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Koenig v. Beekmans

United States District Court, W.D. Texas, San Antonio Division

January 4, 2018




         Before 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 non-dispositive).

         Having 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.

         I. Background

         This 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.

         Shortly 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.

(Ruble 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 2-3).

         Koenig 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 expert.

(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[1] 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 disclosures on several occasions, he has never produced a supplemental or amended report for Ruble. (See Mot. ¶ 8).

         Beekmans deposed Ruble on November 1, 2017. (See Ruble Dep.). During this deposition, Ruble disclosed for the first time several new opinions regarding the parties' pre-impact movements, including: (1) the parties' speed at the time of impact, (id. 27:19-28:8); (2) how the vehicles rotated upon impact, (id. 31:11-21; 33:8-11; 84:12-15); (3) the parties' respective lanes of travel prior to the collision, (id. 52:7-13, 57:10-15); and (4) the manner in which the parties applied their brakes prior to impact and how far they traveled after first braking, (id. 54:22-54:25; 61:5-64:10). Ruble also testified that several of the opinions offered by Beekmans' accident reconstructionist, Billy S. Cox, Jr., were deficient based on the formulas and data Cox used, (id. 50:16-51:2, 58:14-60:2; 71:15-72:11), and explained that in his (Ruble's) opinion, extraction of the vehicles, rather than the accident itself as he originally opined, caused several of the gouge marks on ...

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