Ford expert witness barred from testifying at trial

The testimony of an expert witness who failed to disclose interviews he conducted with the defendant’s employees could not be introduced at trial, the U.S. District Court for the Eastern District of Virginia ruled in finding the witness violated Rule 26(a)(2)(B).

Under the rule, an expert witness must prepare and serve on the opposing side a written report that contains “a complete statement of all opinions the witness will express and the basis and reasons for them” and “the facts or data considered by the witness in forming them.”

The plaintiffs filed a motion to exclude upon learning of the interviews with the defendant’s employees and that the expert’s notes were “typed over” when the report was prepared — and no longer even exist.

Senior Judge Robert E. Payne found that discovery violations occurred that could not be cured and that the violation “was neither harmless nor substantially justified.”

“On this record, no sanction short of excluding [the witness’s] testimony can reasonably be expected to produce a result that the violated rules sought to achieve or that would be fair to the Plaintiffs,” Payne wrote. “Therefore, exclusion, albeit bitter medicine, is called for.”

The May 5 opinion is Dolan v. Ford Motor Co. (VLW 026-3-204).

McGuireWoods lawyers Brian
Schmalzbach, John Tagert and Perry Miles IV, who represented Ford Motor Co., did not respond to a request for comment.

Rand Robins of Lantz & Robins, one of the attorneys for plaintiff James Dolan, declined to comment.

Background

Dolan filed suit on behalf of himself and a Virginia class of consumers in 2023, alleging Ford Motor Co. “knowingly put a defective transmission into many of its vehicles over many years,” and that Ford marketed the vehicles in a way that suggested no defect existed, going as far as to implement “elaborate schemes to conceal the defect.”

Per the court’s opinion, the alleged defect causes “harsh, bumpy, rough and delayed shifting or gear engagement.”

Dolan claimed he experienced the defect in his 2018 Ford vehicle and that the plaintiffs would not have been affected if Ford had been upfront about the defect.

After Ford’s motion to dismiss was denied, the case proceeded to briefing on the proposed certification of a class action and exchanging expert witness reports.

The plaintiffs allege that, during that process, one of Ford’s experts, Matthew Fyie, violated discovery rules in his opening report. According to the opinion, the report includes more than 100 footnotes but “most of the many sentences in the Opening Report do not have citations that identify the source of, or the authority for, their content.”

At deposition, Fyie said the methodology he used in arriving at his opinions drew from his experience in automatic transmission design and from “talking with people at Ford engineering to further understand the work that went into it.” He added that he took notes on the meetings and used those notes to draft the report.

However, Fyie said the notes no longer exist as they were “typed over” when the report was prepared.

In fact, neither the opening report nor the rebuttal report Fyie filed mentions the notes or the fact that the interviews occurred, for which Ford’s lawyers were allegedly present.

The plaintiffs filed a Rule 37C motion to exclude Fyie’s testimony upon learning those facts.

Testimony barred

Under Rule 37, a party that fails to provide “information or identify a witness as required by Rule 26(a) or (e) … is not allowed to use that information or witness to supply evidence on a motion.”

The rule does not apply if the failure “was substantially justified or is harmless.”

The plaintiffs claimed Fyie violated Rule 26(a)(2)(B) by failing to disclose the interviews, while Ford argued that the interviews “were not part of the bases and reasons for his opinion” and that Fyie “did not ‘consider’ the conversations.”

Even so, Ford argued that the notes about the conversation were subject to draft report protections and that even if a violation occurred, it was harmless and substantially justified.

The judge was left to determine whether a Rule 26(a)(2)(B) violation had, in fact, taken place.

First, Payne noted that Fyie could not recall what information he obtained from eight Ford employees he interviewed — or whether he interviewed more than eight employees.

Additionally, Payne observed that Fyie could not tell exactly how information was used from the interviews in drafting the reports beyond the fact that the information was “formed into the report.”

“Knowing what parts of Fyie’s opinions emanate from, or have their genesis in, the employee interviews is important in being able to test those parts of Fyie’s opinions that come from those interviews,” Payne wrote. “The notes would, if available, show the role that those views have in Fyie’s opinions. But there are no notes.”

Thus, Payne determined that a rule violation had indeed occurred.

As to whether Fyie “considered” the conversations with Ford employees, Payne wrote that Fyie testified that the conversations “only helped him find documents.”

However, the judge wrote that “it does not change the fact that, in reaching his opinions, he considered the interviews and his notes memorializing them.”

Fyie’s statement that “he only used the interviews to find documents is directly contradicted by his other statements in his deposition,” Payne said.

The judge noted that Fyie’s statement on his methodology alluded to using notes from the interviews to form his report, and that he had Ford employees explain topics to him discussed in the report.

With the notes “destroyed,” Payne said, Fyie “struggled at deposition to reconstruct what information in which paragraphs came from which people.”

Ultimately, Payne determined that Fyie, in fact, used information from his interviews directly in his report, while the destruction of the notes “makes it impossible to accurately re-construct what information came from what conversations.”

He added: “The record proves beyond question that Fyie did in fact consider the information secured in the employee interviews and that he did not disclose either the fact that the interviews took place or the substance of the interviews.”

That represents a Rule 26(a)(2)(B)(ii) violation, the judge said.

Payne further found that Ford failed to cite case law to support its claim that the notes were protected draft reports.

“Moreover, the record here is that the interviews were memorialized in notes,” Payne wrote. “Once those notes were recorded, they were required to be disclosed if the expert considered the information in them in forming his opinions or if they, even in part, were the basis and reason for the opinions.”

Finally, Ford argued the failure to disclose was harmless and substantially justified, which would render the violation moot.

But the judge disagreed, noting that the plaintiffs “should not be expected to have anticipated that Fyie would rely on undisclosed interviews in forming opinions or preparing his reports, or that Fyie would not comply with the clear text of the rules as to disclosure of information that he considered in forming his opinions.”

Payne also found the failure to disclose was not harmless, as “what happened seriously and adversely limits the ability of the Plaintiffs’ counsel to test the legitimacy of Fyie’s opinion.”

Payne thus found it necessary to consider an appropriate sanction and ultimately landed on excluding Fyie’s testimony.

“The rules are clear. The violations are clear. Courts cannot tolerate the clear violation of clear rules,” Payne wrote. “Certainly not where, as here, the obfuscating method frustrates the objects of the rules.”

In a footnote, Payne said “that stiff medicine can be ameliorated by allowing Ford to obtain the services of a different defect expert for the merits of the case if a class is certified or if the case is tried as a non-class action.”

Dolan v. Ford Motor Co.

Issue           Should an expert witness’s testimony be excluded due to a Rule 26(a)(2)(B) violation?

Answer      Yes (Eastern District of Virginia)

Attorneys  Leonard A. Bennett, Drew D. Sarrett, John J. Maravalli, Adam Short and Mark Clifton Leffler, Consumer Litigation Associates; W. Randolph “Rand” Robins IV, Lantz & Robins (plaintiff)
Brian David Schmalzbach, John Stephen Tagert and Perry W. Miles IV, McGuireWoods (defendant)

• Dolan v. Ford Motor Co.

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