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Collins v. Cenac Marine Services, LLC

United States District Court, E.D. Louisiana

November 1, 2017


         SECTION I



         Before the Court is a motion[1] filed by defendant Cenac Marine Services, LLC (“Cenac”) to exclude Dr. Randee Booksh from testifying on behalf of plaintiff David Collins (“Collins”) in this case. Collins, who may seek to introduce Dr. Booksh's expert testimony at trial, [2] opposes the motion.[3]

         On September 20, 2017, the Court-over Cenac's opposition-granted Collins's motion to extend the expert report deadline.[4] The Court ordered Collins to provide Cenac with a report from or disclosure for his treating clinical neuropsychologist, Dr. Booksh, in compliance with Federal Rule of Civil Procedure 26(a)(2)[5] by September 27, 2017.[6] As of October 13, 2017-the date that Cenac filed the present motion- Collins had not provided Cenac with the required report or disclosure.[7]

         Cenac relies on Rule 37(c) of the Federal Rules of Civil Procedure to argue that the Court should exclude Dr. Booksh from providing evidence in this case. Rule 37(c) provides that: “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” In determining whether the sanction available under Rule 37(c) is appropriate, the Fifth Circuit has instructed courts to consider four factors: “(1) the explanation for the failure to [comply with Rule 26(a) or (e)]; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice.” O'Neal v. Cazes, 257 Fed. App'x 710, 716 (5th Cir. 2007) (per curiam) (quoting Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990)); see also CQ, Inc. v. TXU Min. Co., L.P., 565 F.3d 268, 280 (5th Cir. 2009) (applying the four-factor test to assess whether the district court abused its discretion in excluding evidence under Rule 37(c)).

         The Court concludes that these factors weigh in favor of Dr. Booksh's exclusion. Collins asserts that he did not provide the report or disclosure pursuant to Rule 26, because “it was simply not possible for [Dr. Booksh] to take all of the data collected from the testing and produce a report in the time frame she was provided.”[8] Yet the Court granted Collins' request to extend the expert report deadline, and Collins never requested a second extension. Cf. O'Neal, 257 Fed. App'x at 716 (“Appellants . . . never objected to or sought clarification of the order [setting the expert disclosure deadline]; they simply ignored it until it was too late.”). Collins has provided no justification for his failure to request a second extension in order to fulfill his Rule 26(a)(2) obligations. Cf. CQ, 565 F.3d at 280 (“SignCQ has not offered any justification for its failure to disclose the damages calculations or their underlying evidence.”).

         Collins also has offered no justification for his failure to provide a Rule 26 report or disclosure even after the expert report deadline had passed. Although Cenac eventually procured Dr. Booksh's treatment records related to Collins, the procurement came by way of a subpoena on Dr. Booksh herself.[9] Further, “disclosures consisting of medical records alone are insufficient to satisfy the disclosure standard of Rule 26(a)(2)(C).” Sheppard v. Liberty Mutual Ins. Co., No. 16-2401, 2017 WL 467092, at *2 (E.D. La. Feb. 2, 2017) (Vance, J.) (internal quotation marks omitted).

         While Dr. Booksh's evidence is clearly important to Collins, permitting the admission of such evidence would result in substantial prejudice to Cenac “given the advanced stage of the litigation.” CQ, 565 F.3d at 280. Cenac only acquired Dr. Booksh's treatment records related to Collins-a total of 914 pages which, again, do not themselves satisfy Rule 26(a)(2)-on October 25 or 26, 2017.[10] Yet the deadline to file all pretrial motions in the case was October 31, 2017.[11] Further, trial by jury is set for January 8, 2018-just over two months away.[12]

         Finally, the Court has already continued the trial and discovery-related deadlines once.[13] The Court declines to do so again where a party failed to comply with the Court's deadline and has demonstrated a lack of interest and effort in correcting the error.

         Accordingly, IT IS ORDERED that the motion is GRANTED.



[1] R. Doc. No. 65.

[2] See R. Doc. No. 67, at 7.

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