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Speaks v. Mazda Motor Corp.

United States District Court, D. Montana, Missoula Division

February 14, 2018



          Donald W .Moloy, District Judge United States

         In January 2011, Plaintiff Incarnacion Speaks ("Speaks") was involved in a motor vehicle accident while riding in the front passenger seat of her 1994 Mazda Protege DX four-door sedan ("Protege"). (Final Pretrial Or., Doc. 142 at ¶ IV(F).) The Protege was equipped with automatic passive shoulder and manual lap belts for the front seat occupants. (Id. at ¶ IV(G).) At the time of the collision, Speaks was wearing both the automatic shoulder belt and manual lap belt. (Id.) In January 2014, Speaks sued Defendant Mazda Motor Corporation and its related entities ("Mazda"), alleging her Protege's seat belt system failed to restrain her properly and caused life-threatening internal injuries. (Doc. 1 at ¶ 10.) In October 2015, a jury returned a verdict in favor of Mazda after a 7-day trial. (Doc. 189.) Speaks appealed, (Doc. 193), and, in July 2017, the case was remanded for a new trial, (Doc. 207). Trial is scheduled for May 14, 2018. (Sched. Or., Doc. 226.)

         Speaks seeks leave for her biomechanical expert Michelle Hoffman to supplement her initial November 2014 expert disclosure with materials from January 2015 and November 2017. (Doc. 228.) Mazda seeks to exclude Ms. Hoffman's testimony in its entirety. (Doc. 238.) Substantially similar motions were raised before Judge Christensen prior to the first trial, and both were denied. (See Docs. 80, 125.) As explained below, Ms. Hoffman's testimony will be limited to that disclosed in November 2014 report.

         I. Supplementation

         On January 16, 2015-approximately two months after the expert disclosure deadline-Speaks supplied Mazda with new materials supporting Ms. Hoffman's original report, consisting of 74 photographs and three pages of notes documenting an additional surrogate study that Ms. Hoffman completed on or about January 6, 2015. (Doc. 229 at 2.) Mazda objected to the supplementation as untimely, (Doc. 59), and, on March 16, 2015, Judge Christensen granted Mazda's motion to preclude Ms. Hoffman from testifying as to the evidence and opinions disclosed in January 2015, (Doc. 80). Ms. Hoffman testified at the October 2015 trial. (See Trial Tr., Vol. II.)

         Following remand, a second preliminary pretrial conference was held on October 4, 2017, and an updated Scheduling Order was entered, setting a discovery deadline of December 1, 2017. (Doc. 226, at ¶ 1.) Discovery was limited, however, "to updated medical and employment records." (Id.) Per the parties, no deadlines were set for expert disclosures because they were considered "completed." (See id.) Nevertheless, Speaks now seeks to "supplement" Ms. Hoffman's report with the January 2015 material, as well as a more recent report, dated November 27, 2017. (See Doc. 229-1.) She insists that Mazda would not be prejudiced as it has time to review the materials. Mazda, on the other hand, argues that Speaks' request was already adjudicated by Judge Christensen, and that the late disclosures are barred by Rule 26. Mazda has the better argument.

         A. Reconsideration

         Mazda first argues that because Speaks' motion requests reconsideration of Judge Christensen's March 2015 Order, (see Doc. 80), she was required to seek leave and must show:

(1) (A) the facts or applicable law are materially different from the facts or applicable law that the parties presented to the court before entry of the order for which reconsideration is sought, and
(B) despite the exercise of reasonable diligence, the party applying for reconsideration did not know such fact or law before entry of the order; or (2) new material facts arose or a change of law occurred after entry of the order.

L.R. 7.3(b). Here, the only changed circumstance is the fact the matter has been remanded for a new trial. Indeed, Speaks seeks to "supplement" Ms. Hoffman's disclosure in almost the exact same fashion-including much of the same material-as she did prior to Judge Christensen's 2015 Order. Remand alone did not reopen the opportunity for expert disclosure or further discovery. See Millenkamp v. Davisco Foodlnt'lInc., 2009 WL 3430180, at *2 (D. Idaho Oct.

         22, 2009) (recognizing that "[t]he fact that a new trial has been set does not restart the entire case"). And, "where litigants have once battled for the court's decision, they should neither be required, nor without good cause permitted, to battle for it again." Disimone v. Browner, 121 F.3d 1262, 1266-67 (9th Cir. 1997) (quotation marks and citation omitted). But, even assuming remand gave Speaks a second bite at the apple, she is still not entitled to relief under Rule 26.

         B. Supplemental Report under Rule 26(e)

         Speaks identifies Ms. Hoffman's late disclosure as "supplemental." However, under Rule 26(e)(1) a supplemental report may only be filed: "1) upon court order 2) when the party learns that the earlier information is inaccurate or incomplete; or 3) when answers to discovery requests are inaccurate or incomplete." Keener v. United States,181 F.R.D. 639, 640 (D. Mont. 1998). Unless Speaks is conceding that the disclosure made on November 17, 2014, was inaccurate or incomplete, neither the January 2015 nor the November 2017 disclosure is a supplemental disclosure under the rules. Rather, "[w]hat is set forth in the [later] report[s] is the information, reasoning and ...

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