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McCon v. FCA U.S. LLC

United States District Court, M.D. Louisiana

July 19, 2017

KIM MCCON
v.
FCA U.S. LLC

          RULING AND ORDER

          BRIAN A. JACKSON, CHIEF JUDGE.

         Before the Court is the Motion for Summary Judgment (Doc. 60) filed by FCA U.S. LLC ("Defendant"), the Consolidated Motions for Modification of Scheduling Order and Continuance of Trial Date (Doc. 63) filed by Kim McCon ("Plaintiff'), the Motion for Leave to File Rule 26 Expert Disclosure (Doc. 77) filed by Plaintiff, and the Motion to Strike Untimely Disclosed Expert Witness (Doc. 79) filed by Defendant. Each party filed responses (Docs. 72, 73) and a reply (Doc. 76) where applicable. The Court has jurisdiction pursuant to 28 U.S.C. § 1332. Oral argument is not necessary.

         I. BACKGROUND

         Plaintiff filed the instant action on or about August 24, 2015, seeking to recover damages sustained in a September 5, 2014 car accident under the Louisiana Products Liability Act, La. R.S. § 9:2800.51 et seq. ("LPLA"). Plaintiff alleges that the accident was caused by the separation of her vehicle's drive shaft from its rear axle, allegedly attributable to a design defect in the rear axle pinion nut as described in an open automobile safety recall issued by the vehicle's manufacturer.

         On September 23, 2016, Defendant filed a Motion for Summary Judgment (Doc. 14), arguing, inter alia, that Plaintiff could not prove that the alleged auto defect was the proximate cause of the collision under the LPLA because she lacked expert testimony and other relevant evidence. (Doc. 14 at pp. 7-8). The Court denied Defendant's motion, holding that "a reasonable jury could find the defect caused the accident" based on the evidence available in the record. (Doc. 44 at p. 6). Particularly relevant to the instant motion, the Court found that Plaintiff could possibly prevail at trial without offering any expert testimony on the issue of proximate causation because of the nature of the evidence Plaintiff intended to produce in support of that element. (Id. at pp. 6-7).

         In response to the Court's ruling on the original motion for summary judgment, and after the United States Court of Appeals for the Fifth Circuit issued an opinion bearing on issues addressed in the Court's ruling, Defendant filed a second Motion for Summary Judgment (Doc. 60) re-urging the same arguments previously denied by the Court in its Ruling and Order on Defendant's first motion for summary judgment. Plaintiff then filed two motions. The first requests that the Court modify the Scheduling Order to extend the expert discovery deadline and continue the trial date. (See Doc. 63). Through the second motion, Plaintiff seeks leave to file an expert disclosure under Federal Rule of Civil Procedure ("Rule") 26, and to designate Dr. Robert McElroy as Plaintiffs expert witness in the fields of accident reconstruction and automotive failure analysis. (See Doc. 77). Defendant has filed a motion to strike Plaintiffs newly disclosed expert witness. (See Doc. 79).

         II. DISCUSSION

         A. THE STEWART OPINION

         On May 30, 2017, the Fifth Circuit issued an opinion in Stewart v. Capital Safety USA, __ F.App'x__, 2017 WL 2347612 (5th Cir. May 30, 2017) (per curiam). In Stewart, the appellants challenged the district court's holding that they did not provide competent summary judgment evidence that would raise a genuine dispute of material fact as to proximate causation on their defective design and inadequate warning claims against Capital Safety, the manufacturer of the fall protection body harness that the appellants' son was wearing at the time of an accident that caused his death. Stewart, 2017 WL 2347612, at *1. In affirming the district court's holding, the Fifth Circuit noted that although expert testimony is not required in every LPLA case, and notwithstanding the principle that there are situations in which a factfinder may rely on background knowledge and common sense to fill in the gaps of a products liability case without the aid of expert testimony, expert testimony is required in cases that are of "sufficient complexity to be beyond the expertise of the average [factfinder]" and that "common sense" does not "make[ ] obvious." Id. at *4. Because appellants' expert testimony on causation was excluded under Daubert by the district court, and because appellants had no other evidence or expert testimony to support their position on the issue of causation, the Fifth Circuit held that summary judgment on appellants' claims was warranted. Id.

         B. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

         On June 9, 2017-without leave of Court and eight months after the dispositive motions deadline had passed-Defendant filed its second motion for summary judgment, asserting that the Stewart opinion mandated that the Court grant Defendant's motion on the issue of proximate causation. (Doc. 60-1). Specifically, Defendant asserts that the Fifth Circuit's holding in Stewart clarified the controlling law relative to the standard of proof in LPLA cases such that Plaintiff cannot prevail on her claim without offering expert testimony on the issue of proximate causation. (Doc. 60-1 at pp. 3-6).

         Notwithstanding Defendant's legal assertions, the Court finds that it need not address the merits of Defendant's motion for summary judgment at this juncture. Defendant filed its motion without having followed the proper procedural mechanism before doing so.[1] That is, Defendant failed to seek leave of Court to file its motion outside the deadlines previously set by the Court or to request that the dispositive motions deadline be extended to accommodate the timing of Defendant's pleading.[2]Accordingly, the Court will exercise its authority under Federal Rule of Civil Procedure 16(f) to strike Defendant's motion from the record. See Folk v. Wells Fargo Bank, No. 3;09-CV-678-B, 2011 WL 3702666, at *3 (N.D. Tex. Aug. 19, 2011) (striking an untimely pleading from the record for failure to state good cause to extend the dispositive motions deadline under Federal Rule of Civil Procedure 16). As such, Defendant's motion for summary judgment is DENIED.

         C. PLAINTIFF'S MOTION FOR MODIFICATION OF SCHEDULING ORDER

         On June 12, 2017, Plaintiff filed a motion requesting that the Court modify the existing scheduling order under Federal Rules of Civil Procedure 16(b)(4) and 56(d), arguing that, in light of the Fifth Circuit's opinion in Stewart and Defendant's motion for summary judgment, the Court should extend the deadline for designating an expert witness on the issue of proximate causation. (Doc. 63-1). Defendant counters that Plaintiff is not entitled to relief under Rule 16(b) or Rule 56(d), the gravamen of that assertion being that because Plaintiff made a deliberate choice to pursue her claim without supporting expert testimony, she may not now seek a post-discovery extension of the deadline to do such. (See ...


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