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Robinson v. Sally Beauty Supply, LLC

United States District Court, M.D. Louisiana

August 1, 2017

SHARON ROBINSON
v.
SALLY BEAUTY SUPPLY, LLC

          ORDER

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Defendant’s Motion to Exclude Plaintiff’s Experts (R. Doc. 16) filed on July 16, 2017. The motion is opposed. (R. Doc. 18).

         I. Background

         Sharon Robinson (“Plaintiff”) commenced this action on February 27, 2015 in the 19th Judicial District Court, East Baton Rouge Parish, Louisiana, naming as the sole defendant Sally Beauty Supply, LLC (“Defendant”). (R. Doc. 1-2, “Petition”). Plaintiff alleges that on or about December 31, 2014, she slipped and fell while shopping at Defendant’s store in Zachary, Louisiana. (Petition, ¶ 3).

         On June 9, 2015, Plaintiff responded to written discovery propounded by Defendant. (R. Doc. 16-2). In response to an interrogatory, Plaintiff asserted that “as a direct result of the subject accident she suffers or has suffered from the following symptoms: Left arm pain, left shoulder pain, neck, lower back pain and left leg pain.” (R. Doc. 16-2 at 69). In response to another interrogatory, Plaintiff identified the following treating physicians and/or healthcare provides: Oschner ER; Dr. Anthony Ioppolo, Pain Management Clinic; Field Memorial Hospital; Dr. Pradeep K. Selvaraj, FMCH/Catching Clinic; and Bluebonnet Imaging Center. (R. Doc. 16-2 at 69).

         On February 21, 2017, Plaintiff demanded $93,200 for “full and final settlement” of her claims. (R. Doc. 7-2). The settlement demand asserted that Plaintiff suffered the following injuries as a result of the incident: sprain and strain of her hip, thigh, shoulder, and upper arm; contusions to her face, scalp, and neck; lower back, neck, and left leg pain; and disc herniation at ¶ 3-C4. (R. Doc. 7-2 at 2). The settlement demand asserted that Plaintiff has underwent cervical ESI injections, a “dorsal lumbar” medial branch block, and a “lumbar dorsal” medial branch radiofrequency ablation. (R. Doc. 7-2 at 2). At the time the settlement demand was made, Plaintiff had incurred $36,561.19 in medical expenses. (R. Doc. 7-2 at 3).

         On March 22, 2017, Defendant removed the action in light of the representations regarding the amount in controversy made by Plaintiff in the foregoing settlement demand and at a deposition. (R. Doc. 1). Plaintiff moved to remand the motion for lack of diversity jurisdiction. (R. Doc. 3). The Court denied the motion to remand. (R. Docs. 12, 15).

         On May 30, 2017, the Court issued a Scheduling Order setting the deadlines in this action based upon recommendations of the parties. (R. Doc. 14). Among other things, the Court set the deadline for Plaintiff to disclose the identities and resumes of her experts on July 10, 2017; the deadline for Defendant to disclose the identities and resumes of its experts on August 10, 2017; the deadline for Plaintiff to submit any expert reports to Defendant on August 28, 2017; the deadline for Defendant to submit any expert reports to Plaintiff on September 11, 2017; and for expert discovery to close on October 11, 2017. Trial is set to commence on September 10, 2018.

         On July 10, 2017, Plaintiff’s counsel faxed a letter to defense counsel stating, in relevant part, the following: “Today is the deadline to turn over our expert witness lists. I will not be introducing any experts beyond the Healthcare providers that treated Mrs. Robinson for her injuries. You have their credentials and records from prior discovery.” (R. Doc. 16-2).

         On July 16, 2017, Defendant filed the instant Motion, which seeks an order excluding Plaintiff’s treating physicians from testifying at trial on the basis that Plaintiff did not timely and properly disclose her treating physicians as experts pursuant to Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure. (R. Doc. 16).

         Plaintiff represents that she provided the requisite information on July 18, 2017. (R. Doc. 18 at 7).

         II. Law and Analysis

         Under Rule 37(c)(1), if a party fails to provide expert 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.” To be clear, the exclusion “is mandatory and automatic unless the party demonstrates substantial justification or harmlessness.” Red Dot Bldgs. v. Jacob Technology, Inc., No. 11-1142, 2012 WL 2061904, at *3 (E.D. La. June 7, 2012); see also Lampe Berger USA, Inc. v. Scentier, Inc., No. 04-354, 2008 WL 3386716, at *2 (M.D. La. Aug. 8, 2008) (noting that exclusion of non-disclosed expert testimony is automatic and mandatory unless the party can show substantial justification or harmlessness). When determining whether to strike evidence, including expert witnesses, under Rule 37(c)(1), trial courts should look to the same four factors articulated by the Fifth Circuit to determine whether good cause exists to modify a scheduling order under Rule 16 for guidance: (1) the explanation, if any, for the party’s failure to comply with the discovery order; (2) the prejudice to the opposing party of allowing the witnesses to testify; (3) the possibility of curing such prejudice by granting a continuance; and (4) the importance of the witnesses’ testimony. Barrett v. Atlantic Richfield Co., 95 F.3d 375, 380 (5th Cir. 1996) (applying factors to determine whether district court abused its discretion in striking testimony).

         There are two types of testifying experts who must be disclosed pursuant to Rule 26- witnesses who must provide a written report pursuant to Rule 26(a)(2)(B) and witnesses who do not provide a written report pursuant to Rule 26(a)(2)(C). The 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.” Fed. R. Civ. P. 26(a)(2)(B). The expert reports must contain the following: (1) “a complete statement of all opinions the witness will express and the basis and reasons for them”; (2) “the facts or data considered by the witness in forming them”; (3) “any exhibits that will be used to summarize or support them”; (4) “the witness’s qualifications, including a list of all publications authored in the previous 10 years”; (5) a list of cases in which the expert testified ...


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