United States District Court, W.D. Missouri, Western Division
DAVID FALTERMEIER, on behalf of himself and all others similarly situated, Plaintiff
FCA U.S. LLC, Defendant.
ORDER GRANTING IN PART PLAINTIFF'S MOTION TO
STRIKE DAN CRIMMINS
KAYS, CHIEF JUDGE UNITED STATES DISTRICT COURT
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
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.
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.
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.
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.
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.
FCA did not timely provide an expert report as required in
the Court's Scheduling Order, Crimmins may not testify as
Crimmins may testify as a fact witness.
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