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Faltermeier v. FCA U.S. LLC

United States District Court, W.D. Missouri, Western Division

August 25, 2016

DAVID FALTERMEIER, on behalf of himself and all others similarly situated, Plaintiff
v.
FCA U.S. LLC, Defendant.

          ORDER GRANTING IN PART PLAINTIFF'S MOTION TO STRIKE DAN CRIMMINS

          GREG KAYS, CHIEF JUDGE UNITED STATES DISTRICT COURT

         This is a putative class action arising from alleged violations of the Missouri Merchandising Practices Act, Mo. Rev. Stat. § 407.020. Plaintiff David Faltermeier alleges that Defendant FCA U.S. LLC (“FCA”) made misrepresentations during a vehicle safety recall that have caused Plaintiff and all other consumers who have purchased the recalled vehicles since June 4, 2013, an ascertainable financial loss.

         Now before the Court are FCA's Motion for Relief from Paragraph 4 of the Scheduling Order (Doc. 109) and Plaintiff's Motion to Strike Dan Crimmins as an Expert Witness (Doc. 115). For the following reasons, FCA's motion for relief is DENIED and Plaintiff's motion to strike is GRANTED IN PART.

         Background

         The Court's Scheduling and Trial Order requires the parties to provide an affidavit for all witnesses, retained or non-retained, from whom expert opinions will be elicited. Sched. & Trial Order ¶¶ 3-4 (Doc. 30). This requirement is a departure from Rule 26(a)(2)(B)'s default requirement that only retained experts need provide an expert report, but is explicitly authorized by the Federal Rules of Civil Procedure.[1]

         FCA's class certification expert witness designations were due on May 4, 2016. Third Am. Sched. Order (Doc. 75). On May 4, 2016, FCA served its class certification expert disclosure on Plaintiff. It identified its employee and engineer, Dan Crimmins (“Crimmins”), as a non-retained expert who may testify at the class certification stage regarding facts and opinions relating to:

the design, development, and production of, and the differences in, model-years 1993-1998 Jeep Grand Cherokee vehicles and model-years 2002-2007 Jeep Liberty vehicles (“Subject Vehicles”); available optional equipment for the Subject Vehicles; the design and development of, and the differences in, the fuel tanks in the Subject Vehicles . . . [and] the recall remedy provided for the Subject Vehicles and its effectiveness.

(Doc. 110-1 at 1). FCA did not, however, submit an expert report for Crimmins.

         Discussion

         I. The Court's expert-report requirement applies to Crimmins, and because he did not comply with the requirement, he may not testify as an expert.

         FCA's motion seeks relief from the Court's expert-report requirement by arguing that he “is not an expert from whom an affidavit or report is required under the Federal Rule of Civil Procedure 26(a)(2)(B)” because he is not a retained expert. Def.'s Br. 3 (Doc. 110). This argument, however, flatly ignores the fact that the Court has opted out of the default rule and expressly ordered that all experts, retained and non-retained, must provide an expert report to testify as an expert. Accordingly, this portion of FCA's motion is summarily denied.

         Because FCA did not timely provide an expert report as required in the Court's Scheduling Order, Crimmins may not testify as an expert.

         II. Crimmins may testify as a fact witness.

         Arguing in the alternative, FCA contends that Crimmins is merely a fact witness who will testify “as FCA” about “facts borne out by [FCA's] own records” and so should be permitted to testify as a fact witness. Def.'s Reply 3 (Doc. 120). Although FCA has consistently ...


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