IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Great Northern Insurance Company, et

al.,

Plaintiffs

 v.

Brentlinger Enterprises, et al.,

Defendants

:

:

:

:

:

Civil Action 2:11-cv-01153

Judge Marbley

Magistrate Judge Abel

ORDER

This matter is before the Magistrate Judge on defendants BMW of North America 

LLC (“BMW NA”) and Bayerische Motoren Werke AG (“BMW AG”)’s December 17,

2013 motion to strike and exclude the opinions of plaintiff’s untimely and improper

rebuttal expert, Dr. Michael A. Steele (doc. 45) and their January 16, 2014 motion to

exclude for spoliation (doc. 49).

As a preliminary matter, plaintiffs’ January 17, 2014 unopposed motion for leave

of court to file a sur-reply (doc. 50) and March 26, 2014 unopposed motion for leave to a

supplemental sur-reply (doc. 62) are GRANTED.

I. Background

On May 30, 2007, Jean Patrick leased a new BMW 328xi. On March 16, 2010, Ms.

Patrick parked the vehicle in the garage attached to her home. Sometime thereafter, a

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fire started in the garage causing substantial destruction to the vehicle and residence.

This case is a subrogation action brought by Ms. Patrick’s insurer in an attempt to

recoup the amounts paid to the Patricks as a result of the fire.

On March 17, 2010, plaintiff retained S-E-A Ltd. (“SEA”) to investigate the fire.

On April 5, 2010, after a preliminary investigation, the vehicle was transported by SEA

to its facility for preservation as evidence, where it has remained in SEA’s sole

possession.

On May 5, 2010, the parties to this matter conducted a joint inspection of the

vehicle. During the inspection, under engine compartment covers were removed to

facilitate examination. Material removed from engine compartment was bagged and

marked as evidence by SEA personnel. Under vehicle body covers running the length of

the vehicle were not removed at this time. 

On August 2, 2013, the Court ordered plaintiffs to make their expert disclosures

by September 30, 2013. Defendants were ordered to make their responsive expert

disclosures by October 30, 2013.

On September 27, 2013, plaintiff produced an expert report prepared by SEA.

The primary focus of SEA was to identify the ignition source for the fire. Plaintiff

claims that the natural aerodynamic properties of the vehicle’s design allow for the

collection road debris in the engine compartment near the exhaust components during

normal vehicle operation. Plaintiffs maintains that all BMW 328xi vehicles are

unreasonably dangerous because of the risk that accumulated debris could catch fire.

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According to the SEA report, the cause of the fire was the accumulation of combustible

materials on the area of a heat shield or cross member positioned under the exhaust

piping on the right side of the engine compartment. The report further stated that there

was no evidence of rodent activity and that the foliage was not purposefully

accumulated by a rodent. 

In light of these opinions, defendants requested access to the vehicle, and an

inspection was scheduled for November 1, 2013. Plaintiffs agreed to allow defendants to

produce their expert reports on November 8, 2013.

On November 1, 2013, the vehicle was inspected by individuals on behalf of

defendants at the SEA facility and pursuant to the terms of a previously agreed-to

protocol. The inspection was monitored by SEA personnel. During the inspection, 

SEA personnel lifted the vehicle with a forklift to allow under-vehicle inspection. The

forklift forks fractured an under vehicle body cover that had not been previously

removed. When the cover fractured, the remains of a rodent fell out, which consisted of

some hair and bones. 

Dr. Gates, defendants’ expert, examined the material collected at the May 5, 2010

inspection and the rodent remains discovered at the November 1, 2013 inspection. Dr.

Gates discovered a bi-colored, mammal hair in the debris collected on May 5, 2010. The

bones appeared to be the partial remains of a squirrel. The hair appeared to be bicolored. Dr. Gates opined that the remains appeared to be directly related to the

mammalian hair collected on May 5, 2010. He concluded that SEA’s conclusion that

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rodent activity was not a factor in the case of debris accumulation was incorrect.

Defendants’ liability experts prepared reports that were submitted to plaintiffs’ counsel

on November 8, 2013. 

On December 16, 2013, defendants received plaintiffs’ rebuttal expert testimony

disclosure, but no report was attached to the expert disclosure. Plaintiffs offer the

testimony of Dr. Michael A. Steele, who has a Ph.D. in biology, to rebut the findings and

opinions of Dr. Gates. 

II. Motion to Strike Dr. Michael A. Steele as a Rebuttal Expert

A. Defendants

Defendants maintain that the Court’s August 2, 2013 Order provided a deadline

of September 30, 2013 for plaintiffs’ experts and that plaintiffs were obligated to disclose

any experts it intended to use by that date. Rule 26(a)(2)(B) also requires such

disclosures be accompanied by written reports. Rebuttal experts are those experts who

offer testimony if the evidence is intended solely to contradict or rebut evidence on the

same subject matter identified by another party under Rule 26(a)(2)(B) or (C). 

Defendants argue that the existence of rodent activity was not a subject matter

first identified in the conclusions of the BMW experts. Rather, the existence of rodent

activity was identified in the SEA report. Experts retained and proffered by BMW

evaluated the evidence and formed opinions in light of the opinions put forth by

plaintiff’s experts. Defendants point to the fact that SEA has been involved in this case

since the day after the fire, and it has maintained sole possession of the vehicle since

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April 2010. SEA ignored the physical evidence in the case and proffered conclusions

without conducting a full and complete investigation. Defendants contend that plaintiff

should not be permitted to offer new expert opinions evaluating and analyzing

evidence that they initially chose to ignore. 

Defendant further argues that plaintiff failed to produce the expert report as

required by Rule 26(a)(2)(B), and this Court may exclude the proposed expert for failing

to disclose it. Plaintiff’s failure to produce the required report has prevented defendant

from obtaining rebuttal testimony. Defendants also maintain that plaintiff’s disclosure

was untimely. Plaintiff had thirty days to produce any rebuttal expert disclosures and

reports. Plaintiff identified Dr. Steele on December 16, 2013, well outside the 30-day

time for doing so, and the disclosure was not accompanied by Dr. Steele’s report.

Defendants argue that the untimely nature of plaintiffs’ expert disclosure is

neither substantially justified nor harmless. Plaintiffs, by and through SEA, have

maintained sole possession of the vehicle since shortly after the fire. The squirrel

remains at issue were not identified until the November 1, 2013 inspection. Because the

inspection was not scheduled until November 1, 2013, plaintiff agreed to allow

defendants to provide the reports of its liability experts on November 8, 2013.

Defendants worked diligently to meet the agreed upon deadline. Although plaintiff had

until December 9, 2013 in which to disclose the identity of any rebuttal expert and to

provide the mandatory report, plaintiff did not identify Dr. Steele until December 16

and failed to provide a report at that time. Dr. Steele’s report was not provided until

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January 2, 2014, when it was attached to plaintiff’s response to defendant’s motion to

exclude and strike plaintiff’s rebuttal expert, fifty-five days after the defendants’ expert

disclosures and reports were provided. 

Defendants further argue that plaintiffs failed to even mention the potential of

disclosing a rebuttal expert until defendants had incurred substantial expense

preparing for and undertaking an unsuccessful mediation. Defendants maintain that

they were denied to opportunity to obtain appropriate rebuttal testimony. 

Defendants also argue that several of Dr. Steele’s opinions are not responsive to

Dr. Gates’s opinions. For instance Dr. Steele states that Dr. Gates opined that the

material ignited by the exhaust components of the vehicle were likely deposited

adjacent to the exhaust system by the fox squirrel. Defendants argue that Dr. Gates’

reports do not contain the opinion attributed to him by Dr. Steele. As a result,

defendants maintain that conclusions premised on this inaccurate assertion must be

excluded. Defendants further maintain that Dr. Gates never asserted that the area

surrounding SEA’s facilities would be devoid of squirrel activity, nor did he identify

any mud and roots associated with the bones of the fox squirrel. Defendants maintain

no such mud or roots exist, and Dr. Steele’s conclusions with respect to these assertions

should be excluded. 

B. Plaintiffs

According to plaintiffs, Dr. Steele will provide testimony and opinions on the

same subject matters identified by BMW’s expert, Dr. Gates, i.e., whether the squirrel

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remains found on November 1, 2013 establish that a squirrel was present in the BMW

prior to the fire of March 16, 2010. Plaintiffs maintain that their position remains that the

evidence examined by SEA and the BMW experts in 2010 showed no evidence of any

nesting created by rodents in the area of the car where the fire began. 

Rebuttal evidence is that which solely rebuts evidence on a subject matter

identified in the conclusions offered by another party’s expert. Plaintiff maintains that

the testimony of Dr. Steele is classic rebuttal testimony in that it is intended to rebut Dr.

Gates’s opinion that the squirrel remains found on November 1, 2013 are indicative of

nest building activities occurring at the time of the fire in the area of the vehicle’s

exhaust system and which caused the fire in the vehicle. Dr. Steele’s testimony is not

intended to supplement, enhance or change the opinions of the SEA experts. Instead,

Dr. Steele responds to Dr. Gates’s report as follows:

• Whether the fox squirrel remains were found in a position in the vehicle

which would be a path of refuge that began in the vehicle while the fox

squirrel was also in the vehicle;

• whether a fox squirrel would likely build a nest next to a heated exhaust

system capable of generating temperatures in to 600° to 700° range;

• whether the size of a fox squirrel would permit a fox squirrel access to the

condensed area within the vehicle where all experts agree the fire

originated and where the foliage was located;

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• whether the outdoor storage of the burnt vehicle was stored after

inspection would explain the presence of fox squirrel remains discovered

in November 2013;

• whether a fox squirrel was more than likely than not to enter a garage of

an occupied home and build a nest in a vehicle was operated on a regular

basis; and, 

• whether a fox squirrel would remain in the car while it was on fire and

while the vehicle was stopped permitting the squirrel to escape through

the same openings from which it entered. 

Plaintiffs maintain that these areas of testimony directly rebut the opinions and

conclusions of Dr. Gates. 

Plaintiffs argue that defendants are not prejudiced by the rebuttal testimony of

Dr. Steele and that the late disclosure was harmless. Defendant produced their expert

report on November 8, 2013, and plaintiffs identified Dr. Steele just eights days after the

applicable deadline. After plaintiffs extended a courtesy to the defendants for a sevenday extension, defendants argue that eight days is too long. Plaintiffs contend that

defendants can show no actual prejudice. Defendants can depose Dr. Steele and have

Dr. Gates respond to Dr. Steele’s opinions and conclusions when he provides his own

testimony. If defendants wishes to rebut the positions advanced by Dr. Steele, the Court

may permit defendants to issue a sur-rebuttal report in response to Dr. Steele’s report or

deposition. 

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C. Discussion

Rule 37(c)(1) of the Federal Rules of Civil Procedure provides that “[i]f a party

fails to provide information or identify a witness as required by Rule 26(a) . . ., the party

is not allowed to use that information or witness to supply evidence on a motion, at a

hearing, or at a trial, unless the failure was substantially justified or is harmless.” Rule

26(a)(2)(D)(ii) requires a party to makes it expert disclosures within 30 days after the

other party’s disclosure“if the evidence is intended solely to contradict or rebut

evidence on the same subject matter identified by another party under Rule 26(a)(2)(B)

or (C). “The sanction of exclusion is automatic and mandatory unless the sanctioned

party can show that its violation of Rule 26(a) was either justified or harmless.” Salgado

v. General Motors Corp., 325 F.3d 735, 742 (7th Cir. 1998). The burden lies with the

potentially sanctioned party to prove harmlessness. Roberts ex rel. Johnson v. Galen of

Virginia, Inc., 325 F.3d 776 (6th Cir. 2003). 

Plaintiffs have not provided any explanation for the Court to determine whether

their untimely disclosure was substantially justified. Rather, plaintiffs maintain that

their untimely disclosure was harmless. In their March 26, 2014 motion to supplement

their reply, plaintiffs noted that the parties’s joint motion to extend the deadline for

completing expert depositions until April 30, 2014 was granted. BMW deposed all five

of the plaintiff’s liability experts, including Dr. Steele prior to producing their own

experts for deposition. As a result, plaintiffs contend that their belated disclosure was

harmless and BMW have not been prejudiced. Because plaintiffs’ untimely disclosure

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was harmless, defendants BMW’s December 17, 2013 motion to strike and exclude the

opinions of plaintiff’s untimely and improper rebuttal expert, Dr. Michael A. Steele

(doc. 45) is DENIED.

III. Motion to Exclude for Spoliation

A. Defendants

On March 17, 2010, the day after the fire, plaintiffs retained SEA to initiate an

investigation of the fire. On April 5, 2010, after a preliminary inspection, the vehicle was

transported by SEA to its facility for further evaluation and preservation. Since April 5,

2010, the vehicle has remained in SEA’s sole possession. 

As early as May 5, 2010, when organic debris was found in the engine

compartment, SEA was investigating how the debris entered the engine compartment.

According to SEA Project Engineer, Nicholas E. Biery, Ph.D., P.E., the foliage was

examined and found to contain no evidence of rodent activity. Dr. Biery noted that no

rodent hairs, tooth marks, bones or droppings were observed. BMW argues that

plaintiff clearly understood the importance of evidence rodent activity in the vehicle. 

Despite having a large warehouse at its disposal, SEA decided to store the

vehicle outdoors. SEA’s storage decisions took place prior to defendants being in a

position to understand plaintiff’s allegations. Even if defendants had inspected the

vehicle on the same day that this case was initiated and found signs of rodent activity, it

still would have been too late to prove those signs were present at the time of the fire

because of the negligent action of storing the vehicle outdoors.

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Following the November 1, 2013 inspection, Dr. Gates examined the debris

collected during the May 5, 2010 inspection and the rodent remains discovered in

November 2013. According to Dr. Gates, the remains appeared to be directly related to

a mammalian hair collected in May 2010. In response to Dr. Gates’ report, Dr. Steele

concluded that it was more likely than not that the rodent whose remains are at issue

colonized the vehicle while it was being preserved by SEA. If Dr. Steele’s opinions are

assumed to be correct, then plaintiff has admitted that it failed to preserve central

evidence that it allowed evidence to become contaminated in a fashion that is

detrimental to the case. 

Defendant argues that plaintiffs should be sanctioned for their failure to preserve

evidence over which they had control. Defendants maintain that the evidence was

destroyed with a culpable state of mind and that the destroyed evidence was relevant to

their defense. Defendants maintain that even negligent conduct may warrant spoliation

sanctions. Plaintiffs understood the potential for litigation involving the vehicle within a

short time after the fire. Plaintiffs immediately retained subrogation attorneys who

retained engineers to take possession of and evaluate the vehicle. There is no dispute

that the vehicle is the most important piece of evidence in the case and plaintiffs

understood this as early as March 2010. Plaintiffs also understood that the presence of

rodent activity in the vehicle was a potential defense available to defendants. As a

result, SEA set out to disprove the existence of rodent activity in the vehicle. Despite

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this knowledge, plaintiff chose to store the vehicle, unwrapped and unprotected,

outdoors for several months during the summer.

Defendants seek to preclude plaintiffs’ expert, Dr. Steele, from offering opinions

with regard to whether the rodent remains were or were not likely present in the

vehicle at the time of the fire. BMW argues that Dr. Steele’s argument is only available

to plaintiffs as a direct result of spoliation of evidence and that plaintiffs should not be

permitted to use their malfeasance to their own benefit. 

BMW further argues that spoliation is the significant alteration or evidence or

failure to preserve property for another’s use as evidence in pending or reasonably

foreseeable litigation. Here, plaintiffs are arguing that significant alteration of evidence

took place while the evidence was in their possession. BMW agrees with plaintiffs’

assertion that this is not the typical case of spoliation because the significant alteration

of evidence is being utilized by plaintiffs in an attempt to discredit defendants’

evidentiary finding.

B. Plaintiffs

Plaintiffs argue that although BMW claims that they spoiled evidence, the

physical evidence upon which BMW relies was present when BMW’s experts inspected

the vehicle on November 1, 2013. Plaintiffs maintain that there is nothing in the record

that suggests that plaintiffs, either negligently or knowingly, destroyed any evidence or

that any evidence relevant to BMW’s defense was previously present in the vehicle but

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later destroyed. Plaintiffs argue that the specific relief requested by BMW does not flow

from or is in anyway related to its claims of spoliation of evidence. 

After plaintiffs noted BMW of the fire, BMW assigned its engineers and

independent fire experts to inspect the vehicle on April 5, 2010. The inspection occurred

at the scene of the fire. Following that inspection, the vehicle was moved to the SEA

facility. It was inspected on May 5, 20101

 pursuant to a protocol developed by the SEA

and approved by BMW. After that time, BMW and its experts inspected, evaluated,

photographed and removed debris and other components from the vehicle. At no time

during that 2010 inspection did any consultant observe any evidence that appeared

related to rodent activity. 

Plaintiffs maintain that it was not until November 2013 that the evidence relied

upon by Dr. Gates was discovered. BMW argues that plaintiffs somehow intended to

destroy evidence which none of the parties knew existed until November 2013.

Plaintiffs argue that BMW is asking this Court to conclude, without any supporting

evidence, that in 2010 plaintiffs anticipated BMW’s “squirrel defense” and purposefully

stored the vehicle outside so a new squirrel could gain access to the vehicle and allow

plaintiffs to argue that the squirrel entered the vehicle after the fire to rebut BMW’s

position. Although BMW inspectors investigated the vehicle twice in 2010, BMW never

1

Plaintiffs’ motion states it was inspected on May 5, 2013, but other references to

the May inspection indicate that it occurred in 2010. 

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directed, requested, or insisted that the vehicle be preserved in any special manner for

further inspections.

Plaintiffs argue that a request for sanctions based upon an allegation of

intentional spoliation of evidence must be based on more than speculation. Plaintiffs

further argue that no spoliation of evidence occurred and that no sanctions are

warranted. Plaintiffs also note that BMW’s motion is not supported by any affidavit,

deposition testimony or any other evidence that suggests that plaintiffs destroyed

evidence or acted with a culpable state of mind. Plaintiffs further maintain that

defendants have not been prejudiced with respect to this matter because it has retained

a squirrel expert and an insect expert to offer opinions related to the alleged rodent

activity and the time frame for this alleged activity. 

C. Discussion

This Court possesses inherent authority to sanction bad faith conduct without

regard to whether such conduct could be sanctioned under other applicable rules or

statutes. See First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 513 (6th

Cir. 2002). Determination of the correct sanction for discovery misconduct is left to the

broad discretion of the trial court. National Hockey League v. Metropolitan Hockey Club,

427 U.S. 639, 642 (1976). Courts must consider the state of mind of the party who

destroys evidence when determining whether the imposition of sanctions is

appropriate. Courts evaluate conduct on a “continuum of fault,” ranging “from

innocence through the degrees of negligence to intentionality.” Adkins v. Wolever, 554

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F.3d 650, 652 (6th Cir. 2009)(quoting Welsh v. United States, 844 F.2d 1239, 1246 (6th Cir.

1988)). Absent exceptional circumstances, courts generally do not dismiss an action or

give an adverse inference instruction without consideration of whether the party acted

in bad faith.

The party seeking a spoliation instruction must demonstrate that it was

prejudiced by the loss of the information. There must be some showing of a nexus

between the missing information and the issue on which the instruction is requested.

Consolidated Aluminum Corp. v. Alcoa, Inc. 244 F.R.D. 335, 346 (M.D. La. 2006). Some

evidence must be presented corroborating the assumption that the missing evidence

would have been favorable to the plaintiff's case. Id. at note 24 (citing Hamre v. Mizra,

No. 02Civ.9088, 2005 WL 1083978 (S.D.N.Y. May 9, 2005). 

Here both parties had access to the vehicle just seven weeks after the fire. Their

experts conducted a joint inspection, and defendants’ experts accessed those areas of the

vehicle they believed relevant to an inquiry into the source and origin of the fire.

Nothing would have prevented them from then accessing the areas accidentally opened

up three years later. It would seem unfair to hold plaintiff solely accountable for not

making an examination on or before May 5, 2010 that defendants’ experts could have

made then had they so chosen. As it was, both sides completed their inspections of the

vehicle in early may 2010, and there was no reason to believe that when the vehicle was

stored that either side would need to later open up other under vehicle compartment

areas.

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In any event, it appears that leaving the vehicle vulnerable to squirrel activity

could have disadvantaged plaintiffs more than defendants. It will be for the jury to

evaluate the experts’ opinion concerning the time frame of the squirrel activity. In any

event, plaintiffs appear to have created a situation that makes them vulnerable to

defendants’ “squirrel defense.” Without some evidence corroborating defendant’s

assumption that potential alteration to the vehicle would have been favorable to the

plaintiff's case, sanctions are not warranted. If, as plaintiffs suggest, the vehicle

contained no evidence of rodent activity in 2010, then allowing the introduction of

squirrels into the vehicle creating evidence to counter plaintiff’s assertion regarding the

lack of rodent activity is more damaging to plaintiff’s case. 

Defendant BMW’s January 16, 2014 motion to exclude for spoliation (doc. 49) is

DENIED.

IV. Conclusion

Defendants BMW of North America LLC (“BMW NA”) and Bayerische Motoren

Werke AG (“BMW AG”)’s December 17, 2013 motion to strike and exclude the opinions

of plaintiff’s untimely and improper rebuttal expert, Dr. Michael A. Steele (doc. 45) and

their January 16, 2014 motion to exclude for spoliation (doc. 49) are DENIED. Plaintiffs’

January 17, 2014 unopposed motion for leave of court to file a sur-reply (doc. 50) and

March 26, 2014 unopposed motion for leave to a supplemental sur-reply (doc. 62) are

GRANTED.

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Under the provisions of 28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R. Civ. P., and

Eastern Division Order No. 91-3, pt. F, 5, either party may, within fourteen (14) days

after this Order is filed, file and serve on the opposing party a motion for

reconsideration by the District Judge. The motion must specifically designate the

Order, or part thereof, in question and the basis for any objection thereto. The District

Judge, upon consideration of the motion, shall set aside any part of this Order found to

be clearly erroneous or contrary to law.

s/Mark R. Abel 

United States Magistrate Judge

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