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Mathis v. Garrison Property & Cas. Ins. Co.

United States District Court, E.D. Louisiana

June 28, 2019

ANTOINETTE MATHIS
v.
GARRISON PROPERTY & CAS. INS. CO., ET AL

         SECTION: "S" (4)

          ORDER AND REASONS

          MARY ANN VIAL LEMMON UNITED STATES DISTRICT JUDGE.

         IT IS HEREBY ORDERED that defendants' Motion to Strike Motion to Exclude and First Motion in Limine (Rec. Doc. #26) is DENIED;

         IT IS FURTHER ORDERED that plaintiff's First Motion in Limine (Rec. Doc. #22) is DENIED;

         IT IS FURTHER ORDERED that plaintiff's Second Motion in Limine (Rec. Doc. #23) is GRANTED in part and DENIED in part, and testimony regarding the medical necessity of treatment is admissible to the extent allowed herein. Evidence of plaintiff's attorney's physician referral is admissible to the extent it addresses possible bias;

         IT IS FURTHER ORDERED that plaintiff's Motion to Exclude Expert Testimony Under Rule 702 (Rec. Doc. #24) is DENIED.

         BACKGROUND

         On May 22, 2019, plaintiff filed three motions: (1) a first motion in limine, seeking to exclude defendants' expert, Dr. DeFrancesch, for failure to comply with Rule 26; (2) a second motion in limine, seeking to regulate evidence and argument; and (3) a Daubert motion, seeking to exclude defendants' expert under Rule 702. Defendants countered by filing a motion to strike the first motion in limine and the Daubert motion, contending that they were untimely filed.

         DISCUSSION

         Motion to Strike & First Motion in Limine

         The Scheduling Order in the instant case provides, in pertinent part, “All pretrial motions, including motions in limine regarding the admissibility of expert testimony, shall be filed and served in sufficient time to permit a submission date no later than MAY 22 2019. All motions filed in violation of this Order shall be deemed waived unless good cause is shown." Rec. Doc. 9. Plaintiff's counsel has responded that it misconstrued the order, mistakenly concluding that its motions had to be filed by May 22, 2019, rather than filed in time to be heard on that date (i.e., by May 7, 2019).

         Subsequent to the filing of plaintiff's first motion in limine to exclude defendants' expert, Dr. DeFrancesch, for failure to comply with Rule 26 - which was defendants' first notice from plaintiff's counsel of the oversight - defendants provided plaintiff's counsel with the missing information, which included Dr. DeFrancesch's qualifications, a list of all other cases in which he has testified, and a statement of the compensation to be paid for this case. Accordingly, both parties were late: defendants' in making their Rule 26 disclosure, and plaintiff in filing her evidentiary motions. On these facts, the court finds that the late providing of the materials in question was harmless, and declines to exclude Dr. DeFrancesch's testimony on that basis. See Fed.R.Civ.P. 37(c)(1). By the same token, the court will not penalize plaintiff by striking her motions due to the misunderstanding of the filing deadline, because there is no prejudice to defendants in the court's entertaining them. Accordingly, defendants' Motion to Strike Motion to Exclude and First Motion in Limine (Rec. Doc. #26) is denied, and plaintiff's First Motion in Limine (Rec. Doc. #22) is denied.

         Second Motion In Limine

         In her second motion in limine, plaintiff seeks to prohibit defense counsel from (1) arguing the lack of necessity or excessiveness of cost of any medical treatment, (2) introducing testimony that her attorneys referred her to her doctor, (3) introducing testimony that her medical bills have been paid or guaranteed by anyone, and (4) prohibiting defense counsel from arguing an adverse inference is applicable in response to plaintiff's failure to call all of her ...


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