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Parker v. John W. Stone Oil Distributors, L.L.C.

United States District Court, E.D. Louisiana

August 19, 2019

JEREMY A. PARKER
v.
JOHN W. STONE OIL DISTRIBUTORS, L.L.C.

         SECTION "L" (2)

          ORDER & REASONS

          ELDON E. FALLON U.S. DISTRICT COURT JUDGE.

         Before the Court is Defendant's Motion to Strike the Testimony of Dr. Beverly Howze and Dr. Tim Pellegrin. R. Doc. 51. The motion is opposed. R. Doc. 52. Defendant filed a reply. R. Doc. 56. The Court now rules as follows.

         I. BACKGROUND

         This case arises from injuries Plaintiff Jeremy Parker, a Jones Act seaman, allegedly sustained while working as a tankerman aboard a vessel, the M/V PRESAGER, owned by Defendant John W. Stone Oil Distributors LLC. R. Doc. 1 at 2. Plaintiff claims a fellow crewmember pulled on a face wire, causing a line to pop, which resulted in a 10-pound shackle falling approximately ten feet and hitting Plaintiff in the head. R. Doc. 30-1 at 1. Plaintiff alleges this impact caused serious injuries to his neck and head and rendered him unfit for duty as a seaman. R. Doc. 30-1 at 1. According to the Complaint, the sole and proximate cause of the accident was Defendant's negligence and the unseaworthiness of the M/V PRESAGER. R. Doc. 1 at 2-3. Accordingly, Plaintiff seeks to recover past, present, and future physical, mental and emotional pain and suffering; loss of wages and wage-earning capacity; medical expenses; past and future physical disability; and past, present, and future maintenance and cure. R. Doc. 1 at 3.

         Defendant contests the cause of Plaintiff's accident and asserts Plaintiff placed himself in an unsafe position in violation of Defendant's safety rules. R. Doc. 35 at 1. Further, Defendant alleges Plaintiff failed to inspect the line in question prior to its use. R. Doc. 35 at 1.

         II. PRESENT MOTION

         Before the Court is Defendant's Motion to Strike the Testimony of Dr. Beverly Howze and Dr. Tim Pellegrin. R. Doc. 51. Defendant claims either: (1) Plaintiff's failure to designate Dr. Howze and Dr. Pellegrin as treating physicians prior to the expert disclosure deadline unfairly prejudices Defendant, or in the alternative, (2) Dr. Howze's and Dr. Pellegrin's testimony is cumulative of Dr. Wakeman's testimony. R. Doc. 51 at 1-2. The motion is opposed. R. Doc. 52. Defendant filed a reply. R. Doc. 56.

         III. LAW AND ANALYSIS

         a. Whether Plaintiff untimely disclosed Dr. Howze's and Dr. Pellegrin's testimony

         Pursuant to Rule 26 of the Federal Rules of Civil Procedure, “a party must disclose to the other parties the identity of any witness it may use at trial to present evidence.” Fed.R.Civ.P. 26(a)(2)(A). Moreover, “[a] party must make these disclosures at the times and in the sequence that the court orders.” Fed.R.Civ.P. 26(a)(2)(D). Expert witnesses who are “retained or specially employed to provide expert testimony” must submit written reports. Fed.R.Civ.P. 26(a)(2)(B). Treating physicians, however, are exempt from this reporting requirement. Leggett v. Dolgencorp, LLC, No. CV 16-17264, 2017 WL 4791183, at *1 (E.D. La. Oct. 24, 2017); see also Sheppard v. Liberty Mut. Ins. Co., No. 16-2401, 2017 WL 467092, at *1 (E.D. La. Feb. 2, 2017). Generally, the disclosure of treating physicians is governed by Rule 26(a)(2)(D)(i), which requires disclosures to be made “at least 90 days before the date set for trial, ” absent a stipulation or court order. Fed.R.Civ.P. 26(a)(2)(D)(i).

         Adherence to Rule 26 and the Court's scheduling order is “critical in maintaining the integrity of the judicial proceedings.” 1488, Inc. v. Philsec Inv. Corp., 939 F.2d 1281, 1289 (5th Cir. 1991). “When a party fails to 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, LLC, 841 F.3d 365, 372 (5th Cir. 2016) (quoting Fed.R.Civ.P. 37(c)(1)). In determining whether a violation of Rule 26 is harmless under Rule 37(c), courts consider the following factors: “(1) the importance of the evidence; (2) the prejudice to the opposing party of including the evidence; (3) the possibility of curing such prejudice by granting a continuance; and, (4) the explanation for the party's failure to disclose.” Tex. A & M Research Found. v. Magna Transp., Inc., 338 F.3d 394, 402 (5th Cir. 2003). “District courts are given broad discretion in determining whether to exclude expert testimony when a party has failed to designate such witnesses in accordance with pre-trial orders.” 1488, Inc., 939 F.2d at 1288 (citing Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990)).

         Here, the Third Scheduling Order that was in place when Defendant filed this Motion to Strike stated:

Counsel for the parties shall file in the record and serve upon their opponents a list of all witnesses who may or will be called to testify at trial and all exhibits which may or will be used at trial not later than May 9, 2019. The Court will not permit any witness, expert or fact, to testify or any exhibits to be used unless there has been compliance with this Order as it pertains to ...

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