United States District Court, N.D. Alabama, Middle Division
ALFRED BREWSTER, as Administrator of the Estate of and next friend of his deceased minor grandson Landlee Scout Brewster, Plaintiff,
DOREL JUVENILE GROUP, INC., Defendant.
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE
Alford Brewster, as the administrator of the estate and next
friend of his deceased minor grandson, Landlee Scout Brewster
(“Scout”), initiated this wrongful death action
on December 18, 2015, against Defendant Dorel Juvenile Group,
Inc. (“Dorel”). (Doc. 1 at 1). Dorel is in the
business of making booster seats (Doc. 1 at 2 ¶ 6), and
Plaintiff's grandson was allegedly in a Dorel-made
booster seat when he died in a motor vehicle accident on
December 20, 2013. (Doc. 1 at 3 ¶¶ 9-11;
id. at 5 ¶ 23). Plaintiff asserts liability
against Dorel under the Alabama Extended Manufacturers
Liability Doctrine and common law. (Doc. 1 at 1).
before the court is Plaintiff's Motion To Strike
Defendant's Untimely Expert Report (Doc. 26) (the
“Strike Motion”) filed on March 10, 2017. Dorel
responded to the Strike Motion on March 24, 2017. (Doc. 27).
Plaintiff replied on March 31, 2017. (Docs. 28-30).
Accordingly, the Strike Motion is now under submission and,
as explained below, is GRANTED IN PART and otherwise DENIED.
Evidentiary Rulings Generally
evidentiary decisions are reviewed under an
abuse-of-discretion standard.” See, e.g., General
Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S.Ct. 512,
517, 139 L.Ed.2d 508 (1997). “An abuse of discretion
can occur where the district court applies the wrong law,
follows the wrong procedure, bases its decision on clearly
erroneous facts, or commits a clear error in judgment.”
United States v. Estelan, 156 F. App'x 185, 196
(11th Cir. 2005) (citing United States v. Brown, 415
F.3d 1257, 1266 (11th Cir. 2005)).
as the Eleventh Circuit has made clear, not every incorrect
evidentiary ruling constitutes reversible error:
Auto-Owners' second argument is that it is entitled to a
new trial on the basis of what it describes as a number of
erroneous evidentiary rulings by the district court.
Evidentiary rulings are also reviewed under an abuse of
discretion standard. Finch v. City of Vernon, 877
F.2d 1497, 1504 (11th Cir. 1989). Moreover, even if
Auto-Owners can show that certain errors were committed, the
errors must have affected “substantial rights” in
order to provide the basis for a new trial. See Fed.
R. Evid. 103(a). “Error in the admission or exclusion
of evidence is harmless if it does not affect the substantial
rights of the parties.” Perry, 734 F.2d at
1446. See also Allstate Insurance Co. v. James, 845
F.2d 315, 319 (11th Cir. 1988).
Haygood v. Auto-Owners Ins. Co., 995 F.2d 1512, 1515
(11th Cir. 1993). Therefore, even the existence of many
evidentiary errors does not guarantee the appealing party a
new trial. Instead, such erroneous rulings by a district
court must “affect the substantial rights of the
parties” in order for reversible error to occur.
Rulings on Expert Disclosures Specifically
rulings on expert disclosures, more particularly, the
Eleventh Circuit has explained:
Fed. R. Civ. P. 26(a)(2)(C) provides clear deadlines for the
submission of expert reports to the court, and Fed.R.Civ.P.
37(c)(1) gives district courts discretion to exclude untimely
submissions. Coastal Fuels Inc. v. Caribbean Petroleum
Corp., 79 F.3d 182, 202-03 (1st Cir. 1996), cert.
denied, 519 U.S. 927, 117 S.Ct. 294 (excluding testimony
of rebuttal witnesses because party did not comply with
Fed.R.Civ.P. 26(a)(2)(C)); see also Yeti by Molly, Ltd.
v. Deckers Outdoor Corp., 259 F.3d 1101, 1105-06 (9th
Cir. 2001). Although the district court may have had
discretion to admit an untimely report, see Grimm v.
Lane, 895 F.Supp. 907, 913 (S.D. Ohio 1995) (admitting
untimely expert evidence because no risk of unfair surprise
existed), it did not abuse its discretion to exclude it as
untimely in the circumstances under which the Bearints
offered it. The Bearints waited until trial, about four
months after the report's publication, to submit it.
Given the wide latitude the district court has
to exclude untimely submissions, we cannot say that it abused
its discretion to exclude this report.
Bearint ex rel. Bearint v. Dorell Juvenile Grp.,
Inc., 389 F.3d 1339, 1348-49 (11th Cir. 2004) (emphasis
March 9, 2017, Dorel produced to Plaintiff a document
entitled “Dorel Juvenile Group's First Supplemental
Expert Identity Disclosure” (Doc. 26-1) (the
“Supplemental Disclosure”). The Supplemental
Disclosure pertains to two witnesses-Jeya Padmanaban
(“Ms. Padmanaban”) and Dr. Michael Story
(“Dr. Story”)-and states in relevant part:
1. Jeya Padmanaban 1975 W. El Camino Real, Suite 300 Mountain
View, CA 94040
Ms. Padmanaban is a statistician. She may opine about the
2010 NHTSA study relied upon by Plaintiff's expert Neil
Hannemann and which he raised during his February 22, 2017
deposition in this matter. Her report rebutting Mr.
Hannemann's expressed opinions on the study, CV, and
testimony list are enclosed. If deposed, she may also offer
testimony on issues raised during her deposition.
1. Dr. Michael Story 550 Medical Center Drive SW Fort Payne,
Dr. Story is a pediatrician who regularly treated Scout
Brewster. In addition to the topic of Scout's medical
care, Dr. Storey is expected to testify at trial consistent
with his deposition regarding Scout's pediatric growth
and development, as well as the ...