Opinion
Case No. 1:10-cv-248
04-13-2012
MARY PISKURA, et al, Plaintiffs, v. TASER INTERNATIONAL, et al., Defendants.
Weber, J.
Litkovitz, M.J.
ORDER
This civil action is before the Court on plaintiffs' motion to limit the number of expert witnesses designated by defendants (Doc. 69) and defendant Taser International's (TASER) response in opposition. (Doc. 71). Also before the Court is plaintiffs' motion to substitute an expert witness (Doc. 80) and TASER's opposition memorandum. (Doc. 81).
A response in opposition was also filed by defendants City of Oxford, Oxford Police Department, Stephen D. Schwein and Geoff Robinson ("the Oxford Defendants")- (Doc. 72). Since these defendants were subsequently dismissed by plaintiffs pursuant to a February 12, 2012 Stipulation of Dismissal, this Order will not address their response.
I. Preliminary Matters
The instant lawsuit arises from the death of Kevin Piskura ("Piskura") in April 2008. The administrator of Piskura's estate and his next of kin ("plaintiffs") brought a 42 U.S.C. § 1983 claim against the Oxford Defendants alleging that Piskura's death resulted from defendant Robinson's unreasonable use of force, specifically his use of a taser on Piskura's chest. As the Oxford Defendants have been dismissed, the remaining claims against TASER are state law claims of Wrongful Death/Statutory Product Liability; Wrongful Death, Common Law Negligence and Product Liability; Wrongful Death/Intentional and Negligent Concealment and Misrepresentation; Wrongful Death/Reckless, Willful and Wanton Misconduct; Survivorship; and Loss of Consortium. (Doc. I). The Court now turns to the pending motions.
Although there are no federal claims remaining, the Court retains diversity jurisdiction over this matter under 28 U.S.C. § 1332.
II. Plaintiffs' Motion to Limit Taser's Expert Witnesses (Doc. 69)
Plaintiffs seek an Order from the Court limiting the number of expert witnesses TASER may designate, claiming that ten of TASER's 15 designated experts are cumulative. Specifically, plaintiffs challenge TASER's designation of two forensic pathologists, Dr. Wetli and Dr. Stone, who they claim have nearly identical backgrounds and gave nearly identical conclusions in their expert reports with respect to their criticism of the Hamilton County Coroner's Office medical examiner's findings that Kevin Piskura's death was not a result of acute alcohol intoxication. Plaintiffs similarly challenge the designation of both Dr. Lakkireddy and Dr. Calkins, asserting they are similarly qualified cardiologists and have expressed nearly identical opinions about the cause of Piskura's death. Plaintiffs further challenge the designation of three emergency medicine doctors, Dr. Clark, Dr. Vilke, and Dr. Ho, because their opinions are cumulative with respect to the testimony of the previously named pathologists and cardiologists. Lastly, plaintiffs challenge defendants' designation of two electrical engineers, Dr. Panescu and Dr. Kroll, asserting their testimony about the effectiveness of the taser used on Kevin Piskura is duplicative. Plaintiffs seek these limitations to reduce the time and financial costs associated with deposing experts located in various parts of the country.
In its response in opposition, TASER contends that plaintiffs' motion is premature and unfairly undercuts their choice of experts before Daubert and summary judgment motions have identified issues for trial. TASER asserts that the proper time to exclude witnesses under Fed. R. Evid. 403 is at trial and not during discovery. TASER also identifies specific and unique qualifications possessed by each of the challenged experts and the evidentiary purposes for which each particular expert will be called.
Fed. R. Evid. 702(a) enables litigants to present testimony of qualified experts if their "scientific, technical, or otherwise specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." Relevant evidence may be excluded by the court "if its probative value is substantially outweighed by a danger of. . . needlessly presenting cumulative evidence." Fed. R. Evid. 403. "District courts have wide discretion in managing the quantities of evidence admitted," Bowman v. Corrs. Corp. of America, 350 F.3d 537, 547 (6th Cir. 2003), and are permitted to limit the number of experts who testify at trial. Adams v. Cooper Induss., Inc., No. 03-476, 2006 WL 2983054, at *11 (E.D. Ky Oct. 17, 2006) (citing Coal Resources, Inc. v. Gulf & Western Indus., Inc., 865 F.2d 761, 770 (6th Cir. 1989)). Under Fed. R. Evid. 403, a district court is free to exclude any expert testimony which is determined to be cumulative or redundant. Bowman, 350 F.3d at 547 (citing In re Air Crash, 86 F.3d 498, 527 (6th Cir. 1996)). Rulings on whether expert testimony is cumulative or redundant are encouraged before trial, as decisions made during trial can disrupt a party's strategy. Id.
The Court finds that the exclusion of TASER's designated experts due to purportedly cumulative testimony is premature. Dispositive motions have only recently been filed, the deadline for filing the Joint Final Pretrial Order is set for July 6, 2012, approximately three months from now, and no trial date has been set. See Doc. 74. As TASER hones their trial strategy, it may decide to not present certain expert testimony at trial, their experts' testimony may be excluded or limited by evidentiary rulings, or may be rendered unnecessary by substantive orders of this Court. Moreover, "with nothing on which to rely besides the experts' preliminary Rule 26 reports, any order . .. limiting the number of expert witnesses [TASER] may utilize will, at least be arbitrary; at worst, it may be prejudicial to their defense." Adams, 2006 WL 2983054, at
Plaintiffs cite to the Sixth Circuit cases of In re Air Crash Disaster and Bowman to support their contention that courts have the general authority to limit expert witnesses and that such rulings should be made before trial. However, the cases cited by plaintiffs do not support their argument. The decision to strike expert opinion testimony in In re Air Crash Disaster occurred post-trial and pursuant to a settlement between the plaintiffs and one of the defendants. In re Air Crash Disaster, 86 F.3d at 526-27. In Bowman, the district court excluded an expert after hearing the testimony of another expert witness at trial and determining that the testimony of the second expert would be cumulative. Bowman, 350 F.3d at 547. Indeed, these cases undermine plaintiffs' position as they demonstrate that decisions to exclude or limit experts may properly be made during and post-trial. The Sixth Circuit in Bowman "encourage[d]" district courts to make such rulings before trial because "a last-minute decision made during trial can be disruptive to a party's strategy ... ." Bowman, 350 F.3d at 547 (emphasis added). As previously noted, in this case dispositive motions have only recently been filed and there is no set trial date. Consequently, the concerns expressed in Bowman are not present.
While plaintiffs challenge ten of TASER's experts arguing that their reports are nearly identical and would lead to cumulative and unnecessary testimony, "expert testimony is not rendered cumulative simply based on the number of witnesses who offer evidence at trial." Adams, 2006 WL 2983054, at *11 (citing Coal Resources., 865 F.2d at 769) ("[Limiting experts 'because of mere numbers, without reference to the relevancy of their testimony' is an abuse of discretion.") (quoting Padovani v. Bruchhausen, 293 F.2d 546, 550 (2nd Cir. 1961)). Thus, even if defendants were able to defend their case using extensive testimony from fewer experts, their choice to defend their client using a larger number of experts does not in itself make the testimony duplicative. Id. More importantly, plaintiffs have failed to establish that the testimony of the challenged experts is unnecessarily cumulative at this juncture. The snippets culled by plaintiffs from the extensive expert reports showing some overlap of opinions, when compared with the expert qualifications and detailed explanations of the evidentiary bases for each expert's testimony set forth by TASER in its memorandum in opposition, does not convince the undersigned that the testimony of the challenged experts is needlessly cumulative.
Plaintiffs additionally contend that TASER's experts should be limited to avoid burdensome expenses in deposing defendants' experts across the country. However, Rule 403 was not adopted to reduce costs incurred by counsel during the prosecution of a lawsuit; rather, it is intended to prevent prejudice, confusion of issues, delay, and needlessly cumulative evidence. Fed. R. Evid. 403. Moreover, TASER's response raises the practical option of taking depositions via videoconference, which could significantly reduce travel costs and time. As plaintiffs have cited no authority to justify limiting the number of experts designated by TASER at this stage of litigation, their motion is DENIED.
Plaintiffs' counsel, Peter M. Williamson, provided an affidavit in support of this motion noting that in prior litigation the District Court for the Northern District of California "denied plaintiffs' motion [but] did order TASER to pay all of plaintiff counsel's expenses incurred in taking the 15 expert depositions including all travel expenses and deposition costs." (Doc. 69, p. 14) (citing Heston, et al. v. City of Salinas, et al, No. C 05-3658 JW (N.D. Cal. 2005). However, counsel failed to include a copy of this order or provide a citation to the specific order granting this request for costs. It is incumbent upon the parties, and not the Court, to provide legal support for their arguments. The Court, therefore, cannot rely on this representation of counsel.
Plaintiffs additionally seek sanctions in the form of attorneys' fees and costs claiming that TASER's identification of an allegedly excessive number of experts is an abusive litigation tactic, citing prior cases in which plaintiffs' counsel prosecuted TASER and TASER called less than half of the experts they had designated. Essentially, plaintiffs argue that that TASER's counsel's prior litigation strategy should be imputed to this case. This argument is not well-taken. Plaintiffs have presented no evidence demonstrating that TASER has violated the Federal Rules of Civil Procedure or engaged in sanctionable behavior. Consequently, plaintiffs' request for sanctions is DENIED.
III. Plaintiffs' Motion to Substitute their Expert Witness (Doc. 80).
Plaintiffs' second motion requests that this Court enter an order permitting them to withdraw their warnings expert, Dr. Michael Wogalter, and substitute William Kitzes, J.D., in his stead. Plaintiffs explain that although Dr. Wogalter was identified as an expert witness and his report was provided to TASER in a timely manner, his subsequent failure to respond to numerous telephone calls and emails made it impossible for plaintiffs' counsel to present him for deposition. Upon determining that Dr. Wogalter was no longer cooperating with them, plaintiffs' counsel retained another expert, Mr. Kitzes, on February 23, 2012 and tendered his expert report to defense counsel on March 6, 2012. Mr. Kitzes was scheduled to be deposed on March 9, 2012.
TASER acknowledges in its opposing memorandum that Mr. Kitzes' March 9, 2012 deposition did occur. (Doc. 81). Plaintiffs' reply memorandum also notes that the deposition occurred as scheduled and lasted over five hours. (Doc. 82).
Federal Rule of Civil Procedure 26(a)(2)(A) requires that "a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705." Fed. R. Civ. P. 26(a)(2)(A). Further, these disclosures must be made within the time frame set by the court. Fed. R. Civ. P. 26(a)(2)(D). "If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). District courts are given broad discretion in determining whether to exclude testimony from late-disclosed expert witnesses. Matilla v. South Ky. Rural Elec. Co-op. Corp., 240 F. App'x 35, 42 (6th Cir. 2007).
The discovery deadlines in this case have been revised several times at the request of the parties. Initially, plaintiffs' deadline for disclosing experts and reports was set for May 18, 2011 (Doc. 24), but upon request of all parties this deadline was extended to July 29, 2011. (Doc. 44). Likewise, there have been several extensions related to expert discovery granted upon individual and joint request of the parties. See Docs. 44, 47, 65, 74. In January 2012, District Judge Weber entered a new scheduling order extending the deadline for expert discovery to March 12, 2012. (Doc. 74).
Plaintiffs argue that the court should allow the substitution for the following reasons: (1) Mr. Kitzes was identified and deposed within the time frame for completing expert discovery; (2) the necessity of the substitution was not a fault of plaintiffs or plaintiffs' counsel, but rather the result of Dr. Wogalter's inexplicable failure to communicate with plaintiffs' counsel and equity calls for allowing the subsitution; (3) plaintiffs will suffer great prejudice if they are not permitted to introduce Mr. Kitzes testimony at trial; and (4) TASER is not prejudiced by the substitution as there is no trial date set, the opinions of Mr. Kitzes are substantially similar to those of Dr. Wogalter, and counsel for TASER is familiar with Mr. Kitzes' opinions as they have previously deposed him in similar litigation.
At the time plaintiffs' motion was filed, Mr. Kitzes' deposition was scheduled but had not yet occurred; however, TASER's response (Doc. 81) and plaintiffs' reply (Doc. 82) indicate that the deposition proceeded as scheduled on March 9, 2012.
In opposition, TASER argues that Fed. R. Civ. P. 37(c) mandates exclusion of Mr. Kitzes' testimony. TASER claims that the substitution should not be allowed and suggests that plaintiffs' counsel was not sufficiently diligent in securing Dr. Wogalter for deposition dates. Further, TASER asserts the late disclosure and last minute deposition required them to "rush" which deprived them of a meaningful opportunity to diligently prepare, identify rebuttal experts, or have their own experts review Mr. Kitzes' opinion. Lastly, TASER challenges plaintiffs' assertion that a trial date has not been set.
TASER does not identify whether exclusion is mandated because of the delay in the disclosure or because Mr. Kitzes was not identified until after the July 29, 2011 deadline for disclosing plaintiffs' experts. (Doc. 44). Since TASER's argument is premised on Fed. R. Civ. P 37(c)(1), the Court assumes that TASER is arguing plaintiffs failed to comply with the July 2011 Order as required by Fed. R. Civ. P. 26(a)(2). Notably, under Rule 26(a)(2)(D)(i) plaintiffs' disclosure would not be untimely were it not for the July 2011 Order as it was made "at least 90 days before the date set for trial or for the case to be ready for trial.. .." Fed. R. Civ. P. 26(a)(2)(D)(i).
The Court notes that TASER's argument in this regard is contradicted by the District Judge's January 25, 2012 scheduling order which provides that "[t]his case shall proceed to trial in the August 2012 trial term." (Doc. 74). Further, it is contradicted by TASER's arguments in its responsive brief to plaintiffs' motion to limit TASER's experts, discussed above, in which TASER affirmatively states, "A trial date is not currently set in this case." (Doc. 71, p. 7). The Court acknowledges that the January 2012 scheduling order was entered seven days after TASER made this assertion; however, the undersigned finds that the scheduling order does not set a specific date for trial and adopts plaintiffs' position on this score.
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The parties are in agreement that plaintiffs did not disclose Mr. Kitzes as an expert until after their July 29, 2011 deadline for expert witness disclosures. Thus, the only relevant inquiry is whether Rule 37(c)(1) mandates Mr. Kitzes' exclusion or if plaintiffs' late disclosure was substantially justified or harmless. Given the specific nature of this litigation and the facts presented by plaintiffs, the undersigned finds that the late disclosure was both substantially justified and harmless.
Plaintiffs have presented evidence in the form of counsel's affidavit demonstrating that Dr. Wogalter was retained in July 2011 and his report was timely tendered to defense counsel. (Doc. 80, p. 10-14, ¶¶ 4-5, Declaration of Peter M. Williamson). Dr. Wogalter informed Mr. Williamson that he would be on sabbatical from his teaching position but that he would be available for the litigation and provided his email address and office phone number as a means of communication. Id. at ¶ 4. Mr. Williamson made his first attempt to contact Dr. Wogalter in November 2011 in order to schedule his deposition. Id. at ¶ 8. Subsequently, Mr. Williamson sent multiple emails to Dr. Wogalter in January and February 2012 and received no response. Id. Mr. Williamson also attempted to reach Dr. Wogalter via telephone but, despite leaving multiple voice mail messages, received no response. Id. at ¶ 9. On February 10, 2012, Mr. Williamson then contacted defense counsel to report his difficulties with Dr. Wogalter and, on February 14, 2012, reiterated the issue in person and informed defense counsel of his intent to seek leave of Court for a substitute expert. Id. at ¶¶ 10-11. Mr. Kitzes was retained by Mr. Williamson on February 23, 2012. Id. at ¶ 12. TASER has presented no evidence contradicting these events.
The 1993 advisory committee's notes to Rule 37(c) explain that the "substantially justified" and "harmless" exceptions were introduced to avoid otherwise harsh sanctions. Fed. R. Civ. P. 37(c)(1), 1993 advisory comm. notes. The Court finds that sanctioning plaintiffs would be excessively harsh given their justification for the late disclosure of Mr. Kitzes. Plaintiffs' counsel demonstrates that he timely disclosed Dr. Wogalter and tendered his expert report and was diligent in attempting to schedule his deposition. Through no fault of plaintiffs or their counsel, plaintiffs were required to identify a new expert after Dr. Wogalter failed to respond to counsel's repeated attempts to contact him. The Court cannot conclude from these facts that plaintiffs' request to substitute a new expert in Dr. Wogalter's stead warrants the sanction of excluding Mr. Kitzes' expert testimony. The potential prejudice such a sanction would impose on plaintiffs would unfairly punish them for Dr. Wogalter's failure to adhere to his contractual obligation or to even societal norms of civility. While plaintiffs' counsel could ostensibly have acted with greater zealousness in resolving the issues with Dr. Wogalter, the facts do not demonstrate that counsel was dilatory or purposefully violated this Court's discovery orders.
Although the disclosure of Mr. Kitzes was admittedly late, it was harmless to the extent that TASER was able to garner their resources and depose him at the eleventh-hour. See Walton v. Best Buy Co., Inc., No. 08-cv-15084, 2010 WL 1494612, at * (E.D. Mich. Apr. 14, 2010) (late disclosure harmless where there is sufficient time before trial to depose the witness and name rebuttal experts). The Court does not discount TASER's assertion that the late disclosure was an impediment to their ability to diligently prepare for this deposition. However, the Court finds that TASER's extensive history in litigating claims based on a failure to warn and their previous experience deposing Mr. Kitzes offset the inconvenience. See Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 783 (6th Cir. 2003) (finding late disclosure harmless where counsel seeking sanctions was aware of the substance of the expert's testimony). Further, to the extent that TASER was prejudiced as a result of its inability to consult with their experts and analyze materials prior to deposing Mr. Kitzes, the Court will entertain a motion to engage in limited discovery to cure any potential prejudice.
In light of these findings, plaintiffs' motion to substitute their expert witness is granted.
IV. Conlusion
Accordingly, IT IS HEREBY ORDERED that plaintiffs' motion to limit TASER's designated expert witnesses as cumulative, including their request for sanctions, (Doc. 69) is DENIED but plaintiffs' motion to substitute their expert witness (Doc. 80) is GRANTED.
IT IS SO ORDERED.
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Karen L. Litkovitz
United States Magistrate Judge