UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

JOSEPH KUBERSKI, 

 Plaintiff, 

v. CAUSE NO.: 1:15-CV-320-HAB 

ALLIED RECREATIONAL GROUP, 

INC., 

 Defendant. 

OPINION AND ORDER 

 This is a lawsuit for breach of warranty in connection with the purchase of a 

recreational vehicle (RV). On November 7, 2017, Magistrate Judge Susan Collins issued a 

Report and Recommendation [ECF No. 66] upon referral of two motions: (1) Defendant 

Allied Recreational Group, Inc.’s, Motion to Bar Plaintiff’s Expert (Phillip Grismer) [ECF 

No. 31]; and (2) Plaintiff Joseph Kuberski’s Motion to Exclude Douglas Haas’ Testimony 

[ECF No. 34]. The Magistrate Judge recommended that this Court deny Defendant’s 

Motion to bar Grismer’s testimony. The Magistrate Judge also recommended that this 

Court deny Plaintiff’s Motion to bar Haas’ testimony, with one exception. The Magistrate 

Judge found that one portion of Haas’ opinions should be excluded because it was not 

disclosed in accordance with Federal Rule of Civil Procedure 26(a) and (c), and the failure 

to disclose it was not substantially justified or harmless. 

 Defendant has objected to this portion of the Report and Recommendation. (See

Def.’s Obj. to R. & R., ECF No. 68.) Haas offered the opinion that is at issue during his 
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deposition. Haas testified that two worn front tires of the RV and Plaintiff’s failure to 

have an alignment performed caused the RV’s vibration and the loosening of parts 

throughout the RV. Defendant argues that the testimony regarding the tires is “merely a 

common sense rebuttal to Mr. Grismer’s opinion that there was no relationship between 

the tires and complaints raised by plaintiff.” (Def.’s Obj. ¶ 2.) 

 For the reasons stated in this Opinion and Order, the Court overrules Defendant’s 

objection and adopts the Report and Recommendation in whole. 

ANALYSIS 

Under 28 U.S.C. § 636(b)(1)(B), a magistrate judge is authorized, upon referral from 

the presider, to submit proposed findings of fact and recommendations to the district 

court. If a party files a timely objection to the magistrate judge’s report and 

recommendation, 

the district judge is to make a de novo determination of those portions of 

the report or specified proposed findings or recommendations to which 

objection is made. The court may accept, reject, modify, in whole or in part, 

the findings or recommendations made by the magistrate judge. The judge 

also may receive further evidence or recommit the matter to the magistrate 

judge with instructions. 

28 U.S.C. § 636(b)(1). Portions of a recommendation to which no party objects are 

reviewed for clear error. Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). 

 Defendant has made a timely objection to a specific recommendation. As stated 

above, Defendant does not agree that, when its expert, Haas, testified during his 

deposition that there was a connection between the worn tires and misalignment and 
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other problems with the RV, this was a new opinion that was not timely disclosed. In 

concluding otherwise, the Magistrate Judge began with Grismer’s Report. 

 Grismer stated that the “dash assembly and entire right front wall 

area began rattling and shaking” at 25 miles per hour, that the “dash panel 

visible [sic] jumps up and down,” and that “[a] severe vibration is felt 

through the seats, steering wheel, wall and floor while driving.” (DE 47-5 

at 8). Grismer’s report also notes an invoice for the replacement of two front 

tires that were worn out on the inside tread to the extent that the steel belts 

were exposed (DE 47-5 at 6), though the report does not offer any opinion 

about the worn tires. Haas’s report notes a “slight rattle” in the front 

passenger side wall, but indicated that “[r]epairs to the fasteners in the dash 

assembly . . . would significantly reduce this issue.” (DE 35-3 at 5). Haas’s 

report also indicates that Kuberski’s traveling off road to the storage 

location “very likely caused or contributed to the present condition of the 

dash . . . .” (DE 35-3 at 18). 

 At his deposition, Grismer was asked whether there was any 

relationship between the tires and Kuberski’s various complaints, and 

Grismer simply responded: “No.” (DE 46-10 at 2). At Haas’s deposition 11 

days later, Haas testified that the two worn front tires and Kuberski’s failure 

to have an alignment performed caused the vibration and loosening of parts 

throughout the Subject RV. (DE 35-2 at 18-20, 22). Haas further testified that 

he reached this conclusion “[w]hen [he] saw the picture of the tire[,]” which 

was prior to his first inspection and prior to writing his expert report. (DE 

35-2 at 19). Haas admitted, however, that he failed to mention this opinion 

in his written report. (DE 35-2 at 20). 

(R. & R. 19–20.) 

 The Magistrate Judge then acknowledged Defendant’s argument that the 

testimony was in rebuttal to Grismer’s deposition testimony denying any causal 

effects of the worn tire, and also acknowledged Plaintiff’s position that it was not 

an elaboration of his written report but a contradiction to it. The Magistrate Judge 

agreed with Plaintiff. She wrote that Grismer had not raised the worn tires in his 

report, and his only deposition testimony was to deny any connection between the 
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tires and the vibration. Accordingly, Grismer had not raised “a new opinion that 

necessitated rebuttal testimony on this point.” (R. & R. 21.) The Magistrate Judge 

noted that the most significant fact was that Haas admitted that he formed the 

opinion about the worn tires before he completed his inspection and issued the 

written report, yet the opinion was not included in his report. 

 Defendant urges the Court to view the testimony as rebuttal, and to modify 

the Magistrate Judge’s Report and Recommendation accordingly. Defendant 

contends that it is important to consider that Grismer did not merely deny a 

connection between the worn tires and the RV issues. Rather, he also opined, for 

the first time in his deposition, that even though worn tires and a misaligned 

chassis could cause vibration, he viewed the effect on drivability as negligible. 

(Grismer Dep. 97, ECF No. 68-1.) Defendant argues that Haas’s testimony, in this 

context, simply points out that Grismer’s conclusions are illogical. Defendant 

argues that Haas’s conclusions were so rudimentary that they should not have 

surprised Plaintiff, and were simply an explanation of other testimony that 

suspension, alignment and tire balance are matters of maintenance that can cause 

or contribute to the problems Plaintiff experienced with the RV. 

 If Defendant intended to convince the Court that Haas’s testimony was an 

explanation of his previously stated opinions, he has not succeeded. Defendant 

does not cite those opinions, nor attempt to place Haas’ testimony in context with 

those opinions. Accordingly, the Court adopts the Magistrate Judge’s conclusion, 
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based on a review of Haas’ report, that he offered a different opinion with respect 

to the vibration of the dash that made no mention of tires. 

 Defendant’s most strenuous objection appears to be that the testimony was 

harmless rebuttal to a new opinion Grismer offered, and that Haas was entitled in 

fairness to address that opinion. Grismer’s testimony, however, cannot be 

characterized as a new opinion. Grismer never opined in his Report that the tires 

had any relationship to the other complaints with the RV. Thus, when he was 

asked about a possible connection during his deposition and denied that one 

existed, his testimony was entirely consistent with his report. Grismer was not 

required to identify in his Report all potential causes that he did not associate with 

the RV’s vibration. It does not stand to reason that any questioning along the lines 

of what Grismer did not consider a causal connection would open the door for 

Haas to offer a new opinion. 

 Further, the Court finds that Defendant has not offered a substantial 

justification for Haas’s exclusion of this opinion from his report. Haas admittedly 

saw pictures of the tire and inspected the RV before writing his report. Moreover, 

permitting its introduction would not be harmless, as it affirmatively assigns a 

particular cause to one of Plaintiff’s major complaints about the RV. 

 Because Haas offered an opinion that he had not included in his report, and 

this opinion has not been shown to be an elaboration of a prior opinion, the 

Magistrate Judge correctly applied Rule 37(c)(1) to exclude the opinion as 

untimely. 
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CONCLUSION 

 For the reasons stated above, the Court OVERRULES Defendant’s 

Objection to Report and Recommendation [ECF No. 68], and ADOPTS in whole 

the Report and Recommendation [ECF No. 66]. Accordingly, Allied’s Motion to 

Bar Plaintiff’s Expert [ECF No. 31] is DENIED, and Kuberski’s Motion to Exclude 

Douglas Haas’ Testimony [ECF No. 34] is GRANTED IN PART and DENIED IN 

PART in accordance with the Report and Recommendation [ECF No. 66]. 

SO ORDERED on May 29, 2019. 

 s/ Holly A. Brady 

JUDGE HOLLY A. BRADY 

UNITED STATES DISTRICT COURT