United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
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).
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,
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).
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).
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).
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,
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).
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).
represents that she provided the requisite information on
July 18, 2017. (R. Doc. 18 at 7).
Law and Analysis
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).
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