Zick v. Paccar, Inc.

47 F.4th 672

Elizabeth ZICK, Administrator of the Estate of Michael Gerald Wood, Plaintiff - Appellant

Jacqueline Wood, Plaintiff

v.PACCAR, INC., Defendant - Appellee

Peterbilt Motors Company, a division of PACCAR Inc.; Unknown Fabricators and Manufactures, Defendants

JMJ Equipment Transport, Inc., Claimant

No. 21-2898

United States Court of Appeals, Eighth Circuit.

Submitted: May 10, 2022

Filed: August 26, 2022

Counsel who presented argument on behalf of the appellant and appeared on the brief was Steven J. Crowley, of Burlington, IA. The following attorney(s) appeared on the appellant brief; Andrew L. Mahoney, of Burlington, IA.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Timothy Charles Sansone, of Saint Louis, MO. The following attorney(s) appeared on the appellee brief; Zachary S. Merkle, of Saint Louis, MO.

Before COLLOTON, WOLLMAN, and SHEPHERD, Circuit Judges.

WOLLMAN, Circuit Judge.

Michael Gerald Wood was severely injured in a crash while he was driving a Peterbilt semi-truck.¹ He sued the truck's manufacturer, PACCAR, Inc. (PACCAR), alleging that the truck's defective design caused his injuries. A jury returned a verdict in PACCAR's favor. His estate appeals, arguing that the district court² committed several evidentiary errors at trial. We affirm.

I. Background

Wood was driving the semi-truck through an intersection in Dubuque, Iowa, when it collided with another vehicle, slid to the corner of the intersection, and crashed into a light pole. Upon impact, the light pole forced the cab inward around Wood, causing extensive injuries to his lower extremities. Wood's state-court lawsuit was removed to federal court. The suit's primary theory was that Wood's injuries were caused by the truck's lack of two safety features: (1) a steel-reinforced bumper or steel bar called a front-underride protection system and (2) a strengthened cab.

The case proceeded to discovery, which was overseen by a magistrate judge.³ Following initial depositions, the magistrate judge granted Wood's motion to compel additional depositions of two PACCAR employees, Larry Bean and Anthony Weiblen. Wood then moved to extend the discovery deadline to permit his expert, Dr. Andreas Vlahinos, to update his expert report to incorporate any new testimony. The magistrate judge granted the motion, but required that the new report identify with particularity the portions of the new depositions that enabled Dr. Vlahinos to complete additional analysis.

Dr. Vlahinos's second report contained a written description of computer crash simulations, known as finite element analysis—modeling that was not present in the first report—together with video versions of those models. PACCAR moved to exclude the report as untimely on the grounds that it went beyond the scope of the first report and that it did not indicate with particularity the portions of the deposition testimony that permitted additional analysis. The magistrate judge recommended that the motion be granted, noting that the new report failed to adhere to the discovery order and that its admission would prejudice PACCAR. The magistrate judge nonetheless noted that PACCAR could open the door to the second report's admission by attacking the first report on the grounds that its conclusions were not supported by modeling and simulations. The district court adopted the magistrate judge's recommendation and granted the motion to exclude the second report. Wood thereafter filed a timely rebuttal notice that contained the modeling used in Dr. Vlahinos's second report.

PACCAR sought to present a defense that the truck conformed to state-of-the-art design and testing technologies, which would absolve PACCAR of liability under Iowa law. See Iowa Code Ann. § 668.12. Wood filed a motion in limine to prohibit PACCAR from introducing evidence about this state-of-the-art defense, arguing that it could be established only by expert testimony, which PACCAR had failed to give notice of. After hearing oral arguments at the pretrial conference, the district court reserved ruling on the merits of the motion.

The case proceeded to trial. After a mistrial was declared because of the COVID-19 pandemic, Wood moved to modify the scheduling order and re-open discovery to permit him to present during his case-in-chief the modeling and videos contained in Dr. Vlahinos's second report. The district court denied the motion, concluding that Wood had failed to show good cause to modify the scheduling order.

The case proceeded again to trial, during which Bean and another PACCAR employee, Terry Manuel, presented testimony about PACCAR's state-of-the-art defense and about its compliance with various safety standards. Although Wood raised several objections throughout their testimony, he did not object on the ground that it constituted expert opinion.

After the close of the parties’ case-in-chief, the district court announced that, although PACCAR had not opened the door, it would admit the contents of Dr. Vlahinos's second report on rebuttal. PACCAR's expert promptly prepared responsive video exhibits to the second report's videos. Wood objected to the videos because Dr. Vlahinos had not had the opportunity to review them before testifying. Wood nonetheless sought to introduce the video exhibits from Dr. Vlahinos's second report. The district court instructed the parties that if they could not come to an agreement, both would be limited to still images and prohibited from playing the simulation videos for the jury. On rebuttal, Dr. Vlahinos presented testimony and still images from his second report.

II. Analysis

A. Exclusion of Dr. Vlahinos's Simulation Videos

The magistrate judge did not err in concluding that the second report was untimely. See Fed. R. Civ. P. 26(a)(2)(D) ("A party must make [expert] disclosures at the times and in the sequence that the court orders."). The magistrate judge made clear when he granted Wood's motion to extend the discovery deadline that the extension of time was not intended to give Wood "the opportunity to expand the scope" of Dr. Vlahinos's expert report and that "any supplemental opinion" was thus required to "identify with particularity the facts learned" from the second depositions that permitted Dr. Vlahinos to complete his analysis. While the second report referred generally to Bean's and Weiblen's depositions and pointed to exhibit numbers, it failed to identify information "with particularity" that informed its new simulations. Wood thus failed to provide a second report that complied with the magistrate judge's orders on or before the discovery deadline, as required by the Federal Rules. See Fed. R. Civ. P. 26(a)(2)(D).

We review the district court's exclusion sanction for abuse of discretion. Vanderberg v. Petco Animal Supplies Stores, Inc., 906 F.3d 698, 702 (8th Cir. 2018). "If a party fails to provide information ... as required by Rule 26(a)," then the party may not use that information at trial, "unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). "A district court ‘has wide discretion to fashion a remedy or sanction as appropriate for the particular circumstances of the case’ when a party fails to provide information ... in compliance with Rule 26(a)." Gruttemeyer v. Transit Auth., 31 F.4th 638, 644–45 (8th Cir. 2022) (quoting Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008) ). In fashioning a remedy, courts should consider "the reason for noncompliance, the surprise and prejudice to the opposing party, the extent to which allowing the information or testimony would disrupt the order and efficiency of the trial, and the importance of the information or testimony." Id. at 645 (quoting Wegener, 527 F.3d at 692 ).

The district court did not abuse its discretion by excluding the second report from Wood's case-in-chief, in admitting the written and photographic contents on rebuttal, and by excluding the report's videos from the entire case. The magistrate judge considered Wood's justification for failing to submit a second report that complied with the court's orders. Wood largely focused on the broader issues that plagued the discovery process and on PACCAR's alleged refusal to turn over information needed for Dr. Vlahinos's modeling. But Wood failed to explain why the report itself did not "identify with particularity" the deposition information used to complete the report. He instead argued that, in light of the discovery disputes as a whole, the magistrate judge's order requiring such designation was inappropriate. Wood has not shown that the district court acted outside its discretion in restricting the contents of the second report, and he has not demonstrated that he was justified in failing to comply with those restrictions.

The magistrate judge further concluded that the modeling present in the second report would have been "something of a surprise" to PACCAR, considering that the first report lacked modeling and testing. Wood also has not shown that the report was so important to his case that limiting its use to rebuttal alone was an abuse of discretion. Wood was able to question Dr....