Walsh v. LG Chem America

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

Christopher Walsh, ) No. CV-18-01545-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) LG Chem America, et al., ) 12 ) 13 Defendants. ) ) 14 ) 15 Before the Court is Plaintiff’s Motion to Exclude Some Opinions of Defendant’s 16 Design Defect Expert, Richard Marzola. (Doc. 102). The Motion has been fully briefed 17 and is ready for review.1 (Docs. 102, 122, 123). Plaintiff seeks to exclude three specific 18 parts of expert Richard Marzola’s report (“Marzola Report”) and one part of Mr. Marzola’s 19 deposition. (Doc. 102 at 3, 11). The Motion will be denied in part and granted in part, as 20 set forth below. 21 I. BACKGROUND 22 This is a products liability case involving two batteries from a vaping device. (Doc. 23 30 at 2). Plaintiff purchased the vaping device and batteries from Defendant retail smoke 24 shop Oueis Gas, Inc. on October 28, 2015. (Doc. 30 at 2). On November 18, 2016, Plaintiff 25 alleges those same batteries reacted with a set of keys in his right pocket and exploded, 26

27 1 Because it would not assist in resolution of the instant issues, the Court finds the pending motion is suitable for decision without oral argument. See LRCiv. 7.2(f); Fed. R. 28 Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). 1 causing serious burns. (Doc. 30 at 2). Plaintiff filed a complaint against Defendant on May 2 22, 2018, with four counts: (1) negligent design; (2) negligent failure to warn; (3) strict 3 liability/design defect; and (4) strict liability/information defect. (Doc. 30 at 3–4). 4 Following the incident, Plaintiff negligently failed to preserve the batteries and keys 5 as evidence. (Doc. 131 at 5). As a result, Defendant moved for an adverse instruction based 6 on Plaintiff’s spoliation of evidence, which this Court granted. (Doc. 131 at 6). 7 In preparing its case, Defendant consulted Richard Marzola, a senior electrical 8 engineer for SEA, Ltd., as a design defect expert. (Doc. 102-2 at 6). Marzola was asked “to 9 review file materials and determine the cause of the incident and if the battery cell was 10 defective.” (Doc. 102-2 at 6). On July 5, 2020, Marzola issued his report and drew several 11 conclusions, three of which are the subject of this Motion. On June 15, 2021, Marzola was 12 deposed by both parties. Plaintiff seeks to exclude one portion of the deposition. 13 II. LEGAL STANDARD 14 Federal Rule of Evidence (“FRE”) 702 permits parties to file motions to exclude to 15 ensure relevance and reliability of expert testimony. See Kumho Tire Co. v. Carmichael, 16 526 U.S. 137, 152–53 (1999). Courts have a “gatekeeping” function when it comes to 17 expert testimony. Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010), as amended (Apr. 18 27, 2010). “When an expert meets the threshold established by Rule 702 as explained in 19 Daubert, the expert may testify and the jury decides how much weight to give that 20 testimony.” Id. When the expert does not meet the threshold, the Court may prevent her 21 from providing testimony. See Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 22 960, 969 (9th Cir. 2013) (“Basically, the judge is supposed to screen the jury from 23 unreliable nonsense opinions, but not exclude opinions merely because they are 24 impeachable.”). 25 “Evidence is relevant if it has any tendency to make a fact more or less probable 26 than it would be without the evidence and the fact is of consequence in determining the 27 action.” Fed. R. Evid. 401. Reliability is determined separately. “The trial court must first 28 assess whether the testimony is valid and whether the reasoning or methodology can 1 properly be applied to the facts in issue.” Puente v. City of Phx., No. CV-18-02778-PHX- 2 JJT, 2021 WL 1186611, at *1 (D. Ariz. Mar. 30, 2021) (citing Daubert v. Merrell Dow 3 Pharm., Inc., 509 U.S. 579, 592–93 (1993)). “The focus . . . must be solely on [the expert’s] 4 principles and methodology, not on the conclusions that they generate.” Id. (citing Daubert, 5 509 U.S. at 594). 6 III. DISCUSSION 7 In the Motion, Plaintiff seeks to exclude three of Marzola’s conclusions in the 8 report. Plaintiff also seeks to exclude Marzola’s statement made during his deposition. 9 Each will be discussed in turn. A. Marzola’s Conclusion That Identification of Manufacturer and 10 Determination of Cause of Explosion is “Pure Speculation” Without 11 Physical Examination of Incident Cells 12 Marzola’s report concludes that any confirmation of the manufacturer of the 13 incident cells is “pure speculation” without physical examination of the cells. (Doc. 102-2 14 at 6, 20). It also concludes that “it is of the opinion of [this report]” that without 15 examination of the cells “this precludes anyone from determining the manufacturer . . . and 16 the cause of the thermal runaway event.” (Doc. 102-2 at 7, 27). Plaintiff argues these 17 conclusions should be excluded because they “opine on how much weight jurors should 18 assign to certain pieces of fact evidence.” (Doc. 102 at 3). Plaintiff also argues for exclusion 19 under the Daubert standard. (Doc. 102 at 4–5). Finally, Plaintiff argues that the conclusions 20 improperly “diminish the credibility” of fact witnesses Plaintiff Walsh and Lindsay 21 Niziolek (Walsh’s former girlfriend). (Doc. 102 at 5). 22 In arguing that Marzola’s conclusions improperly instruct jurors on the weight of 23 evidence, Plaintiff cites to Dietz v. Waller, 141 Ariz. 107, 685 P.2d 744 (1984). In Dietz, a 24 boat broke apart and the owner sued the maker of the boat under strict liability. Id. at 109, 25 685 P.2d at 746. The issue was whether the plaintiff’s circumstantial evidence at trial was 26 sufficient to submit the case to the jury. Id. at 108, 685 P.2d at 745. The Arizona Supreme 27 Court held that plaintiffs “must be permitted to rely upon circumstantial evidence alone in 28 strict liability cases, because it is unrealistic to expect them to otherwise be able to prove 1 that a particular product was sold in a defective condition.” Id. at 110, 685 P.2d at 747. 2 Plaintiff’s argument is that Marzola’s conclusions—that any manufacturer 3 confirmation or cause determination is “pure speculation” absent physical inspection— 4 violate the Dietz standard by “instruct[ing] the jury” to disregard Plaintiff’s circumstantial 5 evidence. (Doc. 102 at 4). This is a mischaracterization of Dietz. As Dietz relates to this 6 case, it stands only for the proposition that plaintiffs be permitted to rely on circumstantial 7 evidence alone in strict liability cases. Here, the admission of Marzola’s conclusions does 8 not prevent Plaintiff from relying on circumstantial evidence. His conclusions do not 9 require or instruct the jury to disregard the circumstantial evidence. And while his 10 conclusions may contradict the conclusions Plaintiff wishes to be drawn from the 11 circumstantial evidence, this is not equivalent to preventing Plaintiff from relying on 12 circumstantial evidence altogether, which is all that Dietz prohibits. The jury will hear the 13 evidence of both sides—Plaintiff’s circumstantial evidence and the conclusions of 14 Marzola’s report—and will be free to weigh the evidence on its own. This Court holds that 15 Marzola’s conclusions cannot be said to instruct the jury on the weight of evidence. 16 Next, Plaintiff appears to make a Daubert argument for exclusion, though it is 17 unclear just how Marzola’s conclusions violate FRE 702 or the Daubert standard. FRE 702 18 allows an expert witness to testify “in the form of an opinion or otherwise if (1) the expert’s 19 scientific, technical, or other specialized knowledge will help the trier of fact to understand 20 the evidence or to determine a fact issue, (2) the testimony is based on sufficient facts or 21 data, (3) the testimony is the product of reliable principles and methods, and (4) the expert 22 has reliably applied the principles and methods to the facts of the case.” Fed. R. Evid. 702. 23 Meanwhile, Daubert provides factors for trial courts to use in assessing the reliability of 24 expert testimony. Daubert, 509 U.S. at 593–94. 25 Plaintiff’s Motion does not meaningfully address how either of the above 26 conclusions violate FRE 702 or the Daubert standard. It does not argue that Marzola lacks 27 scientific, technical, or other specialized knowledge to help the jury understand the 28 1 evidence.2 Absent argument otherwise, Marzola’s education, experience, certifications, 2 and professional background raise no concerns as to his qualifications. (See Doc. 102-2 at 3 29–30). And his testimony stands to help the jury understand the evidence by explaining 4 how the batteries would have been analyzed and by providing other potential causes of 5 thermal runaway, aside from only manufacturing defects. 6 Plaintiff also does not dispute that Marzola’s conclusions were based on sufficient 7 facts or data, or that they were the product of reliable principles and methods. The report 8 includes a long list of material that Marzola reviewed prior to its preparation. (Doc. 102-2 9 at 9–10). This included the surveillance footage and Plaintiff’s own deposition testimony. 10 Id. The report then details the facts of the incident, provides basic background information 11 on battery cells, and explains “what typical investigative analysis would have been 12 conducted . . . if the battery cells had been retained.” (Doc. 102-2 at 11–22). Absent 13 argument otherwise, the conclusions appear to have been based on sufficient facts and data, 14 and the product of reliable principles and methods. 15 Finally, Plaintiff gives no argument that Marzola’s conclusion was not the result of 16 reliable application of the report’s principles and methods to the facts of this case. It is 17 difficult to see how Plaintiff could even make that argument, given that Marzola’s 18 conclusions are merely that one cannot determine the manufacturer of the incident cells or 19 the cause of thermal runaway without physical inspection of the incident cells. 20 Insofar as Plaintiff makes a Daubert argument, Plaintiff cites to State Farm Fire & 21 Casualty Co. v. Holland, No. CA2007-08-025, 2008 WL 4058094 (Ohio Ct. App. Sept. 2, 22 2008), another case in which Marzola was an expert. In that case, the court excluded 23 Marzola’s opinion because it was “based upon unfounded factual assumptions” made by

24 2 The Court notes that Plaintiff does raise issue with Marzola’s qualifications in his 25 Reply. See Doc. 123 at 2 (“Under Rule 702 . . . he has no qualifications that would assist a jury . . . .”). However, “[i[t is well established in this circuit that courts will not consider 26 new arguments raised for the first time in a reply brief.” Surowiec v. Capital Title Agency, Inc., 790 F. Supp. 2d 997, 1002 (D. Ariz. 2011) (quoting Bach v. Forever Living Prods. 27 U.S., Inc., 473 F. Supp. 2d 1110, 1122 n.6 (W.D. Wash. 2007)). Because Plaintiff waited until the reply brief to raise this issue, Plaintiff has deprived Defendant of any opportunity 28 to respond. Therefore, the Court will not consider this argument. 1 another expert in the case. Id. at *5. Together, the two experts’ opinions “were based upon 2 facts not in evidence” and contradicted the undisputed testimony of eyewitnesses. Id. at 3 *4–*5. This meant their opinions were unreliable under the Daubert standard. Id. 4 Here, Plaintiff does not meaningfully explain how Marzola’s conclusions are 5 similarly flawed. Indeed, it is difficult to see how Marzola’s conclusion—that no 6 conclusions can be drawn absent physical evidence—could be based upon unfounded 7 factual assumptions. Plaintiff implies that Marzola ignored evidence that Defendant “did 8 not like” in making his conclusions. (Doc. 102 at 4–5). The report indicates otherwise, 9 showing that Marzola considered a substantial portion of the record—including the 10 surveillance footage and Plaintiff’s own deposition testimony—in preparing the report. 11 (Doc. 102-2 at 9–10). Plaintiff has not given this Court any discernible reason to question 12 the reliability of Marzola’s conclusions. This Court holds that Marzola’s conclusions as to 13 manufacturer identification and cause determination do not run afoul of FRE 702 or the 14 Daubert standard. 15 Finally, Plaintiff argues Marzola’s conclusions should be excluded because their 16 “primary purpose is to diminish the credibility” of Plaintiff’s fact witnesses, Plaintiff Walsh 17 and Ms. Niziolek. (Doc. 102 at 5). Plaintiff cites various cases holding that expert 18 testimony can be excluded if its primary purpose is to cast doubt on the credibility of fact 19 witnesses because such credibility determinations are left for the jury. (Doc. 102 at 5). 20 None of the legal authority to which Plaintiff cites is persuasive. See, e.g., United States v. 21 Candoli, 870 F.2d 496 (9th Cir. 1989) (dealing with improper character evidence during 22 expert testimony); United States v. Dorsey, 45 F.3d 809 (4th Cir. 1995) (dealing with expert 23 testimony not based on scientific knowledge, flatly contradicting eyewitness testimony, 24 and unhelpful to jury). 25 Here, Marzola’s conclusions are not directly aimed at the credibility, character, or 26 reputation of Plaintiff or Ms. Niziolek. While they may cast doubt on Plaintiff’s theory of 27 the case as presented by Plaintiff’s witnesses, this is quite different than testimony speaking 28 directly to the credibility of Plaintiff’s witnesses through character or reputation evidence. 1 Evidence which tends to undermine or contradict one party’s theory of the case is not 2 necessarily evidence attacking the credibility of that party’s fact witnesses. It is worth 3 noting that Marzola’s conclusions do not even entirely rule out Plaintiff’s theory of the 4 case; Marzola’s conclusion is merely that physical examination is required to make a more 5 definitive conclusion. This Court finds no reason to exclude Marzola’s conclusions on the 6 grounds that their primary purpose is to diminish the credibility of Plaintiff’s fact 7 witnesses. B. Marzola’s Conclusion That a Thermal Runaway Event Can Occur for 8 Various Reasons 9 The report states that a thermal runaway of a battery cell “can occur for various 10 reasons, such as internal short circuit (due to an accident or similar mechanical impact), 11 external short circuit (metal object bridges the positive and negative tabs of the battery 12 cell), overcharging, excessive currents when charging or discharging, thermal abuse 13 (external heating), or a manufacturing defect.” (Doc. 102-2 at 7, 26). First, Plaintiff argues 14 this conclusion should be excluded because it impedes Plaintiff’s right to rely on 15 circumstantial evidence. (Doc. 102 at 6–8). Second, Plaintiff argues for exclusion under 16 the Daubert standard. Id. 17 Plaintiff again cites to Dietz to argue that admitting this conclusion on potential 18 causes of thermal runaway would undercut Plaintiff’s own right to use circumstantial 19 evidence. Id. As explained above, this is a mischaracterization of Dietz. Dietz holds that 20 plaintiffs may rely solely on circumstantial evidence in strict liability cases. 141 Ariz. at 21 110, 685 P.2d at 747. Dietz does not prevent defendants from questioning or rejecting the 22 circumstantial evidence when presenting their own case. Allowing Marzola to suggest 23 other possible causes of the thermal runaway does not prevent Plaintiff from relying solely 24 on circumstantial evidence to prove his own case. The jury will still be permitted to 25 consider, and believe, Plaintiff’s circumstantial evidence. 26 Next, Plaintiff argues Marzola’s conclusion on potential causes of thermal runaway 27 violates Daubert. (Doc. 102 at 6–8). Plaintiff again does not challenge the reliability of 28 1 Marzola’s conclusion with respect to any specific Daubert factor nor under any specific 2 provision of FRE 702. Instead, Plaintiff argues the conclusion is unreliable under Daubert 3 because it lists only “possibilities” and invites the jury to speculate on possible, but not 4 probable, causes. (Doc. 102 at 5, 8). In support, Plaintiff cites to cases in which expert 5 testimony was excluded because it lacked the evidentiary foundation to allow a jury to find 6 it more likely than not to be true. (Id. at 6–7). In essence, the argument is that when an 7 expert speculates as to possibilities, as opposed to probabilities, the testimony is unreliable 8 under Daubert. 9 For example, in Kalamazoo River Study Group v. Rockwell International Corp., 171 10 F.3d 1065, 1070 (6th Cir. 1999), the expert opined that the defendant contributed to the 11 pollution of a lake. The court excluded the opinion because it was based on “speculation, 12 conjecture, and possibility.” Id. at 1072. This “inadequate factual basis” made the 13 testimony scientifically unreliable under Daubert, which requires a court to “look beyond 14 the conclusions [of the experts] to determine whether the expert testimony rests on a 15 reliable foundation.” Id. Similarly, in Nemir v. Mitsubishi Motor Sales Corp. of America, 16 60 F.Supp.2d 660, 663 (E.D. Mich. 1999), an expert sought to testify that it was possible 17 for the plaintiff’s seatbelt to have become “partially latched.” This meant that the seatbelt 18 looked to be properly latched, but nonetheless came free during the automobile accident. 19 Id. The court excluded the testimony under Daubert because the expert demonstrated that 20 partial latching was merely one possible explanation. Id. at 671–72. The court found that 21 the expert’s theory was missing “empirical evidence that would at least tend to eliminate 22 some of the universe of other possible causes.” Id. at 672. 23 These cases are inapposite to the present case. In Kalamazoo and Nemir, the experts 24 were concluding that one specific possibility was more likely than others. In contrast, 25 Marzola does not conclude that any of the potential causes of thermal runaway were more 26 likely to be the cause than the others. His conclusion simply lists the various possible 27 causes, and then states that he cannot opine as to one being more likely than any of the 28 others without physical inspection of the incident cells. (Doc. 102-2 at 26). Importantly, 1 Marzola does not rule out a manufacturing defect as a cause either; he includes it among 2 the various possibilities. Id. Additionally, in Kalamazoo and Nemir, there were significant 3 reasons to question whether the experts’ conclusions rested on reliable factual foundations. 4 Here, Plaintiff gives no compelling reason to question whether Marzola’s conclusion rests 5 on a reliable foundation. In part, this is due to the inconclusive nature of his conclusion. 6 Had Marzola’s conclusion speculated that one possible cause was more likely than the 7 others, it might be fair to question its evidentiary foundation as the courts did in Kalamazoo 8 and Nemir. 9 In the Reply, Plaintiff notes that circuit courts “hold uniformly that even if an expert 10 testifies that a source is a probable cause of a fire, if the Court . . . determines that the 11 evidence renders the source a possibility and not a probability, the testimony is 12 inadmissible.” (Doc. 123 at 4 (citations omitted)). This principle is inapplicable to the 13 present case. Marzola’s conclusion does not assert that any one of the possible causes of 14 thermal runaway were more possible or more probable than any of the others. Thus, it 15 cannot be said that Marzola’s conclusion should be excluded for lack of evidentiary 16 support. Indeed, the very crux of Marzola’s conclusion is that without the physical 17 evidence, he cannot conclude that one potential cause was more or less likely than any of 18 the others. Had Marzola been more conclusive as to the probable cause, a more robust 19 evidentiary foundation would be needed to back it up. 20 Plaintiff argues that allowing this testimony “would give a defendant unlimited 21 leeway” and that Marzola could just as easily testify “that the explosion in Plaintiff’s 22 pocket may have been caused by a tiny meteor moving too fast for the naked eye or a gas 23 leak.” (Doc. 123 at 5). This exaggeration mischaracterizes what Marzola concludes. 24 Marzola lists recognized, scientific causes of thermal runaway. Had he included a tiny 25 meteor as a potential cause, there would surely be reason to question the conclusion’s 26 evidentiary foundation. Instead, the possible causes of thermal runaway that Marzola listed 27 were those which were, according to his expertise, scientifically accepted causes such as 28 internal and external short circuits, overcharging, and manufacturing defects. 1 It appears that Plaintiff takes issue with Marzola’s conclusion to the extent that it 2 does not agree with Plaintiff’s theory of the case. With the physical evidence missing, the 3 parties have before them only circumstantial evidence. The parties agree that thermal 4 runaway caused the explosion. Plaintiff believes that the circumstantial evidence is enough 5 to conclude that the thermal runaway was caused by a manufacturing defect. Defendant, 6 through Marzola, considered the same circumstantial evidence and concluded that it is 7 impossible to know what caused the thermal runaway without inspection of the incident 8 cells. In essence, Plaintiff asks this Court to exclude Marzola’s conclusion not because it 9 lacks a reliable foundation under Daubert, but because it does not go as far as Plaintiff’s 10 conclusion on the same evidence. Such a request is not supported by the Daubert standard. C. Marzola’s Conclusion That LG HG2 Battery Cells Do Not Contain a Design 11 Defect 12 The report states that “[i]t is the opinion of S-E-A that the LG HG2 battery cells do 13 not contain a design defect. The LG HG2 battery cells were tested in accordance with UL 14 1642 and IEC 62133:2012 Standards and met all of the requirements of both the UL 1642 15 and IEC 62133:2012 Standards when manufactured.” (Doc. 102-2 at 7, 27). Plaintiff 16 contends that Marzola’s opinion on defectiveness should be excluded because it is solely 17 based on two private standards and does not employ Arizona’s legal tests for defectiveness. 18 (Doc. 102 at 8–10). Plaintiff argues this misstates the standard to Defendant’s benefit and 19 invades the province of the judge and jury. (Doc. 102 at 10). 20 In the Motion, Plaintiff identifies the appropriate tests for proving a design defect 21 under Arizona law: the risk/benefit analysis and the consumer expectation test. Brethauer 22 v. Gen. Motors Corp., 221 Ariz. 192, 198, 211 P.3d 1176, 1182 (Ct. App. 2009). Plaintiff 23 then argues that Marzola’s conclusion in the report—that the batteries are not defective 24 because they satisfy UL and IEC standards—should be excluded because it fails to 25 reference or conduct any of the analysis under either Arizona test. (Doc. 102 at 9–10). 26 This Court rejects this argument because Plaintiff provides no legal authority—in 27 either of its briefings—that stands for the proposition that an expert testifying as to design 28 1 defect must structure his conclusion in accordance with the state’s legal tests for design 2 defect. The risk-benefit and consumer expectation tests lay out what the fact-finder must 3 find for a manufacturer to be held strictly liable for injuries caused by a defective and 4 unreasonably dangerous product. Brethauer, 221 Ariz. at 198, 211 P.3d at 1182. This Court 5 is unaware of any legal authority holding that the risk-benefit and consumer expectation 6 tests further dictate what an expert can and cannot testify to in a design defect case. 7 To determine the admissibility of expert testimony, the relevant guideposts are FRE 8 702 and the factors of reliability as provided by Daubert. Fed. R. Evid. 702; Daubert, 509 9 U.S. at 579. Plaintiff makes no meaningful argument that Marzola’s opinion on 10 defectiveness should be excluded for failure to meet the Daubert standard. The only 11 mention of Daubert comes in the final sentence of this section of the Motion’s argument. 12 (Doc. 102 at 11). To the extent that any Daubert argument exists, this Court sees no obvious 13 issues with the reliability or relevancy of Marzola’s testimony. While his report may not 14 address risks, benefits, or consumer expectations, it explains the UL and IEC standards and 15 details the tests that the batteries undergo in order to comply with those standards. (Doc. 16 102-2 at 24–25). Such testimony could prove helpful to a jury applying the risk-benefit or 17 consumer expectation tests. As such, Plaintiff has not given this Court any compelling 18 reason to exclude Marzola’s opinion on defectiveness. 19 D. Marzola’s Deposition Opinion on Battery Life and Vaping Frequency 20 In his deposition, Marzola stated that Plaintiff “seems to be a pretty heavy vaper” 21 and that from Marzola’s experience “having a 13-month-old battery still performing as 22 [Plaintiff] describes . . . is something that I can’t grasp . . . I just don’t have experience 23 where a battery has lasted that long in this type of device.” (Doc. 102-6 at 8). Plaintiff first 24 argues this deposition opinion should be excluded because it was untimely disclosed. (Doc. 25 102 at 12–13). Second, Plaintiff argues for its exclusion because its primary purpose is to 26 undermine the credibility of a fact witness. Id. 27 As to timeliness, the parties first dispute when Marzola’s opinion on battery life and 28 vaping frequency was disclosed to Plaintiff. Plaintiff asserts that disclosure did not occur 1 until Marzola’s deposition on June 15, 2021. (Doc. 102 at 11). Defendant asserts that 2 disclosure occurred prior to Marzola’s deposition, in the form of FDA materials in the 3 possession of Plaintiff and his experts. (Doc. 122 at 12–13). The materials related to a 2017 4 FDA hearing on the safety of batteries in the vaping context and to FDA regulatory actions 5 in the vaping industry. Id. The hearing supposedly included discussion on the issue of 6 battery life. Id. at 12. 7 Defendant argues that Plaintiff’s possession of these materials proves Plaintiff was 8 aware of the issue well before the deposition. Id. Specifically, Defendant notes that 9 Plaintiff’s rebuttal expert, James Miller, had materials and articles referring to the FDA’s 10 regulatory actions related to batteries in vaping products in his file and on his website. Id. 11 Additionally, Defendant claims that materials related to FDA regulation of the vaping 12 industry were presented to Plaintiff’s causation expert Chet Sandberg during his deposition 13 on March 21, 2021. Id. Finally, Defendant claims that FDA materials, including hearing 14 transcripts, were provided directly to Plaintiff in advance of Miller’s deposition, which was 15 scheduled two weeks prior to Marzola’s deposition. Id. at 12–13. 16 In the Reply, Plaintiff denies altogether that the FDA materials addressed the issue 17 of battery life and vaping frequency and that Defendant offered no evidence to the contrary. 18 (Doc. 123 at 6). Plaintiff thus argues that even if these FDA materials were in Plaintiff’s 19 possession prior to Marzola’s deposition, this would not have constituted a disclosure of 20 Marzola’s opinion. Id. Indeed, the only evidence Defendant offers related to the contents 21 of the FDA materials is a footnote citation to Miller’s website, (see Doc. 122 at 12 n.6), 22 and a comment by Marzola at his deposition. (Doc. 122 at 13). The website references FDA 23 regulations, but makes no mention of the FDA hearing or the issue of battery life and 24 vaping frequency. (Doc. 122 at 12 n.6). Marzola’s deposition comment indicates that 25 “[s]everal of the speakers” at the FDA hearing discussed “that they would be surprised in 26 a vaping setting that a battery would last much more than six months and at the most maybe 27 a year.” (Doc. 122-2 at 8). Without stronger evidence that Marzola’s specific opinion on 28 battery life and vaping frequency was addressed at the FDA hearing and in the FDA 1 materials, this Court cannot find that Defendant disclosed the opinion prior to the 2 deposition.3 The Court will thus treat the disclosure as having occurred at Marzola’s 3 deposition. 4 The next issue to resolve is whether disclosure at Marzola’s June 15 deposition was 5 untimely. Federal Rule of Civil Procedure (“FRCP”) 26 requires all testifying experts to 6 provide a written report containing “a complete statement of all opinions the witness will 7 express and the basis and reasons for them [and] the facts and data considered by the 8 witness in forming them.” Fed. R. Civ. Pro. 26(a)(2)(B)(i)–(ii). If an expert opinion is not 9 included in the report but is later disclosed to the opposing party, FRCP 37 gives trial courts 10 the discretion to exclude the untimely disclosed evidence. Fed. R. Civ. Pro. 37(c)(1). 11 Here, there is no dispute that Marzola’s opinion on battery life and vaping frequency 12 was not included in his July 2020 expert report. The question then is whether a disclosure 13 of that opinion during Marzola’s deposition nearly a year later is untimely. Plaintiff, of 14 course, argues that it is and cites to two cases in support. Neither is helpful because both 15 dealt with expert opinions that were disclosed for the first time during trial. See S. States 16 Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 595 (4th Cir. 2003) 17 (upholding district court’s exclusion of expert’s opinion that was disclosed for first time 18 during trial); Bearint ex rel. Bearint v. Dorell Juv. Grp., 389 F.3d 1339 (11th Cir. 2004) 19 (upholding district court’s exclusion of expert report that plaintiffs had waited until trial to 20 submit). Here, Marzola’s opinion on battery life and vaping frequency was disclosed 21 during his deposition on June 15, 2021. (Doc. 102-6 at 8–10). Although discovery has 22 concluded (Doc. 92), this Court has yet to rule on dispositive motions, let alone set a date 23 for trial. Plaintiff’s cases dealing with disclosures during trial are therefore inapposite to 24 the present case. 25 Defendant argues that Marzola’s opinion on battery life and vaping frequency is

26 3 Even if the FDA materials did mention the battery life and vaping frequency issue, 27 Rule 26(a)(4) requires that “all disclosures under Rule 26(a) must be in writing, signed, and served.” Defendant does not contend that it disclosed Marzola’s opinion in a signed 28 writing that was served on Plaintiff. 1 intended “solely for impeachment” and therefore did not need to be disclosed at all. (Doc. 2 122 at 13). It is true that FRCP 26 does not require disclosure of evidence intended “solely 3 for impeachment.” Fed. R. Civ. Pro. 26(a)(1)(A)(i)–(ii), (a)(3)(A). However, only evidence 4 that is solely for impeachment purposes is excluded from the disclosure requirement; if 5 evidence has both impeachment and substantive purposes, it must be disclosed. See, e.g., 6 Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 517–18 (5th Cir. 1993); Elion v. 7 Jackson, 544 F.Supp.2d 1, 6–7 (D.D.C. 2008). Whereas impeachment evidence is 8 “[e]vidence used to undermine a witness’s credibility,” substantive evidence is that 9 “offered to help establish a fact in issue, as opposed to evidence directed to impeach or to 10 support a witness’s credibility.” Black’s Law Dictionary (9th ed. 2009); see also Newsome 11 v. Penske Truck Leasing Corp., 437 F.Supp.2d 431, 435 (D. Md. 2006) (“Statements are 12 useful as substantive evidence if they relate to a plaintiff’s prima facie case or a defendant’s 13 affirmative defenses. Impeachment evidence is used to encourage the trier of fact to look 14 critically at whether the evidence should be believed. In the ordinary case, impeachment 15 evidence has no substantive purpose.”). 16 Here, Marzola’s opinion on battery life and vaping frequency has both impeachment 17 and substantive purposes. As to impeachment, the opinion tends to undermine Plaintiff’s 18 credibility as to the batteries at issue—that is, it contradicts Plaintiff’s testimony that the 19 batteries in his pocket were the same batteries he purchased from Defendant. Substantively, 20 Marzola’s opinion helps to establish a fact in issue: whether the batteries involved in the 21 incident were the same LG HG2 18650 batteries that Defendant sold to Plaintiff. 22 Defendant’s liability in this case depends on the jury’s finding on this fact, especially given 23 that the actual batteries from the incident are no longer available. Given the clear 24 impeachment and substantive purposes for Marzola’s opinion, disclosure of the opinion 25 was required. And because the opinion was disclosed during Marzola’s deposition, nearly 26 a year after his expert report and after the close of discovery,4 this Court finds that

27 4 Although Plaintiff claims the opinion was disclosed “less than a week” before the 28 close of discovery, (see Doc. 123 at 7), the record indicates that Marzola’s June 15 1 disclosure was untimely. 2 Even where a party fails to make the disclosures required by FRCP 26(a), the 3 evidence can nonetheless be admitted if the failure to disclose was substantially justified 4 or harmless. Fed. R. Civ. Pro. 37(c)(1); see also Yeti by Molly, Ltd. v. Deckers Outdoor 5 Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). The burden is on the party facing exclusion— 6 here, Defendant—to establish that the failure to disclose was substantially justified or 7 harmless. See Yeti, 259 F.3d at 1107; see also Reilly v. Wozniak, No. CV-18-03775-PHX- 8 MTL, 2020 WL 1151053, at *2 (D. Ariz. Mar. 10, 2020). “Among the factors that may 9 properly guide a district court in determining whether a violation . . . is justified or harmless 10 are: (1) prejudice or surprise to the party against whom the evidence is offered; (2) the 11 ability of that party to cure the prejudice; (3) the likelihood of disruption of the trial; and 12 (4) bad faith or willfulness involved in not timely disclosing the evidence.” Lanard Toys 13 Ltd. v. Novelty, Inc., 375 Fed.Appx. 705, 713 (9th Cir. 2010) (citing David v. Caterpillar, 14 Inc., 324 F.3d 851, 857 (7th Cir. 2003)). 15 Here, Defendant does not attempt to justify the untimely disclosure but does argue 16 that it was harmless. (Doc. 122 at 13). As to the factors, there is no evidence that Defendant 17 acted in bad faith or willfully in failing to timely disclose. Additionally, given that a trial 18 date has not even been set, the likelihood of trial disruption is low. Whether or not 19 Defendant’s untimely disclosure was harmless or not, then, depends on the first two factors: 20 prejudice or surprise to Plaintiff and Plaintiff’s ability to cure that prejudice. To the first, 21 Defendant argues that Plaintiff has not been unfairly prejudiced by Marzola’s opinion and 22 that Plaintiff does not explain what he could have done differently had the opinion been in 23 Marzola’s report. Id. Second, Defendant then argues that Plaintiff still has plenty of time 24 to explore the testimony because trial remains months away. Id. Specifically, Defendant 25 states that Plaintiff “has ample opportunity to ‘cure’ any supposed surprise before trial.” 26 (Doc. 122 at 14).

27 deposition took place after both the deadlines to complete expert depositions and discovery. (See Doc. 92 (noting “[e]xpert depositions must be completed by March 19, 2021” and that 28 “[d]iscovery shall be completed by April 2, 2021”)). 1 To an extent, this Court agrees with Defendant. It is true that Plaintiff will have had 2 time to overcome some of the prejudicial effects of the untimely disclosure before trial. For 3 example, Plaintiff will have had ample time to modify his direct and cross examinations of 4 the witnesses in this case, including Marzola. And caselaw indicates that a significant 5 length of time between the disclosure and trial is sometimes enough for a finding of 6 harmlessness. See, e.g., Los Flamboyanes Apartments, Ltd. Dividend P’ship v. Triple-S 7 Propiedad, Inc., No. 18-1997(RAM), 2021 WL 1201411, at *6 (D.P.R. Mar. 30, 2021) 8 (denying motion to exclude expert testimony first disclosed at deposition because 9 defendant could “overcome any supposed adverse effects of . . . non-disclosure before 10 trial,” which was set a year after deposition); Cabassa-Rivera v. Mitsubishi Motors Corp., 11 No. 05-1217(JAF), 2006 WL 6870560, at *12 (D.P.R. 2006) (denying motion in limine to 12 preclude an expert from testifying about matters in their deposition that were not in the 13 expert’s reports); Thibeault v. Square D Co., 960 F.2d 239, 246–47 (1st Cir. 1992) (“While 14 the introduction of expert testimony ‘on the eve of trial’ could warrant preclusion, the 15 deposition surprises here were hardly the sort of ‘eleventh-hour’ changes that could be 16 considered ‘harmful.”). 17 However, Plaintiff has noted other ways in which he has been prejudiced, none of 18 which can necessarily be cured before trial. For example, had the opinion been timely 19 disclosed, Plaintiff claims that he would have “(1) addressed vaping volume directly with 20 his client on the record at deposition; (2) prepared his expert to address the claim in his 21 report and rebuttal report; (3) prepared his expert for the argument at deposition; (4) made 22 a record on usage with Lindsey Niziolek at deposition; and (5) hired a rebuttal expert to 23 address the opinion directly.” (Doc. 123 at 7). Because Defendant disclosed Marzola’s 24 opinion on battery life and vaping frequency so late in the process—after the deadlines to 25 depose experts and to complete discovery—Plaintiff cannot hire a rebuttal expert or 26 meaningfully depose witnesses on the issue unless the Court reopens discovery, an 27 expensive and time-intensive solution. Other courts have rejected claims of harmlessness 28 under similar circumstances. See, e.g., SiteLock LLC v. GoDaddy.com LLC, No. CV-19- 02746-PHX-DWL, 2021 WL 2895503, at *11 (D. Ariz. July 9, 2021) (citing Apple, Inc. v. 2| Samsung Elecs. Co., Ltd., No. 11-CV-01846-LHK, 2012 WL 3155574, at *5 (N.D. Cal. 3) Aug. 2, 2012), for proposition that “late disclosure [was] not harmless, even though it 4} occurred ‘before the close of expert discovery,’ because ‘the experts were in effect locked- 5| in to the factual record as of the time fact discovery closed and could not test the factual basis for the newly amended contentions by conducting additional discovery’). 7 Defendant has not met its burden in establishing that its untimely disclosure of 8 | Marzola’s opinion on battery life and vaping frequency was justified or harmless. This 9 | Court finds that exclusion of Marzola’s opinion is warranted under FRCP 37(c)(1) because 10 | Plaintiff was prejudiced by its untimely disclosure and because that prejudice cannot easily 11 | be cured by Plaintiff before trial.° 12 IV. CONCLUSION 13 Therefore, 14 IT IS ORDERED that Plaintiff Walsh’s Motion to Exclude (Doc. 102) is denied 15 | as to the opinions and conclusions drawn in Marzola’s report and granted as to Marzola’s 16 | deposition statement related to battery life and vaping frequency. 17 Dated this 13th day of September, 2021. 18

20 United States District Judge 21 22 23 24 25 26 27 ° Since Marzola’s deposition opinion is excluded for its untimely disclosure, the 28 | ndermining the credibility of a fact witness. nat TY Should Be excluded for