ORDER
G. R. SMITH, Magistrate Judge.
After he returned from his overseas military deployment in 2014, Sergeant First Class Leroy Hamlett crashed his motorcycle into a truck driven by George Swartz and owned by Swartz's employer, Carroll Fulmer Logistics Corporation (CFLC).1 Doc. 1-1 at 3; doc. 55 at 4. Georgia State Patrol Trooper Robert L. Scott, Jr. examined the scene just after the accident and found Swartz at fault. The crash occurred on a four-lane road in Richmond Hill, Georgia. Hamlett had the right-of-way but Swartz made a left turn from his oncoming lane, causing Hamlett to collide with his truck's front end. See doc. 37-2 at 89 (official accident report diagram). Scott issued an O.C.G.A. § 40-6-73 (failure to yield) citation to Swartz, who paid the fine. Doc. 1-1 at 3; doc. 55 at 4; doc. 68 at 13. Hamlett and his wife (consortium claim) sued Swartz, CFLC, and CFLC's insurer. Doc. 1-1.2 He seeks compensatory and punitive damages, plus O.C.G.A. § 13-6-11 attorney fees and costs.3 Id.
The defendants move for summary judgment against plaintiff's punitive damage and attorney fee claims. Docs. 34, 35 & 40. They also move to exclude expert witness Jeffrey Alan Kidd's testimony about his calculations and diagrams because he failed to produce them with his written report by the Court's disclosure deadline. Doc. 38. Finally, they move to exclude from trial Scott's testimony on these topics: whether Hamlett was a cause of the accident; the percentage of Swartz's fault; whether Hamlett should have avoided Swartz's tractor trailer; and Hamlett's alleged speed at impact. Doc. 37. The summary judgment motions are before the district judge. The exclusion motions are reached here.
I. ANALYSIS
A. Kidd's Testimony
Hamlett hired Kidd as an accident reconstruction expert who, unsurprisingly, lays all the blame on Swartz. Doc. 25 at 3. His report supplies only the sources he'd been provided to review, then states his conclusions: that Swartz's failure to keep a proper lookout and yield while turning left (he turned into Hamlett's path) "is the sole cause of this collision." Id. His report was incomplete, defendants contend, when it was disclosed to them by the Court's July 23, 2015 deadline.4 Doc. 38-1. They insist he should not be permitted to supplement it after that deadline, during his deposition. Rule 26, they remind, prohibits procrastination and sandbagging.5 Doc. 38-1.
Hamlett counters that Kidd's report was only technically deficient. He expresses surprise at the defendants' objection. The parties, he explains, have worked harmoniously on this matter, conferring in early August 2015 to schedule Kidd's deposition for September 3, 2015. Doc. 45 at 4. He says he fully complied with defendants' Notice to Produce on that deposition, and on August 24, 2015 — the week before Kidd's deposition — the defendant's produced their accident reconstructionist's (James Sloan's) report. Id. at 4-5. Hamlett provided that report to Kidd, who thus was able to respond and be cross-examined about it in defendants' lengthy deposition of him. Id.6 "Just as Mr. Kidd, Sloan produced his file at his deposition," and "Mr. Sloan thoroughly critiqued Mr. Kidd's opinions during his deposition." Doc. 45 at 6.
Too, Hamlett reminds, defendants failed to object on untimeliness grounds, even during Kidd's deposition. In fact, they waited until over a month after Hamlet deposed Sloan (on September 28, 2015) to complain. Doc. 45 at 5-6. Plaintiff represents that "[t]he parties appeared to be working together to efficiently manage expert discovery without this Court's involvement. It is only four months later that [d]efendants raise any issue with Mr. Kidd's report." Id. at 6.
Hamlett makes some valid points. Some flexibility in the discovery process is tolerable, depending on the circumstances. And some objections can seem nit-pickish. Defendants, for that matter, concede that they did not object to Kidd's report when they first received it. Doc. 61 at 1. But that's because, they explain, they had no objections to Kidd's report at that time. They object now only to new opinions that Kidd first presented in his deposition (filed at doc. 38-4).
So, they conclude, Kidd can testify that Swartz failed to yield while turning left, turned into Hamlett's path, and — on that basis only — is the sole cause of the collision. Doc. 61 at 1-2. But they object to and want to exclude the new opinions that Kidd supplied at his deposition, including testimony about Hamlett's ability to perceive and react to avoid the accident. That, they insist, violates what Rule 26(a)(2)(B)(i) otherwise requires: a "complete statement of all opinions the witness will express and the basis and reasons for them. . . ." Id. (emphasis added); see also id. (expert reports must include "how" and "why" the expert reached a particular result, not merely the expert's conclusory opinions).
The Court agrees. The defendant's showing (doc. 61 at 3-7, 8-11) is unrebutted. Rule 26(a)(2) deters procrastination and sandbagging.7 Hamlett did both. It is unacceptable to make a party wait, and thus be surprised, at a deposition. Hamlett provides no satisfactory explanation for missing the deadline here, and the defendants were prejudiced because they were denied, prior to the deposition, the full opportunity to digest Kidd's information and formulate their deposition questions based on the same. To permit procrastinators to point to deposition questions as proof of no prejudice is to neuter the rule and deny adversaries the full benefit of pre-deposition, question-preparation time, if not the option to obviate a deposition expense outright. See supra n. 7. Hence, Kidd will not be permitted to testify on the distance traveled by either vehicle, the time it took for both to impact, or Hamlett's ability to perceive and react to Swartz's truck.8 Defendants' exclusion motion is thus GRANTED.9
B. Scott's Testimony
To reiterate, Trooper Scott investigated the accident, ticketed Swartz, and opined that Swartz is 100% at fault. Doc. 37-1 at 2, 4 (citing doc. 37-2 at 45-46). Defendants move to exclude only some of his opinions — those they insist fail the admissibility standard established by Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).10 Doc. 37-1 at 2. They "do not seek to exclude or limit Scott's testimony regarding his accident scene observations, investigation results, or other non-speculative, fact-based testimony. However, [they] do seek to exclude certain testimony by Scott which is unsupported by the evidence and his investigation and is basically a guess or conjecture on Scott's part." Id. They illuminate the fact that:
"Scott speculates Plaintiff was not travelling at or near the speed limit of 45 miles per hour." Id. at 4 (emphasis added).
"Scott has no knowledge of Plaintiff's ability to perceive and react to Swartz's tractor trailer." Id. at 5.
"Scott blindly assumes Plaintiff attempted to avoid Swartz's tractor." Id. at 6.
Hence, they want to prevent Scott from testifying about Hamlett's alleged speed at impact plus his inability to perceive and react to Swartz's tractor trailer at any time before impact. They also want to block his testimony consisting of, and in support of, the following conclusions:
1. Plaintiff did not cause or contribute to this accident;
2. Plaintiff was a 100% victim, thus Swartz was 100% at fault for the accident;
3. Plaintiff attempted to avoid Swartz's tractor before the accident occurred.
Doc. 37-1 at 7 (renumbered).
From Daubert-applying cases like Kumho, Roper v. Kawasaki Heavy Industries, Ltd., 2016 WL 1085489 at * 2 (11th Cir. Mar. 21, 2016), Green Party of Ga. v. Kemp, 2016 WL 1057022 at * 4 n. 8 (N.D. Ga. Mar. 17, 2016), Emery v. Talladega College, 2016 WL 880038 at * 2 (N.D. Ala. Mar. 8, 2016), and Rudd v. Gen. Motors Corp., 127 F.Supp.2d 1330, 1342 (11th Cir. 2001) (recognizing that the expert's ability to settle on a cause "through a process of eliminating alternative possible causes is, by a preponderance of the evidence, a reliable one"), useful "Daubert questions" can be distilled to evaluate contemplated expert testimony:
1. Is the opinion based on concrete data or testing?
2. Are the conclusions logically supported by the facts of the case?
3. Did the expert rely on testimony which itself was unreliable?
4. If he has posited an experience-based opinion, as opposed to a purely scientific opinion,11 is it based on the same level of intellectual rigor that characterizes the practice of an expert in the relevant field?
5. Did the expert fail to explain how his experience led him to the conclusions he reached?
6. Does his testimony rest on too great an analytical gap between the data and the opinion proffered?
7. Does his testimony help the trier of fact by offering something more than a lawyer's closing argument?
8. Have other courts considered his testimony and found him to be a reliable witness?
Finally, even if expert testimony does not meet all or most of the Daubert factors, it "may sometimes be admissible." United States v. Brown, 415 F.3d 1257, 1268 (11th Cir. 2005). Some flexibility is applied in reliability determinations, United States v. Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004), and it is "not the role of the district court to make ultimate conclusions as to the persuasiveness of the proffered evidence." Haynes v. Lawrence Transp. Co., 2015 WL 5601942 at * 2 (N.D. Ga. Mar. 24, 2015) (quotes and cite omitted). Hence, "[t]he rules relating to Daubert issues are not precisely calibrated and must be applied in case-specific evidentiary circumstances that often defy generalization." Brown, 415 F.3d at 1266. But inferences spiced with educated guesses wrapped in speculation will not suffice. Swinney v. Schneider Nat'l Carriers, Inc., 829 F.Supp.2d 1358, 1363 (N.D. Ga. 2011).
Citing Scott's "extensive training and experience in accident investigations," doc. 46 at 3, Hamlett notes that Scott arrived on the accident scene shortly after the accident, walked it, examined and photographed the physical evidence and interviewed witnesses. Id. at 4. Hamlett emphasizes that defendants' expert, Sloan, agrees with Scott's decision to cite Swartz for failing to yield. Id. They also agree that speed is not a contributing factor for either driver. Id. at 4-5. Indeed, says Hamlett, defendants' motion is "much ado about nothing" because "[t]here is only one material difference between Sloan's and Trooper Scott's conclusions." Id. at 5. Scott, says plaintiff, opines that:
Hamlett should have identified Defendants' tractor-trailer as a hazard only after Swartz wrongfully entered Hamlett's lane of travel. At that point, it was too late for Hamlett to do anything to avoid the collision, even with an evasive maneuver. Sloan, the expert hired by Defendants, disagrees with that opinion, and only that opinion — opining Hamlett should have identified the tractor-trailer as a hazard considerably sooner.
Doc. 46 at 5.
Scott's deposition supports the defendants here. He testified that he has been a Georgia State Patrol trooper since 2011, doc. 37-2 at 8, and has since been "a lead investigator on hundreds of accidents," id. at 11-12, though that quantification must be temporized (he was deposed on March 25, 2015, doc. 37-2 at 1, and the accident he investigated here occurred on June 17, 2013, id. at 23, so he had only about two years' experience when he analyzed the instant accident). Scott completes his accident reports, as he did in this case, id. at 86-89, within three days of his investigation. Id. at 12. As part of his investigation, he assesses the factors that contribute to a collision. Id. at 13.
Scott was just "five or six miles away" when the instant collision occurred on June 17, 2014. Doc. 37-2 at 15. Once he got to the accident scene, he "observed the vehicle damage, the traffic, the roadway, and began talking to [local] police officers." Id. at 19. He then applied his "standard investigation techniques," which consisted of interviewing witnesses and examining the physical and roadway evidence. Id. at 21-22. Hamlett, he concluded, is 100% blameless, and Swartz 100% blameworthy for the accident. Id. at 26, 45-46.
But Scott also conceded that there were no skid marks from either vehicle, doc. 37-2 at 47, 61-62, and he could only speculate whether there were any tall trucks to obstruct Hamlett's ability to see Swartz's truck just before the collision. Id. at 58-59. Nor did he know: if Hamlett applied his motorcycle's brakes prior to impact, id. at 62, how far Hamlett was from the truck's front when it entered into Hamlett's traffic lane, id. at 62-63, the weight of Swartz's tractor/trailer, how fast it was going at the time of impact, or how long it takes to stop a tractor/trailer at any speed. Id. at 48. Scott also did not know what he could have measured that day, but did not — the actual tractor/trailer's height (vital to the issue whether Hamlett should have seen it). Id. at 49. He could cite only the maximum amount permitted by regulations. Id.
These points figure into Scott's concession that he could only speculate that Hamlett would have seen Swartz "[i]f they were all passenger cars" in his line of view. Doc. 37-2 at 49. He also admitted that he lacked knowledge whether Swartz had started to cross the road from a stop, id. at 50, or, in light of his estimate that Hamlett had been traveling at 45 mph, what his stopping distance was. Id. In fact, Scott had no training in perception/reaction times, much less specific training in motorcycle accidents. Id. He also conceded this:
Q. Do you know — have any estimate how long it would have taken the tractor/trailer once it started to make the left turn to travel to the point of impact that you've noted of four feet north of the eastbound fog line?
A. No estimate of time. I mean —
Q. And based on that do you have any estimate of how far away Mr. Hamlett was when the tractor/trailer began the left-hand turn?
A. No, sir, no estimate at all.
Q. You would agree with me that all motorists under Georgia law are required to keep a lookout for potential hazards?
A. Yes.
Id. at 51. And this:
Q. Do you know how much time Mr. Hamlett had to perceive and react to the tractor/trailer once it started making the left turn?
A. I do not.
Q. Do you think that's important to know in determining whether or not Mr. Hamlett should have taken evasive action?
A. I mean, it has no — that would be hard to say. I mean, it's different in every crash or collision. That driver is not expecting something to be in its path. . . .
Id. at 54-55 (objection omitted).
The Court agrees with the defendants, who don't question Scott's experience to investigate the accident, only his "training or experience to provide opinions about whether Hamlett had sufficient time to perceive or react." Doc. 60 at 10. Scott's own deposition testimony shows that he "lacks training or experience in calculating speed12 or performing time and distance calculations and did not even attempt any such calculations." Id. (footnoted added). As can be seen from his "momentum" analysis, he failed to fill-in-the-blank on how he could determine Hamlett's pre-impact speed merely by the post-impact, 17-foot distance between the two vehicles (e.g., if any part of motorcycle's "momentum travel" was affected by whether its handle, kickstand or muffler, if not Hamlett itself dragged along the ground with it). Nor did he offer any reliable methodology to support the conclusion that plaintiff lacked sufficient time to perceive, react, and avoid the collision. Id. Scott mentioned no engineering principles or calculations, much less how he utilized them to support his conclusions. Id. As Scott himself said:
It's just — it's a lot of stuff to try and picture all at once time and decide, hey, you're at fault or you're not at fault and you all have to do that within a few minutes. You know, you don't have — you can't stand at an accident scene all day. You got to — you got to sit there, hurry up, work, get your statements from everybody that was there, your statements from the drivers, you look at your damage, you look at the vehicles, and you look at the roadway evidence and you try and put it all together.
Doc. 37-2 at 23.
The foregoing deposition testimony thus answers — in the negative — most all of the above-noted "Daubert Questions." Hence, Scott's testimony in support of the above-noted conclusions rests on too great an analytical gap between the data and the opinion offered. Also, he has failed to explain how his experience fills in that gap. Cf. Umana-Fowler v. NCL (Bahamas) Ltd., 49 F.Supp.3d 1120, 1122 (S.D. Fla. 2014) (a court "cannot admit an expert who simply states that he used the `scientific method' to reach his conclusions; more is required."). Nor have other courts found such testimony reliable (Hamlett has cited none). And his testimony on these points is not offering the jury any more than a lawyer's closing argument. Finally, all of Hamlett's cases and cites are distinguishable (e.g., Fed. R. Evid. 803(8) applies only to public records; Scott's deposition opinions are found in none, see doc. 37-2 at 86-89).
The above-highlighted testimony is therefore excluded. See Hughes v. Kia Motors Corp., 766 F.3d 1317, 1330 (11th Cir. 2014) (medical causation expert's testimony excluded as unreliable, in product liability case alleging that failure of manufacturer to equip vehicle with fuel shut-off switch led to driver's death from traumatic brain injury; expert failed to explain how his experience and relevant literature supported his opinion, only vaguely described his methodology, and was unable to express opinion about how multiple collisions with parked vehicles and house subsequent to initial collision with truck would have affected driver); Swinney 829 F. Supp. 2d at 1363 (engineer's opinions regarding vehicle accident in which husband died were unreliable, and, therefore, not admissible in wife's negligence action against truck driver and driver's employer; opinions were based on unspecified "actual testing" and review of scene photographs, films, and deposition, but provided nothing more than a summary of what he presumed to have happened); see also id. ("[P]laintiff suggests that [her expert's] general experience in the field of accident reconstruction renders his opinion reliable. However, plaintiff does not explain why [his] experience is a sufficient basis for his opinion, or how his experience has been reliably applied to the facts of this particular case."). Scott therefore is barred from opining on whether Hamlett was a cause of the accident; the percentage of Swartz's fault; whether Hamlett could or should have avoided Swartz's tractor trailer, and Hamlett's alleged speed at impact.13
II. CONCLUSION
The Court GRANTS defendants' exclusion motions. Docs. 37 & 38.
SO ORDERED.
