United States District Court, S.D. Georgia, Savannah Division
COREY M. BUTLER, Plaintiff,
THE GOODYEAR TIRE & RUBBER COMPANY; COOPER TIRE & RUBBER COMPANY; and GELCO CORPORATION, d/b/a/ GE CAPITAL FLEET SERVICES, INC., Defendants.
G.R. SMITH, District Judge.
Plaintiff Corey M. Butler moves for leave to permit the defendants to continue the depositions of two of plaintiff's expert witnesses, Emit Deal and Stanley Karsman. Doc. 110. Defendant The Goodyear Tire & Rubber Company not only opposes that motion, but moves to strike one of those witnesses (Deal) from use at trial. Doe. 111. Plus it wants costs and attorney fees. Id. Defendant Gelco Corporation, meanwhile, moves for a protective order against plaintiff's notice to depose Gelco's experts. Doe. 115. Goodyear adopts Gelco's motion regarding its own expert. Doe. 120.
I. Motion to Continue
In June of 2013, Butler was driving his employer's Ford van when its right rear tire failed. Doe. 31 at 1-2. Consequently, Butler crashed and was severely injured. He sued the Goodyear because one of its tire stores serviced the van - with defendant Cooper Tire and Rubber Company's tires. Id. Butler contends that Cooper's "design and manufacturing defects... may have contributed to [the van tire's] failure and thus, the injuries suffered by" him. Doe. 25 at 2. And Gelco violated its fleet-management duty with the van's owner "to exercise reasonable care in its communications with vendors such as Goodyear" to have the subject tire timely replaced. Doe. 84 at 7-8. Unsurprisingly, the parties view the facts differently. Doe. 111 at 2 (Goodyear's description); see also doe. 117 at 2 (Butler's brief contesting this description).
To advance his case here, Butler disclosed expert witness reports from, inter alia, economist Emit Deal, doe. 88 (disclosed August 18, 2014); Stanley Karman, who will opine on attorney fees, doe. 86 (same date); and Kathy Willard (disclosed August 8, 2014), who prepared a "Life Care Plan" for plaintiff. Doe. 79. Plaintiff did so subject to Fed.R.Civ.P. 26(a)(2)'s disclosure requirements, which are aimed at communicating the essence of what each expert will say so that adversaries may meaningfully depose them before discovery expires:
Expert reports for "experts retained to provide expert testimony" must include, among other things, "a complete statement of all opinions the witness will express and the basis and reason for them" and "the facts or data considered by the witness in forming them." Fed.R.Civ.P. 26(a)(2)(B)(i) & (ii). "Disclosure of expert testimony' within the meaning of the federal rule contemplates not only the identification of the expert, but also the provision of a written expert report containing a complete statement of all opinions' and the basis and reasons therefore." Reese v. Herbert, 527 F.3d 1253, 1265 (11th Cir. 2008) (citing Fed.R.Civ.P. 26(a)(2)(B)). The idea is to give "the substance of the testimony which an expert is expected to give on direct examination." Salgado by Salgado v. General Motors Corp., 150 F.3d 735, 741 n. 6 (7th Cir. 1998).
Mixon v. United States, 2014 WL 4924474 at *6 (M.D. Ga. Sept. 30, 2014) (emphasis added); Abdulla v. Klosinski, 898 F.Supp.2d 1348, 1358 (S.D. Ga. 2012) (ultimately, an expert's report should provide the opposing party with notice and an opportunity to prepare its case; a report consisting primarily of legal conclusions does not suffice).
The parties deposed Deal, who was hired to opine on the present value of Butler's Life Care Plan costs. But Butler now wants to "continue" that deposition, along with Karsman's. Doc. 110 at 1-2. Both have been deposed, plaintiff explains, but they "cannot give complete and final opinions until a trial date has been determined for this case." Id. at 2. Butler offered to allow defendants to "continue" the depositions but they declined. Id. Hence, he moves to continue those depositions for them "out of an abundance of caution." Id.
Focusing only on Deal, doe. 111 at 2 n. 1, Goodyear views Butler's continuance motion as a half-baked attempt to compensate for plaintiff's failure to comply with Rule 26(a)(2), thus wasting deposition resources. Butler, Goodyear insists, furnished it with only a pro forma, basically useless expert witness report from Deal, violating Fed.R.Civ.P. 26(a)(2)(B). Id. at 3. Deal's report only promised to provide what the Rule demanded, and defendants never agreed to that, much less an empty-shell deposition. Id. at 3-17.
Butler seeks to justify his non-compliance by insisting that Deal couldn't opine on his "life care" damages absent a trial date for this case - something only the district judge can set. Doc. 117 at 9-13. Put another way, the life-care damages figure is dependent on a date certain for trial, since that figure shifts over time. He says it costs a lot to keep getting revised opinions from Deal, so Butler did not want to pull that trigger until the district judge first set a trial date. Id.
Because these contentions intimate bad faith, some additional background is warranted here. With a December 4, 2014 discovery deadline approaching, see doe. 93, Gelco (on September 4, 2014) served Butler with a deposition notice for Deal, and accompanied it with a document request for his entire file on this case. Doc. 111 at 4; doe. 111-1. Butler agreed to an October 10, 2014 deposition date and raised no objection to Goodyear's deposition notice. Doc. 111 at 4.
At that deposition, Deal - who had received his deposition notice one month earlier, doe. 111 at 5 - conceded that he was aware of the notice's information demand but by then had still not prepared an expert witness report. Id. ; doe. 111-2 at 13, 14-16. "Further, he had not set out in detail the data or information he considered in this case. Lastly, he had not listed, described or testified about any exhibits he may use in his proposed testimony." Doc. 111 at 5; see also doc. 111-2 at 3-5.
Hence, Deal arrived at his deposition empty-headed. Doc. 111 at 5-6. He even conceded that he could have completed his calculations prior to the deposition. Id. Worse, plaintiffs counsel instructed him not to do so. Id. at 6; doc. 111-2 at 20. Yet, it was Deal's core task to formulate the present value of Butler's "Life Care Plan" prepared by fellow expert witness Kathy Willard. Doc. 111 at 4, 7. Both Deal's documentary and verbal product, Goodyear contends, was therefore worthless. Id. at 7-8.
Finally, as of Butler's November 11, 2014 motion to "continue" Deal's deposition (evidently seeking to preempt a strike motion), and as of Goodyear's November 17, 2014 response and cross-motion to strike Deal as an expert, Goodyear still had not received a Rule 26(a)-compliant expert witness report on Deal. Doc. 111 at 7. Nor does the record reflect that as of the date of this Order (evidently, plaintiff is adamant about waiting for a trial date). In the meantime, this Court had extended ...