United States District Court, W.D. Louisiana, Lafayette Division
MAURICE HICKS, JR., UNITED STATES DISTRICT COURT CHIEF JUDGE
the Court are Defendant Home Depot U.S.A., Inc.'s
(“Home Depot”) “Motion in Limine”
(Record Document 60) to exclude Plaintiff Alicia Butler's
(“Butler”) purported expert, Raymond Green,
C.P.A., and Home Depot's “Partial Motion for
Summary Judgment” (Record Document 61) seeking to
dismiss Butler's claims of past lost earnings and loss of
future earning capacity. For the reasons contained herein,
Home Depot's “Motion in Limine” and its
“Partial Motion for Summary Judgment” are
AND PROCEDURAL BACKGROUND
alleges that on March 28, 2016 she was a customer at the Home
Depot in Lafayette and, while checking out at a register, was
struck by a wooden gate that was bumped by a forklift moving
through the area, injuring her lower back, neck, and right
shoulder. See Record Document 6 at 3. On September
26, 2016, Butler filed the instant lawsuit in the Fifteenth
Judicial District Court for the Parish of Lafayette,
alleging, among other things, a loss of past earnings as well
as impairment of her ability to earn a living in the future.
See id. at 4. On December 14, 2016, Home Depot
timely removed the lawsuit to this Court, based upon
diversity of citizenship. See Record Document 1.
the accident, Butler's condition deteriorated. She has
suffered a herniated cervical disc and a herniated lumbar
disc, allegedly as a result of the aforementioned accident.
See Record Document 56. These injuries required two
surgeries: (1) an open L5-S1 discectomy and foraminotomy in
June 2017 and (2) a C5-6 total disc replacement in August
2017. See Record Document 71-5. Butler is an
attorney whose practice consists of approximately half public
defender work and the remaining half divided among criminal
defense, domestic disputes, and plaintiff personal injury
matters. See Record Document 61-3 at 2-3.
effort to support her lost wages and loss of future earning
capacity claims, Butler provided a one paragraph report from
her personal accountant of eight years, Raymond Green, C.P.A.
(“Green”), on May 11, 2017. See Record
Document 60-3. Butler provided no supporting documentation or
data and no expert disclosures therewith; the report simply
sets forth Green's status as a certified public
accountant and his belief as to the extent of Butler's
corporate losses in the year 2016. The entirety of
Green's report reads as follows:
I am a Certified Public Accountant, licensed in the State of
Louisiana. I have been an Accountant for a total of
forty-eight (48) years. In addition, I have been the tax
preparer for Alicia Johnson Butler, both personally and
business, for approximately eight (8) years. After a thorough
review of all business records and filings, it is my
professional opinion that for the year of 2016, Ms. Butler
took a loss, through both her personal and business tax
filings. More specifically, the Corporate business losses
total Eighty Thousand dollars ($80, 000), not including her
personal tax returns.
Id. at 2. Additionally, Dr. John Sledge, a Board
Certified Orthopedic Surgeon, testified at his deposition
that Butler was having difficulty working, particularly that
she was having trouble with her shoe wear. See
Record Document 71-7 at 2. Also, Butler's treating
orthopedic surgeon, Dr. Jason Cormier, testified that
Butler's pain and surgeries, including the fact that she
required pain medication, affected her work. See
Record Document 71-10 at 2. He further stated he does not
clear anyone to do anything while they are taking pain
medication, “specifically when it's dealing with a
high intensity job like being an attorney.”
Id. But later admitted he gave Butler no work
restrictions or limitations outside the typical postoperative
recommendations. See Record Document 79 at 2. He
also testified that he would not opine as to the anatomical
impairment ratings or disability ratings. See id.
Depot originally filed the instant motions on August 11,
2017, consistent with the Court's pretrial deadlines and
scheduling order. See Record Documents 27 and 28.
Subsequent to the filing, Butler moved on August 18, 2017 to
continue trial due to her decision to undergo a cervical
surgery. See Record Document 35. After a telephone
conference on August 30, 2017, the Court granted the motion
to continue. See Record Document 45. A new
scheduling order was issued, with a deadline for Butler's
expert disclosures and reports, pursuant to F.R.C.P.
26(a)(2)(B), on December 11, 2017. See Record
Document 46. The scheduling order also set a new deadline for
filing Daubert motions for March 12, 2018. See
id. In accordance with the updated deadlines, Butler
produced expert disclosures on November 27, 2017.
See Record Document 60-4. The disclosures, with
respect to Green, contain no new or additional documents.
Instead, Butler reproduced the same May 11, 2017 report from
Green consisting of one paragraph. See id. The
remaining disclosures were select medical records from
treating providers. See id.
response to the Court's order filed on March 2, 2018
(Record Document 58), Home Depot again filed its motion in
limine and partial motion for summary judgment on March 12,
2018. See Record Documents 60 and 61. Butler has
opposed each motion. See Record Documents 70 and 71.
Home Depot, in turn, has replied. See Record
Documents 75 and 76. Thus, the motions are ripe for decision.
Home Depot's Motion in Limine
Depot argues Green should be excluded as an expert because
(1) his report cannot meet the standards of reliability and
admissibility set forth in Daubert and its progeny
and (2) Butler failed to comply with the Federal Rules of
Civil Procedure regarding expert disclosures and the
Court's scheduling order. See Record Document
60-1 at 3-7. Butler contends Daubert does not apply
to the instant matter, and even if it does, Green's
report is reliable, claiming Home Depot may attack
Green's report at trial on cross-examination and in its
argument. Further, Butler asserts an ...