Ramona Smith v. Chrysler Group, L.L.C. , 909 F.3d 744 ( 2018 )

Case: 17-40901 Document: 00514735714 Page: 1 Date Filed: 11/26/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 26, 2018
No. 17-40901
Lyle W. Cayce
Clerk
RAMONA L. SMITH, Individually, and As The Temporary Administrator of
the Estate of Her deceased husband, Arthur Melton Smith; RAMONA
ALLEN; GLENDA ZIMMER; TARA CHEYENNE SMITH,
Plaintiffs - Appellants
v.
CHRYSLER GROUP, L.L.C., also known as FCA US, L.L.C.,
Defendant - Appellee
Appeals from the United States District Court
for the Eastern District of Texas
Before JOLLY, JONES, and HAYNES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This products liability case arises from a deadly car crash. Arthur
Melton Smith was killed while driving a 2013 Jeep Wrangler, designed and
manufactured by Chrysler Group, L.L.C. Days after the crash, Chrysler sent
out a Recall Notice explaining that the transmission oil cooler (TOC) tube of
some 2012 and 2013 Jeep Wranglers may leak, which could cause a fire in the
underbody of the vehicle.
Mr. Smith’s wife and three children contend that Mr. Smith’s Jeep had
this recall defect and that it caused his Jeep to catch fire and crash. They sued
Chrysler asserting claims of strict products liability, negligence, breach of
Case: 17-40901 Document: 00514735714 Page: 2 Date Filed: 11/26/2018
No. 17-40901
warranty, and violations of the Texas Deceptive Trade Practices Act. After
discovery, Chrysler moved for summary judgment, and upon recommendation
of the magistrate judge, the district court entered judgment for Chrysler on all
claims. For the reasons that follow, we affirm.
I.
In the summer of 2013, Mr. Smith was driving his 2013 Jeep Wrangler
in Rusk County, Texas, when he veered off the road, traveled 170 feet, and hit
a concrete bridge pillar. He was killed. An autopsy revealed Mr. Smith, a
habitual smoker, had a blood carbon-monoxide level of 18%.
Following the crash, Mr. Smith’s wife, Ramona Smith, and their three
children—Tara Smith, Ramona Allen, and Glenda Zimmer—(collectively, “the
plaintiffs”) learned that Chrysler had issued a Recall Notice for 2013 Jeep
Wranglers because a defect “exist[ed] in some 2012 and 2013 model year Jeep
Wrangler vehicles equipped with an automatic transmission.” Specifically, the
TOC tube was placed relatively close to the power steering fluid return tube.
This close proximity risked tube-to-tube contact, which could tear a hole in the
TOC tube and cause a leak. And such leaking transmission fluid could come
in contact with an ignition source, causing an underbody fire. Mr. Smith’s Jeep
was never inspected for the defect before his accident and the wrecked Jeep
was not preserved for experts to conduct a post-accident inspection. 1 But
several days after the crash, Zimmer and Allen returned to the scene of the
accident and photographed what appears to be charred grass along the path
Mr. Smith’s Jeep traveled once it left the road.
The plaintiffs sued Chrysler for strict products liability, negligence,
breach of warranty, and violations of the Texas Deceptive Trade Practices Act.
1 According to the Complaint, Mr. Smith’s car-insurance company “destroyed” the
Jeep.
2
Case: 17-40901 Document: 00514735714 Page: 3 Date Filed: 11/26/2018
No. 17-40901
In their view, the recall defect caused a fire to start in the underbody of Mr.
Smith’s Jeep, filling the passenger compartment with carbon monoxide. Upon
being exposed to this carbon monoxide while driving, Mr. Smith lost
consciousness and ran off the road and crashed.
As the plaintiffs’ case progressed in the district court, the parties
designated their experts and provided expert reports. The district court’s
scheduling order required the plaintiffs to designate expert witnesses and
provide expert reports by May 16, 2016. On May 16, the plaintiffs timely filed
a report produced by their fire cause expert, Dr. Michael Schulz, in which he
opined that he could not determine if the fire was caused by the recall defect.
Apparently recognizing the weakness of their case, on August 5, the plaintiffs
filed a motion to compel Chrysler to produce documents relating to other fires
in any model Jeep Wrangler. On October 7, Chrysler moved for summary
judgment and on October 11, Chrysler moved to strike Dr. Schulz’s initial
expert report on the grounds that it did not meet the standards for the
admission of expert testimony set out in Daubert. On October 20, the
magistrate judge granted plaintiffs’ motion to compel at which time Chrysler
released ten years’ worth of documents relating to incidences of other Jeep fires
caused by defects other than the specific recall defect the plaintiffs claim
caused Mr. Smith’s Jeep to crash. Then on December 9, the plaintiffs
responded to Chrysler’s October 11 summary judgment motion and at that
time attached a supplemental expert report from Dr. Schulz. This
supplemental report, however, consisted primarily of a rehash of Dr. Schulz’s
analysis of information that was available to him at the time of his original
report, and made only cursory reference to the further information furnished
by Chrysler in its supplemental discovery production. He does, however,
purport to have examined this new information and, retreating from his earlier
inability to come to any conclusion, declares that this new information has
3
Case: 17-40901 Document: 00514735714 Page: 4 Date Filed: 11/26/2018
No. 17-40901
allowed him to draw an “additional conclusion,” namely, now he is able to
conclude that it is more likely than not that the recall defect caused the fire
that caused the crash. On December 16, Chrysler promptly moved to strike
Dr. Schulz’s supplemental report as untimely and unreliable.
Fast forward to June 26, 2017. At this time, the magistrate judge
recommended striking Dr. Schulz’s supplemental report and granting
summary judgment to Chrysler. The magistrate judge reasoned that the
supplemental report was based upon documents that were available to Dr.
Schulz prior to the May 2016 expert report deadline and therefore the
supplemental report, filed six months after the expert report deadline, was
untimely. The magistrate judge also concluded that Dr. Schulz’s new opinion
was not reliable: “the additional discovery provided by Chrysler about other
vehicle defects does not explain why Schulz should be allowed to reverse his
opinion that there is sufficient evidence for him to have an opinion about this
defect.” Furthermore, Dr. Schulz offered no analysis to explain how the new
information had changed his first conclusion that he could not determine a
causal connection between the accident and the alleged defect. On this basis,
the magistrate judge proceeded to recommend that Chrysler’s summary
judgment motion should be granted.
On August 14, 2017, the district court adopted the magistrate judge’s
recommendations, struck Dr. Schulz’s supplemental expert report and opinion,
and entered summary judgment for Chrysler. The court agreed that the
supplemental report with its new and different opinion was untimely because
its conclusion was based on information that was available to Dr. Schulz before
the expert report deadline of May 16, 2016. The district court also agreed that
the report “would not constitute appropriate summary judgment evidence”
because Dr. Schulz’s “new findings are highly conclusory.” With the report and
4
Case: 17-40901 Document: 00514735714 Page: 5 Date Filed: 11/26/2018
No. 17-40901
new opinion excluded, the district court granted Chrysler’s summary judgment
motion on all claims.
The plaintiffs now appeal the district court’s rulings striking their
expert’s supplemental report, denying their evidentiary motions to limit the
testimony of Chrysler’s experts, and granting summary judgment for Chrysler
on their design-defect, marketing-defect, negligence, and implied-warranty-of-
merchantability claims. 2
II.
Because this appeal involves the exclusion of an expert report for the
purposes of a summary judgment determination, we first address that
evidentiary ruling and then turn to the grant of summary judgment. We
review “a district court’s exclusion of expert testimony for abuse of discretion”
and do not disturb the court’s decision unless it is “manifestly erroneous.” In
re Complaint of C.F. Bean L.L.C., 841 F.3d 365, 369 (5th Cir. 2016).
On appeal, the plaintiffs argue that the district court abused its
discretion in finding that the supplemental expert report did not rely on new
information. Because the new report describes “other defects in Jeep
Wranglers that have caused underbody fire” the plaintiffs argue that the
expert report filed after the deadline for submitting expert reports is not
untimely, but is allowable as supplemental within the meaning of Federal Rule
of Civil Procedure 26. Chrysler, on the other hand, characterizes the report as
adding nothing relevant to causation that was not known in May 2016.
2 Although the plaintiffs briefly mention manufacturing defect in their opening brief
on appeal, they do not appeal the dismissal of their claims alleging breach of implied
warranty of fitness for a particular purpose, express warranty, and violations of the Texas
Deceptive Trade Practices Act. Moreover, the plaintiffs’ Complaint does not allege a
manufacturing defect.
5
Case: 17-40901 Document: 00514735714 Page: 6 Date Filed: 11/26/2018
No. 17-40901
Chrysler further argues that Dr. Schulz’s new conclusion is not based upon any
methodology discernable from the new evidence submitted in his report.
In this supplemental report, when Dr. Schulz outlines, by number and
paragraph, the five categories of evidence, upon which he relies to form his new
opinion, every such itemization is evidence that was available to him at the
time he filed his initial report: (1) “the observations of Glenda Zimmer,” a
plaintiff in this litigation, (2) the images and discovery deposition testimony of
Zimmer, (3) the fire pattern shown in photographs of the driver’s side of Mr.
Smith’s Jeep, (4) the fire pattern shown in photographs of the sill plate of Mr.
Smith’s Jeep, and (5) the testimony of (a) Dr. Stash, medical examiner, (b) Dr.
Bernard, Chrysler’s medical expert, and (c) Ramona Smith, a plaintiff in this
litigation. Dr. Schulz acknowledges in his supplemental report that the above
bases are “a partial restatement” of his original report and deposition
testimony. Yet Dr. Schulz’s use of the term “review and analysis” of the
previously available evidence and the newly disclosed documents is the sum
total of his description of his methodology applied to come to this new
conclusion and opinion.
District courts have “wide latitude in determining the admissibility of
expert testimony” and this Court does not disturb the district court’s decision
unless it is “manifestly erroneous.” C.F. Bean, 841 F.3d at 369. To be sure,
Dr. Schulz’s supplemental report purports to exclude these other Jeep defects,
which were revealed in the newly produced evidence, from the potential causes
of the instant Jeep fire, allowing Dr. Schulz to reach a level of certainty in his
conclusion that he was previously unable to attain. 3 But this conclusion tells
3 In Dr. Schulz’s original report, he opined that “the origin of the hostile fire incident
[in Mr. Smith’s Jeep] . . . is properly reported as undetermined.” Dr. Schulz’s supplemental
report, however, concludes that Mr. Smith’s jeep caught fire, more likely than not, because
of the recall defect and not the “other defects” identified in the new discovery.
6
Case: 17-40901 Document: 00514735714 Page: 7 Date Filed: 11/26/2018
No. 17-40901
us only that the Jeep in question here did not have the same defect as other
Jeeps that caught fire. That is, the new evidence allows him to eliminate a fire
connected to these other Jeep defects. It does not allow us to conclude that Mr.
Smith’s Jeep had a defect 4 nor that the alleged defect could cause a fire or,
more particularly, whether it could cause the fire that caused this crash. The
district court correctly noted that Dr. Schulz’s new findings were “highly
conclusory” and did not meet the standard for the admissibility of expert
opinion. Dr. Schulz does not explain his methodology for reaching his
conclusion, leaving the district court to guess at how he applied the newly
produced evidence to form his new conclusion. It is certainly clear however,
that none of the instances of Jeep fires produced by Chrysler related to the
recall defect at issue here. Cf. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572,
582 (Tex. 2006) (“The trial court was not required to accept [a fire expert’s]
opinion at face value just because [the fire expert] was experienced in
examining post-collision fuel-fed fires.”); see also Sims v. Kia Motors of
America, Inc., 839 F.3d 393, 401–03 (5th Cir. 2016). 5
4 Chrysler has also produced uncontested evidence that Jeep began placing an interim
fix to cure the recall defect on all Jeep Wranglers produced after August 22, 2012. Mr. Smith’s
Jeep was produced on September 5, 2012.
5 Our recent opinion in Sims forecloses the plaintiffs’ arguments for the admissibility
of Dr. Schulz’s supplemental report. There we found that a district court did not abuse its
discretion in excluding the expert report and testimony of a fuel tank expert who travelled to
the crash site, inspected both the damaged vehicle and an undamaged model, ran computer
simulations and employed a differential diagnostic approach to determine that a gas tank
defect caused a vehicle fire. Here, Dr. Schulz did not have access to the damaged vehicle, did
not run simulations, did not purport to employ a differential diagnostic approach to “rule out”
“‘all other likely alternatives’ using ‘generally accepted diagnostic principles,’” and did not
even attempt to demonstrate “some scientific basis for ‘ruling in’ the phenomenon [he]
allege[s].” Id. at 401–02 (quoting Pipitone v. Biomatrix, Inc., 288 F.3d 239, 246 (5th Cir.
2002)); see also Moore v. Ashland, 151 F.3d 269, 278 (5th Cir. 1998 (en banc) (excluding expert
in part because he “gave no reason why these items were helpful in reaching his conclusion
on causation”).
7
Case: 17-40901 Document: 00514735714 Page: 8 Date Filed: 11/26/2018
No. 17-40901
To the point, Dr. Schulz’s supplemental report failed adequately to
connect the dots between the newly disclosed information and his conclusion,
and accordingly, the district court did not abuse its discretion in excluding the
report. We thus affirm the district court’s exclusion of Dr. Schulz’s
supplemental report. 6
III.
We next examine whether the plaintiffs offered other sufficient evidence
to survive summary judgment. We review a district court’s grant of summary
judgment de novo, viewing all the facts and evidence in the light most favorable
to the non-movant. C.F. Bean, 841 F.3d at 370. Summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A genuine dispute of material fact exists when the “evidence
is such that a reasonable jury could return a verdict for the nonmoving party.”
C.F. Bean, 841 F.3d at 370.
A.
As to their claims for design defect, marketing defect, and negligence
under Texas law, the plaintiffs must show (1) an unreasonably dangerous
defect that (2) caused Mr. Smith’s death. See Wright v. Ford Motor Co., 508
F.3d 263, 275 (5th Cir. 2007) (marketing defect); Timpte Indus., Inc. v. Gish,
286 S.W.3d 306, 311 (Tex. 2009) (design defect); Shaun T. Mian Corp. v.
Hewlett-Packard Co., 237 S.W.3d 851, 857 (Tex. App. 2007) (“[A]ppellants
alleged no negligence other than conduct relating to whether the [product] was
unreasonably dangerous when sold. As a result, appellants’ negligence
6Because Dr. Schulz’s report is an inadmissible expert opinion for the reasons stated
above, we do not address Chrysler’s argument that the report was untimely under Rule 26 of
the Federal Rules of Civil Procedure.
8
Case: 17-40901 Document: 00514735714 Page: 9 Date Filed: 11/26/2018
No. 17-40901
theories are encompassed and subsumed in their defective product theories,
and appellants’ burden at trial would be to prove injury resulting from a
product defect.”). The district court held that the plaintiffs failed to offer
sufficient evidence to prove both defect and causation and that their failure to
produce expert testimony supporting their theory of causation was critical.
We repeat ourselves to say that in their complaint, the plaintiffs allege
that Mr. Smith’s Jeep was defective because “the power steering line may
contact and wear a hole in the [TOC] line” and the Jeep lacked adequate
warnings about the defect. 7 For purposes of this appeal, we will assume
without deciding that Mr. Smith’s Jeep was defective and lacked adequate
warnings. We thus proceed straight to causation.
The plaintiffs point to multiple bases of circumstantial evidence to argue
that they have produced sufficient evidence that the recall defect caused the
fire that caused the wreck that caused Mr. Smith’s death. First, they present
the Recall Notice which states that the transmission oil cooler tube on “some
2012 and 2013 model year Jeep Wrangler vehicles . . . . may inadvertently come
in contact with the power steering fluid return tube” which “could eventually
cause the transmission oil cooler tube to develop a wear hole and leak” which
“could cause transmission damage and if the leaking transmission fluid comes
in contact with an ignition source, cause an underbody fire.” Second, the
plaintiffs point to Mr. Smith’s 18% blood carbon-monoxide level which they
argue is evidence of a pre-crash underbody fire consistent with the fire
possibility mentioned in the Recall Notice. Third, the plaintiffs put forth
7 On appeal, the plaintiffs attempt to narrow their allegation, arguing that the Jeep
was defectively designed because the TOC tube and the power steering fluid return tube were
“less than 1/3 [of an inch] away from each other at their closest point.”
9
Case: 17-40901 Document: 00514735714 Page: 10 Date Filed: 11/26/2018
No. 17-40901
eyewitness accounts of burn marks on the grass that followed the path of Mr.
Smith’s Jeep that they argue are evidence of a pre-crash fire. 8
Finally, the plaintiffs offer an expert to show causation: Mr. Andrew
Webb, an accident reconstructionist. With Dr. Schulz excluded, this accident
reconstructionist is the only expert they present. When asked whether he had
“an opinion about whether the defect in the Smiths’ Jeep proximately caused
the Jeep to crash,” Mr. Webb replied, “Based on the evidence, yes, sir. . . . [T]he
vehicle caught on fire prior to hitting the pillar and the byproducts of
combustion impaired the driver.” A careful look at Mr. Webb’s expertise
demonstrates that he is not the expert the plaintiffs need to ultimately
establish their case. The plaintiffs must show the alleged defect, a hole in the
TOC line, caused the fire to which Mr. Webb refers. Mr. Webb offers no opinion
on that point. Instead, Mr. Webb testified that he did not investigate or “try
to render an opinion or conclusion as to the cause and origin of the fire,” leaving
that “to the fire expert.” 9 But, as we have seen, Dr. Schulz could not carry the
ball that had been handed to him.
The absence of testimony from a fire expert is critical, particularly here
where there was no evidence that this alleged defect had caused a fire in any
other Jeep. Under Texas law, expert testimony is “required when an issue
involves matters beyond jurors’ common understanding.” Mack Trucks, Inc.,
206 S.W.3d at 583. Further, “[w]hether expert testimony is necessary to prove
a matter or theory is a question of law.” Id. Texas courts have consistently
8 The plaintiffs also point to the burn damage on the driver’s side of Mr. Smith’s Jeep
and the burn damage on the base of the pillar that Smith’s Jeep ran into. But those
arguments are absent from their summary-judgment response below. The district court did
not abuse its discretion in refusing to consider this late evidence. See Nunez v. Allstate Ins.
Co., 604 F.3d 840, 846 (5th Cir. 2010).
9The other potential experts that the plaintiffs proffer, Ms. Froehlich, Mr. Wilkinson,
and Mr. Brookes, offer evidence of defect but not causation.
10
Case: 17-40901 Document: 00514735714 Page: 11 Date Filed: 11/26/2018
No. 17-40901
held that the cause of an engine fire is beyond the common experience and
understanding of a lay juror. See, e.g., id. (“A lay juror’s general experience
and common knowledge do not extend to whether design defects such as those
alleged in this case caused releases of diesel fuel during a rollover accident.”);
see also Sims v. Kia Motors of America, Inc., 839 F.3d at 409 (in vehicle fire
case “expert testimony is crucial in establishing that the alleged design defect
caused the injury”); C & M Cooled Engine v. Cub Cadet LLC, 348 F. App’x 968
(5th Cir. 2009) (expert testimony required to determine cause of lawnmower
fire); cf. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 348 (Tex.
2015) (expert required to determine cause of chemical fire); Nissan Motor Co.
v. Armstrong, 145 S.W.3d 131, 137 (Tex. 2004) (“[W]e have consistently
required competent expert testimony and objective proof that a defect caused
the acceleration. . . . These requirements are not peculiar to unintended
acceleration cases.”).
The case authority makes clear that the district court was within its
discretion in holding that testimony from a fire expert was necessary to
establish causation. This case illustrates the type of complex causation theory
that requires “expert testimony and objective proof.” 10 Gharda, 464 S.W.3d at
348. Here, the plaintiffs were required to produce evidence that a defect in the
Jeep’s transmission oil cooler caused a leak that caused transmission fluid to
come in contact with an ignition source that caused the fire. The plaintiffs
have been unable to produce such expert testimony. Without such an expert,
10 In the Recall Notice itself, we count at least four conditional events that must occur
for the recall defect to cause an underbody fire: “The [TOC] tube . . . may inadvertently come
into contact with the power steering fluid return tube. This tube-to-tube contact could
eventually cause the [TOC] tube to develop a wear hole and leak. A loss of transmission fluid
could cause transmission damage and if the leaking transmission fluid comes in contact with
an ignition source, cause an underbody fire.”
11
Case: 17-40901 Document: 00514735714 Page: 12 Date Filed: 11/26/2018
No. 17-40901
the plaintiffs have not met their burden of production under Texas law. 11 See
Gharda USA, Inc., 464 S.W.3d at 353 (“[O]ur holding that the plaintiffs must
have supported their causation theory with expert testimony prohibits the jury
from inferring causation based on this circumstantial evidence.”). The
plaintiffs’ failure to produce a fire expert who can identify the cause of the fire
is therefore fatal to their success.
We recognize that, had the Jeep been preserved, the plaintiffs’ expert
may well have been better able to connect the dots to these items of evidence.
But on the record presented to us, we hold that the plaintiffs fail to offer
sufficient evidence to establish a triable case that the defect caused the fire
and crash of Mr. Smith’s Jeep.
B.
Because the plaintiffs’ strict liability claims must be dismissed, so too
must their implied-warranty-of-merchantability claim. See Hyundai Motor Co.
v. Rodriguez ex rel. Rodriguez, 995 S.W.2d 661, 665 (Tex. 1999) (“An
uncrashworthy vehicle cannot be unfit for ordinary use but not unreasonably
dangerous, nor can it be unreasonably dangerous but fit for ordinary use; it
must be both or neither.”); Otis Spunkmeyer, Inc. v. Blakely, 30 S.W.3d 678,
684 (Tex. App. 2000) (explaining that a Jury Charge for implied warranty of
11The plaintiffs identify Flock v. Scripto-Tokai Corp. as an example of circumstantial
evidence alone being sufficient to demonstrate that a defect caused a fire. 319 F.3d 231 (5th
Cir. 2003). The facts of that case, however, are demonstrably different from the precedent
cited above requiring expert testimony. At issue in Flock was whether a child started a fire
by using a cigarette lighter. We held that there was sufficient evidence of the fire’s origin
because the lighter was the only incendiary device in the room where the fire originated.
There are innumerable potential causes of a vehicle engine fire. The factors involved in
pinpointing the cause of an automobile fire are quintessentially “scientific questions,
including questions of chemistry, physics, and electrical engineering, outside the common
understanding of a layperson.” Cf. Andrews v. Dial Corp., 143 F. Supp. 3d 522, 529 (W.D. Tex.
2015). For the same reason, the plaintiffs’ reliance on Scott v. Dorel Juvenile Group, Inc. is
inapposite. 456 F. App’x 450 (5th Cir. 2012) (considering defect in kitchen cabinet child safety
latch).
12
Case: 17-40901 Document: 00514735714 Page: 13 Date Filed: 11/26/2018
No. 17-40901
merchantability must “inquire whether the breach proximately caused the
plaintiff’s injuries, as it would in a crashworthiness or strict products liability
case.” (emphasis added)). In Texas, “[p]roducing or proximate cause is an
element of . . . negligence, misrepresentation, breach of warranty, and design,
manufacturing, and marketing defects.” Mack Trucks, Inc., 206 S.W.3d at 582.
The plaintiffs’ implied warranty claim must suffer the same fate as their other
claims because they have failed to produce evidence of proximate causation.
IV.
After the district court entered final judgment in favor of Chrysler,
Chrysler filed its bill of costs requesting $52,372.88. The plaintiffs objected to
the bill of costs, primarily citing their limited economic hardship and
Chrysler’s enormous financial resources. Ultimately, the district court
overruled most of the plaintiffs’ general objections but granted their specific
objection to Chrysler’s request to recover costs for both paper transcripts and
video recordings of the same deposition and awarded Chrysler costs in the
amount of $29,412.29.
“Unless a federal statute, [the Federal Rules of Civil Procedure], or a
court order provides otherwise, costs—other than attorney’s fees—should be
allowed to the prevailing party.” Fed. R. Civ. P. 54. Such costs include fees for
the clerk/marshal, printed or electronically recorded transcripts, printing,
witnesses, and making copies. 28 U.S.C. § 1920 (2012). “Only when a clear
abuse of discretion is shown can an award of cost be overturned.” Pacheco v.
Mineta, 448 F.3d 783, 793 (5th Cir. 2006).
The plaintiffs do not dispute that Chrysler is the prevailing party under
the district court’s order or that the costs awarded are recoverable under
§ 1920. Instead, they argue the district court abused its discretion in awarding
costs to Chrysler at all in the light of their “impoverished condition” and good
faith in bringing suit.
13
Case: 17-40901 Document: 00514735714 Page: 14 Date Filed: 11/26/2018
No. 17-40901
In support of their argument, the plaintiffs cite to Pacheco v. Mineta,
wherein this Court explained that a district court may, but is not required to,
deny a prevailing party costs where suit was brought in good faith and denial
is based on at least one of the following factors: “(1) the losing party’s limited
financial resources; (2) misconduct by the prevailing party; (3) close and
difficult legal issues presented; (4) substantial benefit conferred to the public;
and (5) the prevailing party’s enormous financial resources.” 448 F.3d at 794.
Importantly, we withheld judgment on whether “any of [the above factors] is a
sufficient reason to deny costs.” Id. at 794 n.18.
We can assume that the plaintiffs brought suit in good faith and their
financial condition is dire; even so the district court was not required to deny
Chrysler its costs because of its comparative ability to more easily bear the
costs. See, e.g., Moore v. CITGO Refining & Chemicals Company, L.P., 735
F.3d 309, 319–20 (5th Cir. 2013) (“[R]educing or eliminating a prevailing
party’s cost award based on its wealth—either relative or absolute—is
impermissible as a matter of law.”). This point is especially applicable in the
light of the “strong presumption that the prevailing party will be awarded
costs.” Pacheco, 448 F.3d at 793. Here, the district court carefully and
thoroughly examined the factors outlined in Pacheco and determined that the
plaintiffs had not overcome the presumption that Chrysler was entitled to
costs. Although the court sympathetically found that the plaintiffs had
established financial hardship, it felt compelled to overrule their general
objection because they had not established misconduct by Chrysler, their suit
did not present a close and difficult issue of unsettled law, and their case did
not confer a substantial benefit to the public. Citing Moore and the strong
presumption toward awarding costs in Federal Rule of Civil Procedure 54, the
district court declined to withhold costs on the basis of financial hardship
14
Case: 17-40901 Document: 00514735714 Page: 15 Date Filed: 11/26/2018
No. 17-40901
alone. We can find no error in the district court’s methodology or conclusion,
and conclude the district court acted within its discretion in its award of costs.
V.
In sum, we hold that the district court did not abuse its discretion in
excluding the plaintiffs’ untimely expert report and affirm the district court’s
grant of summary judgment for Chrysler on all claims. 12 Further, the district
court did not abuse its discretion in awarding costs to Chrysler. Accordingly,
the judgment of the district court is in all aspects
AFFIRMED.
Because we hold that the plaintiffs failed to create a genuine issue of material fact
12
as to causation, we need not reach the further questions related to challenges to the
defendant’s experts.
15