Attempt to Exclude Logistics Expert Found to be “Daubert Motion Disguised as Motion in Limine”

    Court: United States District Court for the Eastern District of Pennsylvania
    Jurisdiction: Federal
    Case Name: Krauss v. Iris USA, Inc.
    Citation: 2019 U.S. Dist. LEXIS 89290


    This case involves negligence and breach of contract alleged by the plaintiff, Fightback for Autism, Inc. against the defendant, Iris USA, Inc. The plaintiff, a charity in Pennsylvania, contracted the defendant, a merchant, to purchase a large number of LEGOs. The purchase was shipped with freight broker, C.H. Robinson, which in turn hired a carrier, KV Load, to deliver the LEGOs. According to the plaintiff, the defendant and shipping carrier used old and incorrectly sized pallets for loading the LEGO shipment. The plaintiff further alleged that the dangerously loaded shipment damaged the LEGOs in transit and caused a pallet to crack during delivery, injuring a volunteer for the charity and damaging a forklift. The plaintiff retained a logistics expert witness to testify on the negligence in failing to adhere to the standard of care expected in organizing and managing the logistics of such a shipment.

    The Logistics Expert Witness

    The logistics expert witness had over 40 years of experience in warehousing, shipping, transportation, and global supply chain operations. The logistics expert witness submitted a report claiming the defendant did not meet a shipping standard of care by, among other factors, using European pallets―rather than American pallets―and stacking the pallets in a doubled fashion.

    The defendant sought to dismiss the plaintiff’s logistics expert witness testimony on the grounds that his opinions were not based on a reliable methodology, he did not define the standard of care, and he offered legal conclusions.


    In an attempt to exclude the logistics expert witness’s testimony, the defendant filed a motion in limine.  As this was over eight months after the Daubert motion deadline, the court called this a “Daubert motion thinly disguised as a motion in limine”. The court also noted that even when the time limit has expired, per the provisions of Rule 6(b)(1)(B) of the Federal Code of Civil Procedure, they may extend the deadline retroactively if a party has filed a motion for excusable neglect.

    The court stated that, in order to have access to that law, “a party must make a formal motion for extension of time and the district court must make a finding of excusable neglect,” quoting Drippe v. Tobelinski. Further, the court noted that when deciding whether there is “excusable neglect” they will weigh all the relevant circumstances surrounding the failure of the party in filing the motion in a timely manner. These circumstances can include the possibility of prejudice, the extent and cause of the delay, and its possible impact on the judicial proceedings. The court will also consider whether it was within the reasonable power of the movant and whether the movant took action in good faith.

    However, the court explained that the defendant had not filed a request for an extension of time pleading excusable neglect. The court also recalled that, when it had called for duty counsel on this issue in the course of an oral argument, the defendant’s lawyer admitted that he had no grounds for excusable neglect. In the lack of any attempt to show excusable neglect, the court could not support the defendant’s untimely motion on Daubert.


    The court denied the defendant’s Daubert motion.