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Flynn v. FCA U.S. LLC

United States District Court, S.D. Illinois

November 17, 2017

BRIAN FLYNN, GEORGE and KELLY BROWN, and MICHAEL KEITH, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
FCA U.S. LLC, f/k/a Chrysler Group LLC and HARMAN INTERNATIONAL INDUSTRIES, INC., Defendants.

          ORDER

          DONALD G. WILKERSON UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Plaintiffs' Motion to Strike and Bar Neil Borkowicz from testifying as an Expert Witness (Doc. 242). For the reasons set forth below, the Motion is DENIED.

         Introduction

         This is a proposed class action in which Plaintiffs, owners and lessees of Chrysler vehicles, claim there is a design flaw in some of Chrysler's 2013-2015 vehicles that received public attention in a 2015 WIRED magazine article. Generally, Plaintiffs allege that the uConnect system, manufactured by Harman International Industries, Inc., has design vulnerabilities that allow hackers to take remote control of the vehicle's functions, including the vehicle's steering and brakes.

         This matter is now before the Court on the motion to strike and bar Neil Borkowicz from testifying as an expert witness filed by Plaintiffs on September 15, 2017 (Doc. 242). Defendants timely responded to Plaintiffs' motion (Docs. 247-248) and a motion hearing was held on October 12, 2017 before the undersigned.

         Discussion

         Plaintiffs assert that Defendants' disclosure of Neil Borkowicz was insufficient insofar as it failed to comply with the requirements set forth in the Court's Amended Scheduling Order and Federal Rule of Civil Procedure 26(a)(2)(C). Accordingly, Plaintiffs ask the Court to strike and bar Mr. Borkowicz from testifying as a class certification expert witness. The Court considers each argument proffered by Plaintiff, as set forth below.

         1. Whether the disclosure of Mr. Borkowicz meets the requirements set forth in the Court's Amended Scheduling Order

         The Court's Amended Scheduling Order provides that:

Expert witnesses for class certification, if any, shall be disclosed, along with a written report prepared and signed by the witness pursuant to Federal Rule of Civil Procedure 26(a)(2), as follows:
a. Plaintiffs' and Defendants' initial expert report(s): August 3, 2017.
b. Plaintiffs' and Defendants' responsive expert report(s): August 31, 2017.

(See Doc. 146). Plaintiffs contend that the above-mentioned language overrides Rule 26(a)(2)(B)'s directive that only witnesses retained or specially employed to provide expert testimony in the case need be accompanied by a written report when disclosed and, as a result, Defendants were obligated to provide a written report when disclosing Mr. Borkowicz as an expert. Plaintiffs rely on Faltermeier v. FCA U.S. LLC, Case No. 4:15-cv-419-DGK, 2016 WL 4491851 (W.D. Mo., Aug. 25, 2016), in support of their argument. In Faltermeier, the court's scheduling and trial order required the parties to “provide an affidavit for all witnesses, retained or non-retained, from whom expert opinions [would] be elicited.” Faltermeier, 2016 WL 4491851 at *1. The court found that this requirement was a departure from Rule 26(a)(2)(B)'s default requirement that only retained experts need provide an expert report and, in light of this finding, the court struck defendant's expert witness for failure to provide an expert report.

         The language in Faltermeier is distinguishable from the language at issue here. As this Court previously explained in Bell v. Illinois Central Railroad, Co., 3:05-cv-904-DRH, Doc. 141, the language in the Court's Amended Scheduling Order referencing Federal Rule of Civil Procedure 26(a)(2) is set off by commas and it is common knowledge that a pair of commas is used in the middle of a sentence to set off clauses, phrases, and words that are not essential to the meaning of the sentence. If read without the nonrestrictive relative clauses, the relevant provision of the Amended Scheduling Order reads “Expert witnesses for class certification shall be disclosed as follows: a. Plaintiffs' and Defendants' initial expert report(s): August 3, 2017.” Although the relative clause at issue here does not begin with “which, ” “who, ” or “whose, ” (as is typically of such clauses, see Bryan A. Garner, Garner's Modern American Usage 886 (3d ed. 2009)), the effect here is the same. The clause “along with a written report prepared and signed by the witness pursuant to Federal Rule of Civil Procedure 26(a)(2)” is not essential to the sentence and does not affect the reading of the same when omitted. Further, as written, there ...


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