Bell v. Foster Wheeler Energy Corporation, et al
ORDER AND REASONS denying 249 MOTION to Strike John Croix from plaintiffs' witness list. FURTHER ORDERED that, should the defendants so request, defendants have permission to depose Mr. Croix before 10/31/2016, as stated herein. FURTHER O RDERED that, to the extent that defendants seek to supplement their expert reports to account for the testimony of Mr. Croix, any defendant may file a motion for leave with the Court to supplement their expert reports no later than 11/7/2016, as stated herein. Signed by Judge Lance M Africk on 10/12/2016.(blg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILLIAM C. BELL ET AL.
FOSTER WHEELER ENERGY
CORP. ET AL.
ORDER AND REASONS
Before the Court is defendants’ motion to strike witnesses from the plaintiffs’
witness list. 1 Since defendants filed their motion, the parties have narrowed their
dispute to the question of whether John Croix may testify. As such, the Court focuses
exclusively on that issue.
On January 7, 2016, plaintiffs identified as potential witnesses “Any witness
identified in the deposition of William Bell.” 2 While plaintiffs’ disclosure is one that
future litigants should follow at their own risk, the Court is convinced, in these
circumstances, that the defendants were—or at least fairly should have been—fully
alerted as to the possibility of Mr. Croix being a witness. Cf. Transcenic, Inc. v. Google
Inc., No. 11-582, 2014 WL 7478028, at *1 (D. Del. 2014) (“The witnesses Transcenic
describes as previously undisclosed were adequately disclosed by Defendant Google,
Inc. . . . including by incorporating by reference a former defendant’s initial
disclosures, which included “authors of prior art publications or inventors of patents
R. Doc. No. 249.
R. Doc. No. 249-2, at 6. Mr. Bell’s deposition had already occurred on December 2,
relevant to the subject matter of the RE ’289 patent . . . .”). That is all the more true
given that a review of the deposition makes clear that there was a multi-page
discussion of Mr. Croix, which established that Mr. Croix is the only sailor that Mr.
Bell testified he remained in touch with. See Bell Dep. 125:4-127:4. This is not a
situation where the plaintiff is engaged in ambush litigation, and the Court declines
to treat it as a case where a plaintiff is plucking a name of which the defendants had
no awareness of out of a lengthy record.
Further, even if the disclosure technically fell short, the Court concludes that
any error is “harmless,” Fed. R. Civ. 37(c), and that permitting Mr. Croix to testify is
fully justified, see, e.g., Bailey v. Shell Western E&P, Inc., 609 F.3d 710, 729 (5th
2010). Mr. Croix’s testimony has gained importance to the plaintiffs’ case since Mr.
Bell, through no fault of plaintiffs, succumbed to mesothelioma, and there will be
minimal prejudice to the defendants because they were plainly aware of Mr. Croix
and could have deposed him.
In addition, any prejudice that exists is further
minimized by the Court’s recent (and unrelated) permission to refile summary
judgment briefs and six month continuation of the trial date. Further, to additionally
minimize any prejudice, the Court will grant permission to depose Mr. Croix even
though discovery has ended. 3 Finally, plaintiffs’ explanation of their conduct, though
by no means ideal, does not convince the Court that this is a situation where plaintiffs
are engaged in any sort of malfeasance where stricter sanctions would be necessary
Defendants’ claims of serious prejudice related to their export reports strains
credulity given the general nature and brevity of the reports that the Court has
to deter future misconduct. Therefore, the Court will permit Mr. Croix to remain on
the plaintiffs’ witness list.
IT IS ORDERED that defendants’ motion to strike John Croix from plaintiffs’
witness list is DENIED.
IT IS FURTHER ORDERED that, should the defendants so request,
defendants have permission to depose Mr. Croix before October 31, 2016. Should
the parties be unable to arrange a deposition for before October 31, 2016, they should
alert the Court no later than October 19, 2016.
IT IS FURTHER ORDERED that, to the extent that defendants seek to
supplement their expert reports to account for the testimony of Mr. Croix, any
defendant may file a motion for leave with the Court to supplement their expert
reports no later than November 7, 2016. Any motion must include, as an exhibit,
the proposed supplementation. Plaintiffs’ opposition to any motion to supplement is
due by November 14, 2016, though the Court observes that it likely behooves the
plaintiffs to be cooperative.
New Orleans, Louisiana, October 12, 2016.
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
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