Lemings v. Taylor
| Decision Date | 22 June 2021 |
| Docket Number | CIVIL ACTION NO. 18-00768-BAJ-SDJ |
| Parties | MATTHEW LEMINGS, ET AL. v. CHARLES TAYLOR, ET AL. |
| Court | U.S. District Court — Middle District of Louisiana |
Before the Court is Defendants' Motion To Strike And Exclude Experts Jennifer Marino, Seth Broussard, Eric Oberlander, Elizabeth Martina, And Randolph Rice (Doc. 93). Plaintiffs oppose Defendants' Motion (Doc. 13). For the following reasons, Defendants' Motion will be granted and Plaintiffs' proposed expert witnesses Jennifer Marino, Seth Broussard, Eric Oberlander, Elizabeth Martina, and Randolph Rice will be excluded from providing testimony and evidence in support of Plaintiffs' claims.
The following facts are undisputed, as set forth in the parties' joint Pretrial Order (Doc. 110).
This action arises from an April 6, 2017 motor vehicle collision on U.S. Interstate 10 in East Baton Rouge Parish, Louisiana (the "April 6 collision"). (Doc. 110 at 6). Plaintiff Matthew Lemings was driving his 2000 Chevrolet Trailblazer eastbound when he was struck by a 2007 Freightliner tractor operated by Defendant Charles Taylor. (Id. at 6-7). At the time of the accident, Mr. Taylor was employed by Defendant BR539 Trucking LLC, and was acting in the course and scope of his employment. (Id. at 7).
Mr. Lemings alleges he suffered injuries and an ongoing disability as a result of the accident, and seeks damages in an amount to be determined at trial, including damages to compensate for past and future lost wages, and loss of earning capacity. (Id. at 5).
Plaintiffs Matthew and Candace Lemings (Matthew's wife) initiated this action on April 3, 2018, naming Mr. Taylor, BR539 Trucking, and Hallmark County Mutual Insurance Company as defendants. (Doc. 1-2). Multiple issues remain for trial, including whether Defendants are at fault for the collision; whether and to what extent Defendants caused Mr. Lemings' alleged injuries; whether and to what extent Mr. Lemings continues to experience a disability as a result of any such injuries; and whether and to what extent Mr. Lemings has experienced a past and future loss of wages and earning capacity as a result of the April 6 collision. (Doc. 110 at 7-8).
Now, Defendants seek to exclude certain experts retained by Plaintiffs to support Mr. Lemings' allegations of an ongoing disability, and lost wages and earning capacity: specifically, Randolph Rice, Ph.D. (an economist), Jennifer Marino (a non-treating physical therapist), Seth Broussard (also a non-treating physical therapist), Eric Oberlander, M.D. (a non-treating orthopedic surgeon), and Elizabeth Martina (a vocational rehabilitationist). (Doc. 93). Defendants' Motion is based on Plaintiffs' repeated failure to comply with this Court's scheduling orders and the expert disclosure requirements of Federal Rule of Civil Procedure ("Rule") 26. (See id.). Putting Defendants' Motion in context requires an account of Plaintiffs' dilatoryapproach to expert disclosures throughout this litigation.
On October 17, 2018, the Court entered its original Scheduling Order, setting deadlines of May 17, 2019 for Plaintiffs to disclose the identities and resumes of any proposed experts, and June 17, 2019 for producing expert reports. (Doc. 8 at 2).
On April 10, 2019, at the parties' request, the Court modified its original Scheduling Order, and extended Plaintiffs' expert identification deadline to June 19, 2019, and Plaintiffs' expert report deadline to July 19, 2019. (Doc. 13 at 2).
On June 19, 2019, Plaintiffs provided Defendants a purported "Preliminary Expert Witness List." (Doc. 33-1). Relevant here, Plaintiffs' "preliminary" list named eight potential experts, including Ms. Marino, Mr. Broussard, and Dr. Rice. Plaintiffs' June 19 list did not identify Dr. Oberlander or Ms. Martina.
On July 16, 2019, three days before their deadline to produce expert reports, Plaintiffs moved for a 60-day extension, claiming that they lacked adequate time to consult their experts and prepare reports. (See Doc. 31-1). Ultimately, the Court granted Plaintiffs' request in part, and provided Plaintiffs a 30-day extension, or until August 19, 2019. (Doc. 37 at 4). Still, however, the Court found "Plaintiffs' explanations for their failure to timely submit complete expert reports to be conclusory and inadequate," and questioned "Plaintiffs' lack of diligence in meeting their expert report deadline." (Id. at 3-4). Indeed, the Court went further, stating:
Time passed. On August 19, 2019 Plaintiffs provided Defendants a new expert witness list, again naming eight expert witnesses—including Jennifer Marino and Seth Broussard—accompanied by reports. (Doc. 38-2). Notably, this new list omitted Randolph Rice, and Plaintiffs did not provide a report prepared by Dr. Rice. And again, Plaintiffs' August 19 list did not identify Dr. Oberlander or Ms. Martina.
On August 29, 2019, Defendants moved to strike Dr. Rice and Mr. Broussard from Plaintiffs' expert witness list. (Doc. 38). Defendants argued that Dr. Rice should be stricken because he was not included on Plaintiffs' August 19 list, and had not produced a report as of the August 19 report deadline. Defendants argued that Mr. Broussard should be stricken because he was not a treating physician and his proposed report—consisting of a Functional Capacity Evaluation—did not include his testimonial history; a summary of his opinions; the facts and data considered in forming his opinions; exhibits used to summarize or support his opinion; or a statement of compensation, as required by Rule 26(a)(2)(B). (See Doc. 38-1 at 8-10).
Thereafter, on September 17, 2019, Defendants moved to strike Jennifer Marino because, like Dr. Rice, she failed to produce a report by the August 19 deadline. (Doc. 43-1 at 12-13).
On October 2, 2019, the Court held a hearing on Defendants' motions to strike.(Doc. 68). At this hearing, Plaintiffs' counsel acknowledged that Dr. Rice and Ms. Marino failed to provide expert reports by the August 19, 2019 deadline. Additionally, Plaintiffs' counsel admitted that Dr. Rice was retained for the purpose of a providing an expert report, (see Doc. 71 at 3), and, further, that Ms. Marino and Mr. Broussard are not Mr. Lemings' treating physicians. (see id. at 5).
Still, despite Plaintiffs' admissions and ongoing delays, on October 9, 2019, the Court entered an Order once again extending Plaintiffs' deadline to submit expert reports from Dr. Rice and Ms. Marino, and to supplement the report of Mr. Broussard. (Doc. 71 at 6). The Court's October 9 Order clarified that any reports for these proposed experts must comply with the requirements of Rule 26(a)(2)(B), and expressly allowed Defendants the opportunity to renew their motion to strike should Plaintiffs fail to provide satisfactory reports. (Id. at 5-6). Additionally, the Court ruled out the possibility of Plaintiffs identifying additional experts, explaining that Plaintiffs failed to show good cause "to identify any additional retained experts not previously disclosed to Defendants." (Id.). Thereafter, the Court issued yet another amended scheduling order, re-setting Plaintiffs' expert report deadline to October 26, 2020, and setting a final discovery deadline of December 31, 2020. (Doc. 89 at 2).
More time passed. And still Plaintiffs did not produce reports for Dr. Rice or Ms. Marino. Plaintiffs also failed to supplement Mr. Broussard's report. Rather, on October 26, 2020—the new expert report deadline—Plaintiffs submitted yet another expert witness list that included two previously unidentified experts—Dr. Oberlander and Ms. Martina—in blatant disregard of the Court's October 9, 2019 Orderprohibiting any additional retained experts not previously disclosed to Defendants. (Doc. 90).
On October 28, 2020, two days after Plaintiffs' final deadline to produce expert reports, Plaintiffs filed a motion seeking yet another 60-day extension. (Doc. 91). The Court denied Plaintiff's motion without prejudice, due to Plaintiffs' failures to confer with Defendants prior to filing, and to explain how an extension may affect other pretrial deadlines. (Doc. 92). Plaintiffs did not re-submit their motion.
As of February 2021, Plaintiffs still had not produced any reports whatsoever for Ms. Marino and Dr. Rice, and had not supplemented the report of Mr. Broussard. Moreover, as stated, Plaintiffs' October 26 expert witness list included the previously unidentified Dr. Oberlander and Ms. Martina. Accordingly, on February 1, 2021, Defendants filed the instant motion to exclude Ms. Marino, Mr. Broussard, Dr. Rice, Dr. Oberlander, and Ms. Martina. (Doc. 93).
On March 15, 2021, Plaintiffs filed their opposition to Defendants' Motion. (Doc. 100). Plaintiffs opposition represents that Plaintiffs produced reports for Ms. Martina and Dr. Rice on February 18, 2021—after Defendants filed their Motion—but says nothing regarding whether they have produced reports for Ms. Marino or Dr. Oberlander, or supplemented the report of Mr. Broussard. (Id. at 2). Additionally, Plaintiffs' opposition does not address Defendants' arguments seeking...
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