United States District Court, E.D. Louisiana
VICTOR MICHEL, ET AL.
FORD MOTOR COMPANY, ET AL.
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE.
the Court are: (1) defendants Cummins's and Ford's
motion to exclude the expert testimony of Dr. Arnold Brody
and Dr. Barry Castleman, and (2) plaintiffs' motion to amend
or correct the Court's scheduling order as to their
expert disclosure deadline. The Court grants defendants'
motion to exclude Dr. Brody and Dr. Castleman and denies
plaintiffs' motion to amend the scheduling order because
plaintiffs have not shown good cause for their failure to
timely disclose Dr. Brody's and Dr. Castleman's
case arises out of Victor Michel's alleged asbestos
exposure as a result of his work as a mechanic and generator
service technician. Michel worked as a parts delivery driver,
truck mechanic, generator service technician, and
“owner operator” from 1965 to 2005. He filed this
action in state court on July 28, 2017, after being diagnosed
with mesothelioma.Defendants removed the case to federal
court on May 8, 2018. On June 12, 2018, Michel
died. The Court substituted his survivors as
plaintiffs on July 10, 2018. Defendants have now filed a
motion to exclude the expert testimony of plaintiffs'
experts, Dr. Arnold Brody and Dr. Barry
Castleman. Plaintiffs oppose the motion and have
filed their own motion to amend the Court's scheduling
order to allow them to disclose Dr. Brody's and Dr.
Castleman's expert reports.
Federal Rules of Civil Procedure impose disclosure
requirements on a party who intends to provide expert
testimony. Fed.R.Civ.P. 26. Experts retained by a party must
provide an expert report pursuant to Rule 26(a)(2)(B). Expert
reports for retained experts must include: (i) a complete
statement of all opinions the witness will express and the
basis and reasons for them; (ii) the facts or data considered
by the witness in forming them; (iii) any exhibits that will
be used to summarize or support them; (iv) the witness's
qualifications, including a list of all publications authored
in the previous 10 years; (v) a list of all other cases in
which, during the previous 4 years, the witness testified as
an expert at trial or by deposition; and (vi) a statement of
the compensation to be paid for the study and testimony in
the case. Fed.R.Civ.P. 26(a)(2)(B). Plaintiffs did not
disclose expert reports for Dr. Brody or Dr. Castleman until
after defendants filed their motion to exclude the
a party fails to timely 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, 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. 893 F.2d 787, 791 (5th Cir. 1990);
see also Hooks, 2016 WL 3667134, at *2-5 (applying
the Geiserman test to a motion in limine to
exclude expert testimony at trial).
argue that the Court should exclude plaintiffs' experts
Dr. Brody's and Dr. Castleman's testimony because
plaintiffs failed to timely disclose their expert
reports. In response, plaintiffs have filed a
motion to amend the Court's scheduling
order. They argue that because the Court's
existing scheduling order does not list a deadline for their
disclosures, they have no disclosure deadline for the reports
of Dr. Brody and Dr. Castleman.
contention that they did not have a deadline for disclosing
these expert reports simply because no deadline was given in
the Court's scheduling order is simply wrong. Discovery
in this case was conducted largely in state court, and the
parties' discovery deadline, including for disclosing
expert reports, was March 30, 2018. Plaintiffs failed to
disclose these reports by that deadline. Then, once
defendants removed the case to federal court, the Court held
a status conference at which it asked the parties to notify
it of any remaining discovery. Plaintiffs did not mention
that these reports had yet to be disclosed at that
conference. The Court then issued a scheduling order that
specifically listed the discovery in which the parties could
engage; all other discovery, including disclosure of expert
reports, remained closed. Despite this, plaintiffs now
seek to disclose these reports over eight months late, and
only two months before trial.
the Geiserman factors, plaintiffs' give no sound
reason for their failure to disclose these reports earlier.
Their proposed modification is not of great importance.
Plaintiffs will not be prejudiced by the exclusion of these
experts, because Dr. Brody and Dr. Castleman's testimony
is not essential to plaintiffs' case. Dr. Brody would
have testified as to how asbestos causes
disease. This testimony is cumulative of and less
helpful than the testimony of Dr. Staggs and Dr. Finkelman,
who can both testify more specifically to the way that
asbestos affected Michel-namely his mesothelioma diagnosis.
Dr. Castleman would have testified to defendants'
knowledge of the hazards of asbestos. While
plaintiffs do not have another expert who will give a similar
opinion, plaintiffs can deal with this issue through
examination of the defendants directly or through exhibits.
But if the Court were to allow the experts' testimony,
defendants would be prejudiced because their time to review
these materials and prepare defenses would be drastically
shorter than for the other experts. Finally, given that trial
is less than two months away, a continuance would cause
unnecessary expense and needless delay. Accordingly,
defendants' motion to exclude Dr. Brody and Dr.
Castleman's testimony is granted, and plaintiffs'
motion to amend the scheduling order is denied.
foregoing reasons, defendants' motion to exclude Dr.
Brody and Dr. Castleman's expert testimony is GRANTED.
Plaintiffs' motion to ...