Simmons v. Galliano Marine Service, LLC v. Simmons, No. 2:2015cv01124 - Document 57 (E.D. La. 2016)

Court Description: ORDER & REASONS denying 50 Motion for Leave to Amend. Signed by Judge Sarah S. Vance on 12/28/2016. (mmm)

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Simmons v. Galliano Marine Service, LLC v. Simmons Doc. 57 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA J ORDAN SIMMONS CIVIL ACTION VERSUS NO. 15-1124 GALLIANO MARINE SERVICE, LLC SECTION “R” (3) ORD ER AN D REASON S Before the Court is plaintiff J ordan Sim m ons’ m otion to supplem ent his witness and exhibit lists.1 Defendant Galliano Marine Service, LLC opposes the m otion.2 Because the Court finds that plaintiff has not shown good cause for his request, the Court denies the m otion. I. BACKGROU N D This is a J ones Act personal injury action, in which plaintiff alleges that he suffered shoulder injuries while working on defendant’s vessel. Trial in this m atter was originally set for March 28, 20 16. On February 25, 20 16, plaintiff m oved to continue the trial date, arguing that discovery was not com plete and that plaintiff’s counsel had unavoidable conflicts in his trial calendar. The Court granted the m otion over defendant’s objection and 1 2 R. Doc. 50 . R. Doc. 51. Dockets.Justia.com ordered the parties to contact the Court’s case m anager to reschedule the trial date.3 The Court also ordered the parties to com plete all discovery by April 25, 20 16 and clarified that all other dates in the Court’s scheduling order rem ained in effect.4 The parties’ new trial date is J anuary 5, 20 17.5 Subsequently, plaintiff m oved the Court to am end the expert witness and discovery deadlines.6 Because the Court found that plaintiff had not shown good cause for the requested m odifications, the Court denied plaintiff’s m otion.7 According to the scheduling order, the deadline for plaintiff to subm it witness and exhibit lists was J anuary 18, 20 16.8 The order further states that “the Court will not perm it any witness, expert or fact, to testify or any exhibits to be used unless there has been com pliance with this Order as it pertains to the witness and/ or exhibits, without an order to do so issued on m otion for good cause shown.”9 Plaintiff now requests that the Court allow him to file an am ended witness and exhibit list beyond the deadline specified in the scheduling order 3 4 5 6 7 8 9 R. Doc. 33. Id. R. Doc. 43. R. Doc. 41. R. Doc. 49. R. Doc. 10 at 2. Id. 2 in order to include Dr. Thom as Lyons as a witness and Dr. Lyons’ records as exhibits. Though plaintiff’s m otion is self-titled “Motion for Leave to File Plaintiff’s First Supplem ental Am ended Witness and Exhibit List,” the Court will consider it as a m otion to am end the deadlines in the scheduling order. II. LEGAL STAN D ARD Federal Rule of Civil Procedure 16(b) “authorizes the district court to control and expedite pretrial discovery through a scheduling order.” Geiserm an v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990 ); accord Barrett v. Atl. Richfield Co., 95 F.3d 375, 380 (5th Cir. 1996). Consistent with this authority, the Court has “broad discretion” to enforce its scheduling order. See Geiserm an, 893 F.3d at 790 (“[O]ur court gives the trial court broad discretion to preserve the integrity and purpose of the pretrial order.”) (quotation om itted). Under Rule 16(b), a scheduling order “m ay be m odified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “The good cause standard requires the ‘party seeking relief to show that the deadlines cannot reasonably be m et despite the diligence of the party needing the extension.’” S & W Enters., L.L.C. v. South Trust Bank of Ala., N A, 315 F.3d 533, 535 (5th Cir. 20 0 3) (quoting 6A Charles Alan Wright, et al., Federal Practice and Procedure § 1522.1 (2d ed. 1990 )). 3 In Geiserm an v. MacDonald, the Fifth Circuit established a four-factor balancing test to determ ine whether good cause existed for an untim ely designation of expert witnesses, ruling that courts m ust consider (1) the explanation for the failure to adhere to the deadline; (2) the im portance of the testim ony; (3) the potential prejudice that could result from allowing the testim ony; and (4) the availability of a continuance to cure that prejudice. 893 F.2d at 791 (citing Bradley v. United States, 866 F.2d 120 , 125 (5th Cir. 1989)); accord Betzel v. State Farm Lloy ds, 480 F.3d 70 4, 70 7 (5th Cir. 20 0 7). The Fifth Circuit has since used this test to determ ine whether good cause exists for an untim ely subm ission of expert reports. 10 See Reliance Ins. Co. v. La. Land & Exploration Co., 110 F.3d 253, 257 (5th Cir. 1997). Several district courts in this circuit have also used the Geiserm an test for the addition of non-expert witnesses not in cluding on witness lists, as well as well for exhibits. See, e.g., Paulsen v. State Farm Ins. Co., No. 0 6-9546, 20 0 8 WL 449783, at *2-3 (E.D. La. Feb. 15, 20 0 8); Morgan v. Chet Morrison Contractors, Inc., No. 0 4-2766, 20 0 8 WL 760 2163, at *1-3 (E.D. La. J uly 8, 10 The parties dispute whether Dr. Lyons’ is an non-treatingphysician expert subject to the report requirem ent of Federal Rule of Civil Procedure 26(a)(2)(B) or solely a treating physician, which are not subject to the report requirem ent. Fed. R. Civ. P. 26(a), cm t. 1993 Am endm ents, subdivision (a), para. (2), 146 F.R.D. 40 1, 635; see also Ham burger v. State Farm Mut. Auto. Ins. Co. 361 F.3d 875, 882 (5th Cir.20 0 4). The resolution of this dispute is not necessary for the Court to decide this instant m otion. 4 20 0 8); Stum baugh v. Am erican Com m ercial Lines LLC, No. 0 8-1669, 20 0 9 WL 2922312, at *3 (E.D. La. Sept. 9, 20 0 9); Serigne v. Preveau, No. 11-3160 , 20 13 WL 3863874, at *1 (E.D. La. J uly 23, 20 13); Matter of M&M W ireline & Offshore Servs., LLC, No. 15-4999, 20 16 WL 4679937, at *5-6 (E.D. La Sept. 7, 20 16). Accordingly, the Court will analyze the four Geiserm an factors to determ ine whether plaintiff has shown good cause for his request to am end the scheduling order to allow his new witness and exhibit lists. III. D ISCU SSION After weighing the four Geiserm an factors, the Court concludes that plaintiff has not shown good cause for his request to m odify the Court’s scheduling order to allow him to subm it new witness and exhibit lists referencing Dr. Lyons. With regard to the first factor, plaintiff has not provided a convincing explanation for his failure to com ply with the applicable deadlines or his delay in seeking to add an additional witness. Plaintiff was injured in October of 20 13, and has been treated by Dr. Mark Larkins, a pain m anagem ent specialist, and Dr. Kirby Turnage, both of whom are included on plaintiff’s initial tim ely witness and exhibit list.11 Dr. Turnage is an 11 R. Doc. 20 at 1. 5 orthopedist and perform ed shoulder surgery on plaintiff.12 Plaintiff’s m otion indicates that in late April of 20 16, Dr. Larkins recom m ended plaintiff see an orthopedist for an arthrogram evaluation or potentially exploratory arthroscopic surgery.13 Despite this recom m endation in April, and despite the fact that plaintiff had already received treatm ent from Dr. Turnage, an orthopedist, plaintiff did not see Dr. Lyons until six m onths later. Dr. Lyons is allegedly recom m ending revision surgery on plaintiff’s shoulder. Plaintiff’s vague explanation that he could not get an orthopedist to see him sooner because the orthopedists that were initially recom m ended would not take a patient involved in litigation, an d that he was dissatisfied with another available option, is not com pelling. Without m ore, plaintiff’s explanation does not justify the delay. Further, while the Court would not suggest that plaintiff return to a physician he was not satisfied with, his dissatisfaction with Dr. Turnage does not explain why it took plaintiff six m onths to find a new orthopedist. Of course, even if plaintiff saw a new doctor in April, the new witness and exhibit lists would still be late, as the deadline was in J anuary. However, if plaintiff saw a doctor sooner, the Court m ay have accepted plaintiff’s 12 13 R. Doc. 51 at 3. R. Doc. 50 -2 at 1. 6 explanation for his failure to tim ely com ply with the scheduling order. Further, plaintiff’s diligence in securing an exam ination earlier could help m itigate any prejudice suffered by defendant, which is relevant to the third Geiserm an factor. The Court is not convinced that plaintiff could not have found a qualified orthopedist in the surrounding area to exam ine him before October, or received suitable treatm ent by Dr. Turnage. Because plaintiff does not adequately explain the six-m onth delay, the first Geiserm an factor weighs against m odification of the scheduling order. See Hernandez v. Mario’s Auto Sales, Inc., 617 F. Supp. 2d 488, 494-96 (S.D. Tex. 20 0 9) (finding party’s lack of diligence and inadequate explanation weighed heavily against am ending scheduling order to allow additional witnesses). Turning to the second factor, plaintiff argues that the addition of Dr. Lyons’ testim ony is im portant “to discuss Mr. Sim m ons’ current sym ptom s, his diagnosis, and recom m endation for a left shoulder arthroscopy.”14 It is true that the testim ony of Dr. Lyons is im portant to the extent that Dr. Lyons will recom m end plaintiff undergo surgery, whereas Dr. Turnage believes plaintiff has reached m axim um m edical im provem ent.15 But it is not as though plaintiff had no opportunity to find another doctor within the 14 15 R. Doc. 50 -1 at 3. R. Doc. 51 at 3. 7 deadlines of the Court’s scheduling order, and plaintiff can rely on Dr. Larkins who can testify as to his recom m endation that plaintiff receive an arthrogram evaluation or potentially exploratory surgery.16 Therefore, while the second factor does weigh in plaintiff’s favor, it is not overwhelm ing and does not by itself establish good cause. See Borden v. United States, 537 F. App’x 570 , 573-74 (5th Cir. 20 13) (holding that plaintiff had not established good cause under Geiserm an to extend deadline, despite “vital” im portance of m edical expert testim ony indicating that the second Geiserm an factor weighed in plaintiff’s favor). Further, the Court is troubled that, contem poraneously with the briefing on plaintiff’s earlier m otion to extend the discovery and expert deadlines, plaintiff m ade no m ention whatsoever of Dr. Larkins’ recom m endation that plaintiff see an orthopedist, and certainly m ade no m ention that plaintiff needed to see an orthopedist besides Dr. Turnage.17 If the need for Dr. Lyons (or any other orthopedist) was so im portant to plaintiff’s case, then why not notify the Court of its im portance as soon as possible, especially when plaintiff was already asking the Court for an 16 R. Doc. 50 -2 at 1. According to plaintiff, Dr. Larkins m ade this recom m endation on April 22, 20 16. Plaintiff subm itted his reply brief for his m otion to extend the discovery deadline on April 25, 20 16. See R. Doc. 46. 8 17 extension of deadlines? This suggests that Dr. Lyons’ testim ony m ay not be as im portant as plaintiff contends. The deadlines established by the Federal Rules of Civil Procedure and this Court’s scheduling orders do not disappear whenever plaintiffs seek to find a doctor who will give them the recom m endation they want. See McCallon v. BP Am erica Production Co., 20 0 6 WL 3246886, No. 0 5-0 597, at *1-2 (E.D. La. Nov. 8, 20 0 6) (affirm ing Magistrate J udge’s order denying extension of deadline for expert reports in part because plaintiff sought new m edical opinion despite receiving fully evaluated opinions from m ultiple physicians). The third factor requires the Court to determ ine whether the proposed m odification would prejudice any party. As with his m otion to extend deadlines, plaintiff again repeatedly asserts that his request will not prejudice defendant. And again, as the Court explained in its order denying plaintiff’s earlier request, the defendant certainly will be prejudiced by granting plaintiff’s request. Defendant and its counsel would incur significant costs, in term s of both tim e and expense, if they m ust depose Dr. Lyons and evaluate his potential trial testim ony. Plaintiff asserts defendant will not be prejudiced because it has tim e to depose Dr. Lyons before trial. 18 The fact that defendant has tim e before trial to depose Dr. Lyons (which 18 R. Doc. 50 -1 at 4. 9 defendant does not concede and is questionable) has no bearing on the costs and prejudice associated with granting plaintiff’s requests. See Hernandez, 617 F. Supp. 2d at 497 (“Whenever additional depositions are conducted, both parties m ust expend additional resources and invest tim e in conducting them . Thus prejudice generally results to the party opposing additional depositions.”). Additionally, plaintiff’s request would further increase costs by potentially requiring defendant (as it asserts in its opposition) to conduct an independent m edical exam ination to evaluate Dr. Lyons’ opinions.19 Therefore, the third factor weighs against m odifying the scheduling order. Finally, turning to the fourth Geiserm an factor, the Court finds that a continuance is not available to cure the prejudice identified above. As explained in the Court’s earlier order, regardless of when trial com m ences, plaintiff’s requests would require defendant to expend additional tim e and m oney responding to plaintiff’s untim ely m aneuvers. Plaintiff was injured over three years ago, and this case has already been continued once over defendant’s objection. A continuance to cure prejudice is highly undesirable at this late stage of an already protracted litigation. Thus, this factor also weighs against granting plaintiff’s requests and m odifying the scheduling order. 19 R. Doc. 51 at 6. 10 Based on the above analysis, the Court finds that plaintiff has not shown good cause for his request to m odify the Court’s scheduling order to perm it him to file untim ely witness and exhibit lists. Therefore, Dr. Lyons will not be perm itted to testify at trial, and the records and opinions of Dr. Lyons shall not be introduced at trial. IV. CON CLU SION For the foregoing reasons, the Court DENIES plaintiff’s m otion to am end the scheduling order. 28th New Orleans, Louisiana, this _ _ _ _ _ day of Decem ber, 20 16. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 11

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