United States District Court, S.D. Alabama, Southern Division
ORDER
WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE.
This
matter comes before the Court on defendant's Motion to
Stay Response Deadline to Plaintiff's Motion to Exclude
Expert Testimony (doc. 102). The Motion to Stay has been the
subject of more than 30 pages of briefing by the parties and
is now ripe.
On
March 25, 2019, plaintiff, GPI AL-N, Inc. (“Nissan of
Mobile”), filed a Motion to Exclude Expert Testimony of
Sharif Farhat (doc. 96), with accompanying memorandum of law.
Plaintiff's position is that “Farhat's opinions
in this case do not meet the standards for admissibility of
expert testimony under the Federal Rules of Evidence, or
controlling case law. The opinions lack reliability, and his
analysis is based on biased and unreasonable comparisons, in
violation of Alabama's Motor Vehicle Franchise
Act.” (Doc. 98, at 30.) The Court entered an Order
(doc. 100) allowing defendant, Nissan North America, Inc.
(“NNA”), until April 8, 2019 to file a response.
Prior
to the response deadline, NNA filed a Motion to Stay,
requesting that briefing on Nissan of Mobile's Motion be
stayed as premature for several months. Defendant reasons
that discovery (including further expert discovery, updated
reports and depositions) remains ongoing in this case, that
the pretrial conference is not set until October 9, 2019, and
that the trial is not set until the November 2019 civil term.
In addition to emphasizing the incomplete nature of expert
discovery, reports and opinions, NNA points out that it has
not yet relied on any specific opinions of Farhat, such that
it cannot now be ascertained precisely which opinions and
testimony are at issue and which are not. On that basis, NNA
proposes that briefing on the Motion to Exclude be stayed
until at least July 29, 2019.
In
response, Nissan of Mobile offers a series of arguments why
it believes the Motion to Stay should be denied and the
Motion to Exclude should be briefed and taken under
submission now. First, plaintiff argues that its position on
the merits of the Motion to Exclude is correct and that if
the Court agrees, then (i) additional discovery and expert
discovery could be avoided, (ii) multiple counts of the
Complaint could be resolved expeditiously, and (iii)
settlement of the remaining counts could be facilitated.
Second, plaintiff maintains that the timing of its Motion to
Exclude was necessary to comport with the applicable
Scheduling Order. Third, plaintiff suggests that defendant
seeks additional time “to devise some revised
methodology that is not subject to the objections
raised” in the Motion to Exclude, which would be
prejudicial to plaintiff. Fourth, plaintiff contends that
because its challenge goes to the core of Farhat's
methodology, no additional discovery is necessary to resolve
the Motion to Exclude.
After
careful review of the parties' extensive briefs, the
Court finds that the Motion to Stay is due to be granted.
Several considerations inform this result. As a preliminary
matter, Nissan of Mobile's suggestion that it was bound
by the Scheduling Order to file its Motion to Exclude last
month is mistaken. To be sure, the original Rule 16(b)
Scheduling Order stated, “All challenges to expert
witnesses, including Daubert motions, must be filed
in advance of the Final Pretrial Conference and not later
than March 26, 2019.” (Doc. 17, ¶ 6.) That March
26 setting was two weeks prior to the original Final Pretrial
Conference setting of April 9, 2019, which in turn was
consistent with the undersigned's Standing Order
Governing Final Pretrial Conference, which provides in bold
type as follows: “All challenges to expert witnesses,
including Daubert motions, must be filed not later
than two weeks prior to the Final Pretrial Conference.”
(Doc. 17-1, ¶ 4.F.) But the Final Pretrial Conference
was subsequently continued, initially to July 2019 and then
to October 2019. (See docs. 57, 93.) Although the
orders amending the Scheduling Order did not expressly move
the deadline for filing Daubert motions, their
effect was to do precisely that. Nissan of Mobile's
deadline for filing its Motion to Exclude was not March 26,
2019, but was instead considerably later.
Next,
the Court agrees with NNA that the interests of fairness and
equity support allowing its expert, Farhat, to prepare and
submit additional expert analysis in rebuttal to that of
Nissan of Mobile's expert, Roesner, before
passing on plaintiff's request that Farhat's opinions
be excluded in their entirety. As a general matter, one
should at least allow an expert to formulate and articulate
his opinions before ruling on whether that expert's
testimony should be stricken from trial altogether. Moreover,
from a fairness standpoint, plaintiff's expert (Roesner)
is preparing a new expert report that will revise and
supplement his original opinions, based on data provided by
defendant in late February 2019. Defendant's expert
(Farhat) should be afforded a reasonable opportunity to
revise and submit his opinions in rebuttal to those offered
by Roesner. Once a full set of expert opinions have been
disclosed on the record and explored via the discovery
process, it will be appropriate to consider Nissan of
Mobile's arguments for exclusion. To do so now would
require the Court to make admissibility decisions based on
incomplete information and assumptions about methodology that
may or may not apply to the forthcoming revised and
supplemental rebuttal opinions offered by
Farhat.[1]
As
noted, Nissan of Mobile has balked that it will be prejudiced
if disposition of the Motion to Exclude is delayed for
several months to allow the expert discovery process to
conclude. However, plaintiff itself produces a March 6, 2019
e-mail from its counsel to defendant's counsel, wherein
Nissan of Mobile suggested that the deadline for all
Daubert motions be extended to July 12, 2019. (Doc.
105, Exh. C.) Presumably, plaintiff was asking on its own
behalf, not just to benefit defendant. If Nissan of Mobile
believed in March 2019 that it would be beneficial to extend
the deadline for filing motions to exclude (including a
motion directed at Farhat) until July 2019, then it is
difficult to reconcile that position with its current
contention that it will be prejudiced unless its Motion to
Exclude is litigated and adjudicated now. To be sure, the
Court understands that the pendency of unresolved
admissibility issues concerning Farhat's opinions may
impact summary judgment briefing. For that reason, the Court
expects the parties' summary judgment briefs not to
rehash admissibility issues as to Farhat's proffered
opinions; rather, discussion of those issues must be reserved
for briefing on the Daubert motion and incorporated
into summary judgment memoranda by reference, as appropriate.
For all
of the foregoing reasons, it is ordered as
follows:
1. Defendant's Motion to Stay Response Deadline (doc.
102) is granted in part, and denied
in part;
2. Plaintiff may file a supplement (no longer than 10 pages)
to its Motion to Exclude Expert Testimony of Sharif Farhat
(doc. 96) on or before June 28, 2019,
identifying any new or additional arguments it wishes to make
based on Farhat's revised, supplemental rebuttal opinions
that may be offered in the interim;
3. Defendant's response to the Motion to Exclude (as
supplemented) must be filed no later than July 12,
2019, with any reply by plaintiff due on or before
July 19, 2019, at which time the Motion to
Exclude will be taken under submission; and 4. For purposes
of anticipated summary judgment briefing, the parties must
not rehash arguments as to the admissibility vel non
of Farhat's opinions, but should instead incorporate by
reference briefs and specific arguments from the Motion to
Exclude as appropriate.
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