Charles W. Grau, Esq., Lisa Hall, Esq., Michael S. McGrath, Esq., Robert W. Upton, II, Esq., Thomas DeMicco, Esq., Christopher P. Flanagan, Esq., 29
Joseph N. Laplante, United States District Judge.
The parties have filed a number of motions to exclude evidence from the upcoming trial of this action, which arises out of a house fire that allegedly started in a home theater system manufactured by defendant Samsung Electronics America, Inc., and sold by defendant Best Buy Co., Inc. By way of subrogation, plaintiff MMG Insurance Co., which insured the house and its contents, seeks to recover against the defendants for the property damage that its policyholders, Mark and Helen Berthiaume, suffered in the fire, bringing state-law claims of negligence, strict products liability, and breach of warranty.
This court has jurisdiction under 28 U.S.C. § 1332(a)(1) (diversity). The underlying facts of this case are set forth in detail in this court’s prior order denying the defendants’ motions to preclude two of MMG’s designated expert witnesses from testifying at trial, and related motion for summary judgment. MMG Ins. Co. v. Samsung Elecs. Am., Inc., 2013 DNH 061.
The defendants have now moved to exclude evidence of burn testing that one of those expert witnesses, Steven Thomas, claims to have performed in reaching his conclusion that the Samsung home theater unit was the cause of the fire. MMG, for its part, moved to exclude a video of burn testing performed by the defendants’ expert witness, Lawrence Sacco, then amended that motion to request re-opening Sacco’s deposition instead. For the reasons fully explained below, the defendants’ motion to exclude evidence of Thomas’s burn testing is granted, while MMG’s motion to re-open Sacco’s deposition is denied.
Thomas failed to mention any burn testing in his expert report, and, even if that omission were harmless in light of his reference to the testing in his deposition testimony, that testimony fails to show that Thomas performed the testing according to reliable principles and methods. See Fed. R. Evid. 702. Sacco’s expert report, in contrast, disclosed the existence of a video of the burn testing that he conducted. While the video was mistakenly omitted from the version of the report provided to MMG prior to Sacco’s deposition, that mistake was corrected when the video was produced at the deposition itself, and the defendants’ failure to provide MMG with a copy of the video until two weeks before trial does not justify re-opening Sacco’s deposition, as MMG now seeks to do.
As further explained below, the court also grants the defendants’ motion to exclude from trial any reference to other fires allegedly caused by similar Samsung products. The only “evidence” of these fires is in the form of comments purportedly posted by consumers on third-party Internet sites. These reports are inadmissible hearsay, see Fed. R. Evid. 802, and fail to provide a good-faith basis for cross-examining the defendants’ expert (who developed his opinion without relying on the reports or the incidents they reference). Furthermore, exposing the jury to the substance of the otherwise inadmissible, and inherently unreliable, reports through such cross-examination would unfairly prejudice the defendants. See Fed. R. Evid. 403.
Finally, MMG’s motion to prevent the defendants from using the deposition testimony of a fire investigator, Robert Long, who examined the scene on MMG’s behalf, is denied. As explained fully below, MMG has admitted that Long is unavailable to appear at trial, which is sufficient, in and of itself, to permit the use of his deposition. See Fed. R. Civ. P. 32(a)(4)(B).
I. Burn testing evidence
A. Thomas’s testimony
MMG disclosed Thomas, a forensic engineer, as an expert witness, and provided the defendants with a report from him. The report states his conclusion that “the subject fire was caused as a result of a component failure/overheating of the power supply” in the Samsung home theater unit.
At Thomas’s subsequent deposition, he identified the DVD tray in the unit as “a competent first material ignited” in the fire. He denied knowing “specifically what type of material” comprised the tray, but testified that he had “attempted to burn that plastic” on an exemplar of the unit, and that “it lit and maintained a fire.” Thomas further testified at his deposition that he knows another component of the unit, a printed circuit board “will maintain combustion when exposed to ignition, ” because he “burned a portion of it” with a flame generated from “a propane flame source.” While Thomas’s report states that an exemplar “was purchased and subjected to some basic testing, ” the testing described in the report was limited to determining the voltage and temperature of the unit’s power supply in different modes of operation. The report makes no reference to Thomas’s attempts, related at his deposition, to set fire to various components of the unit.
The defendants have now moved to preclude Thomas from testifying at trial as to his claimed “burn testing” of the DVD tray. Under Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, a party intending to offer the testimony of an expert must provide a written report containing, among other things, “a complete statement of all the opinions the witness will express at trial and the basis and reasons for them.” As just discussed, Thomas’s report does not disclose that he attempted, and succeeded in, setting fire to the DVD tray and circuit board from an exemplar of the Samsung home entertainment system, even though, as his deposition testimony revealed, that “burn testing” was among the “bas[es] and reasons” for his opinion that a “failure/overheating of the power supply” within the system started the fire at issue. So Thomas’s report did not comply with Rule 26(a)(2)(B).
When a party “fails to provide information . . . as required by Rule 26(a), ” a party is “not permitted to use that . . . information . . . at a trial unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). MMG suggests that the omission of the “burn testing” from Thomas’s report was “harmless” because Thomas mentioned the “burn testing” at his deposition. Generally, however, “Rule 26(a)(2) does not allow parties to cure deficient expert reports by supplementing them with later deposition testimony, ” or the function of expert reports would be “completely undermined.” Ciomber
v. Coop. Plus, Inc., 527 F.3d 635, 642 (7th Cir. 2008); see also Walter
Intl Prods., Inc. v. Salinas, 650 F.3d 1402, 1413 (11th Cir. 2011) (“The reason for requiring that an expert report be provided before a deposition is taken is so that the opposing party can use the report to examine the expert at the deposition.”).
While there are undoubtedly instances when an expert’s deposition testimony renders a deficiency in his report “harmless” under Rule 37(c)(1), see, e.g., Smith v. Tenet Healthsys.
SL, Inc., 436 F.3d 879, 889 (8th Cir. 2006), this is not one of them because, even at his deposition, Thomas did not describe the burn testing in any detail. As to the circuit board, Thomas said simply that he burned a portion of it with a flame generated from a “propane flame source, ” without identifying the temperature or “amount of heat.” Thomas offered even less as to the burn testing of the DVD tray, only that “it lit and maintained a fire” when he tried to burn it--and that he “saw no need” to make any record of this process because “I’m the person that did the analysis . . . and I wrote my opinions based upon my understanding of the way this thing works.”
As to the burn testing, then, Thomas’s deposition testimony did not relay the “complete statement of all opinions . . . and the basis and reason for them” that should have been included in his expert report under Rule 26(a)(2)(B)(i). Crucially, he did not disclose any details of the testing (such as the temperature of the flame, or the duration of its exposure to the components) that could serve to explain how the testing supports his opinion that the fire started when the power supply in the Samsung unit caused its DVD tray to ignite. To the contrary, Thomas acknowledged that the heat ...