WH Holdings LLC v. Ace American Insurance Company

Filing 178

ORDER denying 172 Motion to Strike Expert Testimony. Signed by Judge Jay C. Zainey. (jrc, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WH HOLDINGS, LLC

CIVIL ACTION

VERSUS

NO: 07-7110

ACE AMERICAN INSURANCE CO.

SECTION: "A" (5)

ORDER AND REASONS
Before the Court is a Motion to Strike Expert Testimony
(Rec. Doc. 172) filed by defendant ACE American Insurance Co.
The Court scheduled the motion for expedited consideration at
ACE’s request (Rec. Doc. 174).

Plaintiffs, WH Holdings, LLC,

AXIS (US) Insurance Co., Lloyd’s of London, Swiss Re
International SE, and XL (Bermuda) Ltd., timely filed their
opposition (Rec. Doc. 175).
ACE moves the Court to strike as witnesses several “experts”
that ACE contends were designated in direct violation of the CMO
that the Court approved on August 21, 2012 (Rec. Docs. 166 &
168).

The pertinent section of the CMO reads as follows:
Written reports of Plaintiff’s experts, as defined by the
Fed. R. Civ. P. 26(a)(2)(B), fully setting forth all
matters about which they will testify and the basis
thereof, shall be obtained and delivered to counsel for
Defendant as soon as possible, but in no event later than
September 10, 2012.

Rec. Doc. 166 (emphasis added).

ACE contends that Exhibit D to

its motion is a list of experts that ACE received on September

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18, 2012, and that no reports were ever produced for these
witnesses.
In response, Plaintiffs argue that the witnesses listed on
Exhibit D are not experts contemplated by Rule 26(a)(2)(B) and
therefore are not governed by the September 10th deadline.
According to Plaintiffs, the witnesses listed on Exhibit D, to
the extent that they are experts at all, are governed by Rule
26(a)(2)(C).
The motion to strike is DENIED.

The witnesses listed on

Exhibit D appear to be for the most part fact witnesses, and ACE
recognizes them as such.

(ACE Oppo. at 8, Rec. Doc. 172-2).

Rule 26(a)(2)(B), upon which ACE relies, expressly applies to
experts who are “retained or specially employed to provide expert
testimony in the case.”

None of the witnesses listed on Exhibit

D, even those that are arguably “experts,” appear to fit into
this category.
In its memorandum in support, ACE argues that the Court’s
scheduling order overrides the default provisions of Rules
26(a)(2)(B) and (C) such that the report requirement and the more
onerous production deadline of September 10th, which clearly
apply to Rule (a)(2)(B) experts, now apply to all experts in the
case, including those otherwise covered by Rule 26(a)(2)(C).
The Court does not find ACE’s argument as to Rule
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26(a)(2)(C) experts to be persuasive.

The emphasized language in

the quoted passage above applies the more onerous September 10th
expert deadline to experts as defined by Rule 26(a)(2)(B), which
refers to retained experts.

The quoted passage does not suggest

that all experts in the case are going to be treated as Rule
26(a)(2)(B) experts.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion to Strike Expert Testimony
(Rec. Doc. 172) filed by defendant ACE American Insurance Co. is
DENIED.
October 2, 2012
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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