RATCLIFFE v. BRP US INC et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
STEPHEN J. RATCLIFFE, 	)
)
Plaintiff, 	)
)
v. 	) 	No. 1:20-cv-00234-JAW
)
BRP U.S., INC., et al., 	)
)
Defendants. 	)
ORDER ON MOTION TO STRIKE
The plaintiff in a products liability lawsuit moves to strike three of the
defendant’s 	motions 	in 	limine 	as 	untimely 	Daubert/Kumho 	motions. 	Despite
concluding that a defendant knowingly violated the court-imposed deadlines for the
filing of motions for a Daubert/Kumho hearing, the court will consider the late-filed
motions on their merits and declines to strike them.
I. 	BACKGROUND
With trial looming, BRP U.S., Inc. (BRP) filed, inter alia, three motions in
limine on October 4, 2024, seeking to exclude all three of Plaintiff’s expert witnesses
from testifying on the common ground that each of them proposes to offer improper
expert opinions under Rule 702 of the Federal Rules of Evidence. Def. BRP’s Mot. in
Lim. No. 1 and Supporting Br. to Exclude the Ops. of Stephen Batzer (ECF No. 168);
Def. BRP’s Mot. in Lim. No. 2 and Supporting Br. to Exclude the Ops. of Robert J.
Nobilini (ECF No. 169); Def. BRP’s Mot. in Lim. No. 3 and Supporting Br. to Exclude
the Ops. of David Lenorovitz (ECF No. 170) (collectively, Def.’s Mots.). On October 7,
2024, Stephen J. Ratcliffe moved to strike the motions as untimely Daubert motions.
Case 1:20-cv-00234-JAW Document 253 Filed 11/04/24 Page 1 of 17 PageID #:
<pageID>

2
Pl.’s Mot. to Strike Def. BRP U.S. Inc.’s Mots. in Lim. Nos. 1, 2 and 3 as Untimely
Daubert Mots., Filed Over One Yr. After the Ct.’s Filing Deadline for Daubert/Kumho
Mots. (ECF No. 188) (Pl.’s Mot. to Strike). 	On October 21, 2024, BRP opposed the
Plaintiff’s motion to strike. Def. BRP’s Resp. in Opp’n to Mot. to Strike Mots. in Lim.
Nos. 1, 2, and 3 as Untimely Daubert Mots. (ECF No. 221) (Def.’s Opp’n).
II. 	THE POSITIONS OF THE PARTIES
A. 	Stephen J. Ratcliffe’s Motion to Strike
Noting the procedural history of this case, Mr. Ratcliffe argues that BRP’s
motions in limine are in fact Daubert1/Kumho2 motions and, as such, should have
been brought in accordance with prior orders of the Court, not as motions in limine
at this late stage of the proceeding. 	Pl.’s Mot. to Strike at 1-9. 	Mr. Ratcliffe details
the Court’s sequential orders, beginning September 2020, setting deadlines for the
filing of Daubert/Kumho motions and says that BRP’s late-filed Daubert/Kumho
motions are “an untimely eve-of-trial ambush.” Id. at 1. Mr. Ratcliffe cites Feliciano-
Hill v. Principi, 439 F.3d 18 (1st Cir. 2006), for the proposition that parties have an
obligation to object to expert testimony in a timely fashion so that the objection can
be “evaluated with care.” 	Id. at 4 (quoting Feliciano-Hill, 439 F.3d at 24). 	The
Plaintiff also cites Rybas v. Riverview Hotel Corporation, in which a federal court
rejected a movant’s attempt to exclude expert witness testimony through motions in
limine, ruling the challenges constituted untimely Daubert challenges. 	Id. at 5-7
1 	See Daubert v. Merrell Down Pharms., 509 U.S. 579 (1993).
2 	See Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
Case 1:20-cv-00234-JAW Document 253 Filed 11/04/24 Page 2 of 17 PageID #:
<pageID>

3
(citing Rybas v. Riverview Hotel Corp., Civil Action No. ELH-12-3103, 2015 U.S. Dist.
LEXIS 176294 (D. Md. Jan. 15, 2015)).
Mr. Ratcliffe notes that BRP does not seek merely to streamline the evidence,
but to entirely exclude the testimony of all three of his liability experts, thereby
unfairly diverting Plaintiff’s counsel to respond to motions in the run-up to trial that
should have been made much earlier. Id. at 7-8. Mr. Ratcliffe warns of the prejudicial
effect of bringing these motions at such a late stage, explaining that, if granted,
“plaintiff’s trial preparation to date will need to be scrapped and his preparation must
be begun anew, just weeks before trial,” and arguing that the Court’s most recent
scheduling order requiring Daubert/Kumho motions be filed by April 10, 2023 “was
intended to prevent such unfairness.” Id. at 8.
B. 	BRP’s Response in Opposition
On October 21, 2024, BRP opposed the Plaintiff’s motion to strike. Def.’s Opp’n
at 1-8. 	BRP concedes that any anticipated expert challenges were omitted from its
Pre-Filing Conference Memorandum, Jt. Local Rule 56(h) Pre-Filing Conf. Mem.
(ECF No. 97) (Jt. Pre-filing Conf. Mem.), despite being instructed to include any of
the same by the Court’s April 10, 2023 Procedural Order, Procedural Order (ECF No.
96); nonetheless, BRP argues this oversight should not bar its current filings for two
reasons: “(i) there was no formal deadline for Rule 702 motions ever set by the Court;
and (ii) Rule 702 mandates that expert testimony be considered pre-trial.” 	Def.’s
Opp’n at 1. (internal footnote omitted). 	BRP further asserts that it “alert[ed] the
Case 1:20-cv-00234-JAW Document 253 Filed 11/04/24 Page 3 of 17 PageID #:
<pageID>

4
Court and Plaintiff of its intent to challenge these experts during the summary
judgment stage.” Id. at 2.
Beginning with the Plaintiff’s argument that BRP’s challenge to its expert
witnesses is untimely, BRP disputes Mr. Ratcliffe’s interpretation of the April 2023
Procedural Order. 	The Defendant argues that, while the order directed the moving
party to include “any anticipated ‘Daubert/Kumho motions’ and a brief explanation
of those issues,” the Procedural Order did not set any deadlines for Rule 702 motions
and expressly provided that “[n]o pre-conference memoranda filed pursuant to this
Order shall be deemed binding on the parties.” Id. at 3 (quoting Procedural Order at
3). 	BRP directs the Court to numerous decisions from federal courts outside of the
First Circuit in which courts have permitted motions in limine challenging proposed
expert witness testimony. Id. at 4. BRP insists that the Court should find its motions
to exclude the Plaintiff’s expert witnesses timely “[b]ecause there was no specific
deadline for expert motions, and because 702 motions are motions in limine.” Id.
BRP also rejects the Plaintiff’s argument that its motions constitute an
“ambush,” insisting that “on at least three separate occasions, BRP put the Court and
Plaintiff on notice of its intent to challenge Plaintiff’s experts.” Id. Specifically, BRP
first directs the Court to a footnote in its motion for summary judgment, filed on May
26, 2023, in which it stated:
BRP expressly reserves all defenses, as well as its right to challenge the
admissibility of any evidence cited in connection with BRP’s Rule 56
motion. BRP will present any Rule 702 challenges to Plaintiff’s experts’
opinions in accordance with deadlines to be established by the Court.
Case 1:20-cv-00234-JAW Document 253 Filed 11/04/24 Page 4 of 17 PageID #:
<pageID>

5
Id. at 4-5 (quoting Def. BRP’s Mot. for Summ. J. at 3 n.1 (ECF No. 123) (BRP’s Mot.
for Summ. J.). 	Second, BRP directs the Court to an exchange between its counsel
and the Court during oral argument on BRP’s summary judgment motion, which took
place on April 30, 2024. 	Id. at 5 (quoting Notice of Filing of Off. Tr. at 11:25-12:10
(ECF No. 142) (Mot. Tr.) (the Court stating “so if you want to make a Daubert motion,
you’re certainly welcome to do that”)). Finally, BRP notes that it expressly disclosed
its intent to file these motions in its Final Pretrial Memorandum. Id. at 5-6 (quoting
Final Pretrial Mem. of BRP US Inc. at 7 (ECF No. 155) (BRP Pre-Trial Mem.) (“BRP
anticipates raising the following evidentiary issue via pretrial motions in limine: 1.
Whether the opinion testimony of Plaintiff’s liability experts—Stephen Batzer,
Robert Nobilini, and David Lenorovitz—is admissible under Rule 702, as recently
amended”)).
BRP argues that, despite notifying the Plaintiff of its intent to challenge his
experts, the Plaintiff did not object or otherwise raise any opposition. 	Id. at 6.
Further, BRP distinguishes the caselaw cited by the Plaintiff from the present case,
avering the movants in those cases raised their objections to expert’s qualifications
for the first time at trial or flouted clearly established deadlines for motions to exclude
experts. Id. at 6-7 (citing Feliciano-Hill, 439 F.3d at 23; Rybas 2015 U.S. Dist. LEXIS
176294). 	Finally, BRP insists that ruling on the motions in limine will not require
extensive briefing, but notes that it “welcomes” the opportunity for further briefing
or an evidentiary hearing on the motions pursuant to Rule 702 should the Court deem
either one necessary. Id. at 7-8.
Case 1:20-cv-00234-JAW Document 253 Filed 11/04/24 Page 5 of 17 PageID #:
<pageID>

6
BRP concludes that, pursuant to Rule 702 of the Federal Rules of Evidence, a
court must determine “it is more likely than not” the proposed expert meets the rule’s
admissibility requirements before admitting an expert opinion over objection. Id.
III. 	THE PROCEDURAL HISTORY
On September 22, 2020, the Magistrate Judge issued the first scheduling order
in this case. 	Scheduling Order with Incorporated Rule 26(f) Order (ECF No. 18)
(Scheduling Order). 	The order contained deadlines for the designation of experts
under Federal Rule of Civil Procedure 26(a)(2)(A) and imposed a discovery deadline.
Id. at 2. The order also established a deadline for the filing of all Daubert and Kumho
motions:
Deadline for Filing of All Dispositive Motions and All Daubert and
Kumho 	Motions 	Challenging 	Expert 	Witnesses 	with 	Supporting
Memoranda: March 2, 2021.
Id. at 3 (emphasis in original). 	On November 18, 2020, the Magistrate Judge
extended the Daubert/Kumho deadline to June 1, 2021, Order (ECF No. 24), and
again on February 18, 2021 to August 30, 2021. 	Order (ECF No. 26). 	On May 19,
2021, 	the 	Magistrate 	Judge 	further 	extended 	the 	Daubert/Kumho 	deadline 	to
November 30, 2021, Order (ECF No. 41); on July 21, 2021, the deadline was again
extended to April 29, 2022. Order (ECF No. 45). On January 20, 2022, the Magistrate
Judge further extended the Daubert/Kumho deadline to July 29, 2022, Order (ECF
No. 61), and on March 17, 2022, District Judge George Singal granted a joint motion
to extend the Daubert/Kumho deadline to October 15, 2022 with an accompanying
warning that he would not grant another motion to extend the discovery deadline.
Case 1:20-cv-00234-JAW Document 253 Filed 11/04/24 Page 6 of 17 PageID #:
<pageID>

7
Order (ECF No. 64). 	On June 24, 2022, the Magistrate Judge denied yet another
request to extend the deadlines, including the Daubert/Kumho deadline. 	See Order
on Mot. to Extend Scheduling Order (ECF No. 66). On July 11, 2022, the Magistrate
Judge granted in part and denied in part a motion for reconsideration of the motion
to amend scheduling order. Order (ECF No. 70). After a series of motions relating to
the deadlines of the scheduling order, on September 28, 2022, the Magistrate Judge
relented and extended the Daubert/Kumho deadline to November 28, 2022. 	Order
(ECF No. 80).
On October 21, 2022, the Magistrate Judge stayed any pending deadlines to
allow the parties to engage in a judicial settlement conference. Order (ECF No. 87).
After the parties’ efforts failed to produce a settlement, on February 15, 2023, the
Magistrate Judge set April 17, 2023 as the deadline for motions. Order (ECF No. 94)
(Feb. 15, 2023 Order). 	On April 3, 2024, BRP filed its notice of intent to file a
summary judgment motion, Def. BRP US Inc.’s Notice of Intent to File Mot. for Summ.
J. (ECF No. 95), but BRP did not mention in its notice that it intended to file any
Daubert/Kumho motions. Id.
On April 3, 2023, the District Judge issued a procedural order, which provided
in part:
The parties shall . . . additionally discuss whether or not either party
intends to file any Daubert and/or Kumho motions as well as the issues,
timeliness and length of such Daubert and/or Kumho motions.
. . . .
This pre-conference filing shall be made no later than April 10, 2023.
Case 1:20-cv-00234-JAW Document 253 Filed 11/04/24 Page 7 of 17 PageID #:
<pageID>

8
Procedural Order at 1-2. 	On April 10, 2023, the parties filed a joint pre-filing
conference 	memorandum 	which 	did 	not 	mention 	any 	intention 	to 	file 	a
Daubert/Kumho motion. 	Jt. Pre-Filing Conf. Mem. at 1-3. 	On April 26, 2023, the
District Judge issued an order in lieu of pre-filing conference and set the dates for
filing and responding to the motion for summary judgment. 	Order in Lieu of Pre-
Filing Conf. (ECF No. 105). 	During the motion for summary judgment process, the
parties submitted statements of material fact that included expert witness testimony
without objection. See Order on Mot. for Summ. J. at 9-11 (ECF No. 143). However,
in its summary judgment motion, BRP noted its desire to reserve its right to challenge
admissibility of evidence and its intent to “present any Rule 702 challenges to
Plaintiff’s experts’ opinions in accordance with deadlines to be established by the
Court.” 	BRP’s Mot. for Summ. J. at 3. 	On April 30, 2024, the question of expert
testimony arose again at oral argument on the motion for summary judgment, at
which time the Court directed BRP that “if you want to make a Daubert motion, you’re
certainly welcome to do that.” Mot. Tr. at 11:25-12:10.
On June 5, 2024, the Court issued its order on the motion for summary
judgment, reciting in part the expected expert testimony. Order on Mot. for Summ.
J. at 9-11.
On September 20, 2024, BRP filed its final pretrial memorandum and stated
that it intended to raise whether the Court should admit the opinion testimony of the
Plaintiff’s experts under Rule 702 as recently amended. 	BRP Pre-Trial Mem. at 7.
On September 27, 2024, the Court held a final pretrial conference, Min. Entry (ECF
Case 1:20-cv-00234-JAW Document 253 Filed 11/04/24 Page 8 of 17 PageID #:
<pageID>

9
No. 159), and on October 1, 2024, it issued a final pretrial order setting October 4,
2024 as the date for filing any motions in limine and October 14, 2024 as the date for
any responses. 	Report of Final Pretrial Conf. and Order at 2 (ECF No. 162). 	The
parties 	have 	now 	filed 	eighteen 	motions 	in 	limine 	as 	well 	as 	proposed 	jury
instructions, and deposition designations and counter-designations.
IV. 	DISCUSSION
As an initial matter, the Court disagrees with BRP’s blithe and erroneous
assertion that the Court never set a deadline for the filing of Rule 702 motions. Def.’s
Opp’n at 1 (“[T]here was no formal deadline for Rule 702 motions ever set by the
Court”). The Court is confounded by this assertion in view of its repeated and explicit
setting of deadlines for Daubert/Kumho motions. At first, the Court thought BRP was
attempting to distinguish between Rule 702 motions and Daubert/Kumho motions
and arguing that the Court’s Daubert/Kumho motion deadlines did not apply to Rule
702 motions. 	However, in footnote one, claiming that Plaintiff’s counsel was being
“disingenuous,” BRP castigates Plaintiff’s counsel for what BRP perceived was his
attempt to distinguish between a Rule 702 motion and a Daubert/Kumho motion:
Plaintiff disingenuously “submits” that BRP referenced Rule 702 as
opposed to “Daubert” so as to not draw attention of the Court . . ..
Plaintiff’s effort to distinguish 702 motions and “Daubert” motions is the
definition of form over substance.
Def.’s Opp’n at 1 n.1. 	In its attempt to derogate Mr. Ratcliffe’s argument, BRP
implicitly concedes the relevant point: Daubert motions and Rule 702 motions are
substantively the same and are certainly the same for purposes of the Court’s
deadlines. 	Thus, the Court concludes that BRP knew that when the Court set
Case 1:20-cv-00234-JAW Document 253 Filed 11/04/24 Page 9 of 17 PageID #:
<pageID>

10
deadlines for Daubert/Kumho motions, it was setting deadlines for the filing of
precisely the same Rule 702 motions challenging the reliability of expert witness
testimony that BRP filed on October 4, 2024, long after the expiration of the
applicable deadlines.
As noted above, the first scheduling order clearly set such a deadline:
Deadline for Filing of All Dispositive Motions and All Daubert and
Kumho 	Motions 	Challenging 	Expert 	Witnesses 	with 	Supporting
Memoranda: March 2, 2021.
Scheduling Order at 3 (emphasis in original). 	The Court cannot envision a more
explicit deadline than the one in the original scheduling order, and the Court’s
subsequent extensions of the motion deadline implicitly refer back to this original
order.
Furthermore, as the Court has traced developments in this case, upon repeated
motions of the parties, the Court periodically extended the deadline for the filing of
Daubert/Kumho motions until the final deadline of April 17, 2023. 	Feb. 15, 2023
Order. Then, after BRP filed a notice that it intended to move for summary judgment,
on April 3, 2023, the District Judge issued a procedural order, which provided in part:
The parties shall . . . additionally discuss whether or not either party
intends to file any Daubert and/or Kumho motions as well as the issues,
timeliness and length of such Daubert and/or Kumho motions.
Procedural Order at 1. 	In its prefiling memorandum of April 10, 2023, BRP made no
mention of its intention to file Daubert/Kumho motions. 	If BRP wished to file a
Daubert/Kumho motion, it was obligated to comply with the Court’s order and notify
the Court that it intended to do so. Nor did BRP file any such motion by the April 17,
Case 1:20-cv-00234-JAW Document 253 Filed 11/04/24 Page 10 of 17 PageID #:
<pageID>

11
2023 deadline contemplated by the February 15 order. 	By failing to mention its
intention to file a Daubert/Kumho motion or file the same within the court-ordered
deadline, BRP waived its right to consideration of its motions in the manner
consistent with imposition of the early Daubert/Kumho deadlines.
BRP’s second line of defense is that it repeatedly reserved the right to file
Daubert/Kumho motions. 	First, BRP refers to a footnote in its memorandum in
support of its motion for summary judgment, in which it stated that it would “present
any Rule 702 challenges to Plaintiff’s experts’ opinions in accordance with deadlines
to be established by the Court.” BRP’s Mot. for Summ. J. at 3 n.1. The problem with
this footnote is that the court-imposed deadlines for the filing of Daubert/Kumho
motions or for notifying the Court of its intent to file the same had both already
expired by the time BRP filed its memorandum on May 26, 2023. See Feb. 15, 2023
Order (setting a deadline of April 17, 2023 for filing of any Daubert motions);
Procedural Order at 2 (ordering the pre-conference filing containing parties’ intent to
file any Daubert/Kumho motions “be made no later than April 10, 2023”).
Next, BRP points to an interchange between the Court and defense counsel
during oral argument on the motion for summary judgment on April 30, 2024:
MR. TRISCHLER: Because - - because that - - frankly, that dispute
about what BRP knew, if we want to call it that, I think ultimately, when
we get to the Daubert stage, what - - I think the evidence that we’re
going to present to this Court is that there’s no scientific basis for that
conclusion and it’s pulled out of thin air. But - - but it’s in the record as
we speak.
THE COURT: That’s right. 	Okay. 	So if you want to make a Daubert
motion, you’re certainly welcome to do that.
Case 1:20-cv-00234-JAW Document 253 Filed 11/04/24 Page 11 of 17 PageID #:
<pageID>

12
MR. TRISHCHLER: Right.
Mot. Tr. at 11:25-12:10.
BRP has badly misconstrued this interchange, taking it out of its procedural
context. 	In its scheduling and other procedural orders, the Court separated out
Daubert/Kumho 	motions 	for 	a 	reason. 	Unlike 	common 	motions 	in 	limine, 	a
Daubert/Kumho motion often requires a court to familiarize itself with complex areas
of science or technical knowledge in order to perform its gatekeeping function. 	See
Daubert, 509 U.S. at 597 (explaining that the district courts act as gatekeepers on
expert testimony); see also Lawes v. CSA Architects & Eng’rs LLP, 963 F.3d 72, 97
(1st Cir. 2020) (“Daubert assigns the trial court the role of ‘gatekeeper,’ which
requires courts to make an independent determination that ‘any and all scientific
testimony or evidence admitted [at trial] is not only relevant, but reliable’”) (citation
omitted). 	A trial court is charged with evaluating whether “an expert’s proffered
testimony ‘both rests on a reliable foundation and is relevant to the task at hand.’”
Carrozza v. CVS Pharm., Inc., 992 F.3d 44, 55-56 (1st Cir. 2021) (quoting Samaan v.
St. Joseph Hosp., 670 F.3d 21, 31 (1st Cir. 2012) (quoting Daubert, 509 U.S. at 597)).
Depending on the complexity of the issues, a trial court may convene a Daubert
hearing to make this evaluation. See, e.g., Packgen v. Berry Plastics Corp., 847 F.3d
80, 84 (1st Cir. 2017) (noting that the district court held a two-day Daubert hearing);
Samaan, 670 F.3d at 31 (noting “[t]he district court convened a Daubert hearing to
screen [the proposed expert testimony]”). 	The purpose of the Daubert hearing is to
educate the court on the nuances of the expert’s field. Samaan, 670 F.3d at 35 (“Many
Case 1:20-cv-00234-JAW Document 253 Filed 11/04/24 Page 12 of 17 PageID #:
<pageID>

13
aspects of science are a mystery to laymen without the aid of experts”). 	A hearing
allows the judge to inquire into “the methodology and the basis for an expert’s
opinion” for the purpose of “ensur[ing] that there is an adequate fit between the
expert’s methods and his conclusions.” Id. at 31-32.
The reason the Court carefully imposed and reimposed Daubert/Kumho motion
deadlines is precisely because they deserve to be placed on a different track from
other evidentiary motions, given their potential complexity. 	On April 30, 2024, the
Court had just reviewed an extensive summary judgment record and anticipated,
based on a thoroughly litigated record, that there might be challenges to expert
testimony. The Court was saying to Attorney Trischler that, despite the lapse of the
Daubert/Kumho motion deadline, if he wished to proceed with a Daubert/Kumho
motion challenging the basis of an expert’s opinion, the Court would be willing to
entertain reopening this issue. In other words, if he moved to file a Daubert/Kumho
motion, the Court would be amenable to granting a motion and setting forth new
deadlines for its consideration. Attorney Trischler never filed such a motion; instead,
he filed motions to exclude the experts’ opinions mere weeks before the scheduled
trial date. 	The Court did not grant BRP a carte blanche to file a Daubert/Kumho
motion at any time and in contravention of the Court’s deadlines.
BRP’s later attempts to reserve the right to file a motion where the filing
deadline had already lapsed are of no avail. 	It is the Court, not BRP, that sets
deadlines, and a party’s attempt to circumvent the deadline by later reservation is
ineffective.
Case 1:20-cv-00234-JAW Document 253 Filed 11/04/24 Page 13 of 17 PageID #:
<pageID>

14
In light of this procedural history, where the Court has repeatedly imposed,
extended, and reimposed deadlines for the filing of Daubert/Kumho motions, BRP’s
post-deadline filing of Daubert/Kumho motions under the guise of motions in limine
violates 	the 	letter 	and 	spirit 	of 	the 	Court’s 	order. 	If 	BRP 	wished 	to 	file 	a
Daubert/Kumho motion implicating an expert’s reliability and methodology, it should
have done so by the deadline imposed by the February 15, 2023 order of the Court or,
at minimum, acted in accordance with the instructions of the April 3, 2023 order by
discussing the filing with opposing counsel and notifying the Court of the issues,
timeliness, and length of the motions. BRP did neither.
The Court’s conclusion that BRP flouted standard procedure for objecting to
experts is consistent with First Circuit authority in Feliciano-Hill, where the First
Circuit wrote that “[p]arties have an obligation to object to an expert’s testimony in a
timely fashion, so that the expert’s proposed testimony can be evaluated with care.”
439 F.3d at 24. In keeping with Feliciano-Hill, the Court deliberately set a separate
deadline for the filing of any Daubert/Kumho motions, a deadline BRP repeatedly
ignored.
Here, Mr. Ratcliffe proffered three expert witnesses: (1) Stephen Batzer, Ph.D.,
an engineer, (2) Robert Nobilini, Ph.D., a mechanical and biomechanical engineer,
and (3) David R. Lenorovitz, Ph.D., a human factors engineer and ergonomist. 	See
Def.’s Mots. BRP’s motions to exclude these three experts raise questions of whether
they used reliable methodologies, whether they had sufficient facts and data to
Case 1:20-cv-00234-JAW Document 253 Filed 11/04/24 Page 14 of 17 PageID #:
<pageID>

15
express their opinions, and whether their opinions are the result of reliable and
reproducible tests. Id.
In its opposition to the motion to strike, BRP instructs the Court on what it
must do. Def.’s Opp’n at 8 (“Simply put, it is now clear that [the Court] must perform
a Rule 702 analysis before admitting an expert opinion over objection”; “The Court
should not abdicate its gatekeeping responsibility. . ..”). 	BRP conveniently ignores
its own obligations to obtain a proper Daubert/Kumho ruling, including filing its
objections in a timely fashion—here, a timely filing would have been within the court-
ordered deadlines, or else upon a motion to be allowed to file after the deadline had
expired.
The 	question 	becomes 	whether 	a 	party 	who 	violates 	court-imposed
Daubert/Kumho deadlines is nevertheless entitled to bring a Daubert/Kumho motion
long after those deadlines have passed. 	In this case, the Court concludes that by
failing to bring timely Daubert/Kumho motions, BRP has forfeited the right to a
Daubert/Kumho hearing, but the Court will not preclude BRP from making an
objection on Rule 702 grounds either at trial or in a motion in limine. 	The First
Circuit has written that “[a] trial setting normally will provide the best operating
environment for the triage which Daubert demands.” 	Doucette v. Jacobs, 106 F.4th
156, 169 (1st Cir. 2024) (quoting Cortes-Irizarry v. Corporacion Insular De Seguros,
111 F.3d 184, 188 (1st Cir. 1997)). By filing a Daubert/Kumho motion as a motion in
limine just before trial, the result is a more abbreviated consideration of the Rule 702
motion and a more cursory resolution than if BRP had complied with the deadlines.
Case 1:20-cv-00234-JAW Document 253 Filed 11/04/24 Page 15 of 17 PageID #:
<pageID>

16
In this case, the motions to exclude the experts have been fully briefed and the
Court has sufficient facts to address them as Daubert/Kumho motions, and therefore,
the Court will do so. 	Even though the Court is deeply skeptical that BRP did not
understand the scope and meaning of its Daubert/Kumho deadlines, the Court takes
seriously 	its 	obligation 	to 	allow 	parties to 	introduce 	only 	properly 	admissible
evidence. 	This obligation rings especially true in this case, where the Plaintiff has
sustained grievous injuries and Defendants are defending the integrity of their
product.
The Court wishes BRP’s counsel had obeyed its deadlines and placed these
issues before the Court in a timely and orderly fashion, and the Court does not accept
any of its excuses for failing to do so. Nevertheless, the Court is not willing to penalize
BRP by allowing into evidence based on waiver potentially inadmissible evidence,
and thus will do its best in the short time before trial to address the merits of the
pending Daubert/Kumho motions. 	See F ED. R. C IV. P. 1 (The civil rules “should be
construed, administered, and employed by the court and the parties to secure the
just, 	speedy, 	and 	inexpensive 	determination 	of 	every 	action 	and 	proceeding”).
Moreover, the parties, including Mr. Ratcliffe, will ultimately benefit if the Court
resolves the expert witness issues raised by BRP, since the trial should proceed only
with admissible evidence. 	Even so, by squeezing the Court’s consideration of the
Daubert/Kumho motions into the last few weeks before trial, BRP has effectively
foreclosed the Court’s ability to hold a formal Daubert hearing and forced the Court
to rule on the paper record before it.
Case 1:20-cv-00234-JAW Document 253 Filed 11/04/24 Page 16 of 17 PageID #:
<pageID>

17
At bottom, to ensure only properly admissible evidence is presented at trial,
the Court will consider the merits of BRP’s motions in limine to exclude the Plaintiff’s
experts.
V. 	CONCLUSION
The Court DISMISSES without prejudice the Plaintiff’s Motion to Strike
Defendant BRP U.S. Inc.’s Motions in Limine Nos. 1, 2 and 3 as Untimely Daubert
Motions Filed Over One Year After the Court’s Filing Deadline for Daubert/Kumho
Motions. (ECF No. 188). 	Despite BRP’s clear violation of its deadlines for the filing
of Daubert/Kumho motions, the Court will reach the merits of its motions in limine
seeking to disqualify the expert opinions in this case.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 4th day of November, 2024
Case 1:20-cv-00234-JAW Document 253 Filed 11/04/24 Page 17 of 17 PageID #:
<pageID>