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Brewster v. Dorel Juvenile Group, Inc.

United States District Court, N.D. Alabama, Middle Division

April 10, 2017

ALFRED BREWSTER, as Administrator of the Estate of and next friend of his deceased minor grandson Landlee Scout Brewster, Plaintiff,



         I. Introduction

         Plaintiff 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).

         Pending 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.

         II. Standards

         A. Evidentiary Rulings Generally

         “All 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)).

         Moreover, 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.

         B. Rulings on Expert Disclosures Specifically

         Concerning 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 added).

         III. Analysis

         On 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:

         A. Retained Experts

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.

         B. Independent Experts

1. Dr. Michael Story 550 Medical Center Drive SW Fort Payne, AL 35968
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 ...

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