The opinion of the court was delivered by: Chief Judge Curtis Collier
Before the Court is a motion filed by plaintiff Marcia Vinson ("Plaintiff") for summary judgment on the issue of liability in this matter (Court File No. 16). Defendant Grant A. Cobb ("Defendant") timely responded (Court File No. 18).*fn1 Plaintiff filed a reply brief (Court File No. 23). Plaintiff also filed a motion (Court File No. 21) to exclude portions of the testimony of Defendant's expert. Defendant failed to reply to such motion in a timely fashion. Nonetheless, all these motions are now ripe for review. Trial is scheduled for June 25, 2007 (Court File No. 8).
For the following reasons, the Court will DENY both of Plaintiff's motions (Court File Nos. 16 & 21).
The following facts are not in dispute.*fn2 On July 3, 2005, Plaintiff was visiting friends in Chattanooga, and was a passenger on a 37-foot Harbor Master houseboat owned by her friend Greg Mercer ("Mercer's boat"). Mercer's boat, at the time of the accident at issue, was moored at approximately the 474-mile marker in the Tennessee River (Court File No. 1, ¶ I).
Defendant's vessel, a 36-foot Gibson houseboat ("Defendant's boat"), was tied to Mercer's boat just prior to the accident. Apparently it is not uncommon for houseboats to tie up to one another and for the passengers to socialize among the different boats, something akin to a floating backyard barbecue (Court File No. 17, p. 2). At the time of the accident Defendant had decided to untie his boat and return to a nearby marina (id.). Defendant was at the controls of his boat, on the flying bridge (id.; see also No. 18, p. 2). Deborah Deitz ("Deitz"), a passenger on Defendant's boat, untied the lashings which connected Defendant's boat to Mercer's boat, and Defendant's boat began to drift away from Mercer's boat (id.). Plaintiff was standing on the deck of Mercer's boat (id.).
There is no dispute Defendant's boat, after drifting away at idle speed a short distance from Mercer's boat, suddenly engaged in reverse gear and "backed into" Mercer's boat (id. at 3; see also No. 18, p. 2-3). The force and angle were such the collision broke a window on Mercer's boat (id.). The impact caused Defendant's boat to bounce off a bit, after which a second collision occurred (id.).
A factual dispute arises over whether Defendant's negligent operation of his boat caused the collisions, as alleged in Plaintiff's complaint (Court File No. 1; see also No. 17, p. 2-3),*fn3 or whether a mechanical failure led to the collision (Court File No. 18, p. 3). Plaintiff elicited deposition testimony from Deitz that Defendant's boat "was moving in a forward direction, under power" before it reversed and hit Mercer's boat (Court File No. 17, p. 3) (citing No. 16-3). For his part, Defendant argues his boat's transmission fell out of neutral into reverse without Defendant taking action, and this was a "spontaneous event that had never happened before" (Court File No. 18, p. 3). To support his argument Defendant submitted the expert opinion of David A. Timpani ("Timpani"), a marine surveyor (id. at 4).*fn4 Timpani tested Defendant's boat on August 9, 2005, approximately one month after the accident (id. at 6). Based on his inspection and testing of Defendant's boat and Defendant's account of the accident, Timpani concluded: within a reasonable degree of certainty . . . the transmission shift cables and the neutral safety switch were subject to normal wear and tear and had reached the point on July 3, 2005 where they were out of adjustment which allowed engine to start in the reverse gear even though the operator of the boat had not shifted the transmission shift lever to the reverse position. In addition, based upon the history provided by [Defendant], the condition which allowed the transmission to be in the reverse position without the operator manually shifting the transmission lever to the reverse position manifested itself at the time of the accident in this case on July 3, 2005.
(Id. at 7; see also No. 18-2). Defendant argues the defect caused his boat to hit Mercer's boat the first time; Defendant's boat bounced off, Defendant tried and failed to move the transmission back to neutral, and his boat hit Mercer's boat a second time before, presumably, he managed to get the transmission into a forward gear (id. at 3-4). Defendant also claims the defective condition was not apparent to a lay observer, such as himself, until it manifest itself (id. at 8).
Plaintiff alleges the force of the two collisions caused her to be "violently jerked and thrown about" and she has suffered physical injury including a ruptured cervical disc, mental and emotional distress, loss of wages and employment and permanent loss of earning capacity, loss of enjoyment of life and permanent impairment of bodily function (Court File No. 1, ¶ VII). Plaintiff prays for (1) $1,000,000 in compensatory damages and (2) punitive damages as appropriate (Court File No. 1, p. 4-5).
III. MOTION TO EXCLUDE PORTIONS OF TIMPANI'S TESTIMONY
Plaintiff moved to exclude portions of Timpani's testimony as to the defective condition of Defendant's boat (Court File No. 21). Specifically, Plaintiff argues Timpani's report (disclosed to Plaintiff on January 30, 2007 pursuant to Fed. R. Civ. P. 26; hereinafter "Rule 26 Report") concluded that wear-and-tear on the shift cables and neutral safety switch constituted a mechanical defect which caused Defendant's boat to start in reverse (Court File No. 22, p. 2). In an affidavit in response to Plaintiff's motion for partial summary judgment (the "Affidavit"), Timpani concludes, again, wear-and-tear caused the mechanical defect which caused the accident, but further states this defective condition was "contained within mechanical coverings" and Defendant would not have known of or had reason to expect this defect would manifest (id. at 3). Plaintiff argues this last portion of the Affidavit, which cuts to Defendant's knowledge (i.e., the defective condition was concealed from a lay person) exceeds the scope of the Rule 26 Report.
The Court disagrees. First, it is not beyond the scope of the Rule 26 Report for Timpani to state the defective condition was "contained within mechanical coverings," inferring a lay person would not be aware of this defect. Timpani was, after all, retained as an expert to evaluate the transmission and engine of Defendant's boat; it seems obvious this defect was complicated enough to exceed the comprehension of a weekend boater like Defendant. It also seems obvious, when the alleged defect is in an engine or transmission, the defect might be covered by other component parts. Plaintiff was on notice Defendant has no great knowledge of boats or boat engines and did not keep extensive records ...