United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. MILLER SENIOR UNITED STATES DISTRICT JUDGE.
before the court is defendants WernerCo Services, Inc.
(“WernerCo”) and Lowe's Home Centers,
LLC's (“Lowe's”) renewed motion to strike
plaintiff's experts (Dkt. 24) and joint motion for
summary judgment (Dkt. 25). Plaintiff Perry Baird has not
responded to either motion. Having reviewed the motions, the
applicable law, and the record, the court is of the opinion
that the motion to strike (Dkt. 24) should be GRANTED IN
PART, and the motion for summary judgment (Dkt. 25) should be
a product liability case. Baird claims to have been injured
when a step ladder manufactured by WernerCo, that Baird
purchased from Lowe's, allegedly “came apart at the
locking arms, ” causing Baird to fall and suffer
“substantial injuries.” Dkt. 1-1 ¶ 7. Baird
initially filed suit against WernerCo and Lowe's on March
19, 2018, in Texas state court, alleging three causes of
action: (1) breach of the implied warranty of
merchantability, (2) strict products liability, and (3)
negligence. See Id. ¶¶ 8-11. WernerCo
removed the case to federal court with Lowe's consent on
June 11, 2018. Dkt. 1.
August 20, 2018, the court entered its Rule 16 Scheduling
Order (Dkt. 7), setting the deadline for Baird's expert
reports as December 14, 2018. On December 14, 2018, Baird
moved to extend the time for expert designations, the
discovery period, and dispositive motions. Dkt. 12. While
that motion was pending, Baird late-designated his experts on
January 15, 2019, including his retained technical expert,
Stanley A. Kiska. See Dkt. 24-1. However, Baird
failed to provide a written report for Kiska as required by
Federal Rule of Civil Procedure 26(a)(2)(B), stating instead
that “[a]ny written reports will be supplemented by
Plaintiff once received.” Id. ¶ 4.
Defendants first moved individually in March of 2019 to
strike Baird's experts for a failure to timely designate,
and a failure to provide an expert report for Kiska.
See Dkts. 13 (WernerCo's motion to strike) &
14 (Lowe's motion to strike).
three of the aforementioned motions were mooted when the
court entered an Amended Agreed Scheduling Order on April 16,
2019. See Dkt. 21. The Amended Agreed Scheduling
Order set the new deadline for Baird's expert reports as
April 22, 2019. Id. Moreover, under the Amended
Agreed Scheduling Order, discovery was to be completed by
June 3, 2019. Id. According to WernerCo and
Lowe's, Baird “did not do anything to amend or
otherwise supplement his earlier expert designation by the
new expert deadline of April 22, 2019.” Dkt. 24 at 4.
On May 21, 2019, WernerCo and Lowe's jointly moved to
strike Baird's experts (Dkt. 24) and for summary judgment
on the ground that Baird “does not have expert
testimony to support his claims, which is required by Texas
law.” Dkt. 25 at 9. Baird has not responded to
either of these motions and discovery is now closed.
Standard of Review
judgment is proper when “there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law.” Fed.R.Civ.P. 56(a). The court
views facts in the light most favorable to the non-movant and
draws all reasonable inferences in his favor. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106
S.Ct. 2505 (1986) (citing Adickes v. S.H. Kress &
Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598 (1970)).
Material facts are those “that might affect the outcome
of the suit, ” and a fact is disputed when “a
reasonable jury could return a verdict for the nonmoving
party.” Id. at 248. The movant bears the
initial burden of demonstrating the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548 (1986). If the movant meets
its burden, the burden shifts to the non-movant to set forth
specific facts showing a genuine issue for trial.
Fed.R.Civ.P. 56(e). Because the court sits in diversity
jurisdiction over this action, Texas substantive law applies.
See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58
S.Ct. 817 (1938).
Law & Analysis
Motion to Strike
move to strike all of Baird's experts-including
Baird's non-retained medical experts-on the grounds that
all were untimely designated, and that the designation of
Kiska remains “defective in its failure to provide a
report or otherwise disclose Kiska's opinions and bases
for said opinions.” Dkt. 24 at 2. The court considers
four factors in deciding whether to exclude evidence that was
not properly designated: “‘(1) the explanation
for the failure to identify the witness; (2) the importance
of the testimony; (3) potential prejudice in allowing the
testimony; and (4) the availability of a continuance to cure
such prejudice.'” Geiserman v. MacDonald,
893 F.2d 787, 791 (5th Cir. 1990). Baird has not responded to
Defendants' renewed motion to strike his experts.
“Failure to respond to a motion will be taken as a
representation of no opposition.” S.D. Tex. L. R. 7.4.
Baird's non-retained medical experts, which his January
15, 2019 designation states are being offered “to
present evidence under Federal Rule of Evidence 702, 703, or
705” (Dkt. 24-1 ¶ 2), Defendants' only
complaint is that such designations were untimely.
See Dkt. 24. While it may be true that Baird
“did not do anything to amend or otherwise
supplement” these designations (Dkt. 24 at 4),
Defendants cannot fairly claim that these designations were
untimely under the Amended Agreed Scheduling Order where
Baird's expert deadline was April 22, 2019 (Dkt. 21), and
his expert designations were filed in January (Dkt. 24-1).
Furthermore, Baird's designations state that the
“opinions/reports of these non-retained experts consist
of the medical records, documents and diagnosis that the
Plaintiff has previously produced” (Dkt. 24-1), and
Defendants have not argued that such records were not
produced or that they have somehow been deprived of the
ability to rebut these non-retained experts' opinions.
Accordingly, the court has no reason to strike Baird's
non-retained medical experts. However, this is a moot point
since, for the reasons explained infra, the court
does have reason to strike Baird's retained technical
expert, which then necessitates granting Defendants'
summary judgment motion.
does not dispute that his expert designation of Kiska is
deficient under Federal Rule of Civil Procedure
26(a)(2)(B). Baird offers no explanation for his
failure to properly designate Kiska, so the first factor
weighs in favor of granting Defendants' motion to strike.
As to the second factor, Kiska's testimony is of the
utmost importance, since Baird cannot prove a defect of the
ladder without expert testimony, which weighs in Baird's
favor. See infra § III.B. However, the fact
that Kiska's testimony is so important compounds
Baird's failure to respond to the motion to strike, or to
offer any explanation for why Kiska has not submitted a
written report, shifting the balance in Defendants'
favor. As to the third and fourth factors, Defendants would
undoubtedly be prejudiced by allowing Kiska's testimony
without any written report. While a continuance might cure
this prejudice, Baird has not formally requested a
continuance from the court. And even if such a continuance
were granted, it would result in delay and added expense to
Defendants in defending the lawsuit. Geiserman, 893
F.2d at 792. “Moreover, a continuance would not deter
future dilatory behavior, nor serve to enforce local rules or
court imposed scheduling orders.” Id.
Accordingly, the court finds it proper to strike Baird's
designation of Kiska's expert testimony.
Motion for ...