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 non-dispositive).
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.
(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
first designated Ruble as an expert on September 19, 2016.
(See [#41] at 5-6).
to Federal Rule of Civil Procedure 26(a)(2)(B), Koenig
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 disclosures on several occasions, he
has never produced a supplemental or amended report for
Ruble. (See Mot. ¶ 8).
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 ...