Casey Voigt v. U.S. E.P.A.

United States Court of Appeals
For the Eighth Circuit
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No. 21-2898
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Elizabeth Zick, Administrator of the Estate of Michael Gerald Wood
lllllllllllllllllllllPlaintiff - Appellant
Jacqueline Wood
lllllllllllllllllllllPlaintiff
v.
Paccar, Inc.
lllllllllllllllllllllDefendant - Appellee
Peterbilt Motors Company, a division of PACCAR Inc.; Unknown Fabricators and
Manufactures
lllllllllllllllllllllDefendants
JMJ Equipment Transport, Inc.
lllllllllllllllllllllClaimant
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Appeal from United States District Court
for the Northern District of Iowa - Eastern
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Submitted: May 10, 2022
Filed: August 26, 2022

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Before COLLOTON, WOLLMAN, and SHEPHERD, Circuit Judges.
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WOLLMAN, Circuit Judge.
Michael Gerald Wood was severely injured in a crash while he was driving a
Peterbilt semi-truck.1 He sued the truck’s manufacturer, PACCAR, Inc. (PACCAR),
alleging that the truck’s defective design caused his injuries. A jury returned a
verdict in PACCAR’s favor. His estate appeals, arguing that the district court2
committed several evidentiary errors at trial. We affirm.
I. Background
Wood was driving the semi-truck through an intersection in Dubuque, Iowa,
when it collided with another vehicle, slid to the corner of the intersection, and
crashed into a light pole. Upon impact, the light pole forced the cab inward around
Wood, causing extensive injuries to his lower extremities. Wood’s state-court lawsuit
was removed to federal court. The suit’s primary theory was that Wood’s injuries
were caused by the truck’s lack of two safety features: (1) a steel-reinforced bumper
or steel bar called a front-underride protection system and (2) a strengthened cab.
1Michael Gerald Wood died during the pendency of this appeal. Elizabeth
Zick, administrator of Wood’s estate, was substituted as a party pursuant to Federal
Rule of Appellate Procedure 43(a)(1).
2The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
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The case proceeded to discovery, which was overseen by a magistrate judge.3
Following initial depositions, the magistrate judge granted Wood’s motion to compel
additional depositions of two PACCAR employees, Larry Bean and Anthony
Weiblen. Wood then moved to extend the discovery deadline to permit his expert,
Dr. Andreas Vlahinos, to update his expert report to incorporate any new testimony.
The magistrate judge granted the motion, but required that the new report identify
with particularity the portions of the new depositions that enabled Dr. Vlahinos to
complete additional analysis.
Dr. Vlahinos’s second report contained a written description of computer crash
simulations, known as finite element analysis—modeling that was not present in the
first report—together with video versions of those models. PACCAR moved to
exclude the report as untimely on the grounds that it went beyond the scope of the
first report and that it did not indicate with particularity the portions of the deposition
testimony that permitted additional analysis. The magistrate judge recommended that
the motion be granted, noting that the new report failed to adhere to the discovery
order and that its admission would prejudice PACCAR. The magistrate judge
nonetheless noted that PACCAR could open the door to the second report’s
admission by attacking the first report on the grounds that its conclusions were not
supported by modeling and simulations. The district court adopted the magistrate
judge’s recommendation and granted the motion to exclude the second report. Wood
thereafter filed a timely rebuttal notice that contained the modeling used in Dr.
Vlahinos’s second report.
PACCAR sought to present a defense that the truck conformed to state-of-the-
art design and testing technologies, which would absolve PACCAR of liability under
Iowa law. See Iowa Code Ann. § 668.12. Wood filed a motion in limine to prohibit
3The Honorable Mark A. Roberts, United States Magistrate Judge for the
Northern District of Iowa.
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PACCAR from introducing evidence about this state-of-the-art defense, arguing that
it could be established only by expert testimony, which PACCAR had failed to give
notice of. After hearing oral arguments at the pretrial conference, the district court
reserved ruling on the merits of the motion.
The case proceeded to trial. After a mistrial was declared because of the
COVID-19 pandemic, Wood moved to modify the scheduling order and re-open
discovery to permit him to present during his case-in-chief the modeling and videos
contained in Dr. Vlahinos’s second report. The district court denied the motion,
concluding that Wood had failed to show good cause to modify the scheduling order.
The case proceeded again to trial, during which Bean and another PACCAR
employee, Terry Manuel, presented testimony about PACCAR’s state-of-the-art
defense and about its compliance with various safety standards. Although Wood
raised several objections throughout their testimony, he did not object on the ground
that it constituted expert opinion.
After the close of the parties’ case-in-chief, the district court announced that,
although PACCAR had not opened the door, it would admit the contents of Dr.
Vlahinos’s second report on rebuttal. PACCAR’s expert promptly prepared
responsive video exhibits to the second report’s videos. Wood objected to the videos
because Dr. Vlahinos had not had the opportunity to review them before testifying.
Wood nonetheless sought to introduce the video exhibits from Dr. Vlahinos’s second
report. The district court instructed the parties that if they could not come to an
agreement, both would be limited to still images and prohibited from playing the
simulation videos for the jury. On rebuttal, Dr. Vlahinos presented testimony and still
images from his second report.
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II. Analysis
A. Exclusion of Dr. Vlahinos’s Simulation Videos
The magistrate judge did not err in concluding that the second report was
untimely. See Fed. R. Civ. P. 26(a)(2)(D) (“A party must make [expert] disclosures
at the times and in the sequence that the court orders.”). The magistrate judge made
clear when he granted Wood’s motion to extend the discovery deadline that the
extension of time was not intended to give Wood “the opportunity to expand the
scope” of Dr. Vlahinos’s expert report and that “any supplemental opinion” was thus
required to “identify with particularity the facts learned” from the second depositions
that permitted Dr. Vlahinos to complete his analysis. While the second report
referred generally to Bean’s and Weiblen’s depositions and pointed to exhibit
numbers, it failed to identify information “with particularity” that informed its new
simulations. Wood thus failed to provide a second report that complied with the
magistrate judge’s orders on or before the discovery deadline, as required by the
Federal Rules. See Fed. R. Civ. P. 26(a)(2)(D).
We review the district court’s exclusion sanction for abuse of discretion.
Vanderberg v. Petco Animal Supplies Stores, Inc., 906 F.3d 698, 702 (8th Cir. 2018).
“If a party fails to provide information . . . as required by Rule 26(a),” then the party
may not use that information at trial, “unless the failure was substantially justified or
is harmless.” Fed. R. Civ. P. 37(c)(1). “A district court ‘has wide discretion to
fashion a remedy or sanction as appropriate for the particular circumstances of the
case’ when a party fails to provide information . . . in compliance with Rule 26(a).”
Gruttemeyer v. Transit Auth., 31 F.4th 638, 644–45 (8th Cir. 2022) (quoting Wegener
v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008)). In fashioning a remedy, courts should
consider “the reason for noncompliance, the surprise and prejudice to the opposing
party, the extent to which allowing the information or testimony would disrupt the
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order and efficiency of the trial, and the importance of the information or testimony.”
Id. at 645 (quoting Wegener, 527 F.3d at 692).
The district court did not abuse its discretion by excluding the second report
from Wood’s case-in-chief, in admitting the written and photographic contents on
rebuttal, and by excluding the report’s videos from the entire case. The magistrate
judge considered Wood’s justification for failing to submit a second report that
complied with the court’s orders. Wood largely focused on the broader issues that
plagued the discovery process and on PACCAR’s alleged refusal to turn over
information needed for Dr. Vlahinos’s modeling. But Wood failed to explain why the
report itself did not “identify with particularity” the deposition information used to
complete the report. He instead argued that, in light of the discovery disputes as a
whole, the magistrate judge’s order requiring such designation was inappropriate.
Wood has not shown that the district court acted outside its discretion in restricting
the contents of the second report, and he has not demonstrated that he was justified
in failing to comply with those restrictions.
The magistrate judge further concluded that the modeling present in the second
report would have been “something of a surprise” to PACCAR, considering that the
first report lacked modeling and testing. Wood also has not shown that the report was
so important to his case that limiting its use to rebuttal alone was an abuse of
discretion. Wood was able to question Dr. Vlahinos on rebuttal about the modeling
in his second report that strengthened the conclusions to which he testified during his
case-in-chief. And while the district court and magistrate judge had indicated that
such testimony would only be permissible should PACCAR attack the first report’s
lack of testing, the district court instead allowed the evidence to be admitted even
though PACCAR had not opened the door to its admission. The district court
observed that “the jury has a right to hear everything and make up their own mind”
about the testimony. Further, the district court had instructed the parties that video
evidence would be excluded from both parties’ rebuttal cases if they could not come
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to an agreement, and Wood rejected PACCAR’s offer that both sides use their video
simulations. The district court, acknowledging the importance of the report, thereby
exercised its discretion to lessen the sanction on Wood, and it did not abuse its
discretion by excluding the second report from Wood’s case-in-chief.
Finally, the district court did not abuse its discretion by concluding that Wood
failed to show the good cause required by the Federal Rules to modify the scheduling
order following the mistrial. See Fed. R. Civ. P. 16(b)(4). Wood was not entitled to
an unearned trial advantage because of a mistrial caused by events that did not pertain
to the report’s original timeliness. Reopening discovery at that late stage would have,
as the district court observed, “expanded disagreements and litigation; disturb[ed]
settled expectations of the parties; require[d] significant additional pretrial
preparation; and further complicated the retrial.”
B. Testimony About the State-of-the-Art Defense
Wood argues that the district court erred by admitting Bean’s and Manuel’s
testimony about PACCAR’s state-of-the-art defense because it constituted
undisclosed expert testimony, in violation of Rule 26. Wood failed to preserve this
objection, however, for although he had moved in limine to exclude testimony and
evidence about PACCAR’s state-of-the-art defense, the district court did not rule on
the issue, and Wood did not object to any specific testimony as undisclosed expert
testimony during the second trial.4 See Fed. R. Evid. 103 (requiring that a party must
preserve error by timely objecting on a specific ground, unless the district court has
4Wood filed two additional motions in limine regarding the state-of-the art
testimony. The first was denied as being untimely. The second was denied as being
duplicative of the first motion in limine. The district court thus never “rule[d]
definitively” on Wood’s motion to exclude state-of-the-art testimony. See Fed. R.
Evid. 103(b).
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ruled on the issue “definitively on the record—either before or at trial”). Wood notes
that certain objections and the court’s rulings on demonstrative exhibits related to
Bean’s testimony were preserved from the first trial to the second trial, but those
objections and rulings are not directly related to Wood’s instant appeal of the
introduction of allegedly expert testimony. We thus review for plain error. See
Russell v. Anderson, 966 F.3d 711, 720 (8th Cir. 2020).
Wood has not shown that the district court plainly erred by admitting Bean’s
and Manuel’s testimony. A lay witness may testify about perceptions based on his
industry experience, and we look to both the witness’s experience and his testimony
to determine whether that testimony is factual or expert opinion. United States v.
STABL, Inc., 800 F.3d 476, 486–87 (8th Cir. 2015). Bean’s testimony was based, at
least in part, on his 33-year career at PACCAR, his participation in vehicle testing
around the time that the truck at issue was designed, and his knowledge of industry
standards about which he had learned through his participation in PACCAR’s truck
crash worthiness subcommittee. Manuel, likewise, gave testimony based on his
personal knowledge of PACCAR’s design process, his career experience in vehicle
design and testing, and the customs in the industry. Contrary to Wood’s assertion,
Iowa law permits industry custom evidence to support a state-of-the-art defense. See
Hughes v. Massey-Ferguson, Inc., 522 N.W.2d 294, 296 (Iowa 1994) (“[A] jury may
consider industry custom as evidence of state of the art, but such evidence does not
establish conclusively the state of the art defense.”). We thus conclude that the
district court did not err in admitting Bean’s and Manuel’s testimony.
C. Evidence of Compliance with Safety Standards
Wood argues that the district court erred by admitting testimony about
PACCAR’s compliance with irrelevant safety standards. We review the district
court’s evidentiary decision for abuse of discretion, “reversing only when an
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improper evidentiary ruling affected the defendant’s substantial rights or had more
than a slight influence on the verdict.” United States v. Summage, 575 F.3d 864, 877
(8th Cir. 2009) (quoting United States v. Two Shields, 497 F.3d 789, 792 (8th Cir.
2007)).
Even assuming that the testimony was irrelevant, Wood has not shown that the
contested evidence had more than a slight influence on the verdict. At least two
witnesses testified at trial to PACCAR’s compliance with allegedly irrelevant safety
standards, including its performance on tests to verify the safety of the truck in
rollover crashes. But Wood was fully able to test on cross-examination the relevance
of the standards, and he could have sought testimony that, consistent with PACCAR’s
pretrial disclosures, no safety test specifically examined the risk of leg injuries in a
frontal crash. Indeed, Dr. Vlahinos testified that he was unaware of any standards
governing the front bumper’s ability to protect against a frontal crash. Wood’s
counsel argued in closing that PACCAR had performed rollover testing, but had
failed to adequately test the truck in frontal-crash settings. He also emphasized that
no government, industry, or PACCAR corporate standard would have governed the
allegedly defective bumper. The jury was thus unlikely to have been confused or led
astray by discussion of the safety standards. We conclude that it is unlikely that the
introduction of testimony relating to rollover or other safety standards had more than
a slight influence on the verdict.
The judgment is affirmed.
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