manufacturing defect and for a warning defect) against Defendant Remington Arms Company, LLC—the manufacturer of the rifle at issue in this case. Substantial factual disputes exist (which generally are not addressed herein). However, the existence of factual disputes does not end the Court's summary judgment inquiry because Defendant asserts that Plaintiffs lack admissible evidence of causation. And Plaintiffs must show causation to prove their claims. See Eck v. Parke, Davis & Co. , 256 F.3d 1013, 1017 (10th Cir. 2001) (failure to warn claim); Alexander v. Smith & Nephew, P.L.C. , 98 F. Supp. 2d 1276, 1284, 1286-87 (N.D. Okla. 2000) (manufacturers' products liability claims); see also Kirkland v. Gen. Motors Corp. , 521 P.2d 1353, 1363, 1366 (Okla. 1974) (products liability claims). In a products liability case such as this (involving complex scientific issues beyond the purview of an ordinary juror), plaintiffs generally must make their causation showing through an expert witness's testimony. Cf. Nash v. Gen. Motors Corp. , 2007 OK CIV APP 11, ¶ 8, 153 P.3d 73, 75. Plaintiffs do not offer any causation evidence except Mr. Powell's testimony; nor do Plaintiffs argue their claims can survive if Mr. Powell's testimony is excluded.
The parties have indicated that Plaintiffs are abandoning their negligence and breach of warranty claims against Defendant, leaving only the products liability claims. See Final Pretrial Report 2, Doc. No. 118. Because the Final Pretrial Report was jointly submitted by Plaintiffs and Defendant (and then-Defendant Wal-Mart), the Court construes it as a joint request for leave to amend Plaintiffs' prior controlling pleading to eliminate two of Plaintiffs' claims against Defendant, which the Court GRANTS.
The Court's subject-matter jurisdiction is provided by 28 U.S.C. § 1332(a)(1). Therefore, as both parties agree, Oklahoma's substantive law applies. See Eck , 256 F.3d at 1016.
Thus, Defendant's basis for asserting that Plaintiffs lack admissible causation evidence is coextensive with Defendant's argument that Mr. Powell's testimony should be excluded pursuant to both Federal Rule of Evidence 702 and the analytical framework for expert witness testimony from Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). That is, if the Court finds that Mr. Powell's opinion testimony should be excluded, Plaintiffs lack admissible causation evidence and summary judgment for Defendant is proper. If, however, the Court finds that Mr. Powell's opinion testimony should be allowed, Plaintiffs have admissible causation evidence (which a jury later could accept or reject) and summary judgment for Defendant is not proper. Cf. 103 Inv'rs I, L.P. v. Square D Co. , 470 F.3d 985, 991 (10th Cir. 2006) (finding no error when a district court granted summary judgment after a plaintiff produced no evidence beyond inadmissible expert witness testimony to demonstrate a genuine issue of material fact in a products liability case); Mitchell v. Gencorp, Inc. , 165 F.3d 778, 780 (10th Cir. 1999) ("Where a trial court excludes [expert witness] evidence essential to maintain a cause of action, the propriety of summary judgment depends ... entirely on the evidentiary ruling." (quotation marks and citation omitted)).
II. Summary judgment standard
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In deciding if summary judgment is proper, the Court does not weigh the evidence and determine the truth of the matters asserted; it instead determines only whether there is a genuine issue for trial. See Birch v. Polaris Indus., Inc. , 812 F.3d 1238, 1251 (10th Cir. 2015). An issue is "genuine ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party;" an issue is "material" if a dispute over the fact "might affect the outcome of the suit under the governing law." Id. (quotation marks omitted).
Therefore, "[t]he question ... is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Shero v. City of Grove , 510 F.3d 1196, 1200 (10th Cir. 2007) (quotation marks and citation omitted). "[O]n summary judgment, the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." Id. (alterations in original) (quotation marks and citation omitted).
Rule 56 "mandates the entry of summary judgment [if], after adequate time for discovery ... a party ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; see also id. at 322-23, 106 S.Ct. 2548 ("In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." (quotation marks omitted)).
III. Daubert standard
Expert witness testimony is admissible if it meets the standard in Rule 702 —"A witness who is qualified as an expert by knowledge, skill, experience, training, or education" can provide opinion testimony if:
a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
b) the testimony is based on sufficient facts or data;
c) the testimony is the product of reliable principles and methods; and
d) the expert has reliably applied the principles and methods to the facts of the case.
Rule 702 requires the Court to fulfill a two-part "gatekeeping role." Daubert , 509 U.S. at 597, 113 S.Ct. 2786. First, the Court must determine whether the expert witness is qualified. See United States v. Nacchio , 555 F.3d 1234, 1241 (10th Cir. 2009) (en banc). Defendant has not challenged Mr. Powell's qualifications, and the materials submitted by Plaintiffs show that Mr. Powell is sufficiently qualified to offer opinions on the matters he seeks to opine.
Second, if the proposed expert witness is sufficiently qualified, the Court must determine whether the expert witness's opinion is reliable and relevant such that the opinion will assist the trier of fact. See id. The Court's relevance inquiry for an expert witness largely involves "fit" and is drawn from Rule 702's requirement that expert testimony " ‘[help] the trier of fact to understand the evidence or to determine a fact in issue.’ " Daubert , 509 U.S. at 591, 113 S.Ct. 2786 (quoting Fed. R. Evid. 702(a) ).
The Daubert standard applies regardless of whether the proposed witness offers scientific testimony or expert witness testimony of another type. See Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 141, 149, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). When the testimony of an expert witness is challenged, the proponent of the testimony bears the burden of establishing its admissibility. See Nacchio , 555 F.3d at 1241.
Included herein are those material facts supported by the summary-judgment record and not genuinely disputed as required by Rule 56(c). These facts are deemed undisputed for purposes of the motions addressed herein only. Facts proposed by the parties that the Court finds irrelevant to the issues addressed herein are omitted. Plaintiffs make additional factual assertions throughout their response brief [Doc. No. 56], but they have not followed the procedure set forth in Local Civil Rule 56.1(c). Therefore, the Court has considered Plaintiffs' factual assertions to determine whether genuine issues of material fact exist as to Defendant's proposed facts, but the Court has not considered Plaintiffs' factual assertions to determine whether they present additional (i.e., not suggested by Defendant) facts to which there is no genuine dispute of a material issue.
Mrs. Harris purchased a new Remington model 700 bolt-action rifle from Wal-Mart in November 2011. Over the approximately two years that Mrs. Harris owned the rifle before the incident giving rise to this lawsuit occurred, Plaintiffs fired approximately eleven rounds—all or most of which were fired while Plaintiffs were sighting the rifle within a few weeks of purchase. Mrs. Harris took the rifle hunting with her during the 2012 deer gun season, but she does not remember whether she fired it while hunting during that year.
Mr. Harris cleaned the rifle after it was sighted (in late 2011), as well as sometime in late 2012. As part of his rifle-cleaning process, Mr. Harris always toggled the safety lever between "S" and "F" and dry-fired the rifle by toggling the safety lever to "F" and pulling the trigger. When Mrs. Harris was not hunting with the rifle and Mr. Harris was not cleaning it, the rifle was stored with the safety lever in the "S" position in an unheated (and, presumably, uncooled) room of Plaintiffs' home. The "S" or "safe" position for the safety lever means that the safety is engaged and is on, as opposed to the "F" or "fire" position—when the safety is not engaged and is off.
On November 28, 2013 (Thanksgiving), Mrs. Harris took the rifle with her to hunt deer from an elevated tree stand on Plaintiffs' property. While walking to the stand from her vehicle—a 12-to 15-minute journey—Mrs. Harris carried the rifle with three cartridges in its magazine and one cartridge in its chamber. Mr. Harris had a policy that his wife was to carry her firearm loaded when traveling to the deer stand to protect against wild hogs that were sometimes present on their property.
When she arrived at the tree stand, Mrs. Harris began climbing its ladder with the rifle carried by its strap over her right shoulder and her back, and with a cartridge still loaded in the rifle's chamber. The tree stand had a mesh covering draped around it with an opening (similar to the open space that might appear between curtains hung on opposite sides of a window) which the ladder ascended into. Near the top of the ladder, Mrs. Harris paused to remove the rifle from her shoulder/back. While parting the mesh covering with her left hand, Mrs. Harris endeavored to lift the rifle over the tree stand's footrest with her right hand. However, the mesh covering draped around the stand entangled the rifle's strap. Mrs. Harris asserts that she shook the rifle to free it from the mesh covering, and that the safety lever became caught and was moved from the "S" position to the "F" position, at which point the rifle discharged without a trigger pull. Defendant disputes that the rifle fired (or could have fired) without a trigger pull.
The bullet fired by the rifle struck Mrs. Harris's left hand, and she dropped from the tree stand, injuring her left ankle. Eventually, two fingers on Mrs. Harris's left hand were amputated, and she suffered other injuries as well. Mr. Harris was not injured directly by the discharge of the rifle at issue, but he instead claims losses of consortium, services, and companionship, and other associated damages by way of his wife's injuries.
Both Mr. Powell (Plaintiffs' expert witness) and Derek Watkins (Defendant's expert witness) examined the rifle at issue multiple times. During all tests of the rifle under varying environmental conditions (of temperature and humidity), the rifle did not fire upon movement of the safety lever from "S" to "F" absent a trigger pull. During the post-incident testing, the rifle and its fire control system functioned per their designs.
V. Discussion and analysis
A. Issues which do not bear on the Court's summary judgment and Daubert determinations
In this case, Defendant challenges only the relevance of Mr. Powell's proposed testimony by asserting that there is a lack of "fit" between his opinions and the undisputed facts of this case. Before reaching that issue, there are two topics discussed in the parties' briefs which are not in front of the Court and which are not a part of its Daubert and summary judgment determinations. They must be identified and set to the side.
First, Plaintiffs spend portions of their briefs discussing (i) the "Walker" trigger assembly/fire control system used by Defendant for its model 700 rifles prior to its replacement with the X-Mark Pro fire control system and (ii) alleged deficiencies within the Walker fire control system. A Walker fire control system was never part of the rifle at issue in this case, and any deficiencies related to it do not bear on the Court's Daubert and summary judgment determinations.
Defendant's expert witness refers to the Walker fire control system as a connector-based fire control system, but the parties use the "Walker" description, which the Court uses too.
Second, both parties address the 2014 recall by Defendant of certain rifles equipped with the X-Mark Pro fire control system. This recall was based on the presence of excess liquid Loctite between a rifle's safety blocker screw and its trigger surface which, under certain cold-weather conditions, could cause a rifle to inadvertently discharge upon release of the safety without the person handling the gun touching its trigger. This condition was repeatable so long as sufficient liquid Loctite remained within the rifle's fire control system and the cold-weather conditions were present. Mr. Powell admits that his testing has not revealed the presence of excess liquid Loctite in Plaintiffs' rifle, and that he does not believe that excess liquid Loctite caused Plaintiffs' rifle to fire upon release of the safety. Because excess liquid Loctite is not alleged to be the cause of Plaintiffs' injuries in this case, it (and the associated recall of Defendant rifles including the X-Mark Pro fire control system because of excess liquid Loctite) does not bear on the Court's Daubert and summary judgment determinations.
The Court's references to "Loctite" herein are to Loctite 660 unless otherwise indicated.
B. Mr. Powell's causation opinion
Those issues aside, the Court turns to Mr. Powell's causation opinion: that during a period covering all or part of late 2011 through November 2013, "the temperature excursions in the uninsulated room allowed excess Loctite ... to bond the blocker [s]crew to the trigger of [Mrs. Harris's] rifle" and "[t]his bond fired [Mrs. Harris's] rifle the next time the safety [lever] was moved from ‘S’ to ‘F,’ " causing injury to Mrs. Harris. Powell Report ¶ 6.14, Doc. No. 89-1. According to Mr. Powell, "[t]he curing of Loctite 660 occurs when oxygen is largely occluded from the gap between the blocker screw and the trigger in an [X-Mark Pro] fire control [system] and the temperature increases above 75 degrees [Fahrenheit]." Id. This theory of causation—based on cured or bonded Loctite adhering the blocker screw to the trigger surface within the rifle's fire control system—is different from the excess liquid Loctite cause of the 2014 recall. Unlike the excess liquid Loctite issue (which both parties agree may occur in a fire control system multiple times—so long as liquid Loctite remains between the blocker screw and the trigger face), the cured Loctite issue is not, per Mr. Powell, repeatable in a fire control system. That is, Mr. Powell's opinion is that once cured Loctite breaks because the safety lever has been switched from "S" to "F" (and an unintended discharge has occurred), no re-curing will occur unless additional liquid Loctite is present to cure anew. Here, no excess liquid Loctite was present to allow a second curing creating a second Loctite-formed bond. Because Mr. Powell asserts that cured Loctite will only bond the blocker screw to the trigger plate one time (absent excess liquid Loctite not at issue here), the event of an unintended discharge due to bonded/cured Loctite is not repeatable within a single fire control system.
C. Whether Mr. Powell's "migrating Molykote" opinion was not disclosed timely and should be stricken
The Court first considers Defendant's Motion to Strike the New Affidavit of Plaintiffs' Expert, Charles Powell [Doc. No. 90]. Therein, Defendant argues that Mr. Powell asserted a new opinion after Plaintiffs' deadline to notify Defendant of all of Mr. Powell's expert witness opinions. The Court agrees that what Defendant refers to as Mr. Powell's "migrating Molykote" opinion is new—separate from those opinions included in his expert report. Compare Powell Report, Doc. No. 89-1 (not including the migrating Molykote opinion), with Powell Aff., Doc. No. 83-7 (including the migrating Molykote opinion).
In his January 2019 affidavit (the substance of which he reiterated during his testimony at the Daubert hearing), Mr. Powell opined that "Molykote fine powder is present throughout the [X-Mark Pro] fire control assembly and will migrate as the rifle is used" and "[a]s the subject rifle was handled and operated over time, the Molykote powder within the fire control would migrate and remain stuck to the liquid Loctite deposits. When enough Molykote collected on the deposit, ... the curing of the Loctite 660 was promoted and occurred during the last storage of the rifle before November 2013." Powell Aff. ¶¶ 7, 9, Doc. No. 83-7. This new opinion answers the previous open question (under Plaintiffs' theory of the case) about why a Loctite bond cured between Mr. Harris's 2012 cleaning of the rifle and the November 2013 incident date, but no bond cured prior to Mr. Harris's 2012 cleaning of the rifle (and broke without the ability to reform during said cleaning process)—despite the rifle's exposure to the same temperature excursions from storage in the same location during both periods.
Nowhere in Mr. Powell's previous affidavits, in his Rule 26(a)(2) expert report, or in his deposition did he offer the migration of Molykote within the fire control system as the reason that the Loctite bond formed when he says it formed (instead of earlier). Instead, during his November 2018 deposition, Mr. Powell testified that he believed Molykote had the opposite effect than what he has indicated in his more recent testimony. See Powell Dep. 63:20-22, Doc. No. 73-1 ("[I]f [Loctite] absorbs enough [Molykote], then there is going to be sufficient particles probably to prevent [Loctite] from adhering."). Problematic for Plaintiffs is that Mr. Powell's affidavit first mentioning the migration of Molykote was filed more than two months after expert reports were to be exchanged, a month after dispositive and Daubert motions were filed, and the day after the discovery period closed (except for certain discovery not relevant here for which extensions were granted by the Court). At the point Plaintiffs were required to reveal Mr. Powell's migrating Molykote opinion to Defendant (along with his other opinions), Mr. Powell had not performed any testing involving Molykote or developed his migrating Molykote opinion. See id. at 285:17-18 (indicating that, as of November 2018, Mr. Powell "ha[d] not done any testing with Molykote powders with X-Mark Pro triggers or Loctite").
Mr. Powell also—for the first time to the Court and apparently for the first time to Defendant—revealed during his Daubert hearing testimony that he had conducted additional testing regarding Molykote and its effect on the curing of Loctite after he completed his expert report and it was submitted to Defendant. Mr. Powell explained that he had not done any pre-expert-report-deadline and pre-deposition testing involving Molykote because he "did not realize it was a curative agent for the Loctite at that time." Hr'g Tr. 64:17-18, Doc. No. 157. Mr. Powell knew that Molykote was present in Defendant's X-Mark Pro fire control systems, but he "didn't recognize the importance [to the Loctite-curing process] of having the Molykote." Id. at 89:6-7.
Plaintiffs assert that Mr. Powell's opinions have not changed because Mr. Powell has always opined (and still opines) that the incident's cause was cured Loctite. His consistency on that matter is not disputed by Defendant. But that opinion only answers the question of "what" happened within the fire control system of the rifle at issue; it does not answer the question of "why" it happened (and why it happened when Mr. Powell says happened instead of before). And the latter answer-opinion is what's at issue in Defendant's motion to strike. Plaintiffs offer no authority to combat Defendant's suggestion that Mr. Powell's view of what happened (Loctite cured, creating a bond) and his view of why it happened (Molykote migrated) are different opinions, both of which had to be timely and fully disclosed by Plaintiffs to Defendant.
Because the migrating Molykote opinion was not timely disclosed by Plaintiffs, they may not rely on it in opposition to Defendant's summary judgment and Daubert motions, and they would not be allowed to present it at trial. As explained by the Tenth Circuit:
Under mandatory discovery Rule 26(a)(2)(B), a party who seeks to introduce an expert's opinion into evidence must provide a written disclosure report to the other party that contains a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; and any exhibits to be used as a summary of or support for the opinions.
Means v. Letcher , 51 F. App'x 281, 282 (10th Cir. 2002) (unpublished) (emphasis added) (quotation marks and citations omitted). "It would make a mockery of that requirement if a party were allowed to [exchange] what is essentially a placeholder report by the deadline and then fill in the blanks, or change the substance, later." Richardson v. Watco Cos. , No. CIV-10-47-HE, 2011 WL 12842517, at *4 (W.D. Okla. Apr. 29, 2011). That is what has happened here.
Plaintiffs attempted during the Daubert hearing to paint Mr. Powell's migrating Molykote opinion as a natural continuation of his timely disclosed opinions. But "Rule 26 expressly requires the [expert witness's] report to include a complete statement of ‘the basis and reasons’ for any opinion expressed, including ‘the data or other information considered by the witness in forming the opinions.’ " Means , 51 F. App'x at 283 (emphasis added) (quoting Fed. R. Civ. P. 26(a)(2)(B) ). Here, even viewed in the light most favorable to Plaintiff—and assuming, arguendo, that the "why" opinion was part of the "what" opinion, not a separate opinion that had to be disclosed—Mr. Powell's Rule 26(a)(2) report does not include any basis or reasons for the migrating Molykote assertions, so his report is not complete and the portion of his overall opinion addressing the migration of Molykote cannot be utilized by Plaintiffs. Indeed, Mr. Powell's report does not include information regarding his post-report testing to support his conclusion about Molykote's role in causing Loctite to cure. Thus, allowing Plaintiffs to utilize Mr. Powell's migrating Molykote opinion would be "an obvious violation of Rule 26." Id.
The Court must decide what the proper sanction is for Plaintiffs' late disclosure of Mr. Powell's migrating Molykote opinion. This assessment is not difficult because Rule 37(c)(1) is clear: "If a party fails to provide information or identify a witness as required by Rule 26(a) ..., the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless." In determining whether a failure to disclose timely was substantially justified or harmless, the Court considers four factors:
(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or willfulness
Jacobsen v. Deseret Book Co. , 287 F.3d 936, 953 (10th Cir. 2002) (quoting Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co. , 170 F.3d 985, 993 (10th Cir. 1999) ). Plaintiffs have not shown that their failure to disclose Mr. Powell's migrating Molykote opinion earlier was "substantially justified or ... harmless," and the Court finds nothing in the record indicating as much. Fed. R. Civ. P. 37(c)(1).
As to the individual Woodworker's Supply factors—first, Defendant has been prejudiced by the disclosure of Mr. Powell's migrating Molykote opinion after the Daubert and dispositive motions deadline and after Defendant deposed him. See Walter Int'l Prods., Inc. v. Salinas , 650 F.3d 1402, 1413 (11th Cir. 2011) ("[I]t is harmful to deprive opposing counsel of the expert's [complete report with all opinions included therein] before his deposition."); Jacobsen , 287 F.3d at 954 ("Prejudice results because the expert reports did not reveal what the experts will testify to at trial."); Richardson , 2011 WL 12842517, at *4 (indicating that even offering an expert witness for a second deposition after additional opinions were revealed was prejudicial to the opposing party and did not prevent the exclusion of the expert witness's testimony).
Second, no ability to cure the prejudice exists at this point short of large-scale changes to the schedule for this litigation. Allowing Plaintiffs to use Mr. Powell's non-timely-disclosed opinion equitably would require reopening the discovery period to allow scrutiny by Defendant of the post-report testing performed by Mr. Powell, likely a second deposition of Mr. Powell and potentially a second Daubert motion by Defendant, and additional delay to this case that is already one of the oldest on the Court's docket. A March 2019 trial would not be possible. This prejudice to Defendant—from no fault of Defendant's—is not tenable under the circumstances of this case. Plaintiffs have not proposed any ways to mitigate the prejudice to Defendant, and Plaintiffs have not shown any reason—in these circumstances when their expert knew of Molykote's presence and did not perform any pre-report testing regarding its effects or otherwise seek to understand why the Loctite bond formed and broke (under Plaintiffs' theory of the case) when it did instead of earlier—why the Court should now save Plaintiffs from their own actions.
Third, and for these same reasons identified supra , allowing Plaintiffs to rely on Mr. Powell's migrating Molykote theory would disrupt both the Court's consideration of Defendant's Daubert and summary judgment motions and trial.
Finally, although there is no express indication of bad faith on Plaintiffs' part, the non-disclosure to Defendant of the post-report testing by Mr. Powell (which Plaintiffs' counsel knew of) when it appears that Mr. Powell intends to rely on this testing at least in part for any opinion he offers at trial about Molykote is troubling. The Court does not find that this lack of disclosure was bad faith on the part of Plaintiffs or their counsel, but the Court likewise does not find that it was good faith on their part.
Plaintiffs make their only attempt at a substantial justification argument by asserting that Defendant was likewise unaware of the effect of Molykote on the curing of Loctite until Defendant's expert witness discovered as much during this litigation. But Defendant's knowledge of Molykote's effects is entirely beside the point in considering whether Plaintiffs' failure to hypothesize, test, and disclose a plausible reason that the Loctite cured during the window of time identified by Mr. Powell was substantially justified. Plaintiffs bear the burden of proof (including causation) as to their claims, and their expert witness—for his opinion to meet the requirements of the Daubert analysis—bears the responsibility of explaining why something happened when he says it happened. Had Defendant concealed the presence of Molykote in the X-Mark Pro fire control mechanisms or otherwise prevented Mr. Powell from fully fleshing-out his causation explanation, substantial justification might be present. That is not the case here.
Taking the Woodworker's Supply factors together, and based especially on Plaintiffs' failure to even attempt to make a substantial justification or harmlessness showing except based on Defendant's expert witness's knowledge, the Court finds that (i) Mr. Powell's migrating Molykote opinion was not disclosed by Plaintiffs as required by Rule 26(a)(2)(B) and the Court's Scheduling Order [Doc. No. 51] and (ii) Plaintiffs have not shown a substantial justification for or the harmlessness of their tardy disclosure under Rule 37(c)(1). Accordingly, Plaintiffs may not rely on Mr. Powell's migrating Molykote explanation in establishing causation as required to prevail on their products liability claims. . Cf. Reed v. Smith & Nephew, Inc. , 527 F. Supp. 2d 1336, 1350 (W.D. Okla. 2007) (excluding portions of an expert witness's affidavit that "consist[ed] almost exclusively of additions or other changes for which supplementation would have been required [under Rule 26(e) ]" when the proponent of the evidence "offered no substantial justification for the failure to supplement [the expert witness]'s report or his deposition testimony ... [with] the previously undisclosed opinions").
Because the Court finds that Mr. Powell's migrating Molykote opinion should be disallowed based on its untimely disclosure, the Court does not reach Defendant's alternative argument that Mr. Powell's January 2019 affidavit provides contradictory testimony (as compared to his deposition) in an attempt to create a sham fact issue.
D. Whether Mr. Powell's opinions pass Daubert scrutiny absent the "migrating Molykote" opinion
Having determined that Mr. Powell's migrating Molykote opinion may not be relied upon because of its late disclosure by Plaintiffs to Defendant, the Court must determine whether Mr. Powell's overall causation testimony survives Defendant's Daubert challenge. Thus, the Court addresses Defendant's Motion to Exclude the Opinion Testimony of Plaintiffs' Liability Expert [Doc. No. 73].
Excluding Mr. Powell's post-deposition Molykote testing, Mr. Powell was not able to recreate the unintentional discharge result about he opines occurs. Mr. Powell was not able to make Plaintiffs' rifle—or any rifle with an X-Mark Pro fire control system—fire without a safety release due to bonded (not liquid) Loctite. That Plaintiffs' rifle (specifically) did not fire without release of the safety is not surprising under Mr. Powell's theory because he opines that each cured Loctite bond will only form and break once absent additional liquid Loctite not alleged to have been present in this case. But Mr. Powell was also unable to recreate the bonding/curing and breaking of Loctite in any other X-Mark Pro fire control systems either. Still, this deficiency goes to the reliability of Mr. Powell's opinions, not their relevancy/"fit," only the latter of which is challenged by Defendant in its Daubert motion. See Bitler v. A.O. Smith Corp. , 400 F.3d 1227, 1233, 1235-36 (10th Cir. 2005).
As to relevancy/"fit" of Mr. Powell's opinions, Mr. Powell does not explain (absent his migrating Molykote opinion) why Loctite bonded between Mr. Harris's cleaning of the rifle in 2012 and the November 2013 incident date, but no bond cured prior to Mr. Harris's 2012 cleaning of the rifle (and broke during said cleaning process without the ability to reform)—despite the rifle's exposure to the same temperature excursions from storage in the same location during both time periods. Plaintiffs' failure to include reasoning for the timing of the alleged Loctite bond break means that Mr. Powell's causation explanation does not "fit" the facts of this case. That is, Mr. Powell's inability to explain why the Loctite bond formed prior to November 2013, but not prior to Mr. Harris's 2012 rifle cleaning, despite similar environmental and storage conditions, creates "too great an analytical gap between the data and the opinion proffered." Gen. Elec. Co. v. Joiner , 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) ; see also Bitler , 400 F.3d at 1233 ("[W]hen [the expert witness's] conclusion simply does not follow from the data, a district court is free to determine that an impermissible analytical gap exists between premises and conclusion."). Mr. Powell's reasoning and methodology explaining how excess Loctite led to a cured bond, which led to an unintended discharge without release of the safety lever, would be sufficiently reliable and relevant to be presented to a jury but for the missing link in his reasoning supplied by the excluded migrating Molykote opinion.
That a rifle including an X-Mark Pro fire control system is "designed to be loaded and unloaded with the safety lever in the ‘S’ position," which "keep[s] any bonding between the blocker screw and the trigger intact, even when loading the rifle, until the safety lever is moved from ‘S’ to ‘F’ after the rifle [is] loaded" explains why any cured Loctite bond did not break when Mrs. Harris loaded the rifle in November 2013. Powell Report ¶ 6.15, Doc. No. 89-1. I.e., Plaintiffs were able to load the rifle without moving the safety lever from "S" to "F" and breaking any cured Loctite bond during the rifle-loading process. This aspect of the rifle's design does not explain why any cured Loctite bond did not break when Mr. Harris cleaned the rifle (including toggling the safety lever and dry-firing the rifle) in 2012. Indeed, Mr. Powell's original opinion regarding curing (that it is caused by temperature excursions alone regardless of the location and amount of Molykote) is implausible in light of Mr. Harris's testimony regarding how he cleaned the rifle after a year's worth of temperature excursions occurred before the 2012 cleaning.
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Plaintiffs defend Mr. Powell's methodology "as a process of reasoning to the best inference," which the Tenth Circuit has identified as "a valid scientific technique to establish causation." Bitler , 400 F.3d at 1236-37. Plaintiffs assert that Mr. Powell reached his conclusion that cured Loctite caused the rifle to unintentionally fire without Mrs. Harris touching the safety lever because all other explanations for the rife firing had been eliminated. But Defendant's challenge to Mr. Powell's testimony is different than what was addressed in Bitler. There, a home explosion occurred which an expert witness determined to be the result of a hot water heater's malfunction when copper sulfide contaminated the water heater's safety valve seat. See id. at 1231. The expert witness "undertook a process of eliminating alternative possible causes, determining that these possibilities were improbable sources of the explosion, and arriving at a highly probable cause." Id. at 1237.
Here, in contrast, Defendant is not asserting that Mr. Powell failed to adequately eliminate other possible explanations for the rifle firing (though Defendant seems to believe that Mrs. Harris did, in fact, pull the trigger without realizing she did so), but instead is asserting that Mr. Powell's opinions are incomplete without the migrating Molykote explanation for why Loctite bonded at one time and not at another time under the same environmental and storage conditions. The Court agrees with Defendant that Bitler 's authorization for an expert witness to "reason[ ] to the best inference" has no bearing on the Daubert issues in this case. Id. at 1237.
E. Whether Plaintiffs' claims can continue without expert witness testimony from Mr. Powell
Finally, the Court turns to Defendant's Motion for Summary Judgment [Doc. No. 52]. Absent expert witness testimony from Mr. Powell, Plaintiffs' claims necessarily fail due to a lack of causation evidence. See Eck , 256 F.3d at 1017 ; Alexander , 98 F. Supp. 2d at 1284, 1286-87 ; Kirkland , 521 P.2d at 1363. No genuine issue of material fact exists in this case because the "complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp , 477 U.S. at 322-23, 106 S.Ct. 2548 (quotation marks omitted); see also id. at 322, 106 S.Ct. 2548 (indicating that Rule 56 "mandates the entry of summary judgment [if], after adequate time for discovery ... a party ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial").
VI. Conclusion
IT IS THEREFORE ORDERED that Defendant's Motion to Strike the New Affidavit of Plaintiffs' Expert, Charles Powell [Doc. No. 90] is GRANTED as set forth herein.
IT IS FURTHER ORDERED that Defendant's Motion for Summary Judgment [Doc. No. 52] and Defendant's Motion to Exclude the Opinion Testimony of Plaintiffs' Liability Expert [Doc. No. 73] are GRANTED as set forth herein. A separate judgment will be entered contemporaneous herewith. IT IS SO ORDERED this 28th day of February, 2019.