Michel v. Ford Motor Company, et al, No. 2:2018cv04738 - Document 115 (E.D. La. 2018)
Court Description: ORDER AND REASONS granting 66 Motion to Exclude Dr. Brody and Dr. Castleman's expert testimony; denying 82 Motion to Amend/Correct the Court's scheduling order. Signed by Judge Sarah S. Vance on 12/28/2018. (cg)
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Michel v. Ford Motor Company, et al Doc. 115 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA VICTOR MICHEL, ET AL. VERSUS CIVIL ACTION NO. 18-4738 FORD MOTOR COMPANY, ET AL. SECTION “R” (4) ORD ER AN D REASON S Before the Court are: (1) defendants Cum m ins’s and Ford’s m otion to exclude the expert testim ony of Dr. Arnold Brody and Dr. Barry Castlem an, 1 and (2) plaintiffs’ m otion to am end or correct the Court’s scheduling order as to their expert disclosure deadline. 2 The Court grants defendants’ m otion to exclude Dr. Brody and Dr. Castlem an and denies plaintiffs’ m otion to am end the scheduling order because plaintiffs have not shown good cause for their failure to tim ely disclose Dr. Brody’s and Dr. Castlem an’s expert reports. 1 2 R. Doc. 66. R. Doc. 82. Dockets.Justia.com I. BACKGROU N D This case arises out of Victor Michel’s alleged asbestos exposure as a result of his work as a m echanic and generator service technician. 3 Michel worked as a parts delivery driver, truck m echanic, generator service technician, and “owner operator” from 1965 to 20 0 5. 4 He filed this action in state court on J uly 28, 20 17, after being diagnosed with m esotheliom a. 5 Defendants rem oved the case to federal court on May 8, 20 18. 6 On J une 12, 20 18, Michel died. 7 The Court substituted his survivors as plaintiffs on J uly 10 , 20 18. 8 Defendants have now filed a m otion to exclude the expert testim ony of plaintiffs’ experts, Dr. Arnold Brody and Dr. Barry Castlem an. 9 Plaintiffs oppose the m otion and have filed their own m otion to am end the Court’s scheduling order to allow them to disclose Dr. Brody’s and Dr. Castlem an’s expert reports. 10 3 R. Doc. 1 at 2. A more in-depth discussion of the facts underlying this dispute can be found in the Court’s August 28, 20 18 order. See R. Doc. 34. 4 R. Doc. 1-2 at ¶ 6. 5 Id. 6 R. Doc. 1. 7 R. Doc. 21. 8 Id. 9 R. Doc. 66. 10 R. Doc. 76; R. Doc. 82. 2 II. LEGAL STAN D ARD The Federal Rules of Civil Procedure im pose disclosure requirements on a party who intends to provide 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). Expert reports for retained experts m ust include: (i) a com plete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in form ing them; (iii) any exhibits that will be used to sum m arize or support them ; (iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the com pensation to be paid for the study and testim ony in the case. Fed. R. Civ. P. 26(a)(2)(B). Plaintiffs did not disclose expert reports for Dr. Brody or Dr. Castlem an until after defendants filed their m otion to exclude the experts’ testim ony. “When a party fails to tim ely 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. 3 37(c)(1)). In Geiserm an v. MacDonald, 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. 893 F.2d 787, 791 (5th Cir. 1990 ); see also Hooks, 20 16 WL 3667134, at *2-5 (applying the Geiserm an test to a m otion in lim ine to exclude expert testim ony at trial). III. D ISCU SSION Defendants argue that the Court should exclude plaintiffs’ experts Dr. Brody’s and Dr. Castlem an’s testim ony because plaintiffs failed to timely disclose their expert reports. 11 In response, plaintiffs have filed a m otion to am end the Court’s scheduling order. 12 They argue that because the Court’s existing scheduling order does not list a deadline for their disclosures, they have no disclosure deadline for the reports of Dr. Brody and Dr. Castlem an. 13 Plaintiffs’ contention that they did not have a deadline for disclosing these expert reports simply because no deadline was given in the Court’s 11 12 13 R. Doc. 66-1 at 4. R. Doc. 82. R. Doc. 82-1 at 2. 4 scheduling order is sim ply wrong. Discovery in this case was conducted largely in state court, and the parties’ discovery deadline, including for disclosing expert reports, was March 30 , 20 18. 14 Plaintiffs failed to disclose these reports by that deadline. Then, once defendants rem oved the case to federal court, the Court held a status conference at which it asked the parties to notify it of any rem aining discovery. 15 Plaintiffs did not m ention that these reports had yet to be disclosed at that conference. The Court then issued a scheduling order that specifically listed the discovery in which the parties could engage; all other discovery, including disclosure of expert reports, rem ained closed. 16 Despite this, plaintiffs now seek to disclose these reports over eight m onths late, and only two months before trial. Applying the Geiserm an factors, plaintiffs’ give no sound reason for their failure to disclose these reports earlier. Their proposed m odification is not of great im portance. Plaintiffs will not be prejudiced by the exclusion of these experts, because Dr. Brody and Dr. Castlem an’s testim ony is not essential to plaintiffs’ case. Dr. Brody would have testified as to how asbestos causes disease. 17 This testim ony is cumulative of and less helpful than the 14 15 16 17 R. Doc. 10 1 at 3 n.10 . See R. Doc. 35. R. Doc. 53. R. Doc. 76 at 3. 5 testim ony of Dr. Staggs and Dr. Finkelm an, who can both testify m ore specifically to the way that asbestos affected Michel—nam ely his m esotheliom a diagnosis. Dr. Castleman would have testified to defendants’ knowledge of the hazards of asbestos. 18 While plaintiffs do not have another expert who will give a sim ilar opinion, plaintiffs can deal with this issue through exam ination of the defendants directly or through exhibits. But if the Court were to allow the experts’ testim ony, defendants would be prejudiced because their tim e to review these m aterials and prepare defenses would be drastically shorter than for the other experts. Finally, given that trial is less than two m onths away, a continuance would cause unnecessary expense and needless delay. Accordingly, defendants’ m otion to exclude Dr. Brody and Dr. Castlem an’s testim ony is granted, and plaintiffs’ m otion to am end the scheduling order is denied. 18 Id. 6 IV. CON CLU SION For the foregoing reasons, defendants’ m otion to exclude Dr. Brody and Dr. Castlem an’s expert testim ony is GRANTED. Plaintiffs’ m otion to am end the Court’s scheduling order is DENIED. New Orleans, Louisiana, this _ _28th _ _ _ day of Decem ber, 20 18. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 7
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