Fenner et al v. Elite Transportation Group, Inc. et al

Filing 96

ORDER AND REASONS denying 89 Motion in Limine to Exclude Opinion Testimony and MOTION for Summary Judgment. Signed by Judge Susie Morgan. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PATRICIA FENNER, ET AL.,
Plaintiffs

CIVIL ACTION

VERSUS

NO. 14-1395

ELITE TRANSPORTATION
GROUP INC., ET AL.,
Defendants

SECTION: “E” (3)

ORDER AND REASONS
Before the Court is a combined motion in limine to exclude opinion testimony and
a motion for summary judgment. 1 The motion was filed by Defendants Elite
Transportation Group; Calex Express, Inc.; and Robert Rogers (“Defendants”). Plaintiffs
oppose the motion. 2 The Court has considered the briefs, the record, and the applicable
law, and now issues its ruling. For the reasons that follow, the motion in limine is
DENIED AS MOOT, and the motion for summary judgment is DENIED.
BACKGROUND
This matter arises out of a rear-end motor-vehicle collision that occurred on
September 13, 2013, on Interstate 12 (“I-12”) in St. Tammany Parish, Louisiana. 3 Plaintiff
was the lead driver in that rear-end collision and allegedly suffered various injuries. 4 As
a result, Plaintiff filed this lawsuit on June 13, 2014. 5
On December 15, 2015, Defendants filed the present motion, a combined motion
in limine and motion for summary judgment. 6 First, Defendants seek to preclude certain

R. Doc. 89.
R. Doc. 91.
3 R. Doc. 89-1 at 2.
4 R. Doc. 89-1 at 2.
5 See R. Doc. 1.
6 See generally R. Docs. 89, 89-1.
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of Plaintiffs’ expert witnesses from testifying at trial. 7 According to Defendants, the
Plaintiffs failed to adequately and properly designate certain expert witnesses in
accordance with Federal Rule of Civil Procedure 26, warranting the exclusion of their
testimony. 8 Defendants also contend the Plaintiffs failed to provide expert reports for
certain witnesses, which violates Rule 26, and those experts should be precluded from
testifying. 9 In sum, the Defendants argue “Plaintiffs have not set forth or provided the
specific opinions that Plaintiffs intend to elicit from any of these experts and have not
provided an expert report or otherwise complied with Rule 26(a)(2)(C) of the Federal
Rules of Civil Procedure.” 10
Second, the Defendants argue, in light of the foregoing violations of Rule 26, that
summary judgment is appropriate and the Plaintiffs’ claims should be dismissed.
Defendants contend “Plaintiffs’ failure to properly designate experts is fatal to their
claims.” 11 According to the Defendants, “[i]n the absence of expert opinion testimony to
establish medical causation and the reasonableness and necessity of the recommended
course of treatment,” the Plaintiffs are unable to prove the essential elements of their
claims. 12 Defendants thus seek to be dismissed from this case on summary judgment.
LAW AND ANALYSIS
The Court will first address the Defendants’ in limine arguments with respect to
certain expert witnesses retained by Plaintiffs. The Court will then address the
Defendants’ motion insofar as it seeks a summary judgment dismissal of Plaintiffs’ claims.

See R. Doc. 89-1 at 5–6.
R. Doc. 89-1 at 4.
9 R. Doc. 89-1 at 4.
10 R. Doc. 89-1 at 5.
11 R. Doc. 89-1 at 12.
12 R. Doc. 89-1 at 12.
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I.

MOTION IN LIMINE: EXPERT TESTIMONY & RULE 26
Federal Rule of Civil Procedure 26(a)(2)(A) requires each party to “disclose to the

other parties the identity of any witness it may use at trial to present evidence under
Federal Rule of Evidence 702, 703, or 705.” If the witness is “one retained or specially
employed to provide expert testimony,” the Rule 26(a)(2)(A) disclosure must be
accompanied by a written expert report. 13 In this case, the Plaintiffs were required to
disclose the identity of all expert witness and provide copies of reports for any retained
experts no later than October 26, 2015. 14 Plaintiffs failed to timely provide expert reports
for the following of Plaintiffs’ retained experts: Nathaniel Fentress, Dr. J. Stuart Wood,
and Mike Sunseri. Plaintiffs have stipulated they will not call these experts as witnesses. 15
As a result, these experts are precluded from testifying at trial. The motion in limine is
DENIED AS MOOT.
The Court reaches a different conclusion, in part, with respect to Drs. Dietze,
Johnson, and Satterlee, as well as with respect to Beth Shanks, Laurie Banks, and Barbara
Franceski. All of these witnesses are healthcare providers who have treated Plaintiff
Patricia Fenner. Plaintiffs admittedly did not produce expert reports for these healthcare
providers, but those providers are not retained experts and, thus, Plaintiffs were not
required to produce expert reports for these witnesses. Plaintiff’s healthcare providers
may testify as to (1) Plaintiff’s treatment; (2) whether they believe Plaintiff’s symptoms
are related to the accident-in-question; (3) their diagnosis of Plaintiff, and (4) Plaintiff’s
future medical needs. However, these witnesses may not testify as to the cost of Plaintiff’s

FED. R. CIV. P. 26(a)(2)(B).
R. Doc. 66 at 6 (Scheduling Order).
15 R. Doc. 91 at 10.
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past or future medical care, nor are they permitted to otherwise offer opinion testimony
under Federal Rules of Evidence 702, 703, or 705.
II.

MOTION FOR SUMMARY JUDGMENT
Defendants also seek a summary judgment dismissal of Plaintiffs’ claims. The

Defendants contend “Plaintiffs’ failure to properly designate experts is fatal to their
claims,” as without expert testimony, “Plaintiffs cannot prove the[] essential elements of
their prima facie case of negligence.” 16 However, because the Court has concluded that
certain medical experts may testify with respect to causation, 17 the motion for summary
judgment must be denied. Genuine issues of material fact remain in dispute with respect
to the ultimate cause of Plaintiff Patricia Fenner’s injuries, i.e., whether her injuries are
causally related to the accident-in-question. 18 In addition to the testimony of Plaintiff’s
treating healthcare providers, Dr. Najeeb Thomas is listed as a witness of both the
Plaintiffs and the Defendants in the proposed pretrial order. 19 Dr. Thomas performed an
independent medical examination of Plaintiff. 20 Dr. Thomas testified in his deposition
that Plaintiff’s injuries “would be related” to the accident-in-question. 21 Summary
judgment is denied.
CONCLUSION
IT IS ORDERED that the Defendants’ motion in limine to exclude opinion
testimony is DENIED AS MOOT, and Defendants’ motion for summary judgment is
DENIED, as set forth above.

R. Doc. 89-1 at 12.
See supra LAW AND ANALYSIS, PART I.
18 R. Doc. 89-2; R. Doc. 91-1 at 3–4.
19 See R. Doc. 93 at 15, 17 (Proposed Pretrial Order).
20 R. Doc. 91-18 (Deposition of Najeeb Thomas).
21 R. Doc. 91-18 at 29 (Deposition of Dr. Najeeb Thomas).
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New Orleans, Louisiana, this 1st day of February, 2016.
____________ __________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

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