Leggett v. Dolgencorp LLC et al, No. 2:2016cv17264 - Document 39 (E.D. La. 2017)
Court Description: ORDER AND REASONS granting 15 Motion to Strike. For the foregoing reasons, the Court GRANTS defendant's motion. Dr. Robert may offer only lay testimony at trial. Signed by Judge Sarah S. Vance on 10/24/2017. (cg)
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Leggett v. Dolgencorp LLC et al Doc. 39 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA REBECCA LEGGETT CIVIL ACTION VERSUS NO. 16-17264 DOLGENCORP, LLC d/ b/ a DOLLAR GENERAL SECTION “R” (3) ORD ER AN D REASON S Before the Court is defendant’s m otion to strike the expert testim ony of Dr. Everett Robert. 1 For the following reasons, the Court grants defendant’s m otion. I. BACKGROU N D On December 16, 20 15, plaintiff Rebecca Leggett slipped and fell at a Dollar General store in Luling, Louisiana. 2 Plaintiff sued defendant DG Louisiana, LLC for dam ages in Louisiana state court on November 9, 20 16. 3 Plaintiff alleged that the slippery floor at the Dollar General store constituted an unreasonably dangerous condition, and that defendant was negligent in 1 R. Doc. 15. R. Doc. 1-1. 3 Id. Plaintiff also sued Dolgencorp, LLC and Dollar General Corporation, but has since stipulated to their dism issal. R. Doc. 34. 1 2 Dockets.Justia.com failing to prevent the dangerous condition and failing to warn of the danger. 4 Defendant rem oved the case to this Court on December 13, 20 16, on the basis of diversity of citizenship. 5 According to the Court’s scheduling order, plaintiff’s deadline for providing written expert reports as required by Federal Rule of Civil Procedure 26(a)(2)(B) was J uly 28, 20 17. 6 Defendant’s expert report deadline was one month later. 7 Plaintiff now seeks to elicit expert testim ony from Dr. Everett Robert, plaintiff’s treating neurosurgeon. 8 Dr. Robert would testify that plaintiff’s fall caused injury to her lum bar spine. 9 Defendant m oves to exclude Dr. Robert’s expert testim ony as untim ely. 10 II. D ISCU SSION The Federal Rules of Civil Procedure im pose disclosure requirements upon proponents of expert testim ony. Fed. R. Civ. P. 26. Expert witnesses who are “retained or specially employed to provide expert testim ony” m ust subm it written reports. Fed. R. Civ. P. 26(a)(2)(B). Treating physicians like 4 5 6 7 8 9 10 R. Doc. 1-1 at 2. R. Doc. 1 at 3. R. Doc. 7 at 2. Id. See R. Doc. 19. See R. Doc. 22-1. R. Docs. 15, 22. 2 Dr. Robert, however, are exempt from this reporting requirement. See Sheppard v. Liberty Mut. Ins. Co., No. 16-240 1, 20 17 WL 4670 92, at *1 (E.D. La. Feb. 2, 20 17); see also Fed. R. Civ. P. 26 advisory com m ittee’s notes to 1993 & 20 10 amendm ents. Instead, Rule 26(a)(2)(C) requires non-reporting expert witnesses to disclose: “(i) the subject m atter on which the witness is expected to present evidence under Federal Rule of Evidence 70 2, 70 3, or 70 5; and (ii) a summ ary of the facts and opinions to which the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C). Plaintiff disclosed this inform ation to defendant on Septem ber 12, 20 17, only after defendant filed its m otion to strike Dr. Robert’s expert opinion. 11 Plaintiff’s disclosure of Dr. Robert’s expert opinion was untim ely. The federal rules provide that absent a stipulation or court order, all expert disclosures are due “at least 90 days before the date set for trial.”12 Fed. R. Civ. P. 26(a)(2)(D)(i). The Court’s scheduling order sets out deadlines for expert reports under Rule 26(a)(2)(B), but these deadlines do not apply to Dr. Robert’s expert opinion under Rule 26(a)(2)(C). 13 Thus, plaintiff should 11 R. Doc. 19 at 3; R. Doc. 22 at 3; There is a separate deadline for rebuttal opinions—within thirty days after the other party’s disclosure—but plaintiff does not argue that Dr. Robert’s opinion “is intended solely to contradict or rebut evidence on the same subject m atter identified by another party[’s]” expert. Fed. R. Civ. P. 26(a)(2)(D)(ii). Moreover, plaintiff bears the burden of proving spine injury. 13 R. Doc. 7 at 2. 3 12 have disclosed Dr. Robert’s opinion by August 8, 20 17, ninety days before the scheduled trial date of November 6. The Court now turns to whether Dr. Robert’s expert opinion should be excluded at trial. “When a party fails to disclose inform ation required by Federal Rule of Civil Procedure 26(a), ‘the party is not allowed to use that inform ation . . . to supply evidence on a m otion . . . or at a trial, unless the failure was substantially justified or is harm less.’” In re Com plaint of C.F. Bean L.L.C., 841 F.3d 365, 372 (5th Cir. 20 16) (quoting Fed. R. Civ. P. 37(c)(1)). In Geiserm an v. MacDonald, 893 F.2d 787 (5th Cir. 1990 ), the Fifth Circuit described four factors to determ ine whether “to exclude evidence that was not properly designated”: (1) the explanation for the failure to adhere to the deadline; (2) the im portance of the proposed m odification of the scheduling order; (3) the potential prejudice that could result from allowing the m odification; and (4) the availability of a continuance to cure that prejudice. Id. at 791. With regard to the first factor, plaintiff has not provided a convincing explanation for her failure to com ply with the scheduling order. Plaintiff contends that Dr. Robert did not exam ine her until August 11, 20 17—after plaintiff’s deadlines for expert disclosures passed. 14 But plaintiff has failed 14 R. Doc. 19 at 3; R. Doc. 19-1 at 1. 4 to explain why she did not seek treatment from Dr. Robert earlier. Plaintiff’s accident occurred in December 20 15, so she had m ore than a year and a half to seek treatm ent from a neurosurgeon and to elicit an opinion about injury to her lum bar spine. See Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546, 573 (5th Cir. 1996) (finding that untim ely expert disclosures were not justified because party “had over nine m onths to solicit experts and prepare reports” on contested issues). Thus, the first Geiserm an factor weighs against adm itting Dr. Robert’s expert testimony. As to the second factor, plaintiff has failed to show that Dr. Robert’s testim ony is essential. Dr. Robert’s expert testim ony would be lim ited to whether plaintiff’s fall injured her lum bar spine. With regard to plaintiff’s alleged dam ages for physical disfigurement, 15 this testim ony is clearly im portant. But the testim ony is not necessary to prove either defendant’s liability or other dam ages, such as pain and suffering. Cf. Betzel v. State Farm Lloy ds, 480 F.3d 70 4, 70 7 (5th Cir. 20 0 7) (finding that expert testim ony was “essential” because without experts, the plaintiff could not prove any dam ages); Com plete Prop. Res., LLC v. City of N ew Orleans, No. 0 4-3267, 20 0 6 WL 1970 0 6, at *2 (E.D. La. J an. 25, 20 0 6) (denying leave to file untim ely expert report because “[w]hile plaintiff’s dam ages m ay be of 15 R. Doc. 1-1 at 3. 5 im portance to its case, plaintiff has not established that an expert is necessary”). Thus, this factor weighs against plaintiff. As to the third Geiserm an factor, allowing Dr. Robert to offer expert testim ony would prejudice defendant in light of the fast approaching trial date. Plaintiff disclosed Dr. Robert’s opinion on September 12, two weeks before the discovery deadline and less than two m onths before trial. Defendant had little opportunity either to solicit a neurosurgeon expert to rebut Dr. Robert’s opinion, or to depose Dr. Robert as to his expert opinion. See Consol. Envtl. Mgm t., Inc.-N ucor Steel La. v. Zen-Noh Grain Corp., 981 F. Supp. 2d 523, 536 (E.D. La. 20 13) (noting that “[t]his Court has found prejudice when a party subm itted its expert report as few as three days late, leaving the opposing party with less than a m onth before the close of discovery to depose the expert, hire its own expert, and obtain a written report from him ”). Allowing Dr. Robert to offer an expert opinion at this point would m ean that defendant could not depose him before trial. The third factor therefore weighs against plaintiff. Finally, turning to the fourth Geiserm an factor, the Fifth Circuit has “em phasized that a continuance is the preferred means of dealing with a party’s attempt to designate a witness out of tim e.” Betzel, 480 F.3d at 70 8 (quoting Cam pbell v. Key stone Aerial Survey s, Inc., 138 F.3d 996, 10 0 1 (5th 6 Cir. 1998)). Here, continuing the discovery deadline and trial date would give defendant a fair opportunity to depose Dr. Robert and provide a rebuttal opinion. But the Fifth Circuit has also warned that “a continuance would not deter future dilatory behavior, nor serve to enforce local rules or court im posed scheduling orders.” Geiserm an, 893 F.2d at 792 (citing Bradley v. United States, 866 F.2d 120 , 126 (5th Cir. 1989)). On balance, even though a continuance would cure prejudice to the defendant, the first three Geiserm an factors weigh against allowing Dr. Robert to provide expert testim ony at trial. Plaintiff has failed to show that its untim ely designation of expert testim ony was substantially justified or harm less. III. CON CLU SION For the foregoing reasons, the Court GRANTS defendant’s m otion. Dr. Robert m ay offer only lay testim ony at trial. New Orleans, Louisiana, this _ _ _ _ _ day of October, 20 17. 24th _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 7
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