Sheppard v. Liberty Mutual Insurance Company et al, No. 2:2016cv02401 - Document 418 (E.D. La. 2017)

Court Description: ORDER AND REASONS - defendants' motion 210 to exclude expert opinion testimony of plaintiff Jesse Frank Sheppard's treating physicians on the grounds that Sheppard failed to comply with expert disclosure requirements is GRANTED. Sheppard's treating physicians may offer only lay testimony at trial.. Signed by Judge Sarah S. Vance on 2/2/17. (jjs)
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Sheppard v. Liberty Mutual Insurance Company et al Doc. 418 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA J ESSE FRANK SHEPPARD VERSUS CIVIL ACTION NO. 16-240 1 LIBERTY MUTUAL INSURANCE COMPANY, ET AL. SECTION “R” (3) ORD ER AN D REASON S Defendants m ove to exclude expert opinion testim ony of plaintiff J esse Frank Sheppard’s treating physicians on the grounds that Sheppard failed to com ply with expert disclosure requirem ents. In the alternative, defendants argue that the physicians are not qualified to give opinions as to the cause of Sheppard’s illness. Because the Court finds that Sheppard has failed to m eet the applicable disclosure requirem ents, defendants’ m otion is granted and the Court does not address the treating physicians’ qualifications. I. BACKGROU N D This suit was originally filed in the Civil District Court for the Parish of Orleans. 1 Defendant Mosaic Global Holdings Inc. rem oved the action to this Court on March 22, 20 16. 2 In his complaint, Sheppard alleges that he was 1 2 R. Doc. 1 at 1. Id. exposed to asbestos “[o]n a daily basis” as an em ployee of Mosaic’s predecessor com pany, Freeport Sulphur Com pany. 3 This exposure allegedly caused Sheppard to develop asbestos-related cancer, lung cancer, and/ or m esotheliom a. 4 Although Sheppard stopped working for Freeport in the early- to m id-1990 s, 5 Sheppard’s asbestos-related ailm ents were first diagnosed in October 20 15. 6 In addition to Freeport/ Mosaic, Sheppard sues several defendants involved in the m anufacture, distribution, and sale of asbestos-containing products that Sheppard allegedly encountered in the course of his work. 7 Sheppard also brings claims against insurance companies that allegedly provided coverage to defendants for asbestos-related claim s and withheld inform ation from Sheppard about the danger of asbestos. 8 Sheppard brings claim s for “negligence, intentional tort, fraud, and strict liability,” and alleges that all defendants are “jointly, severally, and in 3 R. Doc. 1-1 at 5. Id. at 6. 5 Sheppard’s com plaint is inconsistent on this point. Sheppard alleges variously that his tenure at Freeport, and exposure to asbestos, ran from “approximately 1967 through 1992,” from “approxim ately 1967 through 1994,” and “from 1967 through 1976.” R. Doc. 1-1 at 5, 6. 6 R. Doc. 1-1 at 6. 7 Id. at 6, 7. 8 Id. at 3, 4, 8. 2 4 solidio liable.”9 He seeks damages for, am ong other things, physical and m ental pain, loss of life, loss of income, and m edical expenses. 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. Experts retained by a party m ust provide an expert report pursuant to Rule 26(a)(2)(B). Hooks v. N ationw ide Hous. Sy s., LLC, No. 15-729, 20 16 WL 3667134, at *3 (E.D. La. J uly 11, 20 16). Before 20 10 , non-retained experts, such as treating physicians, were exem pt from disclosure requirem ents under certain circum stances. Id. (citing Perdom o v. United States, No. 11-2374, 20 12 WL 213810 6 at *1 (E.D. La. 20 12)). Following Congress’ 20 10 am endments to Rule 26, non-retained experts are subject to a separate, less stringent disclosure regime than their retained counterparts. Id. Under Rule 26(a)(2)(C), the propounding party must prepare a “disclosure” regarding any expert witness who does not provide a written report. “[T]his disclosure m ust state: (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 9 10 Id. at 29. Id. 3 sum m ary of the facts and opinions to which the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C). The 20 10 Advisory Com m ittee Notes pertaining to Rule 26(a)(2)(C) m ake clear that treating physicians fall under the Rule’s lim ited disclosure requirem ent. Here, defendants assert that Sheppard produced no Rule 26(a)(2)(C) disclosures regarding the treating physicians. Sheppard does not dispute this. Sheppard did turn over medical records produced by the treating physicians, but “disclosures consisting of m edical records alone are insufficient to satisfy the disclosure standard of Rule 26(a)(2)(C).” Hooks, 20 16 WL 3667134, at *5 (citing W illiam s v. State, No. 14-0 0 154, 20 15 WL 5438596, at *4 (M.D. La. Sept. 14, 20 15)); see also Knighton v. Law rence, No. 14-718, 20 16 WL 4250 484, at *2 (W.D. Tex. Aug. 9, 20 16) (“[Under Rule 26(a)(2)(C),] it does not suffice to reference large bodies of m aterial sources of facts without stating a brief account of the main points from those large bodies on which the expert relies.”). “Failure to com ply with the deadline for disclosure requirem ents results in ‘m andatory and autom atic’ exclusion under Federal Rule of Civil Procedure 37(c)(1).” Hooks, 20 16 WL 3667134, at *3. Excluded witnesses or inform ation m ay not be used “to supply evidence on a m otion, at a hearing, or at trial, unless the failure was substantially justified or is harm less.” Red 4 Dot Bldgs. v. Jacob Tech., Inc., 20 12 WL 20 6190 4, at *3 (E.D. La. 20 12) (quoting Fed. R. Civ. P. 37). Here, Sheppard has m ade no showing that his om ission was either justified or harm less. Accordingly, the treating physicians are excluded from offering any expert opinion testim ony. In the context of this case, any testim ony regarding Sheppard’s diagnosis or the cause of his illness is an expert opinion under Rule 70 2. Although lay witnesses m ay offer opinions, they m ay not testify regarding any opinions “based on scientific, technical, or other specialized knowledge within the scope of Rule 70 2.” Fed. R. Evid. 70 1. A leading treatise provides a concrete illustration of the distinction between a physician’s lay and expert opinions: When the physician testifies that the plaintiff was coughing and running a fever, this is lay witness testim ony governed by Rule 70 1. However, if the physician also testifies that he diagnosed the patient as having Reactive Airways Dysfunction Syndrome caused by exposure to a toxic chem ical, then this is testim ony based on scientific, technical, or other specialized knowledge and m ust be qualified under Rule 70 2.4. S. Saltzburg, M. Martin, D. Capra, Federal Rules of Evidence Manual § 70 1.0 2[7], at 70 1– 17 (9th ed.20 0 6). Asbestosis and lung cancer are complex diseases. Diagnosing these illnesses or assessing their cause requires scientific, technical, and specialized knowledge far beyond the ordinary experience of lay persons. 5 Accordingly, treating physicians who did not provide either a report or disclosure under Rule 26 are lim ited to lay testim ony, and m ay not testify regarding the diagnosis or causation of Sheppard’s alleged illnesses. See Daniels v. D.C., 15 F. Supp. 3d 62, 70 (D.D.C. 20 14) (treating physician testifying as a lay witness could not testify to any opinions regarding diagnosis or causation of illness); Montoy a v. Sheldon, 286 F.R.D. 60 2, 614 (D.N.M. 20 12) (sam e). The Court is cognizant that this analysis m ay be inconsistent with its discussion of this issue at the pretrial conference. But upon reflection, the Court is confident that this order accurately applies the post-20 10 expert disclosure regim e. III. CON CLU SION For the forgoing reasons, defendants’ m otion is GRANTED. Sheppard’s treating physicians m ay offer only lay testim ony at trial. New Orleans, Louisiana, this _ _ _ _ _ day of February, 20 17. 2nd _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 6