Seamster v. Taylor

1

DENNIS D. SEAMSTER, Plaintiff, v. TY ALLEN TAYLOR, et al., Defendants.

Civil Action No. 4:21-cv-00021

United States District Court, W.D. Virginia, Danville Division

June 15, 2022

MEMORANDUM OPINION

Hon Thomas T. Cullen United States District Judge

While operating a tractor-trailer owned by his employer and co-defendant Blount International, Inc. (“Blount”), Defendant Ty Allen Taylor (with Blount, “Defendants”) collided with the rear of Plaintiff Dennis D. Seamster's farm tractor. Seamster subsequently brought a suit for negligence against Defendants, and the parties engaged in extensive discovery. This matter is presently before the court on several motions in limine: (1) Seamster's motion to strike the affidavits of Defendants' liability experts, Tyler Black and Dr. Chris Monk (ECF No. 48); (2) Seamster's motion to strike the revised affidavit of Dr. Monk (ECF No. 61); (3) Seamster's motion to exclude the expert testimony of Black and Dr. Monk (ECF No. 31); (4) Defendants' motion to exclude the expert testimony of Seamster's liability expert James Whelan (ECF No. 33); and (5) Defendants' motion to exclude the expert testimony of one of Seamster's treating physicians, Dr. William Silver (ECF No. 35).

I. Background

On December 2, 2019, Seamster was driving a 1978 John Deere 4440 farm tractor on 360 East, a four-lane divided highway in Halifax County, Virginia. (ECF No. 49-1, at 3, 65- 69.) Seamster was in route to his friend's farm to pick up two bales of hay to feed the cattle he tended on his mother's farm. (Dep. of Dennis Seamster 52:13-54:13, 62:17-24, Aug. 31, 2021 [ECF No. 38-1].) Seamster ordinarily drove a larger semi-truck to collect hay bales for the farm but, because he only needed two bales that evening, he opted to drive his tractor. (Id. at 60:17-63:14.) He does not recall ever driving his tractor to that farm. (See id. at 60:17-23, 62:17-22.) Seamster's route to his friend's farm required him to drive a little over a mile on the highway. (Id. at 60:14-16.) He intended to drive about a mile along the highway (which has a posted speed limit of 60 miles per hour), make a U-turn at a cut-through, and travel another several hundred yards before making a right turn into his friend's farm. (Id. at 53:5- 17, 60:14-16.)

At around 5:25 p.m., Seamster was driving approximately 15 miles per hour in the left lane, preparing to turn in about 1, 000 feet. (See ECF No. 49-1, at 65; Seamster Dep. at 65:817; Dep. of James Whelan 31:9-21, Jan. 4, 2022 [ECF No. 38-4].) It was dusk and “still light out, but . . . getting dark.” (See Seamster Dep. at 54:17-24.) Taylor was driving his tractortrailer on 360 East at approximately 60 miles per hour when he overtook and collided with the rear of Seamster's tractor. (See ECF No. 49-1, at 65.)

According to Seamster, prior to driving on the highway, he turned the tractor's light switch to the “H” position, which should have illuminated the tractor's two front warning lamps, two rear warning lamps, two headlights, and two taillights. (Seamster Dep. at 81:1282:9.) The light switch recovered at the scene of the accident was indeed turned to the “H” position. (ECF No. 49-1, at 55.) As required by law, the tractor displayed a slow-moving vehicle (“SMV”) emblem. (See id.) But only a small fragment of the SMV emblem survived the crash:

(Image Omitted)

(See id.) Photographs taken at the scene of the accident reveal that the front-left side of the tractor-trailer collided with Seamster's tractor. The force of the collision separated the cab of the tractor from its base and splintered the tractor into many pieces.

(Image Omitted)

(Id. at 25-27.)

On April 20, 2021, Seamster filed suit in the Circuit Court of Halifax County against Taylor and his employer, Blount (the owner of the tractor-trailer), alleging negligence and seeking compensatory damages for personal injuries he sustained in the accident. (Compl.

¶¶ 14-20 [ECF No. 1-1].) Defendants removed the case to this court. (See ECF No. 1.) The court originally set the case for trial beginning March 28, 2022, but continued the trial until October 24, 2022. Prior to the continuance, the parties filed several motions in limine related to expert testimony, and Defendants filed a motion for summary judgment. (ECF Nos. 31, 33, 35, 37, 48, 61.)^[1] Seamster seeks to strike the affidavits of Defendants' liability experts Black and Dr. Monk, as well as the revised affidavit of Dr. Monk. (See ECF Nos. 48, 61.) Seamster also seeks to exclude portions of the testimony of both liability experts. (See ECF No. 31.) Defendants filed a motion to exclude Seamster's liability expert, Whelan, and the testimony of Seamster's treating physician, Dr. Silver. (ECF Nos. 33, 35.)

In addition to reviewing the record and the parties' briefing, the court held a hearing on these motions on June 7, 2022. For the reasons explained below, the court will grant in part and deny in part Seamster's motion to strike the affidavits and revised affidavits of Defendants' liability experts; grant Seamster's motion to exclude a portion of Black's expert testimony; deny Seamster's motion to exclude the testimony of Dr. Monk; grant in part and deny in part Defendants' motion to exclude the expert testimony of Whelan; and grant in part and deny in part Defendants' motion to exclude the testimony of Dr. Silver.

II. Analysis

A. Motion to Strike Expert Affidavits: Tyler Black and Dr. Chris Monk

Seamster moves to strike the affidavits of Defendants' liability experts, Tyler Black, M.S., P.E., and Dr. Chris Monk, as well as the revised affidavit of Dr. Monk. (ECF Nos. 48, 61.) Black is an expert in accident reconstruction, and Dr. Monk is an expert in human factors.^[2]Seamster filed motions to strike all three affidavits, asserting that “Black and [Dr.] Monk offer previously undisclosed opinions in their respective affidavits.” (Pl.'s Br. Supp. Mot. Strike at 1-2 [ECF No. 49].) Seamster further represents that, “[b]ased upon the designations and opinions disclosed, [he] elected not to depose Black or [Dr.] Monk during discovery ....” (Id. at 2.) Defendants timely disclosed both experts on November 8, 2021, and submitted their expert reports under Federal Rule of Civil Procedure 26(a)(2)(B). Defendants attached affidavits by both experts as exhibits supporting their motion for summary judgment filed on January 21, 2022. (ECF Nos. 38-7, 38-8.) Defendants attached a revised affidavit by Dr. Monk to their reply brief. (ECF No. 60-9.)

Federal Rule of Civil Procedure 26(a)(2)(B) requires a party to disclose retained expert witnesses and to include in those disclosures “a complete statement of all opinions the witness will express and the basis and reasons for them, ” along with “the facts or data considered by the witness in forming them.” Rule 37(c)(1) mandates that, if a party does not properly disclose information or witnesses under Rule 26, it may not use that information “to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”

Rule 26(e) requires expert witnesses to supplement their reports in limited circumstances to correct inaccuracies or upon learning new information. See Fed.R.Civ.P. 26(e); Southern v. Bishoff, 675 Fed.Appx. 239, 249 (4th Cir. 2017) (per curiam). But outside of the narrow circumstances of correcting errors or addressing newly acquired information, a party may not support its motion for summary judgment with affidavits or supplemental reports that contain previously undisclosed expert opinions. See Southern, 675 Fed.Appx. at 249; McCall v. Hoke Cnty., No. 1:16-cv-141, 2017 WL 4477293, at *7 (M.D. N.C. July 12, 2017). Courts routinely reject such improper supplementation as “poorly disguised attempts to counter [opposing parties'] arguments with new expert analyses.” Southern, 675 Fed.Appx. at 249; see, e.g., E.E.O.C. v. Freeman, 778 F.3d 463, 467 n.7 (4th Cir. 2015); Walker v. DDR Corp., No. 3:17-cv-01586, 2019 WL 1349514, at *4 (D.S.C. Mar. 26, 2019); McCall, 2017 WL 4477293, at *7; Priester v. Futuramic Tool & Eng'g Co., No. 2:14-cv-01108, 2017 WL 193577, at *5-6 (D.S.C. Jan. 18, 2017); Swimways Corp. & Vap Creative, Ltd. v. Zuru, Inc., No. 2:13-cv-334, 2014 WL 12573390, at *3-4 (E.D. Va. July 10, 2014).

When a party attempts to rely on improperly disclosed expert testimony, the Fourth Circuit has set out the following factors for courts to apply to determine whether that improper disclosure was nonetheless substantially justified or harmless: “(1) the surprise to the party against whom the witness was to have testified; (2) the ability of the party to cure that surprise; (3) the extent to which allowing the testimony would disrupt the trial; (4) the explanation for the party's failure to name the witness before trial; and (5) the importance of the testimony.” S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir. 2003). The party seeking to rely on the improperly disclosed opinion bears the burden of persuasion. Wilkins v. Montgomery, 751 F.3d 214, 222 (4th Cir. 2014). “The court need not consider every Southern States factor, and the court is afforded ‘particularly wide latitude to [use its] discretion to issue sanctions under Rule 37(c)(1).'” Marr v. Abercrombie & Fitch Stores, Inc., No. 5:14-cv-00123, 2015 WL 3827326, at *6 (E.D. N.C. June 19, 2015) (quoting Wilkins, 751 F.3d at 22021). The typical sanction is exclusion of the challenged material. See Wilkins, 751 F.3d at 222.

1. Tyler Black, M.S., P.E.

Seamster moves to strike four categories of opinions in Black's affidavit. First, Black's affidavit offers his opinion that, based on his analysis of the lightbulb filaments in the tractor, the left and right taillight bulbs were “definitively...