Matthews v. Weeks Marine, Inc.
Filing
25
ORDER & REASONS: granting 23 Motion to Strike Robert Borison. Signed by Judge Carl Barbier on 4/15/16. (sek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BRIAN MATTHEWS
CIVIL ACTION
VERSUS
NO: 15-1658
WEEKS MARINE, INC.
SECTION: “J” (2)
ORDER AND REASONS
Before the Court is a Motion to Strike Robert Borison (Rec.
Doc. 23) filed by Defendant, Weeks Marine, Inc. (“Defendant”), and
an opposition thereto (Rec. Doc. 24) filed by Plaintiff, Brian
Matthews (“Plaintiff”). Having considered the motion and legal
memoranda, the record, and the applicable law, the Court finds
that the motion should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
This litigation derives from an injury suffered by Plaintiff
while working for Defendant aboard the dredge RN WEEKS (“the
Vessel”). Defendant hired Plaintiff as a cook in February 2015. On
or about March 21, 2015, Plaintiff injured his right knee while
working on the Vessel. At approximately 4:30 a.m., Plaintiff left
the galley, where he worked, and walked out to the stern deck to
smoke a cigarette. As he walked toward the stern, Plaintiff slipped
on what he described as a “slick spot” and twisted his right knee.
(Rec. Doc. 19-2, at 5.) Plaintiff does not know what caused him to
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slip, but he is sure that he slipped on something other than water.
Id. at 7-8.
Initially, Plaintiff did not report his injury. Over the next
few days, his pain worsened, and his knee became swollen. Doctors
subsequently diagnosed him with complex tears of the lateral
meniscus, bursitis, and damage to the cartilage of the knee. Dr.
Thomas Lyons performed injections on the knee, but Plaintiff’s
pain
and
other
symptoms
persisted.
Subsequently,
Dr.
Lyons
recommended a right total knee arthroplasty. Plaintiff requested
maintenance and cure from Defendant, including surgery costs.
Defendant failed to comply with these requests.
On May 15, 2015, Plaintiff filed suit, alleging that he was
entitled
to
maintenance
and
cure,
as
well
as
damages
for
Defendant’s negligence and the unseaworthiness of the Vessel. The
parties both filed motions for partial summary judgment, which
this Court denied on March 4, 2016. Defendant filed the instant
motion on March 31. Plaintiff opposed the motion on April 12.
PARTIES’ ARGUMENTS
In its motion, Defendant seeks to strike Robert Borison, an
expert witness designated by Plaintiff. According to Defendant,
the deadline for Plaintiff to provide expert reports was January
21, 2016. Defendant claims that Plaintiff’s counsel waited until
March 30 to send Borison’s expert report and disclosures. Defendant
argues that it is prejudiced by this late disclosure because it
2
did not have an opportunity to depose Borison or object to his
expert testimony. Further, the deadline for Defendant to produce
an expert report refuting Borison has expired. Thus, Defendant
argues that the Court should strike Borison as a witness and
preclude
him
from
presenting
evidence
at
any
stage
in
the
litigation.
In his opposition, Plaintiff asserts that his counsel merely
forgot to send Borison’s report to Defendant. Plaintiff argues
that he sent the report on March 30, 2016, approximately two months
before the scheduled trial date. Thus, Plaintiff claims that
Defendant had sufficient time to obtain an opposing expert report
before trial. Further, Plaintiff argues that a potential expert
could quickly arrive at a conclusion because this case does not
involve
extensive
documentary
evidence.
Plaintiff
claims
that
Defendant was not prejudiced by the two-month delay in providing
Borison’s report.
LEGAL STANDARD
The Federal Rules of Civil Procedure grant district courts the
power to “control and expedite the discovery process through a
scheduling order.” Barrett v. Atlantic Richfield Co., 95 F.3d 375,
380 (5th Cir. 1996); see Fed. R. Civ. P. 16. Rule 16 also allows
a court to exclude expert testimony or strike pleadings if a party
fails to comply with deadlines imposed by a scheduling order. Fed.
R. Civ. P. 16(f)(1); see Fed. R. Civ. P. 37(b)(2)(A). District
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courts have broad discretion to award sanctions for violations of
pre-trial or scheduling orders. Barrett, 95 F.3d at 380. The Fifth
Circuit reviews such sanctions for abuse of discretion. Id. To
determine
whether
to
impose
sanctions,
the
district
court
considers: “(1) The explanation if any for the party's failure to
comply with the discovery order; (2) The prejudice to the opposing
party of allowing the witness to testify; (3) The possibility of
curing such prejudice by granting a continuance; (4) The importance
of the witnesses' testimony.” Id.
In addition, “[i]f a party fails to provide information or
identify a witness as required by Rule 26(a) or (e), the party is
not allowed to use that information or witness to supply evidence
on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). 1
Exclusion of the evidence is automatic and mandatory unless the
party
demonstrates
substantial
justification
or
harmlessness.
E.g., Musser v. Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir.
2004). In determining whether a party's failure to disclose is
harmless, a court examines the same four factors used to evaluate
the decision to exclude evidence under Rule 16(f). See CQ, Inc. v.
TXU Min. Co., L.P., 565 F.3d 268, 280 (5th Cir. 2009).
1
Rule 26 requires the parties to disclose “the identity of any witness
it may use at trial to present evidence.” Fed. R. Civ. P. 26(a)(2)(A).
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DISCUSSION
Defendant argues that the Court should strike the testimony
and opinions of Borison because Plaintiff did not timely disclose
his report according to the Scheduling Order. (Rec. Doc. 11.) The
order provides:
Written reports of experts, as defined by Federal Rule
of Civil Procedure 26(a)(2)(B), who may be witnesses for
plaintiff shall be obtained and delivered to counsel for
defendant as soon as possible, but in no event later
than JANUARY 21, 2016.
Written reports of experts, as defined by Federal Rule
of Civil Procedure 26(a)(2)(B), who may be witnesses for
defendant shall be obtained and delivered to counsel for
plaintiff as soon as possible, but in no event later
than FEBRUARY 19, 2016.
Counsel for the parties shall file in the record and
serve upon their opponents a list of all witnesses who
may or will be called to testify on trial, and all
exhibits that may or will be used, not later than
FEBRUARY 19, 2016.
The Court will not permit any witness, expert or fact,
to testify or exhibits to be used unless there has been
compliance with this Order as it pertains to the witness.
Id. at 2 (emphasis in original). The parties do not dispute that
Plaintiff disclosed Borison’s report on March 30, 2016, after the
applicable
deadline.
Thus,
the
Court
will
consider
whether
preventing Borison from testifying at trial is an appropriate
sanction.
First, Plaintiff explains the failure to provide Borison’s
report in his opposition. Plaintiff claims that the parties agreed
5
to a mutual extension of the expert witness report deadline by one
week. (See Rec. Doc. 24-1.) Thus, Plaintiff should have disclosed
Borison’s report by January 28, 2016. However, Plaintiff’s counsel
forgot to send Borison’s report to Defendant. Plaintiff’s counsel
finally sent the report on March 30, at which time Defendant
notified Plaintiff that it had not previously received the report.
Counsel’s forgetfulness is not a reasonable excuse for failure to
comply with the Scheduling Order.
Second, Defendant is prejudiced by Plaintiff’s failure to
produce
an
expert
witness
report.
The
purpose
of
requiring
disclosure of expert reports is to notify opposing parties of the
scope and content of the expert's proposed testimony. Matthews v.
Allstate Ins. Co., 731 F. Supp. 2d 552, 559 (E.D. La. 2010). In a
similar case before this Court, the parties were prejudiced when
a defendant provided expert witness reports two months after the
deadline. Standard Servs. Co. v. Witex USA, Inc., 2003 WL 2004442,
at *2 (E.D. La. April 30, 2003). Here, the parties agreed to extend
the deadline to January 28, 2016. Plaintiff’s counsel did not
disclose Borison’s report until March 30, two months after the
deadline. Trial is scheduled for May 23, 2016, in about one month.
Therefore,
Defendant
is
prejudiced
by
Plaintiff’s
failure
to
defendant
to
comply with the Scheduling Order.
In
“verify
addition,
all
of
late
the
disclosure
late-provided
6
requires
the
information
and
[marshal]
opposition evidence of its own.” Paulsen v. State Farm Ins. Co.,
No. 06-9546, 2008 WL 449783, at *5 (E.D. La. Feb. 15, 2008).
Plaintiff argues that Defendant had almost two months to marshal
opposition evidence before trial. However, Plaintiff ignores the
fact that Defendant’s expert witness reports were due on February
26, 2016, pursuant to the one-week mutual extension. The deadline
for both parties to file witness and exhibit lists was February
19. Therefore, Defendant could not secure a rebuttal expert witness
without violating the Court’s Scheduling Order. The Scheduling
Order also provided that motions regarding the admissibility of
expert testimony would be set for submission no later than April
6, 2016. (Rec. Doc. 11, at 1.) By the time Plaintiff disclosed
Borison’s
report,
the
deadline
for
filing
such
a
motion
had
expired.
Third, the prejudice cannot be cured by a continuance of the
trial date. Plaintiff filed suit on May 15, 2015. The parties are
preparing for trial on May 23, 2016, and a continuance would create
an unnecessary, additional delay. Granting a continuance now would
only serve to reward Plaintiff for missing the discovery deadline.
“[A] continuance does not, in and of itself, ‘deter future dilatory
behavior,
nor
serve
to
enforce
local
rules
or
court
imposed
scheduling orders.’” Barrett, 95 F.3d at 381 (quoting Geiserman v.
MacDonald, 893 F.2d 787, 792 (5th Cir. 1990)).
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Plaintiff does not argue that the evidence to be excluded is
central to his case. However, to the extent that the evidence is
important,
the
importance
of
the
evidence
cannot
“singularly
override the enforcement of local rules and scheduling orders.”
Barrett, 95 F.3d at 381 (quoting Geiserman, 893 F.2d at 792)). The
potential importance of the excluded evidence is outweighed by
Plaintiff’s
failure
to
comply
with
the
scheduling
order.
Therefore, Plaintiff may not call Borison as an expert witness or
introduce his testimony at trial.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Strike Robert
Borison (Rec. Doc. 23) is GRANTED.
New Orleans, Louisiana this 15th day of April, 2016.
____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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