KEVIN WILHELM, Plaintiff, v. AMERISTEP CORP., et al. Defendants Civil Action No. 7:15-cv-00362 United States District Court, W.D. Virginia Filed December 02, 2018 Counsel Kristopher Robert Olin, Spicer Law Firm, P.C., Blacksburg, VA, Peter E. Ferraro, Pro Hac Vice, The Ferraro Law Firm, Robert R. Swafford, Pro Hac Vice, Strike for Cause Trial Consultants, Austin, TX, Nathan Douglas Pearman, Hartline Dacus Barger Dreyer LLP, Dallas, TX, for Plaintiff. Bishop A.L.E. Bartoni, Pro Hac Vice, Stephanie M. Anderson, Pro Hac Vice, Clark Hill, PLC, Birmingham, MI, Joshua David Goad, Kenneth J. Ries, Johnson, Ayers & Matthews PLC, Roanoke, VA, Milton Stanley Karfis, Pro Hac Vice, Clark Hill PLC, Detroit, MI, for Defendant Ameristep Corp. Bishop A.L.E. Bartoni, Pro Hac Vice, Stephanie M. Anderson, Pro Hac Vice, Clark Hill, PLC, Birmingham, MI, Joshua David Goad, Kenneth J. Ries, Benjamin David Johnson, Johnson, Ayers & Matthews PLC, Roanoke, VA, Milton Stanley Karfis, Pro Hac Vice, Clark Hill PLC, Detroit, MI, for Defendant Dick's Sporting Goods. Bishop A.L.E. Bartoni, Pro Hac Vice, Clark Hill, PLC, Birmingham, MI, Joshua David Goad, Kenneth J. Ries, Benjamin David Johnson, Johnson, Ayers & Matthews PLC, Roanoke, VA, Milton Stanley Karfis, Clark Hill PLC, Detroit, MI, for Defendant Primal Vantage Company, Inc. Dillon, Elizabeth K., United States District Judge ORDER *1 At the pretrial conference held in this case on November 29, 2018, the court issued rulings on a number of outstanding motions, objections to deposition designations, objections to witnesses and exhibits.[1] There were several issues, however, that the court took under advisement, either to look at more closely or to await additional information from the parties. Subsequent to the hearing, the parties filed some supplemental information and briefing (Dkt. Nos. 228, 230, 232, 234, 235, 237), and plaintiff also filed a motion to reconsider (Dkt. No. 229), to which defendants have responded. That motion, as well as all the remaining issues from the pretrial conference, are discussed briefly below. 1. Defendants' motion in limine to exclude any “new” evidence or expert opinion testimony by Drs. West and Dowling that were not timely disclosed (Dkt. No. 184) In this motion (as clarified and limited at the pretrial conference and in subsequent briefing), defendants seek to exclude a number of 3-D animations that were the result of Dr. West's model and its associated data. It is undisputed that the raw data that produces those animations was produced to defendants, although the animations themselves were not separately provided, at least not in a format that was immediately viewable without specific software. Had defendants paid for a license for the software that runs the model—a license that plaintiff apparently paid for and that costs approximately $5,000, according to counsel—they could have seen the animations, but they did not obtain that software. The animations themselves were not produced separately as videos or shown to defense counsel at any point prior to the pretrial conference. Plaintiff's counsel explained, however, that he was unaware that defendants had been unable to view them or that defendants did not have the appropriate software to do so. The court attributes this unfortunate situation to a miscommunication in which the parties were working under different impressions or definitions of the word “model.” In short, the record suggests that Dr. West's references to a “model” were meant to encompass all of his data and all of its results, which is the 3D model shown in various animations, while defendants reasonably appeared to believe that the term “model” referred to the formulas and analysis and static images, but did not understand it to include animations that directly result from that formula. So, the court is now faced with a situation in which plaintiff did not fail to disclose the information, but defendant—due to a miscommunication not the clear fault of any party—had not realized that the data produced contained animations and so had not questioned Dr. West or Dr. Dowling about it or otherwise offered a response to the animations. The court does not believe exclusion is warranted because plaintiff did produce the information, albeit in a format that required defendants to take additional steps to view it. As an alternative to exclusion, defendants ask that the court “adjourn trial and reopen expert discovery” to allow necessary discovery related to this “new” evidence. (Dkt. No. 185 at 8.) As the court stated at the pretrial conference, it is not going to continue the trial. This case has been pending for more than three years, and it has been continued on a number of occasions to accommodate one party or another. At some point, a case must be tried—postponements cannot continue indefinitely. Moreover, according to defendants, they learned of the existence of some type of animation “last month” (at a mediation). They apparently failed to obtain additional information, inquire further about it, or file any motion related to the animation. Based on this, the court concludes that defendants have not shown that they acted with sufficient promptness so as to warrant a continuance. Nonetheless, the court also concludes that defendants could be prejudiced if they did not have the opportunity to question Dr. West concerning those animations prior to his testimony. *2 Considering all of this, the court DENIES the motion in limine (Dkt. No. 184), and it denies any request to continue the trial outright. However, the court will direct plaintiffs to make Dr. West available prior to his being called as a witness at trial, for a brief deposition limited in scope to questions concerning the animations. Until that time, plaintiff is not to utilize the animations at trial. In the event that the parties cannot agree on a time outside of normal trial hours to conduct the deposition, the court will consider a very brief hiatus in trial proceedings.[2] 2. Defendants' motion in limine for sanctions against plaintiff, including dismissal or a negative inference, for spoliation of evidence (Dkt. No. 182), and the related motion by plaintiff for reconsideration (Dkt. No. 229) The court has carefully considered all the filings of the parties on this issue. The court first addresses plaintiff's motion for reconsideration. At the pretrial conference, the court stated—in response to plaintiff's counsel's suggestion that Wilhelm could provide an affidavit setting forth some background facts—that it would not consider new evidence not previously provided to defendants, which would include a new affidavit from plaintiff. Plaintiff's motion to reconsider asks the court to reconsider that ruling and includes a proffered affidavit by Wilhelm. The motion also requests, in the alternative, that the court deny the dismissal relief sought in the motion for sanctions and take under advisement any adverse inference instruction pending the evidence at trial. The court DENIES the motion for reconsideration (Dkt. No. 229). As the court noted at the hearing, the time for plaintiff to respond to defendants' motion was in his written response and at the hearing. It is patently unfair to allow evidence and statements by Mr. Wilhelm that defendants have not had the opportunity to review or challenge in order to support this important motion. Even if plaintiff's counsel believed the motion to be without merit, counsel should have considered that the court might take a different view and respond accordingly. In short, the court sees no basis to grant reconsideration under Rule 60. Accordingly, it will not consider the affidavit in ruling on defendants' motion, although it will consider the additional documents (emails, etc.) which were produced in discovery and provided to the court in a supplemental brief. With regard to defendants' motion (Dkt. No. 182), it is DENIED WITHOUT PREJUDICE. Notably, the court cannot give an adverse inference instruction unless there is a “showing that [Wilhelm] knew the evidence was relevant to some issue at trial and that his willful conduct resulted in its loss or destruction.” See Callahan v. Pacific Cycle, Inc., ___ F. App'x ___, 2018 WL 6131783, at *8 (4th Cir. Nov. 21, 2018) (quoting Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 155–56 (4th Cir. 1995)). Even though plaintiff failed to make the argument that he did not realize the evidence was relevant in his initial memorandum in opposition or at the hearing, he has now made the argument, and the court must nonetheless make such a finding in order to give an adverse inference instruction. Here, the first part of that inference lacks support. It is clear that Wilhelm failed to preserve the evidence within his control of the position of the tree step in the tree, which has become a hotly disputed and important issue in the case. The tree step broke into two pieces. The tip remained imbedded in the tree. An examination of the position of this tip in the tree would likely have revealed whether the tree step was fully or partially inserted into the tree. Wilhelm failed to maintain the physical evidence that would have clearly shown how far the tree step was inserted, and he failed to take any photographs or otherwise preserve any evidence reflecting the tree step's position in the tree. It is also clear that Wilhelm had ample opportunity to preserve that evidence: the chunk of tree with the embedded tree step sat in his garage for over a year before the tree dried out and split. Wilhelm then removed the tip of the tree step and preserved it. *3 Wilhelm did take steps to preserve both parts of the broken tree step, and defendants' experts had the opportunity to conduct destructive testing on the tree step and to otherwise examine it. Critically, though, no showing has been made that Wilhelm knew or should have known, at the time of his failure to preserve, that the step's position in the tree—as opposed to the broken parts of the step itself—was relevant. Accordingly, not only is there an absence of bad faith, but there is also an insufficient showing at this time that Wilhelm “knew the evidence was relevant to some issue at trial.” See Vodusek, 71 F.3d at 155–56. In light of this, the court will not rule at this time that a spoliation instruction will be given. Moreover, had there been evidence that Wilhelm knew or should have known that the evidence of the tree step's position in the tree was relevant, the court still would not dismiss the case, because it finds that the standard for dismissal has not been met. In order to impose the “severe” and “ultimate sanction for spoliation,” the court must “be able to conclude either (1) that the spoliator's conduct was so egregious as to amount to a forfeiture of his claim, or (2) that the effect of the spoliator's conduct was so prejudicial that it substantially denied the defendant the ability to defend the claim.” Silvestri v. General Motors Corp., 271 F.3d 583, 593 (4th Cir. 2001). While “bad faith” is not required for dismissal in the Fourth Circuit, “dismissal should be avoided if a lesser sanction will perform the necessary function.” Silvestri, 271 F.3d at 590, 593. Having carefully considered the record before the court, the court finds no evidence of bad faith on the part of Wilhelm, as already noted. As to the second prong, the court agrees with defendants that there has been some prejudice to them from Wilhelm's failure to preserve the evidence, but the court does not find that it was so prejudicial as to substantially deny defendants their ability to defend the claim. While defendants have been deprived of the best evidence as to whether the step was fully inserted, defendants have nonetheless been able to obtain expert opinions that support their contention that it was not fully inserted, and there is some physical evidence remaining to support that contention, as well. For all of these reasons, defendants' motion is DENIED, but WITHOUT PREJUDICE. In the event the trial evidence differs from the evidence before the court now, the court will consider a renewed motion regarding a spoliation sanction. 3. Plaintiff's motion to exclude evidence of other hunting products The court had previously taken under advisement the portion of plaintiff's motion in limine seeking to exclude evidence about the warnings and manuals associated with the safety harness and tree stand, with which plaintiff was familiar or which he was using. While the court believed that evidence was relevant to a contributory negligence defense, it wanted also to ensure that the evidence was relevant to a misuse defense, in light of plaintiff's dismissal of his negligence claim. The court now concludes—consistent with its rulings on summary judgment and Daubert motions (Dkt. No. 233 at 30, 39–40)—that such evidence is admissible. Thus, that portion of plaintiff's motion in limine (Dkt. No. 189) is DENIED. 4. Objections to Deposition Designations The court had previously taken under advisement some of the objections to deposition designations. With regard to those, the court ORDERS as follows: a. Defendants' objection to Jerner's testimony at 15:14 through 20:15 is OVERRULED. That testimony is allowed. b. Defendants' objection to Krehel's testimony at pages 99:2 through 101:14 is SUSTAINED IN PART and OVERRULED IN PART. Specifically, the testimony at 99:2–19 is allowed; the remainder of that designation is excluded. *4 c. Defendants' objection to Eckman's testimony at 62:12–15 is SUSTAINED. That testimony is excluded. d. As noted at the conference, the parties should provide any authority or additional argument regarding the admissibility of testimony and evidence of disability or pension benefits received by Wilhelm or his wife before such evidence is offered. It should not be mentioned in the case prior to that time. e. As noted at the conference, the parties are to confer regarding plaintiff's objections to counter-designations and requests for additional testimony under the doctrine of completeness. Any remaining issues may be brought to the court's attention prior to or during trial. Lastly, the court may revisit any of its pretrial evidentiary rulings, depending on the evidence elicited at trial and the context in which the evidence is offered. The clerk shall provide a copy of this order to all counsel of record. Footnotes [1] The court's oral rulings are set forth in the minute entry from the pretrial conference. (Dkt. No. 231). [2] The parties are advised that the court's schedule will not allow trial proceedings to occur on the afternoon of Friday, December 7, 2018, so there may be an opportunity for the deposition to occur then, depending on the planned presentation of plaintiff's evidence.