United States District Court, M.D. Louisiana
MATTHEW LEMINGS, ET AL.
CHARLES TAYLOR, ET AL.
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
the Court is Defendants' Motion to Strike Plaintiffs'
Expert Witnesses Randolph Rice, Stephanie Chalfin, and Seth
Michael Broussard. (R. Doc. 38). In opposing the motion,
Plaintiffs filed a Motion to Supplement and Amend
Plaintiffs' Expert Witness List. (R. Doc. 53).
before the Court is Defendants' Motion to Strike Treating
Physicians. (R. Doc. 43). The motion is opposed. (R. Doc.
56). Defendants filed a Reply. (R. Doc. 66).
before the Court is Defendants' Motion for Leave to
Submit Supplemental Expert Reports. (R. Doc. 46). The motion
is opposed. (R. Doc. 51). Defendants filed a Reply. (R. Doc.
before the Court is Plaintiffs' Motion to Quash Subpoena
to Kirby Humbles and Baton Rouge General Physicians, Marcus
Rovira and Our Lady of the Lake Physician Group Ascension,
and Mohammed Siddiqui and Notice of Records Deposition and
Stay of the Return and Request for Protective Order. (R. Doc.
41). The motion is opposed. (R. Doc. 58).
October 2, 2018, the Court held oral argument on the
foregoing motions. (R. Doc. 68).
a personal injury action involving a motor vehicle accident
that occurred on or about April 6, 2017. (R. Doc. 1-2).
Plaintiffs allege that Matthew Lemings swerved his vehicle to
the left to avoid a collision on the interstate with a
tractor-trailer driven by the defendant Charles Taylor,
resulting in his vehicle ramming into the interstate barrier
and flipping over. (R. Doc. 1-2 at 2). Mr. Lemings allegedly
suffered severe contusions and lacerations, a broken nose,
and serious and permanent injuries to his spine and legs, and
is seeking, among other things, to recover for physical and
emotional injuries, medical expenses, and lost wages. (R.
Doc. 1-2 at 2-4). Defendants removed the action from state
court on August 14, 2018. (R. Doc. 1).
October 17, 2018, the Court held a scheduling conference in
which Plaintiff's counsel represented that Mr. Lemings
had reached maximum medical improvement. (R. Doc. 8). The
Court set various deadlines in this action, including a 5-day
jury trial to commence on April 6, 2020. (R. Doc. 8). The
Court subsequently reset the discovery and motion deadlines
for the purposes of providing the parties additional time to
conduct depositions and to provide Plaintiffs with additional
time to obtain and submit expert reports. (R. Docs. 13, 37).
motions to strike concern the following individuals
identified as experts by Plaintiff: Randolph Rice
(economist), Stephanie Chalfin (vocational rehabilitation),
Seth Michael Broussard (physical therapist), Jennifer Marino
(physical therapist); Dr. Kyle Girod (orthopedics); Dr. Mark
John (pain management); Dr. Brandon Tilley (primary care);
and Dr. Jeffrey Laborde (radiology). (R. Docs. 38, 46). In
short, Defendants seek an order precluding Mr. Rice, Ms.
Chalfin, Mr. Broussard, and Ms. Marino from providing expert
testimony on the basis that they failed to provide expert
reports in conformity with Rule 26(a)(2)(B) of the Federal
Rules of Civil Procedure. There is no dispute that Mr. Rice,
Ms. Chalfin, and Ms. Marino did not provide any expert
reports by the August 19, 2019 deadline to do so. While Mr.
Broussard produced a timely functional capacity evaluation
and CV, Defendants argue that this report does not meet the
specific requirements of Rule 26(a)(2)(B). Defendants
similarly seek an order excluding the testimony of Dr. Girod,
Dr. John, Dr. Tilley, and Dr. Laborde on the basis that
Plaintiff did not provide timely summaries of the subject
matter, facts and opinions to which these treating physicians
are expected to testify as required by Rule 26(a)(2)(C).
Finally, Defendants seek leave to submit supplemental reports
in light of additional information obtained regarding Mr.
Lemings' treatment after Defendants' deadline to
provide expert reports. (R. Doc. 46).
argument, it became clear that Mr. Lemings has not in fact
reached maximum medical improvement. (R. Doc. 68), In
addition to various representations regarding Mr.
Lemings' continuing treatment, Plaintiffs' counsel
submitted a medical report indicating that Mr. Lemings made
his initial visit with a new treating physician, Dr. Joseph
Turnipseed, on September 26, 2019 and will be scheduled for
diagnostic facet joint injections. (R. Doc. 69) (under seal).
Plaintiffs' counsel further represented that Mr. Rice and
Mr. Chalfin, while retained for the purpose of providing
expert reports, did not provide timely expert reports in
light of the uncertainties created by Mr. Lemings'
continuing treatment with respect to his life plan. The Court
suspended the remaining deadlines in the Scheduling Order
pending a telephone conference with the parties on October
30, 2019 to discuss Mr. Lemings' continued treatment. (R.
Doc. 68 at 2).
16(b)(4) of the Federal Rules of Civil Procedure allows for
the modification of a scheduling order deadline upon a
showing of good cause and with the judge's consent. The
Fifth Circuit has explained that a party is required
“to show that the deadlines cannot reasonably be met
despite the diligence of the party needing the
extension.” Marathon Fin. Ins. Inc., RRG v. Ford
Motor Co., 591 F.3d 458, 470 (5th Cir. 2009) (quoting
S&W Enters., LLC v. Southtrust Bank of Ala., NA,
315 F.3d 533, 535 (5th Cir. 2003)). The court consider four
factors in determining whether to allow a party to disclose
an expert beyond the deadline set in the Court's
scheduling order: “(1) the explanation for the failure
to [disclose the expert] on time; (2) the importance of the
testimony; (3) potential prejudice in allowing the testimony;
and (4) the availability of a continuance to cure such
prejudice.” Reliance Ins. Co. v. Louisiana Land
& Expl. Co., 110 F.3d 253, 258 (5th Cir. 1997)
(citing Geiserman v. MacDonald, 893 F.2d 787, 791
(5th Cir. 1990)).
are two types of testifying experts who must be disclosed
pursuant to Rule 26 - witnesses who must provide a written
report pursuant to Rule 26(a)(2)(B) and witnesses who do not
provide a written report pursuant to Rule 26(a)(2)(C). An
expert is required to provide a written report “if the
witness is one retained or specifically employed to provide
expert testimony in the case or one whose duties as the
party's employee regularly involve giving expert
testimony.” Fed.R.Civ.P. 26(a)(2)(B). Where an expert
witness “is not required to provide a written report,
[the expert] disclosure must state: (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.” Fed.R.Civ.P. 26(a)(2)(C). Proper designation
of a treating physician as a testifying expert pursuant to
Rule 26(a)(2)(C) requires production of “an actual
summary of the facts and opinions to which the witness is
expected to testify.” Williams v. State, No.
14-00154, 2015 WL 5438596, at *4 (M.D. La. Sept. 14, 2015)
(disclosure consisting of medical records alone is
insufficient to satisfy the disclosure standard of Rule
the issues raised by the foregoing motions could have been
resolved had counsel discussed Mr. Lemings' continuing
treatment and notified the Court of such prior to the
expiration of expert deadlines. That said, the Court finds
found good cause under Rule 16(b)(4) to provide for
additional limited discovery with respect to Plaintiffs'
continuing treatment, and will set new deadlines with respect
to expert disclosures, reports, and discovery as merited
based upon Mr. Lemings' need for continued treatment and
as detailed further below. Plaintiffs' counsel has
explained that the deadlines were not satisfied in light of
Mr. Lemings' continuing treatment and the expert
testimony is of paramount portance to Plaintiffs' claims.
Defendants will not be prejudiced by these new deadlines as
they will have an opportunity to provide any necessary
supplemental and/or rebuttal expert reports and to depose
Plaintiffs' experts. The Court will discuss with the
parties at the October 30, 2019 telephone conference the
scope of any additional discovery that may be required and
the setting of a new trial date if necessary.
context of opposing Defendant's Motion to Strike Treating
Physicians, Plaintiffs' counsel provided supplemental
Rule 26(a)(2)(C) disclosures with respect to Dr. John, Dr.
Girod, Dr. Laborde, and Dr. Tilley. (R. Doc. 56 at 6-7). The
Court finds good cause to allow these supplemental
disclosures in light of Mr. Lemmings' continued treatment
and the suspension of the remaining deadlines in this action.
Plaintiffs' counsels shall supplement these disclosures