United States District Court, N.D. Illinois, Eastern Division
November 3, 2005.
ANGELA LEKKAS, et al., Plaintiffs,
MITSUBISHI MOTORS CORP., et al. Defendants.
The opinion of the court was delivered by: NAN NOLAN, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Antonios Lekkas was killed in a car accident. His estate, wife,
and daughter sued Mitsubishi Motors Corporation and Mitsubishi
Motor Sales of America alleging a design defect in the Lekkas's
Mitsubishi Montero based on rollover propensity. Discovery is
complete and the parties are preparing the final pretrial order
which is due by December 2, 2005. Plaintiffs' Motion to Strike
and Bar Defendants' Untimely Videotapes Prepared by Expert, Don
Tandy [155-1] is pending. Plaintiffs seek an order striking the
videotapes and barring any and all use, mention of, or reference
to the tapes at the trial of the case. For the reasons that
follow, Plaintiffs' Motion is granted.
Plaintiffs move to strike the videotapes prepared by Don Tandy,
a mechanical engineer and one of the experts designated by
Defendants, on two grounds. First, Plaintiffs assert that
Defendants' production of the videotapes was untimely. Second,
Plaintiffs submit that the videotapes should be excluded at trial
because they are prejudicial, misleading, and inaccurate.
Plaintiffs' arguments have merit. The first issue is governed by Federal Rules of Civil Procedure
26(a)(2) and 37(c)(1). Neither party has cited any case law
addressing these rules. Rule 26(a)(2) controls the timing and
scope of disclosure of expert discovery. A party using a retained
expert is required to provide a written report containing, among
other things, "any exhibits to be used as a summary of or support
for the opinions." Fed.R.Civ.P. 26(a)(2)(B). The expert's
report must be disclosed "at the times and in the sequence
directed by the court." Fed.R.Civ.P. 26(a)(2)(C).
The deadline for disclosure of Defendants' experts and their
reports was February 3, 2005. See Doc. 113. Tandy's report is
dated January 2, 2005. Plaintiffs deposed Tandy on February 21,
2005. Tandy took the videos on June 3, 2005, over ten years after
the Lekkas accident. On July 12, 2005, Defendants produced the
videotapes prepared by Tandy to Plaintiffs' counsel.
Defendants claim that the videos were timely disclosed because
illustrative exhibits "are not technically due until trial
exhibits are due." Defs' Opp. at 11. Defendants are mistaken.
Demonstrative evidence which summarizes or supports an expert's
opinions must be contained in the expert's report. See Salgado
v. Gen. Motors Corp., 150 F.3d 735, 741 n. 6 (7th Cir. 1988)
(noting that the category of "exhibits to be used as a summary of
or support for the [expert's] opinions" "encompasses
demonstrative evidence which summarizes or supports the expert's
opinion."). Rule 26(a)'s disclosure requirements contain no
exception for demonstrative evidence which summarizes or supports
an expert's opinion.
The videotapes prepared by Tandy were subject to mandatory
disclosure under Rule 26(a)(2)(B). Defendants state that the
"videotapes illustrate Mr. Tandy's expert opinions pertaining to
the subject Montero's handling and stability." Defs' Opp. at 4.
Defendants further explain that the videos "very clearly
illustrate Mr. Tandy's primary causation opinion that: `the
likely cause of the accident was that Mr. Lekkas drove his vehicle into the
median then failed to maintain control of his vehicle by steering
abruptly." Id. Defendants emphasize that the videos do not
express any new opinions or contain new evidence even though they
were prepared after Tandy's deposition in this case. The Court
has no trouble concluding that Tandy's video demonstrations are a
"summary of or support for" his opinions.
Rule 37(c)(1) sets out the framework for deciding whether a
party's evidence should be excluded if the party fails to comply
with a court's order under Rule 26(a). "[T]he sanction of
exclusion is automatic and mandatory unless the sanctioned party
can show that its violation of Rule 26(a) was either justified or
harmless." Salgado, 150 F.3d at 742. Four factors guide the
trial court's determination of whether exclusion is appropriate:
(1) the prejudice or surprise to the party against whom the
evidence is offered; (2) the ability of the party to cure the
prejudice; (3) the likelihood of disruption of the trial; and (4)
the bad faith or willfulness involved in not disclosing the
evidence at an earlier date. David v. Caterpillar,
324 F.3d 851, 857 (7th Cir. 2003). Sanctions for a discovery violation
should be proportionate to the violation. Salgado,
150 F.3d at 740.
With these principles in mind, the Court considers whether
Defendants' failure was justified or harmless. The only
justification offered for Defendants' failure to timely disclose
the videotapes was their mistaken belief that the videotapes
"were not technically due" until the filing of the pretrial
order. Defendants' misunderstanding of the requirements of Rule
26(a) does not provide substantial justification for their
failure to meet its disclosure requirements. Musser v. Gentiva
Health Services, 356 F.3d 751, 758 (7th Cir. 2004) (stating
"[a] misunderstanding of the law does not equate to a substantial
justification for failing to comply with the disclosure
deadline."). Moving on to the harmless inquiry, the Court is unpersuaded by
Defendants' assertion that Plaintiffs cannot claim surprise. The
fact that Plaintiffs deposed Tandy and knew that Tandy had
visited the accident scene and conducted drive-by
testings/demonstrations prior to his deposition does not
undermine Plaintiffs' claim of surprise regarding the June 3,
2005 videos or cure the deficiency in Tandy's report. If the
videos of Tandy's demonstrations had been timely disclosed,
Plaintiffs would have examined Tandy about the contents of the
videos, developed relevant cross-examination strategy, and likely
prepared rebuttal expert testimony.
The Court finds, however, that the violation of Rule 26(a) was
harmless and that the sanction of excluding the videos is not
necessary in order to prevent undue prejudice to Plaintiffs.
There is no evidence that Defendants' failure to timely produce
the videotapes was the result of wilfulness or bad faith, and any
prejudice could be cured in this situation. The trial is set for
March 6, 2006 and is still a long way off. The final pretrial
order is due on December 2, 2005, approximately a month from now.
Because the trial date would not be impacted, the Court would be
willing to mitigate any harm by allowing Plaintiffs time to
redepose Tandy regarding the videos at Defendants' expense and to
develop any rebuttal expert testimony regarding the videos.
Notwithstanding the ability to mitigate any prejudice here, the
Court finds that reopening discovery is not necessary because
Plaintiffs' second argument has merit. Plaintiffs alternatively
argue that the videos are "extremely prejudicial, misleading and
inaccurate because the tapes are performed under completely
unknown circumstances." Pls' Motion at 3-4. Plaintiffs' argument
appears to be premised on Federal Rule of Evidence 403, although
no reference is made to Rule 403. Rule 403 allows a court to
balance the probative value of relevant evidence with the harm
likely to result from its admission. Relevant evidence may be
excluded where the "probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury. . . ." Although
Plaintiffs do not explicitly contend that the videos are
irrelevant, the Court believes that the relevance of the videos
turns on whether the conditions under which the videos were
filmed were substantially similar to those that existed at the
time of the accident.
"As a general rule, the proponent of experiments must establish
a foundation for the evidence by demonstrating that the
experiments were conducted under conditions that were similar to
those that existed at the time of the accident." Nachtsheim v.
Beech Aircraft Corp., 847 F.2d 1261, 1278 (7th Cir. 1998).
The First Circuit has noted that:
The concern lies not with use of tape or film (the
issue would be largely the same if the jurors were
taken to the test track for a live demonstration) but
with the deliberate recreation of an event under
staged conditions. Where that recreation could easily
seem to resemble the actual occurrence, courts have
feared that the jurors may be misled because they do
not fully appreciate how variations in the
surrounding conditions, as between the original
occurrence and the stage event, can alter the
Fusco v. General Motors Corp., 11 F.3d 259
, 263-64 (1st
Cir. 1993). On the other hand, "`demonstrations of experiments
used to merely illustrate the principles informing an expert
opinion do not require strict adherence to the facts.'"
Nachtsheim, 847 F.2d at 1278. "[C]ourts may admit such
demonstrations so long as they are offered to illustrate
scientific principles rather than as reenactments." Crossley v.
General Motors Corp., 33 F.3d 818
, 822 (7th Cir. 1994)
(upholding admission of videotape of a study of rollover
sequences of a different model vehicle and different conditions
than those that existed in the case to assist defense expert in
explaining the "complicated and sometimes counterintuitive
aspects" of rollovers dynamics rather than to reenact the
accident or the cause of the accident). In differentiating between recreations and illustrations of
general scientific principles, "the critical point is not one of
labels." Fusco, 11 F.3d at 264. The key question is "whether
the demonstration is sufficiently close in appearance to the
original accident to create the risk of misunderstanding by the
jury, for it is that risk that gives rise to the special
requirement to show similar conditions." Id; see also
McKnight v. Johnson Controls, Inc., 36 F.3d 1396
, 1402 (8th
Cir. 1994) (noting that "[t]he closer the experiment gets to
simulating the accident, the more similar the conditions of the
experiment must be to the accident conditions."). The First
Circuit has observed that "[s]cientific principles, when
demonstrated in a fairly abstract way, are quite unlikely to be
confused with the events on trial." Fusco, 11 F.3d. at 264 n.
Plaintiffs argue that Tandy's videos are not simply
demonstrative of a scientific concept of principle. Plaintiffs
contend that the video demonstrations reenact what Lekkas did in
operating the vehicle just before it rolled over. Plaintiffs
point out that the original roadway has been paved over and there
is no confirmation that the conditions, dimensions, slope and
substance of the shoulder is the same as it existed on the date
of the accident. Plaintiffs also state that numerous factors play
a role in determining the reliability of a reconstruction,
including the particular vehicle used, the size and type of tires
used, and the co-efficient of friction between the tires and the
Defendants say that the videos are not reconstructions.
Defendants describe the videos as follows: "In the videos, Mr.
Tandy is shown driving an exemplar Montero southbound on
Interstate 55 near the accident scene. The videos show Mr. Tandy
driving the Montero's driver-side wheels off the paved roadway
and onto the unfinished gravel median like Antonios Lekkas did
just before the accident. Then, Mr. Tandy demonstrates a variety
of methods by which an operator of the Montero can safely resume
driving on the paved highway, or safely slow the vehicle to a
stop, without rolling the vehicle over." Defs' Opp. at 2. Defendants
explain that the "videos demonstrate scientific principles
associated with Mr. Tandy's expert opinions, including handling
and stability aspects of the subject Montero while traveling at
highway speeds on and off the paved portion of southbound
Interstate 55." Id. at 8. Defendants state that Tandy "will use
the videos to illustrate his handling and stability opinions, and
to show what Mr. Lekkas could have done to avoid the accident."
Id. Defendants further state that the videos "illustrate Mr.
Tandy's primary causation opinion that: `the likely cause of the
crash was that Mr. Lekkas drove his vehicle onto the median then
failed to maintain control of his vehicle by steering abruptly.'"
Id. at 4.
The Court has viewed the videotapes. On a spectrum, Tandy's
video demonstrations are closer to simulating the events at issue
than demonstrating abstract scientific principles. It is clear
that Tandy's video demonstrations are more than a simple
demonstration of general scientific principles in the abstract.
Compare Zurzolo v. General Motors Corp., 69 F.R.D. 469, 473
(E.D. Pa. 1975) (holding defendant need not show similarity where
motion picture to be shown to the jury in conjunction with
defense expert's testimony portrayed the expert's testimony
regarding Newton's laws of motion). Moreover, Defendants have not
spelled out what general scientific principle is illustrated by
the videos. See Hinds v. General Motors Corp., 988 F.2d 1039,
1041 (10th Cir. 1993) (upholding district court's exclusion
of GM's crash test which was not substantially similar to the
accident in question, "particularly when GM offered no
articulable engineering principles which the test was designed to
Defendants point out that the videos are obviously not exact
representations of the accident involved in this case because
"Tandy's vehicle remains in control throughout the entire video,
while the Lekkas vehicle rolled over during the accident." Defs'
Opp. at 4-5. Even though the videos do not strictly reenact the accident, the videos resemble a
recreation. The videos purport to replicate the cause of the
accident from Defendants' point of view by pointing out "what Mr.
Lekkas could have, and should have, done." Defs' Opp. at 6. Tandy
will use the videotapes to suggest that Lekkas' negligence caused
the accident, not a defective design. What a driver allegedly did
to cause a particular accident is clearly within the realm of
Even viewing Tandy's videos as illustrating the Montero's
normal handling and stability characteristics at highway speeds
on and off a paved portion of an interstate, the videos look very
much like a recreation of the events in this case up to the point
before the vehicle rolled over. The Court believes the jury would
likely view the videos as a reconstruction of the cause of the
accident according to Defendants' theory, rather than as an
illustration of general scientific principles. The video
demonstrations depict the same type of vehicle driving on the
interstate near the accident scene. The videos show Tandy driving
the Montero's driver-side wheels off the paved roadway and onto
the unfinished gravel median "like Antonios Lekkas did just
before the accident." Defs' Opp. at 2. Tandy intends to use the
demonstrations to explain Defendants' theory of causation of this
particular accident. These facts create the impression of
reenacting the events giving rise to the accident but with a
different end result. The Court finds that the videos are
sufficiently close in appearance to the events giving rise to
this case that they could be viewed as reconstructions by the
Defendants thus bear the burden of demonstrating similarity
between Tandy's video demonstrations and the conditions that
existed at the time of the accident. Nachtsheim,
847 F.2d at 1278. Defendants have not offered any evidence establishing a
foundation of similarity. Without a showing of similarity, the
Court finds that the videos are just similar enough to the events
at issue to confuse the jury and leave the jurors with the prejudicial
impression of a recreation of the actual occurrence according to
Defendants' theory of causation. Because Defendants have not met
their burden, the Court concludes that the danger of confusion
substantially outweighs the probative value of the videos.
For these reasons, Plaintiffs' Motion to Strike and Bar
Defendants' Untimely Videotapes Prepared by Expert, Don Tandy
[155-1] is granted. The videotapes prepared by Tandy on June 3,
2005 are excluded. Witnesses and counsel are prohibited from
mentioning the videotapes at the trial of this case.
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