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In re Petition of Honey Island Adventure, L.L.C.

United States District Court, E.D. Louisiana

December 21, 2017

IN THE MATTER OF THE PETITION OF HONEY ISLAND ADVENTURE, L.L.C.

         SECTION: “G” (5)

          ORDER

          NANNETTE JOLIVETTE BROWN UNITED STATES DISTRICT JUDGE.

         After the deadline in the Court's “Scheduling Order, ”[1] Plaintiffs Leticia Keiger, Ricardo Perez (“Perez”), and Ignacio Perez (collectively, “Plaintiffs”) filed a supplemental witness and exhibit list and a second supplemental witness and exhibit list. Pending before the Court are Defendants, Honey Island Adventures, L.L.C., XL Specialty Insurance Company, Earl Mofield, Tray Nobles, Neil Benson d/b/a Pearl River Eco Tours, and Travelers Property Casualty Company of America's (collectively, “Defendants”) “Motion to Strike Supplemental Witness and Exhibit List”[2] and “Motion to Strike Second Supplemental Witness and Exhibit List.”[3] Having considered the Defendants' motions, Plaintiffs' oppositions to the motions, the record, and the applicable law, the Court will grant the motions.

         I. Background

         Honey Island Adventure, LLC filed a “Petition for Exoneration from, or Alternatively, Limitation of Liability” on May 24, 2016.[4] In its original scheduling order, this Court scheduled trial for July 27, 2017.[5] On April 20, 2017, all parties enrolled at that time filed a “Joint Motion to Continue.”[6] On April 26, 2017, the Court granted the motion to continue and ordered a new trial date for January 2018.[7]

         On June 15, 2017, the Court issued a new scheduling order, which set a deadline of November 9, 2017, for parties to “file in the record and serve upon their opponents a list of all witnesses who will be called to testify at trial and all exhibits which will be used at trial . . . .”[8]

         On December 5, 2017, Plaintiffs filed a “Supplemental Witness and Exhibit List of Claimant/Plaintiffs.”[9] On December 13, 2017, Defendants filed the instant “Motion to Strike Supplemental Witness and Exhibit List.”[10] On December 14, 2017, Plaintiffs filed a response in opposition to Defendants' motion.[11] On December 14, 2017, Plaintiffs also filed “Second Supplemental Witness and Exhibit List.”[12] On December 14, 2017, Defendants filed the instant “Motion to Strike Second Supplemental Witness and Exhibit List.”[13] On December 15, 2017, Plaintiffs filed opposition to Defendants' motion to strike the second list.[14]

         II. Parties' Arguments

         A. Defendants' Motion to Strike

         Defendants assert that Plaintiffs did not file the “Supplemental Witness and Exhibit List of Claimant/Plaintiffs” until December 5, 2017.[15] As a result, Defendants argue that this list “should be stricken from the record and Dr. Rafael Gurrerro should not be allowed to offer testimony regarding his treatment of Ricardo Perez, nor should Dr. Rafael Gurrerro's medical records including any records of testing performed or ordered by Dr. Rafael Gurrerro, be introduced as exhibits at trial.”[16]

         Defendants also assert that the inclusion of Plaintiffs' supplemental witness and exhibit list, as well as Dr. Gurrerro's testimony and reports, would prejudice Defendants at trial.[17]Defendants aver that Defendants' “IME physicians and other proposed experts are not able to evaluate and respond to any opinions . . . pertaining to Dr. Rafael Gurrerro's treatment of Ricardo Perez since his identity was never disclosed or discussed, nor were his medical records ever provided.”[18]

         Finally, Defendants state that Plaintiffs had an affirmative burden to provide this information in accordance with the Federal Rules of Civil Procedure and the Court's “Scheduling Order.”[19] Defendants assert that Plaintiffs failed to meet this burden, so the witness and exhibit list, along with Dr. Gurrerro's testimony should be excluded.[20]

         Defendants' motion to strike the second supplemental witness and exhibit list includes the same arguments as above.[21]

         B. Plaintiffs' Opposition to Defendants' Motion

         Plaintiffs assert that the list is a result of further treatment/evaluation of Plaintiff Ricardo Perez, as opposed to a “last second ambush.”[22] Plaintiffs aver that they will file a motion to continue if the Court is amenable to continuing the case, despite repeated statements from the Court that the Court will not consider such action.[23]

         Plaintiffs then assert that the original list of witnesses and exhibits was filed timely to the court with the “then known and anticipated witnesses and documents.”[24] Plaintiffs assert that, unbeknownst to Plaintiffs' counsel, Perez sought further treatment on November 30, 2017.[25]Plaintiffs' counsel was not made aware of this appointment and the resulting Q EEG and SPECT Scan until December 5, 2017.[26] Plaintiffs assert that the supplemental witness and exhibit list was filed immediately upon Plaintiffs' counsel's knowledge.[27] Plaintiffs' counsel then states that counsel did not hear from Perez until December 13, 2017, despite multiple attempts to reach him.[28]However, immediately upon reaching Perez, Plaintiffs' counsel obtained Dr. Gurrerro's records and served Defendants' counsel within hours of receiving them.[29]

         Plaintiffs argue that no doctor had recommended neuro-psychologist treatment, EEG testing, or Spect scan testing before early November 2017, despite the fact that Perez was examined by many eye doctors, including two neuro-opthamalogists.[30] Plaintiffs' counsel discussed this recommended treatment with Perez, but “counsel understood that [Perez] did not want such an evaluation when this was discussed at the end of the first week of November.” However, Plaintiffs assert that Perez's family has since intervened “after they detected worsening of his emotional and mental status over the last month or so.”[31]

         Finally, Plaintiffs acknowledge that there may not be sufficient time for Defendants to acquire an expert to rebut this testimony, but “plaintiff's counsel will cooperate fully to do so.”[32]Plaintiffs then request that the Court continue the trial or sever only the damages portion of Perez's case, if the Court is inclined to grant the motion to strike.[33]

         Plaintiffs state that they oppose Defendants' motion to strike the second supplemental witness and exhibit list “for the same reasons and on the same grounds as plaintiffs fully set forth in their opposition to Defendants Motion to Strike Supplemental Witness and Exhibit List.”[34]

         III. Legal Standard

         The Federal Rules of Civil Procedure “authorize[] federal courts to control and expedite the discovery process through a scheduling order.”[35] Federal Rule of Civil Procedure 16 allows a court to exclude expert testimony or strike pleadings if a party fails to comply with deadlines imposed by a scheduling order.[36]

         Federal Rule of Civil Procedure 16(b)(4) states, “A schedule may be modified only for good cause and with the judge's consent.” The Fifth Circuit has stated that the four factors bearing on good cause are: “(1) the explanation for the failure to timely move for leave to amend; (2) the importance of the amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a continuance to cure such prejudice.”[37] The Fifth Circuit has stated that these factors are “relevant to good cause, ” but has imposed no requirement that all factors weigh in favor of the party seeking leave to amend in order for the ...


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