Elmedin Tinjak has been a life-long cyclist. On June 20, 2020, the carbon fiber fork of his brand-new Bianchi bicycle failed, causing him to crash face-first on the pavement. Tinjak was taken to Riverside Methodist Hospital, where he was treated for a concussion, chest contusions, a fractured vertebra, and multiple complex facial lacerations.
The injuries Tinjak sustained that day continue to affect him. He struggles to do things he was once able to do, such as ski and play golf. He can no longer ride his bike for long periods of time, play sports with his kids for long periods of time, or stand for more than 30-45 minutes. The Tinjaks filed suit against the against the bike’s manufacturer, Cycleurope USA, Inc. dba Bianchi USA., seeking damages for economic and non-economic loss suffered as a result of the crash.
The Tinjaks sought to exclude Greg Dubois as an expert witness for failure to comply with the expert disclosure requirements.
Accident Reconstruction Expert Witness
Greg DuBois manages the Materials and Product Testing Department of CTL Engineering and provides consulting services in the areas of failure analysis, accident reconstruction and product testing.
Discussion by the Court
Courts within the Sixth Circuit consider five factors to determine whether a party’s noncompliant disclosure was harmless or substantially justified:
(1) Surprise to the party against whom the evidence would be offered;
(2) Ability of that party to cure the surprise;
(3) Extent to which allowing the evidence would disrupt the trial;
(4) Importance of the evidence; and
(5) Non-disclosing party’s explanation for its failure to disclose the evidence.
Bianchi does not address any of the above mentioned factors; instead, it stresses that the Tinjaks knew Dubois had been retained as an expert as early as August 2020. Although Bianchi asserted that its counsel “was of the impression that [Dubois’s December 18, 2020 report] had been supplied to Plaintiff counsel prior to [his] involvement in the litigation,” it offered no facts that would justify counsel’s mistaken impression.
The Court’s own consideration of the five factors leads it to conclude that Bianchi’s noncompliance with the expert disclosure requirements of Rule 26(a) and the Court’s Preliminary Pretrial Order was neither harmless nor substantially justified. First, the Tinjaks were surprised by the substance of Dubois’ opinions, even if they were not surprised by his identity. Second, because the opinions were disclosed after the discovery period closed, the Tinjaks were unable to cure the surprise. Third, allowing Dubois’ opinions would fairly require the Court to re-open discovery in this years-old case. Fourth, although the underlying facts are such that expert testimony would likely be very important, Bianchi offers the Court no insight into the substance of Dubois’ primary opinions. And finally, Bianchi’s earlier-discussed explanation for its failure to comply is grossly insufficient.
Held
The Court excluded Greg Dubois as an expert witness for failing to comply with the expert disclosure requirements.
Key Takeaway:
Expert disclosures go beyond just the expert’s identity; a party must also disclose the expert’s written report. When a party fails to comply with Rule 26(a)’s expert disclosure requirements, Rule 37(c) precludes the noncompliant party from using the “information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” The party seeking to avoid the Rule 37(c) sanction—here, Bianchi—bears the burden of showing that its failure to comply with the expert disclosure requirements was harmless or substantially justified. However, Bianchi’s explanation for its failure to comply is grossly insufficient.
Case Details:
| Case Caption: | Tinjak Et Al V. Bianchi Usa Inc/Cycleurope Usa Incs Et Al |
| Docket Number: | 2:22cv2853 |
| Court: | United States District Court, Ohio Southern |
| Order Date: | September 16, 2024 |
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