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In re C. F. Bean L.L.C.

United States District Court, S.D. Mississippi, Southern Division

September 28, 2018

IN THE MATTER OF C.F. BEAN, L.L.C., AS OWNER PRO HAC VICE AND OPERATOR, AND BEAN MERIDIAN, L.L.C., AS THE RECORD OWNER, OF THE BARGE BEAN 20, OFFICIAL NO. 627225, PRAYING FOR EXONERATION FROM OR LIMITATION OF LIABILITY
v.
C.F. BEAN, L.L.C., BEAN MERIDIAN, L.L.C., and ARCHER WESTERN CONTRACTORS, L.L.C. DEFENDANTS/ THIRD PARTY PLAINTIFFS JERRIE P. BARHANOVICH, EXECUTRIX AND PERSONAL REPRESENTATIVE OF THE ESTATE OF MARK BARHANOVICH, DECEASED PLAINTIFF
v.
SUZUKI MOTOR CORPORATION, SUZUKI MOTOR OF AMERICA, INC., AND RSM INTERNATIONAL, INC., D/B/A BOB'S MACHINE SHOP THIRD PARTY DEFENDANTS

          MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART SUZUKI MOTOR CORPORATION'S EMERGENCY MOTION TO STRIKE EXPERT AND EXPERT REPORT [526]

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.

         BEFORE THE COURT is Third Party Defendant Suzuki Motor Corporation's Emergency Motion to Strike Expert and Expert Report [526]. This Motion is fully briefed. Having considered the parties' submissions, the record, and relevant legal authority, the Court is of the opinion that Defendants/Third Party Plaintiffs C. F. Bean, L.L.C., Bean Meridain, L.L.C., and Archer Western Contractors have exceeded the scope of discovery allowed on remand in contravention of the Fifth Circuit's mandate and the Magistrate Judge's discovery Orders [502] [513]. Third Party Defendant's Motion to Strike Expert and Expert Report should be granted in part and denied in part, in that Robert D. Bartlett's (“Bartlett”) December 4, 2017, Report should be stricken, with the exception that Bartlett may offer the following opinions stated in his 2017 Report at Section “5.0 CONCLUSIONS”:

(1) The similarity in the metallurgical, mechanical, and chemical characteristics of the subject swivel bracket and exemplar type “A” swivel bracket indicate that they were both the same material (sic) that they had the properties intended by the manufacturer for these components.
. . . .
(3) The Suzuki casting material, JIS H 5202 AC4C, of the subject bracket was found to have low Charpy impact toughness values for half-size specimens of less than 2/3 ft-lbs which would be less than 1 and 1/3 ft-lbs for a full sized specimen.

         Bartlett may also testify to the opinions stated in his 2014 Report.

         I. RELEVANT BACKGROUND

         A. Factual background This case arises out of the death of Mark Barhanovich (“Barhanovich”) on the morning of September 16, 2012. Barhanovich and one passenger, Mr. Eric Ransonet, were operating a 24-foot recreational fishing boat as they traveled toward a fishing reef known as “Katrina Reef” in the Mississippi Sound. Barhanovich Ans., Defenses and Claim [15] at 13. The boat was powered by a single outboard motor. Id. Third-Party Defendant Suzuki Motor Corporation (“Suzuki”) “designed in part and manufactured in part the subject 225 horsepower, 4 stroke outboard motor, Model DF225, bearing Serial No. 22501F-510312.” Suzuki Ans. and Affirmative Defenses [203] at 3.

         During the trip to the fishing reef, Barhanovich's boat and/or motor struck an underwater obstacle. The obstacle turned out to be a dredge pipe owned and operated by Defendants/Third-Party Plaintiffs C.F. Bean L.L.C., as Owner Pro Hac Vice and Operator, and Bean Meridian L.L.C., as the Record Owner, of the Barge Bean 20 (collectively “Bean”), who were engaged in dredging operations pursuant to a sub-contract with Defendant Archer Western Contractors, L.L.C. As a result of the collision, the motor came out of the water and entered the boat, striking Barhanovich and severely injuring him. Barhanovich was transported to a hospital in Ocean Springs, Mississippi, for treatment, but died later that day from his injuries. Id.

         B. Relevant procedural history

         1. The Fifth Circuit's mandate and the Magistrate Judge's discovery Orders on remand

         This case has a lengthy procedural history. The Court will not detail all of it here, but only those portions relevant to the pending Motion. Suffice it to say, at this point in the litigation the Court does not write on a blank slate. On November 4, 2016, the United States Court of Appeals for the Fifth Circuit reversed in part the Court's prior Opinion [445] and Order [453], which struck the second Report of Bean's expert Edward Fritsch, and its Opinion [454] which granted summary judgment in favor of Suzuki. Specifically, the Fifth Circuit held as follows:

We affirm the district court's exclusion of Fritsch's first expert report. However, we reverse the district court's exclusion of Fritsch's second expert report, notwithstanding its untimeliness. Because the district court ruled that Bean could not defeat summary judgment without expert testimony, the district court's grant of summary judgment is also reversed. Finally, we affirm the district court's denial of Bean's motion to conduct additional testing on the motor. On remand, however, we encourage the district court to consider whether to reopen discovery to allow (1) SMC to adequately respond to Fritsch's second expert report and (2) Bean to test the motor. The district court should also consider lesser sanctions for Bean's untimeliness, such as costs and attorneys' fees for SMC's additional discovery.

Order [470] at 6. The Fifth Circuit's Judgment was issued as mandate on December 23, 2016. J. [471] at 1-3. It thus governs, and by its terms limits, the focus of these proceedings on remand.

         After the case was remanded to this Court, the parties filed numerous discovery motions. On May 25, 2017, United States Magistrate Judge Robert H. Walker entered an Order [498] consistent with the Fifth Circuit's mandate and granted Suzuki's request for out-of-time discovery and Bean's request to re-depose Suzuki's expert, to the extent that: (1) Suzuki would be permitted to depose Fritsch as to his untimely second expert Report; (2) Suzuki would be permitted to designate rebuttal experts and furnish reports from those experts; and (3) Bean would be permitted to depose the rebuttal experts. Order [498] at 1-2.

         The Magistrate Judge then entered another Order [502] re-opening discovery for the limited purpose of allowing testing of the motor, as follows:

Consistent with the Fifth Circuit's order of remand, the Court finds that Bean should be permitted to conduct additional testing on the outboard engine. However, the Court's permission has several conditions attached. First, costs associated with the testing shall be charged to Bean. This includes attorneys' fees associated with the motions practice connected with this motion and any motions related to the testing issue. The additional testing and out-of-time discovery are the result of Bean's untimely submission of Fritsch's second report; therefore, the cost for out-of-time discovery should fall on Bean. The Court will set a separate deadline for SMC to file its motion for costs and attorneys' fees related to out-of-time discovery. Second, Bean will be permitted to supplement expert reports based on additional testing, but Bean will NOT be permitted to designate any new experts. The deadline for designating new expert witnesses has expired. Third, SMC will be allowed to designate rebuttal experts and/or supplement expert designations relating to the additional testing. The Court will conduct a case management conference to set deadlines on out-of-time discovery. Fourth, if Bean wishes to pursue testing under these conditions, Bean shall file within 14 days of this Order a motion seeking Court approval of the testing protocol, thereby allowing SMC the opportunity to lodge any objections to the proposed testing protocol. The parties are urged to reach an agreement on the testing protocol before seeking Court intervention.

Order [502] at 2-3 (emphasis added).

         On August 9, 2017, the Magistrate Judge entered an Order [513] stating that the parties had agreed to a testing protocol, with the exception of Bean's request to be allowed to test two exemplars. The Magistrate Judge granted this request over Suzuki's objection. Order [513] at 1-2. The Magistrate Judge denied, as exceeding the scope of remand, other motions filed by Bean seeking to: (1) continue the deposition of Suzuki's Rule 30(b)(6) representative, Order [499]; (2) subpoena certain documents, Order [500]; and (3) lift confidentiality orders, Order [501]. No party appealed any of the Magistrate Judge's discovery Orders.

         2. Bean's allegations against Suzuki in the Second Supplemental and Amended Third-Party Complaint

         Bean sued Suzuki by way of a Third Party Complaint filed on May 1, 2014. The Third-Party Complaint asserted a products liability claim against Suzuki and sought full indemnity, contribution, and/or recovery for any settlement or judgment paid by Bean to Barhanovich.[1] Third-Party Compl. [69]. Bean has amended its Third-Party Complaint three times, on July 17, 2014, on August 29, 2014, and on October 10, 2014. Am. and Suppl. Third-Party Compl. [103]; First Am. and Suppl. Third-Party Compl. [133]; Second Suppl. and Am. Third-Party Compl. [163]. The Second Supplemental and Amended Third-Party Complaint [163] is, and has been for nearly four years, the operative pleading which governs the dispute between the parties, subject now also to the limitations imposed by the Court of Appeals' mandate.[2]

         At Paragraph 7 of the Second Supplemental and Amended Third-Party Complaint, Bean asserts that:

[o]n or about September 16, 2012, the said Mark Barhanovich was operating his 24 foot pleasure boat, which was equipped with the aforesaid Suzuki motor and “Flats Jac” jack plate, in the shallow waters of or near Biloxi Bay just off the east end of Deer Island in Harrison County, Mississippi, at an excessively high rate of speed when the lower unit or other portion of the Suzuki motor is believed to have struck the water bottom and/or some unknown submerged object, which caused the Suzuki motor's swivel bracket to fracture completely through at a location beyond its hinged connection with the motor's clamp bracket, which allowed the bulk of the motor to separate entirely from the rest of the boat and, impelled by the force of the underwater impact, to rotate upward and to be projected forward into the passenger compartment of the Barhanovich vessel, striking Mark Barhanovich and causing him to sustain traumatic and fatal injuries.

Second Suppl. and Am. Third-Party Compl. [163] at 4 (emphasis added).

         4. Bean's expert Reports

         Bean filed its Second Supplemental and Amended Third-Party Complaint, which remains the operative pleading, on October 10, 2014. Bean filed its Designation of Experts [526-5] on October 14, 2014, designating Robert D. “Bob” Bartlett, P.E., as an expert “metallurgist and registered professional engineer.”[3] Desig. of Experts [526-5] at 3. Bartlett's entire October 2014 Report [526-2] consisted of a mere three pages and stated that he was retained to provide a ...


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