Louisiana District Court Judge Richard L. Bourgeois, Jr. was asked to hear Defendant’s Motion to Exclude Expert Testimony in a premise liability case of the plaintiff’s safety expert witness.
The judge entered a scheduling order setting the deadlines for experts, discovery, and for the filing of dispositive motions. However, the parties sought a three-month extension of the deadlines, which the judge granted in part and denied in part, providing only a brief extension of the non-expert discovery deadline for the purpose of taking Plaintiff’s deposition. The Court expressly stated that “[a]ll other deadlines remain as previously scheduled.” At that time, Plaintiff’s deadline to disclose experts had expired.
This motion sought to exclude all expert testimony from evidence at trial on the basis that Plaintiff did not disclose any expert witnesses or provide an expert report by the deadline, pursuant to Rule 37(c)(1) and/or Rule 16(f). Under Rule 37(c)(1), the judge noted that if a party fails to provide accident and safety expert witness disclosures within the established deadlines, “the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.” The exclusion “is mandatory and automatic unless the party demonstrates substantial justification or harmlessness,” Judge Bourgeois wrote, citing Red Dot Bldgs. v. Jacob Technology, Inc. (E.D. La. June 7, 2012). When determining whether to strike evidence, including expert witnesses, under Rule 37(c)(1), the judge explained that trial courts should look the following factors to determine whether good cause exists to modify a scheduling order under Rule 16 for guidance:
- the explanation, if any, for the party’s failure to comply with the discovery order;
- the prejudice to the opposing party of allowing the witnesses to testify;
- the possibility of curing such prejudice by granting a continuance; and
- the importance of the witnesses’ testimony.
The judge went on to note that there are two types of testifying experts who must be disclosed pursuant to Rule 26—those experts who must provide a written report pursuant to Rule 26(a)(2)(B); and those who are not required to provide a written report pursuant to Rule 26(a)(2)(C). The rules states that disclosure of expert witnesses who must provide a written report must be “accompanied by a written report–prepared and signed by the witness–if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.” Further, the expert reports must contain the following:
- A complete statement of all opinions the witness will express and their basis and reasons;
- Facts or data considered by the witness in forming the opinions;
- Any exhibits to be used to summarize or support the opinions;
- Witness qualifications, including a list of all publications authored in the previous ten years;
- A list of cases in which the expert testified during the previous four years; and
- A statement of the compensation he or she received for his study and testimony.
Plaintiff didn’t argue that she intended to call any expert witnesses to opine of lost wages pursuant to Rule 26(a)(2)(B). Instead, she argued that she’d sufficiently disclosed that the treating physicians identified in her initial disclosures and discovery responses pursuant to Rule 26(a)(2)(C). That didn’t fly.
Next, the judge looked at whether Plaintiff properly disclosed experts pursuant to Rule 26(a)(2)(C). the rule stipulates that where an expert witnesses “is not required to provide a written report, [the expert] disclosure must state: (i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.” Plaintiff’s lists of potential witness are virtually identical and include various unnamed treating physicians and employees of medical providers.
Finally, Plaintiff asserted that the production of her medical records and bills were “as good as an expert report” and, in conjunction with the previous expert lists, constituted full disclosure of Plaintiff’s accident and safety expert witnesses. Plaintiff argued that any technical failure in not spelling out that the disclosed treating physicians identified may offer expert testimony was “clearly harmless.”
The judge concluded that this didn’t satisfy the standard outlined Rule 26(a)(2)(C). Proper designation of a treating physician as a testifying accident and safety expert pursuant to the rule requires the production of “an actual summary of the facts and opinions to which the witness is expected to testify,” Judge Bourgeois held. Plaintiff didn’t specifically identify which of her treating physicians would testify as experts, nor did she provide any summaries of the facts and opinions to which those treating physicians would testify.
“It is not the duty of an opposing party to sift through medical records to determine who treated the Plaintiff and whether those treating physicians will ultimately be called to testify as an expert under Rule 26(a)(2)(C),” the judge declared.
Further, the judge wrote that the Court must exclude or limit expert testimony if the expert’s disclosure was improper unless the improper disclosure was “substantially justified or is harmless,” Rule 37(c)(1) states. In determining whether exclusion of expert testimony is appropriate, Judge Bourgeois cited the Fifth Circuit which stated that the court must consider:
- the importance of the witnesses’ testimony;
- the prejudice to the opposing party of allowing the witness to testify;
- the possibility of curing such prejudice by granting a continuance; and
- the explanation, if any, for the party’s failure to comply with the discovery order.”
Here, Plaintiff made no attempt to identify any specific treating physicians who she intended to identify as experts under Rule 26(a)(2)(C). As to the second and third factors, allowing the treating physicians to testify as Rule 26(a)(2)(C) experts would prejudice Defendants, who haven’t had the opportunity to designate competing experts in light of Plaintiff’s identification of the treating physicians as experts. And Defendant had no opportunity to conduct any needed discovery regarding those treating physicians.
The fourth factor also weighed against Plaintiff. Her explanation for failing to disclose expert witnesses was dismissive of the Rules of Civil Procedure and the judge’s order. This wasn’t merely a “technical failure.” The identification of treating physicians in initial disclosures and responses to discovery wasn’t an accident and safety expert disclosure under Rule 26(a)(2)(C). Indeed, Judge Bourgeois noted that Rule 26(a)(2)(A) specifically states that the disclosures of expert testimony are “[i]n addition to the disclosures required by Rule 26(a)(1).”
The judge granted the relief sought under Rule 37(c)(1), as Plaintiff didn’t seek a deadline extension to disclose experts or addressed any applicable rules or caselaw. Rather they chose to attack the motion as “entirely unnecessary”, “baseless,” and “a lot of unnecessary fuss.” Plaintiff failed to provide any accident and safety expert disclosures under Rule 26(a)(2) and didn’t demonstrate that this failure was substantially justified or harmless.
Russia Williams v. Aramark Services, Inc., 14-705-JJB-RLB, 2016 U.S. Dist. LEXIS 71891 (M.D. La. June 2, 2016).