United States District Court, W.D. Virginia, Harrisonburg Division
JANE D. ROBERTS, Administrator of the Estate of Anthony Wade Galloway, Plaintiff,
SUNBELT RENTALS, INC., et al., Defendants.
Elizabeth K. Dillon, United States District Judge.
In this personal injury case, plaintiff Jane Roberts and defendants Sunbelt Rentals, Inc., and David Church each move in limine to exclude certain testimony, evidence, and argument from trial. Roberts also moves in limine for judicial notice of certain motor-vehicle statutes, regulations, and manuals. The court has already ruled on some of the motions and now rules on the rest.
On August 21, 2012, Galloway and Church were involved in a motor-vehicle accident on a four-lane section of Route 11 northbound in Frederick County, Virginia. Galloway was driving a moped, and Church was driving a rollback truck owned by his employer, Sunbelt. Moments before the accident, Church turned right onto Route 11 from Pactiv Way. When Church made the turn, Galloway was stopped at a red light on Route 11 where it intersects with Pactiv Way. As Church proceeded on Route 11, Galloway ran the red light, crossed Pactiv Way, and came up behind Church in the far-right lane of Route 11. Not seeing Galloway, Church then attempted a right turn into a gas station. To make the turn, he first swung left into the two center lanes. He then cut back across those lanes and entered the far-right lane. As he crossed the far-right lane, the passenger side of his truck collided with Church’s moped. Church was seriously injured in the accident.
To recover for his injuries, Galloway brought this suit against Church and Sunbelt, alleging that Church was negligent in attempting to make a right turn into the gas station from the center lanes of Route 11 and that his negligence was the cause of the accident. In response, Church and Sunbelt assert that Galloway was negligent in running the red light at the Pactiv Way intersection and that his negligence caused or contributed to the accident. The case was originally set for trial beginning May 26, 2015. On May 2, however, Galloway unexpectedly died, and so the court continued the trial generally. Roughly two and a half months later, Roberts, the administrator of Galloway’s estate, was substituted as plaintiff. The case is now set for trial starting May 16, 2016.
In preparation for trial, the parties have filed various motions in limine, asking the court to exclude certain testimony, evidence, and argument from trial. Roberts also wants the court to take judicial notice of particular motor-vehicle statutes, regulations, and manuals. The court held a hearing on the motions on September 30, 2015, and ruled on some of them from the bench. It will not revisit those rulings here. Rather, it will address only those motions that it took under advisement.
II. ROBERTS’S MOTIONS
A. Motion to Exclude Expert Paul Guthorn’s Testimony
Roberts moves to exclude all or part of the testimony of Sunbelt and Church’s expert Paul Guthorn on two grounds. First, she argues that all of Guthorn’s testimony should be excluded because his report does not satisfy the requirements of Federal Rule of Civil Procedure 26(a). (Pl.’s Mot. to Exclude Paul Guthorn 1-10, Dkt. No. 42.) And second, in the alternative, she contends that part of his testimony should be excluded because it does not meet the demands of Federal Rule of Evidence 702. (Pl.’s First Mot. in Limine 15-25, Dkt. No. 61.)
The court considers each ground in turn.
1. Sufficiency of Guthorn’s Report Under Rule 26(a)
Pursuant to Rule 26(a), a party must disclose the identity of any witnesses that it may use as an expert at trial. Fed.R.Civ.P. 26(a)(2)(A). “[I]f the witness is one retained or specifically employed to provide testimony in the case, ” then he must provide a signed, written report. Fed.R.Civ.P. 26(a)(2)(B). That report must contain:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
A party must disclose its experts and their reports “in the sequence that the court orders.” Fed.R.Civ.P. 26(a)(2)(C). If a party fails to make a timely and complete disclosure of an expert, then it may be subject to a range of sanctions. Fed.R.Civ.P. 16(f), 37(c). The available sanctions include the exclusion of the expert’s testimony. Fed.R.Civ.P. 37(b)(2)(A)(ii), 37(c)(1).
Here, Sunbelt and Church disclosed Guthorn and his report before the deadline set forth in the court’s amended scheduling order (January 12, 2015). Nevertheless, Roberts contends that Guthorn’s testimony should be excluded because his report does not meet the requirements of Rule 26(a). (Pl.’s Mot. to Exclude Paul Guthorn 10.)
Guthorn is an expert in accident reconstruction. In his 12-page report, he offers several opinions on the accident, including the speeds and positions of Church’s and Galloway’s vehicles. (Report of Paul Guthorn 11, Dkt. No. 42-1.) To prepare his report, Guthorn used PC-Crash, a computer simulation program. (Id. at 9.) He took data that he collected during his investigation of the accident (or data collected by other experts) and entered them into the program. (Id.) With those data, the program made various calculations and created a series of simulations of the accident. (Id.) The simulations feature different views of the accident, some of which purport to depict Church’s and Galloway’s respective fields of vision before the accident. (Id.)
Roberts contends that Guthorn’s report is deficient because “it is devoid of data.” (Pl.’s Mot. to Exclude Paul Guthorn 6.) In particular, she submits that Guthorn does not provide the data that he relied on to determine the vehicles’ speeds and positions leading up to the accident. (Id.) Nor does he give the data that he entered into PC-Crash to create the simulations of the accident. (Id.) She also contends that he does not explain the calculations that PC-Crash made in creating those simulations. (Id.)
In response to Roberts’s concerns about the sufficiency of Guthorn’s report, Sunbelt and Church made several supplemental disclosures. At the September 30, 2015 hearing, however, Roberts argued that Sunbelt and Church had still not disclosed all of the data underlying Guthorn’s opinions. Sunbelt and Church disagreed, but conceded that it had produced some data from an electronic scanner in a proprietary format that Roberts may not have been able to access. The court thus directed the parties to confer and to advise it by letter as to whether Sunbelt and Church have in fact disclosed all of the data that Guthorn relied on in forming his opinions and whether Roberts is able to access those data.
The parties complied with the court’s request, submitting a joint letter. In their part, Sunbelt and Church first make a confession: they have not actually provided the scan data and that they cannot provide those data in a format that Roberts can access without a proprietary program. But Sunbelt and Church contend that they have provided the only data that really matters-the location data. Location data, Sunbelt and Church explain, are the data of the positions of the vehicles in the simulations, which were provided to Roberts as GPS coordinates in intervals of 1/30th of a second. With those coordinates, Sunbelt and Church submit, Roberts’s experts can compare Guthorn’s positioning of the vehicles at any given time up to the accident with their own positioning.
In her part of the letter, Roberts renews her contention that Sunbelt and Church have still not provided all of the data that Guthorn used in reaching his opinions, in particular, the data that he entered into PC-Crash to create the simulations. Hence, she asks the court to exclude Guthorn’s testimony in its entirety.
By their own admission, Sunbelt and Church failed to disclose all of the data underlying Guthorn’s opinions in a timely manner. Since there was a scheduling order in place at the time of Sunbelt and Church’s disclosure violation, the court will apply Rule 16(f) and its test to determine whether sanctions are appropriate. See Thompson v. United States, No. 7:14-cv-00092, 2015 U.S. Dist. LEXIS 66433, at *9-10 (W.D. Va. May, 21, 2015) (explaining that Rule 16(f), not Rule 37(c), applies “[w]hen a dispute arises concerning violation of expert disclosure obligations pursuant to a court approved discovery plan” (alteration in original) (quoting Scott v. Holz-Her, U.S., Inc., No. 6:04-cv-00068, 2007 U.S. Dist. LEXIS 79552, at *3-4 (W.D. Va. Oct. 26, 2007))).
Under Rule 16(f), a district court has “wide latitude in imposing sanctions on parties who fail to comply with pretrial orders and procedures.” World Wide Demil, LLC v. Nammo, 51 F. App’x 403, 407 n.4 (4th Cir. 2002). Moreover, it enjoys broad discretion to decide whether an expert should be excluded for a disclosure violation. See Campbell v. United States, 470 F. App’x 153, 156 (4th Cir. 2012).
In determining whether to impose sanctions under Rule 16(f), a district court considers four factors: “(1) the reason for failing to name the witness [or failing to complete expert reports]; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice.” Scott, 2007 U.S. Dist. LEXIS 79552, at *5 (alteration in original) (quoting Rambus, Inc. v. Infineon Techs. AG, 145 F.Supp.2d 721, 736 (E.D.Va. 2001)).
Upon considering these factors, the court determines that exclusion of Guthorn is not warranted. To be sure, Sunbelt and Church’s reasons for failing to timely disclose all of the data that Guthorn relied on in forming his opinions are weak. But Guthorn’s testimony is pivotal to Sunbelt and Church’s defense against Roberts’s claim. The testimony supports Sunbelt and Church’s version of events, including that Galloway’s actions caused or contributed to the accident. The testimony also rebuts the testimony of Roberts’s experts who offer a different version of events.
Moreover, allowing Guthorn to testify will result in little to no prejudice to Roberts, and that prejudice, if any, has been minimized by Sunbelt and Church’s supplemental disclosures, which were made almost a year ago. This is not a case where a party has sprung a new opinion on another party only days before trial. Guthorn has not changed his opinions since he was disclosed. And though Roberts finds fault with his report, it is far from the sketchy or vague one- or two-page reports that other courts have thrown out under Rule 26(a). See, e.g., Campbell v. United States, No. 3:10BCV363, 2011 U.S. Dist. LEXIS 12305, at *5-13 (E.D. Va. Feb. 8, 2011), aff’d, 470 F. App’x 153 (4th Cir. 2012) (excluding expert who provided a one-page report concluding without explanation that hospital officials deviated from the standard of care). On the contrary, Gurthorn’s report runs 12 pages, and it contains much explanation of the data he gathered and the conclusions he reached based on those data. Indeed, it appears to be just as complete as some of the reports from Roberts’s experts.
Moreover, while Sunbelt and Church cannot produce the scan data in a format that Roberts can access without a proprietary program, she fails to explain why that data is important when she has the location and other data. What matters, after all, is that she has sufficient data that she can rebut Guthorn’s opinions. And it seems that the data that Sunbelt and Church have provided are enough for her to do just that, for two of her experts have taken those data and used them to produce a rebuttal report, challenging Guthorn’s opinions. (Rebuttal Report of Scott Marsh and Matthew Moore 1-3, Dkt. No. 46-3.) Indeed, Roberts’s experts have used Guthorn’s data and simulations to compare their positioning of Church’s and Galloway’s vehicles with Guthorn’s positioning. (Attachs. to Rebuttal Report of Scott Marsh and Matthew Moore 1-8, Dkt. No. 46-4.) Those same experts have also compared their estimation of the vehicles’ speeds with Guthorn’s. (Rebuttal Report of Scott Marsh and Matthew Moore 1-2.)
Accordingly, the court will allow Guthorn to testify at trial. But it will also permit Roberts to conduct voir dire on him as an additional remedy to any prejudice she may have suffered from Sunbelt and Church’s disclosure violation.
2. Admissibility of Guthorn’s Testimony Under Rule 702
Rule 702 governs the admissibility of expert testimony. It states:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise 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.
Fed. R. Evid. 702.
Under this rule, a district court acts as gatekeeper to ensure that “any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell DowPharms., 509 U.S. 579, 588 (1993). “[T]he test of reliability is flexible, ” however, “and ‘the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.’” United States v. Wilson, 484 F.3d 267, 274 (4th Cir. 2007) (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141-42 (1999)). The test will thus vary depending on the type of expert testimony. Id. If the proffered testimony is scientific in nature, then the district court “must conduct ‘a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.’” Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001) (quoting Daubert, 509 U.S. at 592-93). If, on the other hand, the proffered testimony is experiential in nature, then the district court must “require that [the] witness explain how [his] experience leads to the conclusion reached, why [his] experience ...