United States District Court, E.D. Louisiana
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE.
move to exclude expert opinion testimony of plaintiff Jesse
Frank Sheppard's treating physicians on the grounds that
Sheppard failed to comply with expert disclosure
requirements. In the alternative, defendants argue that the
physicians are not qualified to give opinions as to the cause
of Sheppard's illness. Because the Court finds that
Sheppard has failed to meet the applicable disclosure
requirements, defendants' motion is granted and the Court
does not address the treating physicians' qualifications.
suit was originally filed in the Civil District Court for the
Parish of Orleans. Defendant Mosaic Global Holdings Inc.
removed the action to this Court on March 22,
2016. In his complaint, Sheppard alleges that he
was exposed to asbestos “[o]n a daily basis” as
an employee of Mosaic's predecessor company, Freeport
Sulphur Company. This exposure allegedly caused Sheppard to
develop asbestos-related cancer, lung cancer, and/or
mesothelioma. Although Sheppard stopped working for
Freeport in the early- to mid-1990s,  Sheppard's
asbestos-related ailments were first diagnosed in October
addition to Freeport/Mosaic, Sheppard sues several defendants
involved in the manufacture, distribution, and sale of
asbestos-containing products that Sheppard allegedly
encountered in the course of his work.Sheppard also
brings claims against insurance companies that allegedly
provided coverage to defendants for asbestos-related claims
and withheld information from Sheppard about the danger of
brings claims for “negligence, intentional tort, fraud,
and strict liability, ” and alleges that all defendants
are “jointly, severally, and in
solidio liable.” He seeks damages for, among other
things, physical and mental pain, loss of life, loss of
income, and medical expenses.
Federal Rules of Civil Procedure impose disclosure
requirements upon proponents of expert testimony.
Fed.R.Civ.P. 26. Experts retained by a party must provide an
expert report pursuant to Rule 26(a)(2)(B). Hooks v.
Nationwide Hous. Sys., LLC, No. 15-729, 2016 WL 3667134,
at *3 (E.D. La. July 11, 2016). Before 2010, non-retained
experts, such as treating physicians, were exempt from
disclosure requirements under certain circumstances.
Id. (citing Perdomo v. United States, No.
11-2374, 2012 WL 2138106 at *1 (E.D. La. 2012)). Following
Congress' 2010 amendments to Rule 26, non-retained
experts are subject to a separate, less stringent disclosure
regime than their retained counterparts. Id. Under
Rule 26(a)(2)(C), the propounding party must prepare a
“disclosure” regarding any expert witness who
does not provide a written report. “[T]his 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.”
Fed.R.Civ.P. 26(a)(2)(C). The 2010 Advisory Committee Notes
pertaining to Rule 26(a)(2)(C) make clear that treating
physicians fall under the Rule's limited disclosure
defendants assert that Sheppard produced no Rule 26(a)(2)(C)
disclosures regarding the treating physicians. Sheppard does
not dispute this. Sheppard did turn over medical records
produced by the treating physicians, but “disclosures
consisting of medical records alone are insufficient to
satisfy the disclosure standard of Rule 26(a)(2)(C).”
Hooks, 2016 WL 3667134, at *5 (citing Williams
v. State, No. 14-00154, 2015 WL 5438596, at *4 (M.D. La.
Sept. 14, 2015)); see also Knighton v. Lawrence, No.
14-718, 2016 WL 4250484, at *2 (W.D. Tex. Aug. 9, 2016)
(“[Under Rule 26(a)(2)(C), ] it does not suffice to
reference large bodies of material sources of facts without
stating a brief account of the main points from those large
bodies on which the expert relies.”).
to comply with the deadline for disclosure requirements
results in ‘mandatory and automatic' exclusion
under Federal Rule of Civil Procedure 37(c)(1).”
Hooks, 2016 WL 3667134, at *3. Excluded witnesses or
information may not be used “to supply evidence on a
motion, at a hearing, or at trial, unless the failure was
substantially justified or is harmless.” Red
Dot Bldgs. v. Jacob Tech., Inc., 2012 WL 2061904, at
*3 (E.D. La. 2012) (quoting Fed.R.Civ.P. 37). Here, Sheppard
has made no showing that his omission was either justified or
harmless. Accordingly, the treating physicians are excluded
from offering any expert opinion testimony.
context of this case, any testimony regarding Sheppard's
diagnosis or the cause of his illness is an expert opinion
under Rule 702. Although lay witnesses may offer opinions,
they may not testify regarding any opinions “based on
scientific, technical, or other specialized knowledge within
the scope of Rule 702.” Fed.R.Evid. 701. A leading
treatise provides a concrete illustration of the distinction
between a physician's lay and expert opinions:
When the physician testifies that the plaintiff was coughing
and running a fever, this is lay witness testimony governed
by Rule 701. However, if the physician also testifies that he
diagnosed the patient as having Reactive Airways Dysfunction
Syndrome caused by exposure to a toxic chemical, then this is
testimony based on scientific, technical, or other
specialized knowledge and must be qualified under Rule 702.4.
S. Saltzburg, M. Martin, D. Capra, Federal Rules of Evidence
Manual § 701.02, at ...