Hernandez et al v. Green et al

Filing 103

ORDER & REASONS: granting in part and denying in part 90 Motion to Strike Plaintiffs' Expert Witnesses Pursuant to Fed. R. Civ. P. 16, 37 and 26 or, Alternatively, In Limine to Exclude Expert Testimony (R. Doc. 90) filed by Defendants. FU RTHER ORDERED that Lee Dresselhaus is precluded from testifying as an expert witness at trial. FURTHER ORDERED that Sharon Kirkpatrick, Kimberly Meng, Fernando Sanchez, Allen Johnston, R. Douglas Bostick, Brian Dehart, and Zhora Oganisyan may testify as treating physicians at trial. Signed by Judge Carl Barbier on 1/9/17. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

BESSIE HERNANDEZ, ET AL.

CIVIL ACTION

VERSUS

NO: 14-2168

DEREK GREEN, ET AL.

SECTION: “J” (2)
ORDER AND REASONS

Before the Court is a Motion to Strike Plaintiffs’ Expert
Witnesses

Pursuant

to

Fed.

R.

Civ.

P.

16,

37

and

26

or,

Alternatively, In Limine to Exclude Expert Testimony (R. Doc. 90)
filed by Defendants, Derek Green, Kevin McGuffie, and John Heck,
Deputies of the Jefferson Parish Sheriff’s Office, and Newell
Normand, individually and in his official capacity as Sheriff of
Jefferson Parish (“Defendants”), and an opposition thereto (R.
Doc. 100) filed by Plaintiffs, Bessie Hernandez, Luis Hernandez,
and Mercedes Hernandez (“Plaintiffs”).

Having considered the

motion and legal memoranda, the record, and the applicable law,
the Court finds that the motion should be GRANTED in part and
DENIED in part.
FACTS AND PROCEDURAL BACKGROUND
This case centers around allegations that certain Jefferson
Parish Sheriff’s deputies mistakenly arrested Plaintiff Bessie

Hernandez, using excessive force in the process. 1
22,

24.)

Plaintiffs

sued

Defendants,

(R. Doc. 1, at

individually

and

collectively, for violations of several federal laws, including 42
U.S.C. § 1983.

(R. Doc. 39, at 4.)

Plaintiffs also bring due

process claims and allege a conspiracy to violate their right to
equal protection under 42 U.S.C. §§ 1985 and 1986, and bring
various state law claims.

Id.

The procedural history relevant to the instant Motion to
Strike Plaintiffs’ Expert Witnesses (R. Doc. 90) is as follows:
Plaintiffs filed suit on September 19, 2014.

(R. Doc. 1.)

Since

then, the trial date has been continued three times see (R. Docs.
19, 37, 69), and the Court has issued four separate scheduling
orders see (R. Docs. 15, 20, 38, 73).

The current scheduling order

(R. Doc. 73) provides several deadlines.

Of particular pertinence

here, the scheduling order requires the written reports of experts,
as defined by Federal Rule of Civil Procedure 26(a)(2)(B), who may
be witnesses for Plaintiffs to be obtained and delivered to counsel
for Defendants as soon as possible, but in no event later than
October 5, 2016.

Id.

The scheduling order also instructs counsel

for all parties to serve upon their opponents a list of all
witnesses who may be called to testify at trial by not later than
November 4, 2016.

1

Id.

For a detailed factual background, see Judge Berrigan’s Order and Reasons
Partially Granting and Partially Denying Defendants’ Rule 12(c) Motion and
Denying Defendants’ Rule 56 Motion (R. Doc. 39, at 1-6).

Plaintiffs did not deliver any written expert reports to
Defendants by October 5, 2016.

Instead, on October 31, 2016,

Plaintiffs moved the Court to continue the trial, and the Court
denied the motion to continue.

(R. Doc. 77.)

On November 4, 2016,

Plaintiffs filed their first witness and exhibit list (R. Doc. 78)
which included the following entries:
12. The expert treating physician Sharon Kirkpatrick,
LCSW;
13. The expert treating physician Kimberly Meng, DDS;
14. The expert treating physician Fernando Sanchez, MD;
15. The expert treating physician F. Allen Johnston,
M.D.;
16. The expert treating physician Zhora Zhoravich
Oganisyan, M.D.;
17. The expert treating physician R. Douglas Bostick,
III, M.D.
18. The expert treating physician Brian Dehart, M.D.
(R. Doc. 78, at 1-2 (line breaks added).)

On November 8, 2016,

Plaintiffs filed a first amended witness and exhibit list, but
this amended witness and exhibit list still referred to six of the
seven 2 above-mentioned potential witnesses using the prefix “expert
treating physician.”

(R. Doc. 81, at 2.)

Defendants report that

they have not received any expert reports from any of these
individuals.

(R. Doc. 90-1, at 6.)

Plaintiffs report that on November 18, 2016, they provided
Defendants with the expert reports of Sharon Kirkpatrick, Kimberly

2 For a reason unknown to the Court, the “expert treating physician” prefix
describing Zhora Zhoravich Oganisyan is only present in the original witness
and exhibit list. In both the first amended witness and exhibit list (R. Doc.
81, at 3) and the second amended witness and exhibit list (R. Doc. 91, at 3),
the prefix is not used to refer to Oganisyan.

Meng, and Lee Dresselhaus. 3

See (R. Doc. 100-1, at 1.) Although

Kirkpatrick and Meng were identified on the first and the first
amended witness and exhibit lists, the name of Lee Dresselhaus was
listed on neither the first nor the first amended witness and
exhibit lists.

(R. Doc. 90-1, at 6.)

Plaintiffs assert that

Dresselhaus is an expert on police investigations, operations, and
procedures.

(R. Doc. 100, at 1.)

On November 29, 2016, Defendants filed the instant Motion to
Strike Plaintiffs’ Expert Witnesses, noting that Dresselhaus was
not listed as a potential witness on either Plaintiffs’ first or
first amended witness and exhibit lists.
6.)

See (R. Doc. 90-1, at

The next day, Plaintiffs filed a second amended witness and

exhibit list which includes the name of “Lee Dreslhaus,” and which
does not identify Dresselhaus as an expert.

(R. Doc. 91, at 4.)

PARTIES’ ARGUMENTS
Defendants argue that Plaintiffs’ expert witnesses should be
precluded from testifying because Plaintiffs failed to comply with
deadlines set out in the Court’s scheduling order for providing
expert reports.

Defendants also argue that the expert testimony

of Dresselhaus should be precluded because Plaintiffs failed to
even mention Dresselhaus in their first and first amended witness
and exhibit lists. Defendants argue that they would be “manifestly

3

As noted above, Defendants report only having received the expert report of
Dresselhaus. (R. Doc. 90-1, at 6.)

prejudiced” if Plaintiffs were allowed to present the testimony of
these expert witnesses because Defendants based their litigation
strategy partly on the fact that Plaintiffs had not retained
experts.
Plaintiffs first argue that the “expert treating physicians”
Sharon

Kirkpatrick,

Kimberly

Meng,

Fernando

Sanchez,

Allen

Johnston, R. Douglas Bostick III, Brian Dehart, and Zhora Zhoravich
Oganisyan are Plaintiff Bessie Hernandez’s treating physicians,
and therefore they are not required to produce expert reports.
Additionally,
Dresselhaus’

Plaintiffs
expert

argue

report

is

that

the

late

both

justified

production
and

of

harmless.

Plaintiffs argue that they could not meet the Court’s deadlines
for producing

Dresselhaus’

report

because

information necessary for the report.

Defendants

withheld

Thus, Plaintiffs argue that

they should not be precluded from introducing Dresselhaus’ expert
testimony.
DISCUSSION
Federal

Rule

of

Civil

Procedure

26(a)(2)

direction for the disclosure of expert testimony.

provides

clear

It states:

(A) In General. In addition to the disclosures required
by Rule 26(a)(1), a party must 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.
(B) Witnesses Who Must Provide a Written Report. Unless
otherwise stipulated or ordered by the court, this
disclosure must be accompanied by a written report--

prepared and signed by the witness--if
one retained or specially employed to
testimony in the case or one whose
party's employee regularly involve
testimony. . . .

Fed. R. Civ. P. 26(a)(2).

the witness is
provide expert
duties as the
giving expert

Rule 26 also provides a general deadline

for disclosing this expert testimony:
(D) Time to Disclose Expert Testimony. A party must
make these disclosures at the times and in the
sequence that the court orders. Absent a stipulation
or a court order, the disclosures must be made:
(i) at least 90 days before the date set for trial or
for the case to be ready for trial; or
(ii) if the evidence is intended solely to contradict
or rebut evidence on the same subject matter
identified by another party under Rule 26(a)(2)(B) or
(C), within 30 days after the other party's
disclosure.
Fed. R. Civ. P. 26(a)(2)(D).
However, Rule 16 explicitly permits the District Court to
issue a scheduling order modifying the timing of disclosures under
Rule 26(a).

Fed. R. Civ. P. 16(b)(3)(B)(i).

Here, the Court set

Plaintiffs’ deadline for submitting expert reports for October 5,
2016.

There is no dispute that Plaintiffs, by failing to produce

Defendants with any expert reports until November 18, 2016, failed
to comply with the Court’s deadline.
The Court “may issue any just orders” if a party or its
attorney fails to obey a scheduling order.
16(f)(1)(C).
in

Rule

See Fed. R. Civ. P.

These orders may include any of the sanctions listed

37(b)(2)(A)(ii)-(vii),

including

the

ability

to

“prohibit[] the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated
matters in evidence.”
R.

Civ.

P.

16(f)(1)

Fed. R. Civ. P. 37(b)(A)(ii); see also Fed.
(permitting

the

authorized by Rule 37(b)(A)(ii)-(vii)).

Court

to

issue

orders

Defendants move the Court

to strike the expert opinion testimony or evidence of the potential
witnesses identified as experts by Plaintiffs, and it is within
the Court’s power to do so.

The Court will analyze the potential

testimony of Dresselhaus separately from other potential witnesses
because Plaintiff avers that all witnesses other than Dresselhaus
are treating physicians of Bessie Hernandez.
Lee Dresselhaus
As described above, Dresselhaus was not listed on Plaintiffs’
first witness and exhibit list, nor on their first amended witness
and exhibit list.

Only when Plaintiffs filed their second amended

witness and exhibit list did the name “Lee Dreslhaus” first appear.
This was more than three weeks after the deadline for disclosing
all potential witnesses, and after Defendants filed their motion
to strike his testimony.

Additionally, Plaintiffs failed to

provide Defendants with Dresselhaus’ expert report until November
18, 2016, a full six weeks after the deadline.

Plaintiffs argue

that this delay was justified and harmless, but the Court is not
persuaded.

Plaintiffs argue that Dresselhaus was unable to produce an
expert report because Defendants refused to provide documents that
were necessary to the report.

In support of this position,

Plaintiffs point to a motion they filed on December 6, 2016 to
compel production of certain documents.

(R. Doc. 96.)

Without

this information, Plaintiffs argue, Dresselhause could not provide
an accurate expert report.

This explanation is not satisfactory

for a multitude of reasons.

First, Plaintiffs have not yet

explained why they failed to list Dresselhaus on their first or
first amended witness and exhibit lists.

Second, a motion to

compel filed December 6, 2016 (two months after the expert report
deadline) is far too late to justify such a delay in producing the
expert report.

Finally, the magistrate judge denied Plaintiffs’

motion to compel, finding nothing deficient about Defendants’
responses to Plaintiffs’ requests for production.

(R. Doc. 101.)

There is no justifiable excuse for Plaintiffs’ failure to comply
with the Court’s scheduling order, and Dresselhaus is stricken as
an expert in this matter.
Treating Physicians
Courts in the Eastern District of Louisiana and other district
courts within the Fifth Circuit recognize that “written reports
are not required for treating physicians whose testimony and
opinions derive from information learned during actual treatment
of

the

patient,

rather

than

from

subsequent

evaluation

as

a

specially retained expert.” 4

McIntyre v. Housing Auth. of New

Orleans, 14-1641, 2015 WL 5083503, at *4 (E.D. La. Aug. 27, 2015)
(citing Gray v. Vastar Offshore, Inc., 04-1162, 2005 WL 399396, at
*1 (E.D. La. Feb. 14, 2005)).

In their opposition to Defendants’

Motion to Strike Expert Witnesses, Plaintiffs clarify that Sharon
Kirkpatrick, Kimberly Meng, Fernando Sanchez, Allen Johnston, R.
Douglas Bostick, Brian Dehart, and Zhora Oganisyan are Bessie
Hernandez’s treating physicians. (R. Doc. 100, at 1; R. Doc. 1001, at 1, 3.)

Thus, Plaintiffs argue that no expert report was due

from any of the treating physicians and that they were properly
identified on the witness and exhibit lists.
It is not immediately clear to the Court why Plaintiffs used
the

prefix

witnesses.

“expert”

before

identifying

the

aforementioned

However, these potential witnesses can testify as

treating physicians so long as they limit their testimony to
information learned during actual treatment of Bessie Hernandez.
See McIntyre, 2015 WL 5083503, at *4.

4

The Advisory Committee
26(a)(2)(C) state:

Notes

accompanying

the

1993

amendments

to

The requirement of a written report in paragraph (2)(B), however,
applies only to those experts who are retained or specially employed
to provide such testimony in the case or whose duties as an employee
of a party regularly involve the giving of such testimony. A
treating physician, for example, can be deposed or called to testify
at trial without any requirement for a written report. By local
rule, order, or written stipulation, the requirement of a written
report may be waived for particular experts or imposed upon
additional persons who will provide opinions under Rule 702.

Rule

Plaintiffs also assert that they sent Defendants the expert
reports of Sharon Kirkpatrick and Kimberly Meng on November 18,
2016, the same day they sent the expert report of Dresselhaus.
Plaintiffs do not clarify whether they intend to call Kirkpatrick
and

Meng

as

experts

or

as

treating

physicians.

However,

Kirkpatrick and Meng may testify as treating physicians. 5
CONCLUSION
Accordingly,
IT IS ORDERED that Defendants’ Motion to Strike Plaintiffs’
Expert Witness Pursuant to Fed. R. Civ. P. 16, 37 and 26 or,
Alternatively, In Limine to Exclude Expert Testimony (R. Doc. 90)
is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that Lee Dresselhaus is precluded from
testifying as an expert witness at trial.
IT IS FURTHER ORDERED that Sharon Kirkpatrick, Kimberly Meng,
Fernando

Sanchez,

Allen

Johnston,

R.

Douglas

Bostick,

Brian

Dehart, and Zhora Oganisyan may testify as treating physicians at
trial.
New Orleans, Louisiana this 9th day of January, 2017.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

5
Defendants do not argue that Kirkpatrick and Meng fail to qualify as
physicians, even though Plaintiffs identify Kirkpatrick as an LCSW and Meng as
a DDS.