Serigne v. Preveau et al
Filing
89
ORDER AND REASONS granting 72 MOTION for Leave to File Plaintiff's Second Supplemental Witness List. The parties are ORDERED to comply with the instructions regarding Dr. Graham's testimony as stated in this order.Signed by Chief Judge Sarah S. Vance on 7/23/13.(jjs, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RONALD SERIGNE
CIVIL ACTION
VERSUS
NO: 11-3160
PREVEAU ET AL.
SECTION: R
ORDER AND REASONS
Plaintiff, Ronald Serigne, moves to supplement his witness
list after this Court's deadline.1 For the following reasons,
plaintiff's motion is granted, and this Court's scheduling order
is modified as set forth below.
I. BACKGROUND
The Court issued a scheduling Order in this excessive force
case on December 13, 2012.2 That Order provided that the parties
must file their witness list by June 3, 2013.3 The Order also
provides that the Court would not permit "any witness, expert or
fact, to testify" unless the party complied with the scheduling
Order, or this Court issued an order approving the witness "for
good cause shown."4
1
R. Doc. 72.
2
R. Doc. 39.
3
Id. at 2.
4
Id.
Plaintiff filed this motion on July 10, 2013, and asks this
Court to allow him to supplement his witness list with an
additional medical provider, Dr. Graham.5 Defendants oppose
plaintiff's motion.6
II.
DISCUSSION
Federal Rule of Civil Procedure 16(b) authorizes district
courts to control and expedite the discovery process through a
scheduling order. See Fed. R. Civ. P. 16(b). Consistent with this
authority, the Court has "broad discretion" to enforce its
scheduling order. See Geiserman v. MacDonald, 893 F.2d 787, 790
(5th Cir. 1990) ("[O]ur court gives the trial court 'broad
discretion to preserve the integrity and purpose of the pretrial
order.'" (quoting Hodges v. United States, 597 F.2d 1014, 1018
(5th Cir. 1979))). The Federal Rules of Civil procedure
specifically authorize the Court to sanction a party for failing
to comply with its scheduling order by excluding evidence. See
Fed. R. Civ. P. 16(f), 37(b)(2).
In Geiserman, the Fifth Circuit listed four factors that a
court should consider in exercising its discretion to exclude
evidence: (1) a party's explanation for its failure to timely
identify its witnesses and exhibits; (2) the importance of the
proposed evidence; (3) potential prejudice in allowing the
5
R. Doc. 72.
6
R. Doc. 75.
2
admission of the exhibits or testimony; and (4) the availability
of a continuance to cure such prejudice. Geiserman, 893 F.2d at
790. See also Betzel v. State Farm Lloyds, 480 F.3d 704, 707 (5th
Cir. 2007).
As to the first factor, Serigne argues that his proposed
witness, Dr. Graham, treated him for the first time on June 26,
2013.7 He excuses his delay because he had limited funds and
prioritized his injuries by severity. His nose injuries were not
urgent,8 and Serigne argues that he went to Dr. Graham as soon as
he could.
As to the second factor, Dr. Graham's testimony is
significant because he is the only physician who can estimate the
cost of the treatment Serigne needs to repair his deviated
septum.9 See Betzel, 480 F.3d at 707-08 (finding that the
importance of the witness weighs in favor of allowing witness to
testify).10
7
R. Doc. 72.
8
R. Doc. 88 at 2.
9
Id.
10
The Fifth Circuit has previously interpreted this factor
to weigh against allowing the witness to testify. See Barrett v.
Atl. Richfield Co., 95 F.3d 375, 381 (5th Cir. 1996); Geiserman,
893 F.3d at 791. Its latest discussion of this factor, however,
held that, while not dispositive, the importance of the witness
weighs in favor of admitting the testimony. Betzel, 480 F.3d at
707-08; see also Fisher v. United States, No. 09-7038, 2011 WL
232181, at * 4 (E.D. La. Jan. 24, 2011) (following Betzel's
application of the second factor). Following Betzel, we find that
3
As to the third factor, Serigne argues that defendants will
not be prejudiced by adding Dr. Graham because Serigne gave
defendants notice that Dr. Graham will be a treating physician on
July 1, 2013. Further, Serigne identified his nose injury in his
complaint, and his medical records disclosed his nose injury on
June 1, 2013, and again on August 23, 2013. Defendants argue that
they "have no idea of the exact nature of the problem for which
Dr. Graham is treating plaintiff nor his treatment plan or
prognosis for plaintiff."11
Dr. Graham is a treating physician and he may testify only
about the actual treatment he rendered to plaintiff and opinions
derived directly from his treatment. The Court will cure any
potential prejudice to defendant by permitting defendant to
obtain a medical expert and ordering plaintiff to make himself
available for evaluation by defendants' expert. Plaintiff must
produce all of his medical treatment records to defendants.
Defendant is also authorized to depose Dr. Graham any time before
the start of trial. In no other respects does this Court amend
its scheduling Order, or any other deadline. Trial is set for
August 19, 2013, which gives the parties ample time to
accommodate these Orders without a continuance.
the importance of Dr. Graham's testimony weighs in favor of
admission.
11
R. Doc. 75-1 at 3.
4
Considering that Dr. Graham's testimony is significant, that
this Court cured any potential prejudice to defendants by
adjusting the scheduling Order, and that plaintiff offered a
justification for his tardiness, the Court finds that the
Geiserman factors weigh in favor of allowing Dr. Graham's
testimony. See Morgan v. Chet Morrison Contractors, Inc., No. 042766, 2008 WL 7602163, at *2-3 (E.D. La. July 8, 2008); Gray v.
Vastar Offshore, Inc., No. 04-1162, 2005 WL 399396, at *1 (E.D.
La. Feb. 14, 2005).
III. CONCLUSION
For the above stated reasons, Serigne's motion is GRANTED.
The parties are ORDERED to comply with the instructions regarding
Dr. Graham's testimony as stated above.
New Orleans, Louisiana, this 23rd day of July, 2013.
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?