United States District Court, W.D. Texas, San Antonio Division
ORDER GRANTING MOTION TO EXCLUDE AND/OR LIMIT
TESTIMONY OF CHARLES R. RUBLE
RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE
the Court is the Motion to Exclude and/or Limit the Testimony
of Charles R. Ruble filed by Defendant Anthony Beekmans
[#130]. This case was assigned to the undersigned for
disposition of all pre-trial matters, pursuant to Rules CV-72
and 1(c) of Appendix C of the Local Rules of the United
States District Court for the Western District of Texas
[#115]. The Court has diversity jurisdiction over this case
pursuant to 28 U.S.C. § 1332, and the undersigned has
authority to enter this order pursuant to 28 U.S.C. §
636(b)(1)(A). See, e.g., Target Strike, Inc. v.
Marston & Marston, Inc., No. SA-10-cv-0188-OLG-NN,
2011 WL 676185, at *1 (W.D. Tex. Feb. 16, 2011) (noting
magistrate judge's § 636(b) authority to rule on
motions to exclude expert testimony, which are
considered Defendant Beekmans' Motion [#130], Plaintiff
Benjamin Koenig's Response [#136], the relevant law, the
pleadings, and the governing scheduling order, the Court
GRANTS the Motion to Exclude and/or Limit
the Testimony of Charles R. Ruble filed by Defendant Anthony
Beekmans [#130]. Ruble's testimony shall be limited to
the opinions Koenig timely disclosed-the location of the
collision, the vehicles' impact positions relative to one
another, the principle direction of force, and the
reasonableness of the parties' steering maneuvers prior
to impact. The remainder of Ruble's opinions regarding
the parties' pre-impact movements (save for their
steering maneuvers), including the lanes either party
occupied prior to impact, the impact speed, the distance
traveled by the parties prior to impact, and how the parties
applied their breaks, as well as Ruble's opinion that the
gouge marks on the pavement were caused by extraction of the
vehicles, are excluded. Nor may Ruble be called to rebut the
testimony of Beekmans' accident reconstructionist on
these topics or any others outside the scope of Ruble's
report. Koenig failed to timely disclose these new opinions
in violation of Rule 26 and the Court's Scheduling Order,
and his failure to do so is neither substantially justified
nor harmless. Finally, Ruble may rely upon the newly
disclosed diagrams contained in Exhibit No. 19 to his
deposition only to the extent he does so to support his
timely disclosed opinions.
personal injury lawsuit arises from an October 2, 2013
head-on car accident involving Koenig and Beekmans. Koenig
asserts claims for negligence and negligence per se, and
seeks damages from Beekmans in excess of $1 million. It is
undisputed that, as a result of the accident, Koenig
sustained (and was treated for) a fractured sternum as well
as a compression-type fracture of the L1 disc in his spine.
(See [#106-1]). The parties, however, dispute
whether the collision also caused Koenig to suffer a
traumatic brain injury and a herniated L5-S1 disc. The
parties also dispute whether it was Koenig or Beekmans who
caused the accident, including whether one of them was
driving on the wrong side of the road.
after the accident and before filing suit, Koenig, by and
through his prior counsel, retained accident
reconstructionist Charles R. Ruble. Specifically, Ruble was
tasked with making a determination about where the collision
occurred-on the roadway as the Sheriff's Department
believed or off the roadway as Koenig believed. (Ruble Dep.
8:6-23; 9:22-24). After reviewing the accident report
authored by Deputy Antonio Alvarez, interviewing Deputy
Alvarez, reviewing pictures of the accident, and inspecting
the accident site, Ruble issued his report on January 16,
2014. (See Ruble Rep. at Dkt. No. 130-2; Ruble Dep.
45:8-11; 46:16-18). Ruble offers the following four findings
in his report:
(1) Deputy Alvarez's accident report diagram and
contributing factors are incorrect and unfounded.
(2) The collision occurred on the south edge of the eastbound
lane, Mr. Koenig's lane of travel.
(3) The location and angle of the vehicles' contact
indicates Mr. Koenig executed an appropriate avoidance
maneuver and Mr. Beekmans executed a faulty evasive maneuver.
(4) Mr. Beekmans' approach and evasive response may have
been influenced by his vehicle right side operation and
opposite lane travel experience.
Rep. at 3-4). Although not an enumerated
“finding” in the report, Ruble also discusses and
diagrams in the report the principle direction of force and
the vehicle-to-vehicle positions at initial contact. (Ruble
Rep. at 2-3, Exs. 2 &3 to Ruble Rep.). Finally, Ruble
notes in his report that some of the gouge marks in the
pavement were caused by the collision itself. (Ruble Rep. at
first designated Ruble as an expert on September 19, 2016.
(See [#41] at 5-6). Pursuant to Federal Rule of
Civil Procedure 26(a)(2)(B), Koenig disclosed that:
Mr. Ruble is expected to testify regarding his investigation
and reconstruction of the accident that forms the basis of
this lawsuit. The general substance of Mr. Ruble's mental
impressions and opinions and a brief summary of the basis for
them are contained in his report attached hereto. Please also
see any deposition testimony that may be taken of this
(Id.) In accordance with this disclosure, Koenig
produced Ruble's January 2014 report and resume.
(See Mot. ¶ 8). After submitting his report in
January 2014, Ruble did not perform any other work on the
case until February 4, 2016, when Koenig's current
counsel requested that Ruble perform additional
accident reconstruction based on additional case-related
information. (Ruble Dep. 46:16-48:19). Although Koenig has
supplemented his expert ...