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Causey v. State Farm Mutual Automobile Insurance Co.

United States District Court, E.D. Louisiana

May 16, 2018


         SECTION I

          ORDER & REASONS


         Defendant State Farm Mutual Automobile Insurance Co. (“State Farm”) moves to exclude certain testimony of Dr. Daniel Trahant (“Trahant”), a treating physician of plaintiff Tyrone Causey (“Causey”). Specifically, State Farm challenges the admissibility of Dr. Trahant's conclusions regarding Causey's alleged sensitivity to light, concussions, and the possibility of an increased chance of developing dementia later in life. State Farm contends that Causey has failed to comply with expert disclosure requirements and that Dr. Trahant's opinions with respect to the aforementioned topics are unreliable. Because Causey has failed to provide required expert disclosures, State Farm's motion is granted.[1]


         Disclosure of expert testimony is governed by Federal Rule of Civil Procedure 26. Pursuant to Rule 26(a)(2)(B), retained experts must provide comprehensive expert reports. Meanwhile, non-retained experts, such as treating physicians, are typically “subject to a separate, less stringent disclosure regime than their retained counterparts.” Sheppard v. Liberty Mutual Ins. Co., No. 16-2401, 2017 WL 467092, at *1 (E.D. La. Feb. 2, 2017) (Vance, J.). Under Rule 26(a)(2)(C), the party propounding the testimony of a non-retained expert must provide a disclosure that states “(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.”

         The Advisory Notes to Rule 26 expressly anticipate that treating physicians may be called as non-retained experts and allowed to testify without providing a written report of the type described in Rule 26(a)(2)(B). Hence, treating physicians “fall under the [] limited disclosure requirement” of Rule 26(a)(2)(C). Id.

         Failure to comply with the deadline for disclosure requirements may very well result in mandatory and automatic exclusion under Rule 37(c)(1). The propounding 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.'” Rea v. Wisconsin Coach Lines, Inc., No. 12-152, 2014 WL 4981803, at *3 (E.D. La. Oct. 3, 2014) (Duval, J.) (quoting Fed.R.Civ.P. 37(c)(1)).

         In assessing whether a disclosure violation is substantially justified or harmless, courts evaluate four factors: “(1) the explanation for the party's failure to disclose; (2) the potential prejudice to the opposing party if the evidence is allowed; (3) the availability of a continuance to cure such prejudice; and (4) the importance of the evidence.” Red Dot Bldgs. v. Jacobs Tech., Inc., No. 11-1142, 2012 WL 2061904, at * 4 (E.D. La. June 7, 2012) (Barbier, J.); see also Fed. R. Civ. P. 16(f), 37(c)(1).


         State Farm asserts that Causey has not produced any Rule 26(a)(2)(C) disclosures with respect to Dr. Trahant's testimony. Causey does not dispute this.[2]Consequently, Dr. Trahant's testimony is subject to mandatory and automatic exclusion, unless Causey can show that his failure to comply with the expert disclosure deadline is substantially justified or harmless. Causey makes no such showing.

         First, Causey has offered absolutely no explanation for his failure to make the required disclosures. This case was removed to this Court nearly two years ago and assigned to a different court section. Trial was initially set for April 17, 2017[3] and later reset for August 7, 2017.[4] On July 10, 2017, the case was dismissed without prejudice, after the parties reached a putative settlement.[5] Unable to consummate its compromise with Causey, State Farm filed a motion to enforce settlement.[6] Soon after, the case was transferred to this section, following the recusal of the presiding judge.[7] Adopting the report and recommendation of the United States Magistrate Judge, the undersigned denied the motion to enforce settlement and reopened the case.[8] A new trial date was then set for July 9, 2018.[9]

         Under Rule 26(a)(2)(D)(i), expert disclosures are to be made at least 90 days before the date set for trial or for the case to be ready for trial. Hence, the disclosures required in regard to Dr. Trahant would have been due by January 17, 2017 with respect to the first trial date or by May 7, 2017 with respect to the second trial date. As for the third trial date, the most recent scheduling order explicitly states that any expert disclosures required by Rule 26(a)(2)(C) were to be provided to State Farm by Causey no later than March 15, 2018. To date, Causey has not provided any such disclosures.[10] Thus, despite having three separate bites at the evidentiary apple, Causey has made no apparent effort to comply with the rather basic demands of Rule 26(a)(2)(C).

         Further, Causey has not stated any reason for his continued, flagrant violation of the rule. Notably, State Farm raised Causey's failure to comply with the rule in a virtually identical motion in limine that it filed on June 13, 2017 prior to the second anticipated trial date.[11] Neither Causey's attorney at the time nor his present counsel appear to have attempted to provide the information required by the rule or to explain why such disclosure has not been forthcoming. The first factor, therefore, weighs in favor of excluding Dr. Trahant's challenged testimony.

         Second, Dr. Trahant's proffered testimony as to light sensitivity, concussions, and increased risk of dementia would undoubtedly prejudice State Farm. Again, State Farm has not received a statement of the particular subject matter on which Dr. Trahant is expected to ...

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