Empyreal Transportation LLC et al v. Volvo Group North America LLC

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Empyreal Transportation LLC, et al.,
Plaintiffs,
v.
Volvo Group North America LLC,
Defendant.
No. CV-24-00287-PHX-ROS
ORDER
This is an action for breach of contract, breach of the duty of good faith and fair
dealing, and products liability. Plaintiff Empyreal Transportation, LLC is a freight carrier
based in Scottsdale engaged in commercial long-haul trucking. Plaintiff Emil Corb is the
sole owner and member of the LLC.
In July 2017, Plaintiffs purchased a truck manufactured by the defendant, Volvo
Group North America LLC (Volvo). Plaintiffs allege the purchase came with a warranty
to cover certain repairs for 12 to 60 months and that they would not have purchased the
truck without the warranty. In December 2019, the truck started to have operating
problems, including vibrations and, later, trouble driving uphill. Plaintiffs allege Volvo
repeatedly refused to cover the needed repairs in bad faith until the warranty expired.
Plaintiffs also allege the truck was defectively designed, manufactured, and produced.
Plaintiffs brought this case in state court on December 6, 2023, and Defendant removed to
the District Court based on diversity jurisdiction on February 12, 2024.
Before the Court are Defendant’s three Motions for Sanctions (Docs. 45, 46, 47).
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I. Motion for Sanctions Re: Plaintiff’s Expert, David McLellan (Doc. 45)
After many continuances and extensions and the resolution of a discovery dispute,1
the Court’s Third Amended Rule 16 Scheduling Order (Doc. 30) required the parties to
disclose the identities of all persons who may be used at trial to present evidence under
Federal Rules of Evidence 701-705, and to provide a Rule 26(a)(2)(B) report for any such
person “retained or specifically employed to provide expert testimony,” no later than June
9, 2025. All discovery and any supplementation were to be completed by October 10, 2025,
“including material changes in expert witness opinions and material disclosures…of all
witnesses to be called at trial.”
Although Plaintiffs did not list Mr. McLellan in their initial Rule 26 Disclosure
statement, Defendant was aware of Mr. McLellan due to a “Preliminary Opinion and
Declaration of Plaintiffs’ Expert Witness David R. McLellan” filed on November 16, 2024.
(Doc. 24). Beginning in August 2025, Defendant worked with Plaintiffs over the course of
nearly two months attempting to schedule and conduct Mr. McLellan’s deposition.
Plaintiffs repeatedly cancelled and rescheduled the deposition. Finally, Mr. McLellan’s
deposition was scheduled for October 8, 2025, at the library in Holly, Michigan, Mr.
McLellan’s home city. While defense counsel was en route to Michigan to conduct the
deposition, Plaintiff’s counsel once again emailed and advised that Mr. McLellan would
not be attending. In August, Mr. McLellan’s wife had apparently suffered a bad fall,
resulting in serious injuries, which Plaintiffs assert was the cause of and necessitated each
of the aborted deposition attempts. Plaintiffs served their First Supplemental Rule 26
Disclosure Statement, listing Mr. McLellan as an expert for the first time, and a
“Supplemental Opinion and Declaration of Plaintiffs’ Expert David R. McLellan”
exceptionally late in the day on October 10, 2025, the final day for supplementation of
discovery.
Defendant asks the Court to exclude Plaintiff’s expert David McLellan, his reports,
1 On July 15, 2025, the Court entered an order resolving the dispute, requiring Plaintiffs to
respond to Defendants’ interrogatories and requests for production, and advised the parties
there would be no further extensions of discovery deadlines. (Doc. 33).
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and the information contained therein (1) because Plaintiffs failed to make him available
for deposition prior to the close of discovery on October 10, 2025, despite repeated
attempts by Defendant to schedule and conduct the deposition, and (2) Mr. McLellan’s
original report did not conform to the requirements of 26(a)(2)(B) and his supplemental
report was beyond the scope of appropriate supplementation. Defendant also requests an
award of costs and fees associated with counsel’s final attempt to conduct Mr. McLellan’s
deposition.
Plaintiffs argue all the difficulties with the deposition are, in fact, due to Defendant’s
bad faith refusal to make accommodations in light of Mr. McLellan’s wife’s continuing
medical condition. Plaintiffs argue Defendants should have expected potential
cancellations of the deposition, and that Defendants’ insistence on complying with
discovery deadlines “created a recipe for failure that culminated in the cancellation of the
October 8th deposition, due to Mr. Mclellan’s [sic] wife’s medical condition.”
The Court is not persuaded that the medical condition of a plaintiff’s expert’s wife
excuses a plaintiff from following the rules of civil procedure and the orders of the Court.
If Defendants were in fact uncooperative, Plaintiffs’ remedy was to seek assistance from
the Court. Additionally, the communications between the parties provided to the Court
demonstrate Defendant repeatedly made reasonable attempts to cooperate and
accommodate, which is not bad faith. Defendant is not obligated to capitulate to every
request and Plaintiffs are not entitled to infinite patience and tolerance from Defendant at
its expense.
As such, the Court will order Plaintiff to pay all expenses incurred by Defendant in
preparing for and appearing for the cancelled October 8 deposition. Additionally, the Court
will order Plaintiffs to make Mr. McLellan available promptly for deposition at
Defendants’ convenience and Plaintiffs are ordered to bear all Defendant’s associated
costs. Should Plaintiffs fail to fulfill these requirements, the Court will be strongly inclined
to preclude Mr. McLellan as an expert and exclude his reports and opinions. Whether Mr.
McLellan’s reports meet the requirements of the Federal Rules of Civil Procedure and the
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Court’s orders will be resolved in due course after the deposition is concluded.
II. Motion for Sanctions Re: Untimely Disclosure of Scott Leon (Doc. 46)
Next, Defendant asks the Court to exclude Scott Leon, his opinions, and the
foundation therefor because his identity was disclosed after the deadline for disclosure of
witnesses under Federal Rules of Evidence 701-705.
In response, Plaintiffs argue Mr. Leon’s disclosure was timely because he is a fact
witness who “will limit his testimony to his measurements, analysis and “inspections.”
(Doc. 49 at 2). While Plaintiffs assert “in no manner will Mr. Leon be testifying as an
expert witness at trial or otherwise,” (Doc. 49 at 3), they do not offer any explanation for
what they believe differentiates Mr. Leon’s testimony from expert testimony other than the
assertion that “Mr. Leon will not be providing his opinions at trial.” (Doc. 49 at 2).
Testimony in the form of an opinion is not the defining characteristic of an expert
witness. Federal Rule of Evidence 702 states: “A witness who is qualified as an expert by
knowledge, skill, experience, training or education may testify in the form of an opinion
or otherwise…” (emphasis added). The Advisory Committee’s Note points out the
assumption “that experts testify only in the form of opinions…is logically unfounded.”
Fed. R. Evid. 702 Advisory Committee’s Note. Plaintiffs’ assertion that Mr. Leon, a
mechanic whose services were obtained to inspect the vehicle in anticipation of litigation,
will not give opinions does not as a matter of law protect and preclude Mr. Leon from the
opinion testimony requirements of Rule 702.
Although Plaintiffs did not elaborate in support of their arguments, the Court will
provide further illumination to clarify the ruling. In cases involving testimony by
physicians, treating physicians may be called as fact witnesses when they testify to
observations based on their personal knowledge acquired in the course of their treatment
of a patient. The mere fact they possess special skill and qualifications that enabled them
to conduct such treatment does not render their testimony beyond the realm of factual
testimony.
“A fact witness typically testifies about information he or she
has acquired independent of the litigation, the parties, or the
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attorneys. See Schreiber v. Estate of Kiser, 22 Cal.4th 31, 91
Cal.Rptr.2d 293, 989 P.2d 720, 723 (1999) (“[W]hat
distinguishes the treating physician from a retained expert is
not the content of the testimony, but the context in which he
became familiar” with the medical information.); see also
Indem. Ins. Co. of N. Am. v. Am. Eurocopter L.L.C., 227 F.R.D.
421, 423–24 (M.D.N.C.2005) (“When the treating physician
goes beyond the observations and opinions obtained by
treating the individual and expresses opinions acquired or
developed in anticipation of trial, then the treating physician
steps into the shoes of an expert....”). Other than reviewing his
or her own records, a medical fact witness will not usually be
required to perform additional work, investigation, or review
in order to answer questions.”
State ex rel. Montgomery v. Whitten, 262 P.3d 238 (Ariz. Ct. App. 2011). Mr. Leon appears
not comparable to a treating physician. Treating physicians are not retained specifically for
litigation purposes. Mr. Leon, on the other hand, inspected the vehicle and made his
observations and measurements specifically in preparation for this litigation.
As such, Plaintiffs may not bypass the requirements of Rule 702 by simply making
the bare assertion that Mr. Leon is not an expert without establishing he is comparable to
the hypothetical treating physician. Mr. Leon was first disclosed on October 10, 2025, in
Plaintiffs’ First Supplemental Disclosure Statement. This disclosure was well after the June
9, 2025, deadline for disclosure of witnesses under Federal Rules of Evidence 701-705 and
deprived Defendant of the opportunity to fairly address Mr. Leon’s anticipated testimony.
Plaintiffs provide no legal or acceptable justification for this. Accordingly, the Court will
exclude Mr. Leon and his inspections and testimony.
III. Motion for Sanctions for Untimely Disclosure and Failure to Provide
Damages Computation (Doc. 47)
Finally, Defendant requests Plaintiffs be precluded from presenting any evidence of
their alleged damages because their damages calculations and supporting documentation
were untimely disclosed. Plaintiffs contend such a sanction is not warranted because
“most” of the supporting documents were provided by October 10, 2025, the deadline for
supplementation of discovery, and Defendant has “demonstrated no harm or prejudice with
respect to the disclosures of the supporting documentation for the Plaintiffs’ damage
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calculations.” (Doc. 59 at 6).2 Plaintiffs also claim to have disclosed their initial damage
calculations in their Rule 26 Disclosure Statement (Doc. 45-1) on March 26, 2024. (Doc.
59).
Precluding Plaintiffs from presenting any evidence of their alleged damages is too
harsh a sanction and essentially precludes their claim in the entirety. “Where a Rule
37(c)(1) sanction will amount to dismissal of a claim, the Court must consider whether the
claimed noncompliance involved willfulness, fault, or bad faith, and consider the
availability of lesser sanctions.” Popovic v. Spinogatti, 2016 WL 2893426 (D. Ariz. 2016);
see also R&R Sails, Inc. v. Insurance Co. of Pennsylvania, 673 F.3d 1240, 1247 (9th Cir.
2012). At this juncture the Court does not find Plaintiffs’ conduct so egregious as to require
dismissal or utter preclusion of support for damages, but review of the record reveals
Plaintiffs’ conduct does demonstrate minimal, if any, attempt to meaningfully comply with
the Rules of Civil Procedure. Plaintiffs have also failed to explicitly establish—or to
meaningfully argue—that their conduct is substantially justified or harmless. As such, the
Court will deny without prejudice Defendant’s Motion to preclude Plaintiffs from
presenting evidence of damage calculations and supporting documentation.
IV. Final Completion of Discovery and Further Proceedings
Due to the Court’s ruling, the Interim Status Conference will be vacated and reset
to allow for completion of the deposition of Plaintiff’s expert, David McLellan, and any
limited relevant discovery necessitated by the deposition. The parties are to meet and
confer to establish the final date for close of discovery; the date for the Interim Status
Conference two weeks after the close of discovery; and the date for filing motions for
summary judgment, not to exceed two weeks after the Interim Status Conference. The
parties are to file a Proposed Joint Scheduling Order by January 6, 2026.
IT IS ORDERED Defendant’s Motion for Sanctions re: Plaintiffs Expert (Doc. 45)
is GRANTED IN PART.
2 See Torres v. City of L.A., 548 F.3d 1197, 1213 (9th Cir. 2008) (Rejecting the argument
that Plaintiffs were required to articulate how they were prejudiced by Defendants’ failure
to comply with disclosure requirements).
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IT IS FURTHER ORDERED Plaintiffs shall pay all expenses incurred by
Defendant in preparing and appearing for the cancelled October 8 deposition.
IT IS FURTHER ORDERED Plaintiffs shall make Mr. McLellan available
promptly for deposition at Defendants’ convenience. Plaintiffs shall bear all Defendant’s
fees and costs associated with the deposition.
IT IS FURTHER ORDERED Defendant’s Motion for Sanctions: Re Plaintiff’s
Untimely Disclosure of Scott Leon (Doc. 46) is GRANTED. Scott Leon and his
inspections are excluded from use in any motion or at trial.
IT IS FURTHER ORDERED Defendant’s Motion for Sanctions for Untimely
Disclosure and Failure to Provide Damages Computation (Doc. 47) is DENIED
WITHOUT PREJUDICE.
IT IS FURTHER ORDERED the Interim Status Conference scheduled for
December 18, 2025, at 3:00 p.m., is VACATED.
IT IS FURTHER ORDERED the Parties shall meet and confer and agree to a new
date for close of discovery; the date for the Interim Status Conference two weeks after the
close of discovery; and the date for filing motions for summary judgment not to exceed
two weeks after the Interim Status Conference. The Parties will file a Joint Proposed
Scheduling Order by January 6, 2026, setting forth these dates.
Dated this 15th day of December, 2025.
Honorable Roslyn O. Silver
Senior United States District Judge
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