A federal judge has tentatively granted Toyota’s request to strike recent evidence from a plaintiff’s software expert who claims to have identified a bug in the electronic throttle control system’s source code responsible for unintended acceleration defects in its vehicles.

U.S. District Judge James Selna, who heard arguments on the request on Tuesday, found that the report, served this month, came four months after the deadline and following the close of expert discovery in the case.

“The umbrella term ‘software defects’ cannot be used to inject into the litigation an entirely new defect at this late date,” he wrote. “The record seems clear that Plaintiffs’ software experts continued to review source code after their deadlines and found additional evidence to formulate new opinions. Although these strengthen Plaintiffs’ litigation position, that alone does not justify denying the Motion to Strike.”

Carly Schaffner, a spokeswoman for Toyota Motor Sales USA Inc., in an emailed statement to The National Law Journal, wrote: “We are pleased that the Court agreed that plaintiff's counsel cannot introduce new and untested defect theories at this late date, nearly a month after the close of expert discovery. After nearly three years of litigating this case, plaintiff's experts still have no viable software defect theory and have never replicated unintended acceleration in a Toyota vehicle.”

Michael Barr, who specializes in embedded software programming, was deposed on July 3 as an expert for the estate of Ida St. John, 83, who suffered back injuries after her 2005 Camry accelerated while at a stop sign. The case, scheduled to go to trial on November 5, is the first bellwether to go before jurors from among hundreds of cases pending in multidistrict litigation in federal court in Santa Ana, Calif.

Toyota attorney Joel Smith, managing partner of the Columbia, S.C., office of Bowman and Brooke, moved on August 9 to strike Barr’s report, arguing that plaintiffs attorneys were merely attempting to improperly assert a new defect theory. Plaintiffs attorney Todd Walburg, a partner at San Francisco’s Lieff, Cabraser, Heimann & Bernstein, in an August 14 response, insisted that Barr was merely supplementing his own testimony and that of another expert.

The case alleges that St. John’s vehicle accelerated on April 15, 2009, while at a stop sign in Columbus, Ga. St. John allegedly hit the brakes, but the car sped toward an elementary school, where it crashed into the gymnasium. St. John died last year.

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Contact Amanda Bronstad at abronstad@alm.com.