United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON, CHIEF JUDGE.
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.
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.
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).
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).
THE STEWART OPINION
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.
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
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).
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. 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.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.
PLAINTIFF'S MOTION FOR MODIFICATION OF SCHEDULING
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