I. BACKGROUND[2]

This case involves strict liability and negligence causes of actions following the death of Micah Andrews after this 2005 Mazda 3 left the highway and hit a cluster of trees. Doc. No. [90]. Plaintiff alleges that “Mr. Andrews died because the occupant restraint system of the Mazda 3 catastrophically failed him.” Id. at p. 2. Plaintiff further alleges that “[t]he Mazda 3 was equipped with a seatbelt, which [Mr. Andrews] was using, but the seatbelt was useless because it completely or almost completely spooled out, causing so much slack it did not restrain him.” Id. at p. 3. Plaintiff also alleges that Defendant “Autoliv designed, tested, manufactured, marketed, distributed, sold, and placed into the stream of commerce the defective seatbelt system and airbag components installed in Mr. Andrews's Mazda 3.” Id. at ¶ 37.

The procedural history of this case is lengthy as this litigation began in 2014 (Doc. No. [1-2], p. 13). For purposes of the pending motion, the relevant procedural happenings are an August 2015 discovery dispute hearing in which Autoliv was ordered to produce evidence in response to Plaintiff's Request for Production No. 23. Said request in relevant part required Defendant Autoliv to produce “[a]ll documents regarding the development and selection of the components of the seatbelt system, including the torsion bar, buckle, and preten[s]ioner, for the subject vehicle model.”[3] Doc. No. [145], pp. 86 (lines 18–24), 92 (lines 24–25), 93 (lines 1–2), and 94 (lines 1–3, 7–8); see also, Doc. No. [343-3], pp. 3–4, ¶ 23. Also of relevance is the January 2017 order of the Honorable William S. Duffey, Jr.,[4] granting summary judgment to Autoliv (Doc. No. [274]) based on Defendant Autoliv's argument that it was not actively involved in designing the seatbelt assembly of Mr. Andrews's car (Doc. No. [274], p. 5) and a resulting judgment awarding attorney's fees to Defendant Autoliv (Doc. No. [307]),[5] as well as the reversal of the summary judgment order in July of 2018 by the Eleventh Circuit Court of Appeals. Doc. Nos. [309, 312].[6]

*2 In the pending motion for sanctions, Plaintiff asserts that “Autoliv has defended itself during the last four years by representing that it was not ‘actively involved in the design’ of its defective seatbelt,” which is actually a false statement “made possible by Autoliv concealing evidence to the contrary.” Doc. No. [343], pp. 2, 6. Plaintiff states that Defendant Autoliv concealed the following evidence (which shows that Autoliv was heavily involved in the design of the defective seatbelt) until November of 2018 (after summary judgment and after appeal): a Statement of Work, VA/VE suggestions,[7] and test reports. Id. at p. 2.[8]

Plaintiff states that “the concealed evidence was responsive to Plaintiff's discovery requests and that this Court had specifically [o]rdered Autoliv to produce the evidence” in August of 2015. Doc. No. [343], p. 4.

In an opposition brief, Defense Counsel wrote on behalf of Defendant, that the new production of documents came about as a result of an Autoliv employee named Junichi Kishimoto identifying the documents (in October of 2018) in connection with deposition preparation for its corporate representative, David Prentkowski testifying on behalf of Autoliv in a California case concerning the Mazda 3's passenger seatbelt assembly, Stegall v. Mazda, et al., Case No. 30-2016-00890768-CU-PL-CJC (Calif. Sup. Court). Doc. No. [349], p. 10; see also Doc. No. [350-2], p. 2. Defense Counsel subsequently became aware of the existence of the documents on October 11, 2018 and arranged for them to be translated and produced in the case sub judice on November 2, 2018. Id. at pp. 10–11. In reply, Plaintiff correctly notes that Defendant's brief is not sworn or supported by affidavit. Doc. No. [350], p. 3, n.5. Plaintiff also asserts allegations of falsity, citing to Prentkowski's deposition testimony in which he stated that the documents at issue were “found roughly 90 days before his [November 16, 2018] deposition in Stegall, meaning August 2018.” Doc. No. [350], p. 3, n.5. Prentkowski also testified that he did not remember the exact date as to when he first saw the documents. Doc. No. [344-1], pp. 4 (lines 21–22), 7 (lines 21–25), and 8 (lines 1– 2).

Plaintiff asserts that Autoliv's conduct is “outrageous and fraudulent.” Doc. No. [343], p. 7. Plaintiff also suggests that “Autoliv never intended to reveal the concealed evidence in this case” and “did so only after it learned that ... Plaintiff's counsel were communicating with the plaintiffs' counsel in Stegall.” Doc. No. [343], pp. 3–4.[9] Plaintiff further asserts that Autoliv's concealment continues because the November of 2018 production, “references many other documents that should exist,” but have not been given to Plaintiff. Doc. No. [343], p. 16.

*3 In response, Defendant Autoliv asserts inadvertence and insignificance of the November 2018 production. Doc. No. [349]. Defendant also states that it did search for the additional categories of documents (derived from the Statement of Work) and “did not identify any responsive documents that had not been previously produced.” Id. at p. 12.

In reply, Plaintiff asserts that this argument is false, because the Stegall plaintiffs have provided her counsel with responsive documents that have not been produced in the case sub judice. Doc. No. [350], p. 6.

The Court held oral argument on May 16, 2019. Doc. No. [404]. This matter is now ripe for review.

II. LEGAL STANDARD

Plaintiff brings this motion pursuant to Federal Rule of Civil Procedure 16(f). Rule 16(f) provides, in relevant part, “[o]n motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)– (vii),[10] if a party or its attorney ... fails to obey a scheduling or other pretrial order.” Fed. R. Civ. P. 16(f)(1)(C).[11] The rule continues, “[i]nstead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses—including attorney's fees—incurred because of noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 16(f)(2).[12]

“The sanctions contained in Rule 16(f) were designed to punish lawyers and parties for conduct which unreasonably delays or otherwise interferes with the expeditious management of trial preparation.” Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985). In addition, “although Rule 37 confers upon district court judges broad discretion to fashion appropriate sanctions for the violation of discovery orders, this discretion is not unbridled.” United States v. Certain Real Prop. Located at Route 1, Bryant, Ala., 126 F.3d 1314, 1317 (11th Cir. 1997) (citations omitted). “[I]n order to impose the severe sanction of a default judgment, the district court must make a finding of willfulness or bad faith failure to comply with a discovery order.” Maus v. Ennis, 513 F. App'x 872, 878 (11th Cir. 2013) (citing Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1542 (11th Cir. 1993)). “Violations of a court order caused by simple negligence, misunderstanding, or inability to comply will not justify a Rule 37 default judgment.” Id. (internal quotations omitted). “Moreover, a default judgment is appropriate only as a last resort, when less drastic sanctions would not ensure compliance with the court's orders.” Id. (internal quotations omitted). “A court may impose lesser sanctions without a showing of willfulness or bad faith on the part of the disobedient party.” BankAtlantic v. Blythe Eastman Paine Webber, Inc., 12 F.3d 1045, 1049 (11th Cir. 1994).

*4 “Courts [also] have the inherent authority to control the proceedings before them, which includes the authority to impose ‘reasonable and appropriate’ sanctions.” Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332, 1335 (11th Cir. 2002); see also Chambers v. NASCO, Inc., 501 U.S. 32, 43–51 (1991) (recognizing the inherent power of the court to sanction parties who conduct litigation in bad faith or who perpetrate fraud on the court).

“Invocation of a court's inherent power requires a finding of bad faith.” In re Mroz, 65 F.3d 1567, 1576 (11th Cir. 1995). “Bad faith exists when the court finds that a fraud has been practiced upon it, or ‘that the very temple of justice has been defiled,’ or where a party or attorney knowingly or recklessly raises a frivolous argument, delays or disrupts the litigation, or hampers the enforcement of a court order.” Allapattah Servs., Inc. v. Exxon Corp., 372 F. Supp. 2d 1344, 1373 (S.D. Fla. 2005) (citing Chambers, 501 U.S. at 46).

“The party seeking [inherent authority] sanctions has the burden of proving that the sanctionable conduct occurred.” Ramsey v. Broy, No. 08-CV-0290-MJR-DGW, 2010 WL 1251199, at * 5 (S.D. Ill. Mar. 24, 2010). “Because the inherent power sanctions of dismissal and default serve the same purposes as contempt, in other words, “vindicat[ing] the District Court's authority over a recalcitrant litigant,” these sanctions require the same standard of proof, which is clear and convincing evidence.” Deforest v. Johnny Chisholm Global Events, LLC, No. 3:08cv498/MCR/EMT, 2010 WL 1792094 (N.D. Fla. May 4, 2010) (citations omitted).

“Because of their very potency, inherent powers must be exercised with restraint and discretion.” Chambers, 501 U.S. at 44 (citations omitted).

III. ANALYSIS

In her motion, Plaintiff requests that the Court enter default judgment against Defendant Autoliv or in the alternative, impose issue preclusion sanctions.[13] Doc. No. [343], p. 7.[14]

Plaintiff asserts that “Autoliv violated Court Orders and concealed crucial evidence for over three years, until after discovery was closed, while making representations to Courts that Autoliv knew were proved false by the evidence it concealed. That caused an errant summary judgment, an unnecessary 17-month delay for appeal, and has totally interfered with Plaintiff's trial deposition,[15] since ‘not actively involved’ was Autoliv's only defense argument.” Doc. No. [343], p. 21. As stated above, Plaintiff asserts that Defendant Autoliv's conduct is “outrageous and fraudulent,” because “Autoliv has always known the truth ... [that] it was ‘actively involved’ in the design of the defective seatbelt,” but told Judge Duffey otherwise. Doc. No. [343], p. 7. Plaintiff also asserts that Defendant concealed documents “to get away with its misrepresentations,” used “the threat of attorney's fees to try to keep the erroneous judgment in its favor,” and forced an appeal based on a falsehood.

*5 In opposition, Defendant states: “the recently-produced documents (i) were not ‘concealed’ by Autoliv willfully or in bad faith; (ii) have not prejudiced Plaintiff's case; and (iii) do not warrant the entry of default judgment—a remedy of ‘last resort.’ ” Doc. No. [349], p. 5. Defendant states that it “inadvertently failed to identify the documents produced on November 2 until David Prentkowski began preparing for his deposition as Autoliv's corporate representative in Stegall.” Id. at pp. 10, 15. Defendant further states that it “had no incentive to conceal the recently-produced documents ... none of the recently-produced documents are ‘smoking gun’ documents, and none of them demonstrate that Autoliv's ‘active involvement’ arguments were false or in any way misleading.” Doc. No. [349], p. 5. Defendant states that it “would still advance those arguments today but for the Eleventh Circuit's ruling that focused on the fact that Autoliv ‘manufactured’ the subject seatbelt.” Id. at p. 2, n.2. Defendant Autoliv also states that it does not believe that it was required to produce the Statement of Work in response to Plaintiff's request for production Nos. 35 or 36 and merely produced it out of abundance of caution. Id. at p. 17, n.14. Defendant asserts that that the Statement of Work is irrelevant based on the declaration of its seatbelt engineer (Mr. Yuji Kamei), who stated that during the time period he worked on the Mazda 3, no one at Mazda or Autoliv told him to refer to the Statement of Work. Doc. No. [349-2], ¶¶ 9–10.[16] Defendant asserts that Plaintiff's Counsel has chosen to “ascribe their own self-serving meaning to” the Statement of Work to bolster their motion, in lieu of asking Mr. Kamei about it at deposition. Doc. No. [349], p. 5.

In reply, Plaintiff argues that any claim of inadvertence is demonstrably false for many reasons, to include that “the documents were found exactly where Autoliv should have looked, i.e., on the computer of the Autoliv employee who managed the Mazda3 program.” Doc. No. [350], p. 2; see also Doc. No. [343], p. 17.[17] Plaintiff argues that Defendant's conclusory claim that it used “all reasonable efforts” must also be completely disregarded because it is contradicted by Autoliv's own sworn testimony. Doc. No. [350], pp. 2, 9. Plaintiff further argues that “[w]aiting until [Defendant Autoliv] was caught to produce vital evidence it already had located and produced in another case is bad faith” and “[e]xtraordinary claims require extraordinary evidence, and Autoliv has presented no evidence ... to support its extraordinary claim of ‘inadvertence.’ ” Doc. No. [350], pp. 2, 9. Plaintiff states that the three problems with this case are: (1) a three-year late production, (2) a violation of the Court's order to produce, and (3) the “gravest problem is that Autoliv concealed evidence so that it could advance a defense that Autoliv always knew was false.” Doc. No. [350], p. 8.[18]

The Court notes that Plaintiff has made a number of strong arguments; however, in the end, Court is unable to conclude that the evidence and argument[19] before it establish bad faith or willfulness on the part of Defendant Autoliv in not timely producing the documents at issue. The Court has wrestled with the facts showing that the documents at issue were produced in the later-filed case (Stegall), but not in the first-filed case (the case sub judice), as well as the facts showing the timing of the production as being related to a discovery request (for the documents produced in the case sub judice) by the Stegall plaintiffs; however, it requires too much assumption and speculation to conclude that giving documents to one plaintiff but not to another plaintiff was willful in order to protect a defense. If the documents had not been produced at all, this would be a much easier conclusion—but because the documents were retrieved where they were supposed to be (i.e., on the project manager's computer) and given to the Stegall plaintiffs, to this Court, it yields a conclusion of inadvertence and incompetence. There has also been no showing of substantial justification for the failure to timely produce.

*6 There can be no doubt that there was prejudice to the Plaintiff in the late-production by the delay in getting her case to a final resolution. Whether it affected summary judgment is a more difficult question, now that Judge Duffey is no longer assigned to the case and it is not entirely clear if he would have made the same decision if he had to consider the new documents, along with Plaintiff's and Defendant's interpretations of those documents. From this Court's review of the evidence and law, this Court is of the opinion that summary judgment would not have been warranted under the standard of viewing the evidence in a light most favorable to the non-movant/Plaintiff and Plaintiff's evidentiary interpretation of the new documents creating a dispute of material fact. See Johnson v. Clifton, 74 F.3d 1087, 1090 (11th Cir. 1996). The Court recognizes Defendant's arguments to the contrary as to the significance of the documents at issue; however, at the summary judgment stage, it would have not been proper to weigh the evidence or make credibility findings. See e.g., Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (“It is not the court's role to weigh conflicting evidence or to make credibility determinations; the non-movant's evidence is to be accepted for purposes of summary judgment.”).[20]

Nevertheless, in accordance with the above-cited authority, default judgment and inherent authority sanctions are not proper in the absence of willfulness or bad faith. The Court also, in the exercise of its discretion, declines to award issue preclusion sanctions, after consideration of the Defendant's conduct, the language and purposes of Rules 16(f) and 37, and the Eleventh Circuit's strong preference that cases be decided on the merits. Cf. Perez v. Wells Fargo N.A., 774 F.3d 1329, 1332 (11th Cir. 2014) (“we have a strong preference for deciding cases on the merits—not based on a single missed deadline—whenever reasonably possible.”) (emphasis added) and Owens v. Benton, 190 F. App'x 762, 763 (11th Cir. 2006) (citing Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985) (“There is a strong preference that cases be heard on the merits ....”); cf. Graphic Packaging Int'l, Inc. v. C.W. Zumbiel Co., No. 3:10-CV-891-J-37JBT, 2011 WL 5357833, at *5 (M.D. Fla. Nov. 3, 2011) (recognizing that there is “limited guidance from the Eleventh Circuit on the preclusion of evidence,” noting that as a general matter, courts prefer to decide cases on the merits, and reviewing the Eleventh Circuit's policy statements behind Rule 16(f) and 37 sanctions to exercise discretion to not apply evidence preclusion).[21]

In the end, pursuant to Rule 37, the Court finds that Plaintiff is entitled to an award of her reasonable expenses, including attorney's fees, caused by Defendant Autoliv's failure to timely produce the discovery at issue and the absence of a showing of substantial justification and harmlessness. See Insituform Techs., Inc. v. Amerik Supplies, Inc., No. 1:08-CV-333-TCB, 2010 WL 11493292, at *22–23 (N.D. Ga. Feb. 19, 2010) (finding that party had acted in bad faith, but that an entry of default was not warranted —expressing a belief that a lesser sanction would suffice).[22]

*7 Plaintiff's Motion for Sanctions (Doc. No. [343]) is GRANTED. The Court imposes upon Defendant Autoliv Japan, Ltd., the sanction of payment of Plaintiff's reasonable expenses, including attorney's fees, caused by the Defendant's failure to timely produce the discovery documents at issue. Plaintiff shall file evidence of her attorney's fees expended (to include the fees incurred in seeking sanctions, the summary judgment briefing, and the Eleventh Circuit appeal) within TEN DAYS of the issuance of this Order.

The Court is also very concerned about Plaintiff's arguments that there are still missing documents. To this regard, Defendant Autoliv is ORDERED to perform a thorough search for the 80 documents referenced in Plaintiff's Hearing Exhibit 1107 as not produced by Defendant. It is further ORDERED that within THIRTY DAYS of the entry of this Order, Defendant shall provide an affidavit of a corporate representative averring to the results of said search. In addition, any found documents shall be immediately produced to Plaintiff's Counsel.[23] Lastly, to address Plaintiff's concerns regarding the difference in production in the Stegall and this case, the Court ORDERS that all production in Stegall (post-November 2018) shall also be produced to Plaintiff in the case sub judice within THIRTY DAYS of the entry of this Order.

IT IS SO ORDERED this 10th day of September, 2019.

Plaintiff does not seek to impose sanctions against Defendant Autoliv's local counsel. Doc. No. [343], p. 24.

All record citations (including transcript and depositions) are to the CM/ECF electronic docket unless otherwise noted, and all page numbers are derived from the headers imprinted by the Court's docketing software.

In March of 2015, all pretrial discovery matters were referred to the Honorable Justin S. Anand, United States Magistrate Judge. Doc. No. [27]. Judge Anand presided over the August 2015 hearing. Doc. No. [145].

Judge Duffey retired from the federal bench in July of 2018 and this case was subsequently reassigned to the undersigned judge. Doc. No. [313].

Plaintiff states that Defendant Autoliv also sought and received a judgment from Judge Duffey requiring her to pay its attorney's fees and “attempted to use that judgment to coerce Ms. Andrews into agreeing not to appeal Judge Duffey's erroneous judgment.” Doc. No. [343], p. 6.

More specifically, the Eleventh Circuit reversed the dismissal of the strict liability, negligence, and punitive damages claims, stating “even if Plaintiff were required to establish that Autoliv was ‘actively involved’ in the design of the seatbelt assembly in order to show that Autoliv can be held liable under O.C.G.A. § 51-1-11, the record reflects a genuine issue of material fact precluding summary judgment on this issue.” Doc. No. [309], p. 3. (This Court further notes that the Eleventh Circuit affirmed the dismissal of Plaintiff's failure to warn claims, an issue that is not relevant to the present motion. Doc. No. [309], pp. 3–4.)

As stated in Plaintiff's brief, “ ‘VA/VE’ means ‘value analysis/value engineering.’ This is a form document that Autoliv used to suggest design changes to Mazda.” Doc. No. [343], p. 2, n.2.

Plaintiff states that there was also other evidence concealed until November 2018: a “Tollgate 1” presentation that discusses design changes for the 2006 Mazda 3; a product development schedule; “ ‘open issues charts, in which Autoliv discusses problems with the seatbelt that needed to be resolved; cost summary; testing reports; and prototype drawings of seatbelt components.” Doc. No. [343], pp. 10–11. Plaintiff states that “[a]ll those documents reflect design work—and Autoliv's heavy involvement in design.” Id. at p. 11. In regard to the Tollgate, Plaintiff further states: “Autoliv found the PowerPoint in 2015 (which was both responsive and should have been produced pursuant to the Court's August 2015 Order), extracted one page from it, produced that single page, and concealed the rest of the PowerPoint from this Plaintiff until 2018.” Doc. No. [350], p. 4.

Plaintiff provided a detailed timeline at Doc. No. [404], pp. 146–47.

Rule 37(b)(2)(A)(ii)–(vii) provides in relevant part:

“The burden of establishing that [Defendant] failed to provide information pursuant to Rule 26(e) rests with [Plaintiff] as the party seeking the Rule 37 sanction of exclusion.” Johnson v. R.J. Reynolds Tobacco Co., No. 2:12-CV-618-FTM-29, 2014 WL 1930392, at *2 (M.D. Fla. May 14, 2014).

“The burden of establishing that a failure to disclose was substantially justified or harmless rests on the nondisclosing party.” Betancourt v. Mangual's Gen. Servs., Inc., No. 15-24691-CIV, 2017 WL 2985172, at *2 (S.D. Fla. July 13, 2017) (citations omitted).

As stated by Plaintiff, “[s]uch issue preclusion sanctions should include (a) striking Autoliv's arguments that seek to blame other parties for Micah Andrews' death; (b) prohibiting Autoliv from introducing evidence or arguing that it was not responsible for the seatbelt's design; and (c) prohibiting Autoliv from attempting to apportion fault to Mazda or any other party.” Doc. No. [343], p. 7.

In its opposition brief, Defendant asserts that “[w]hile this [alternative] sanction technically may be different in form from a default judgment, it is practically—at least in this case—the same ....” Doc. No. [349], p. 2 n.1. Plaintiff states that Defendant fails to cite to authority for this proposition and the proposition is waived and wrong. Doc. No. [350], p. 10. The Court has found one court that adhered to this proposition, without significant analysis. See Coca-Cola Bottling Co. of Shreveport v. Coca-Cola Co., 110 F.R.D. 363, 370 (D. Del. 1986) (“[p]laintiffs' proposed preclusion order would be functionally equivalent to a default judgment.”). The Court also found a similar proposition in a treatise. See Gregory P. Joseph, Sanctions: The Federal Law of Litigation Abuse, § 49 (5th ed. 2018) (“Sometimes a preclusion order may be tantamount to a dismissal or default order ....”).

It is not clear to the court what Plaintiff meant by “trial deposition.” The Court considers it a typographical error and understands that Plaintiff's trial preparation or journey toward trial has been delayed.

The declaration references abbreviations, which Defendant describes as follows: J48C refers to the platform for the 2005 Mazda 3. J48L refers to the platform used for subsequent year models of the Mazda 3. Doc. No. [349], p. 4, n.3.

From this, Plaintiff infers that “Autoliv either found that evidence and made the decision to conceal it, or made the decision not to search where it had to know responsive evidence most likely was stored.” Doc. No. [343], p. 19.

Plaintiff indicates that additional ways in which the concealed evidence affects this case are set out in the supplemental expert report of Plaintiff's seatbelt expert, licensed engineer Steven Meyer. Doc. No. [350-4], p. 2.

The Court recognizes Plaintiff's arguments concerning Defendant's failure to submit affidavits from its corporate representatives as to the exact nature of its discovery conduct and efforts to comply with the discovery requests; however, there is some evidence through the deposition testimony excerpt of David Prentkowski (Doc. No. [344-1]) and the Court considered Mr. Scribner's statements (for purposes of the pending motion only) in his role as an officer of the court, with a duty of candor. Cf. Malautea, 987 F.2d at 1546 (“All attorneys, as ‘officers of the court,’ owe duties of complete candor and primary loyalty to the court before which they practice.”).

Similarly, the alleged “falsity,” of the “no active involvement” defense/arguments depends upon crediting one party's interpretation of the documents over the other party's interpretation.

The Court recognizes that these cases were decided in the default judgment context; however, the merits preference language is applicable for purposes of this case.

The Court also recognizes Plaintiff's public policy and slippery slope arguments, i.e., that an award of attorney's fees is a win for a multi-billion-dollar corporation. Doc. No. [350], p. 15. However, the Court is satisfied that its ruling is just. A contempt finding may have also been an appropriate sanction under Rule 37 and the circumstances of this case; however, Plaintiff specifically stated that she is not seeking contempt. Doc. No. [343], p. 24; see e.g., Claude Worthington Benedum Found. v. Harley, No. CIV.A. 12-1386, 2014 WL 3614237, at *3 (W.D. Pa. July 22, 2014) (“Rule 37(b)(2)(A)(vii), which provides for civil contempt for the violation of a discovery order, is sometimes ‘used as a lesser sanction in lieu of dismissal or default.’ ”) (citations omitted).

The Court recognizes that the parties have collectively filed five Daubert motions. The Court will issue rulings on said motions by separate order. The Court notes for the record that it has considered the supplemental opinions of Plaintiff's expert, Steven Meyer, for purposes of the present motion. The Court will determine at a later date if these opinions should be considered for purposes of trial.