United States District Court, E.D. Louisiana
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE.
the Court is defendant's motion to strike the expert
testimony of Dr. Everett Robert. For the following reasons,
the Court grants defendant's motion.
December 16, 2015, plaintiff Rebecca Leggett slipped and fell
at a Dollar General store in Luling, Louisiana. Plaintiff sued
defendant DG Louisiana, LLC for damages in Louisiana state
court on November 9, 2016.Plaintiff alleged that the slippery
floor at the Dollar General store constituted an unreasonably
dangerous condition, and that defendant was negligent in
failing to prevent the dangerous condition and failing to
warn of the danger.Defendant removed the case to this Court on
December 13, 2016, on the basis of diversity of
to the Court's scheduling order, plaintiff's deadline
for providing written expert reports as required by Federal
Rule of Civil Procedure 26(a)(2)(B) was July 28,
2017. Defendant's expert report deadline was
one month later. Plaintiff now seeks to elicit expert
testimony from Dr. Everett Robert, plaintiff's treating
neurosurgeon. Dr. Robert would testify that
plaintiff's fall caused injury to her lumbar
spine.Defendant moves to exclude Dr. Robert's
expert testimony as untimely.
Federal Rules of Civil Procedure impose disclosure
requirements upon proponents of expert testimony.
Fed.R.Civ.P. 26. Expert witnesses who are “retained or
specially employed to provide expert testimony” must
submit written reports. Fed.R.Civ.P. 26(a)(2)(B). Treating
physicians like Dr. Robert, however, are exempt from this
reporting requirement. See Sheppard v. Liberty Mut. Ins.
Co., No. 16-2401, 2017 WL 467092, at *1 (E.D. La. Feb.
2, 2017); see also Fed. R. Civ. P. 26 advisory
committee's notes to 1993 & 2010 amendments. Instead,
Rule 26(a)(2)(C) requires non-reporting expert witnesses to
disclose: “(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). Plaintiff disclosed
this information to defendant on September 12, 2017, only
after defendant filed its motion to strike Dr. Robert's
disclosure of Dr. Robert's expert opinion was untimely.
The federal rules provide that absent a stipulation or court
order, all expert disclosures are due “at least 90 days
before the date set for trial.” Fed.R.Civ.P.
26(a)(2)(D)(i). The Court's scheduling order sets out
deadlines for expert reports under Rule 26(a)(2)(B), but
these deadlines do not apply to Dr. Robert's expert
opinion under Rule 26(a)(2)(C). Thus, plaintiff should
have disclosed Dr. Robert's opinion by August 8, 2017,
ninety days before the scheduled trial date of November 6.
Court now turns to whether Dr. Robert's expert opinion
should be excluded at trial. “When a party fails to
disclose information required by Federal Rule of Civil
Procedure 26(a), ‘the party is not allowed to use that
information . . . to supply evidence on a motion . . . or at
a trial, unless the failure was substantially justified or is
harmless.'” In re Complaint of C.F. Bean
L.L.C., 841 F.3d 365, 372 (5th Cir. 2016) (quoting
Fed.R.Civ.P. 37(c)(1)). In Geiserman v. MacDonald,
893 F.2d 787 (5th Cir. 1990), the Fifth Circuit described
four factors to determine whether “to exclude evidence
that was not properly designated”: (1) the explanation
for the failure to adhere to the deadline; (2) the importance
of the proposed modification of the scheduling order; (3) the
potential prejudice that could result from allowing the
modification; and (4) the availability of a continuance to
cure that prejudice. Id. at 791.
regard to the first factor, plaintiff has not provided a
convincing explanation for her failure to comply with the
scheduling order. Plaintiff contends that Dr. Robert did not
examine her until August 11, 2017-after plaintiff's
deadlines for expert disclosures passed. But plaintiff
has failed to explain why she did not seek treatment from Dr.
Robert earlier. Plaintiff's accident occurred in December
2015, so she had more than a year and a half to seek
treatment from a neurosurgeon and to elicit an opinion about
injury to her lumbar spine. See Sierra Club, Lone Star
Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546, 573
(5th Cir. 1996) (finding that untimely expert disclosures
were not justified because party “had over nine months
to solicit experts and prepare reports” on contested
issues). Thus, the first Geiserman factor weighs
against admitting Dr. Robert's expert testimony.
the second factor, plaintiff has failed to show that Dr.
Robert's testimony is essential. Dr. Robert's expert
testimony would be limited to whether plaintiff's fall
injured her lumbar spine. With regard to plaintiff's
alleged damages for physical disfigurement,  this
testimony is clearly important. But the testimony is not
necessary to prove either defendant's liability or other
damages, such as pain and suffering. Cf. Betzel v. State
Farm Lloyds, 480 F.3d 704, 707 (5th Cir. 2007) (finding
that expert testimony was “essential” because
without experts, the plaintiff could not prove any damages);
Complete Prop. Res., LLC v. City of New Orleans, No.
04-3267, 2006 WL 197006, at *2 (E.D. La. Jan. 25, 2006)
(denying leave to file untimely expert report because
“[w]hile plaintiff's damages may be of importance
to its case, plaintiff has not established that an expert is
necessary”). Thus, this factor weighs against
the third Geiserman factor, allowing Dr. Robert to
offer expert testimony would prejudice defendant in light of
the fast approaching trial date. Plaintiff disclosed Dr.
Robert's opinion on September 12, two weeks before the
discovery deadline and less than two months before trial.
Defendant had little opportunity either to solicit a
neurosurgeon expert to rebut Dr. Robert's opinion, or to
depose Dr. Robert as to his expert opinion. See Consol.
Envtl. Mgmt., Inc.-Nucor Steel La. v. Zen-Noh Grain
Corp., 981 F.Supp.2d 523, 536 (E.D. La. 2013) (noting
that “[t]his Court has found prejudice when a party
submitted its expert report as few as three days late,
leaving the opposing party with less than a month before the
close of discovery to depose the expert, hire its own expert,
and obtain a written report from him”). Allowing Dr.
Robert to offer an expert opinion at this point would mean
that defendant could not depose him before trial. The third
factor therefore weighs against plaintiff.
turning to the fourth Geiserman factor, the Fifth
Circuit has “emphasized that a continuance is the
preferred means of dealing with a party's attempt to
designate a witness out of time.” Betzel, 480
F.3d at 708 (quoting Campbell v. Keystone Aerial Surveys,
Inc., 138 F.3d 996, 1001 (5th Cir. 1998)). Here,
continuing the discovery deadline and trial date would give
defendant a fair opportunity to depose Dr. Robert and provide
a rebuttal opinion. But the Fifth Circuit has also warned
that "a continuance would not deter future dilatory
behavior, nor serve to ...