Sheppard v. Liberty Mutual Insurance Company et al

Filing 418

ORDER AND REASONS - defendants' motion 210 to exclude expert opinion testimony of plaintiff Jesse Frank Sheppard's treating physicians on the grounds that Sheppard failed to comply with expert disclosure requirements is GRANTED. Sheppard's treating physicians may offer only lay testimony at trial.. Signed by Judge Sarah S. Vance on 2/2/17. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JESSE FRANK SHEPPARD
VERSUS

CIVIL ACTION
NO. 16-2401

LIBERTY MUTUAL INSURANCE
COMPANY, ET AL.

SECTION “R” (3)

ORDER AND REASONS
Defendants move to exclude expert opinion testimony of plaintiff Jesse
Frank Sheppard’s treating physicians on the grounds that Sheppard failed to
comply with expert disclosure requirements. In the alternative, defendants
argue that the physicians are not qualified to give opinions as to the cause of
Sheppard’s illness. Because the Court finds that Sheppard has failed to meet
the applicable disclosure requirements, defendants’ motion is granted and
the Court does not address the treating physicians’ qualifications.

I.

BACKGROUND
This suit was originally filed in the Civil District Court for the Parish of

Orleans.1 Defendant Mosaic Global Holdings Inc. removed the action to this
Court on March 22, 2016. 2 In his complaint, Sheppard alleges that he was

1
2

R. Doc. 1 at 1.
Id.

exposed to asbestos “[o]n a daily basis” as an employee of Mosaic’s
predecessor company, Freeport Sulphur Company.3 This exposure allegedly
caused Sheppard to develop asbestos-related cancer, lung cancer, and/or
mesothelioma. 4 Although Sheppard stopped working for Freeport in the
early- to mid-1990s, 5 Sheppard’s asbestos-related ailments were first
diagnosed in October 2015. 6
In addition to Freeport/Mosaic, Sheppard sues several defendants
involved in the manufacture, distribution, and sale of asbestos-containing
products that Sheppard allegedly encountered in the course of his work.7
Sheppard also brings claims against insurance companies that allegedly
provided coverage to defendants for asbestos-related claims and withheld
information from Sheppard about the danger of asbestos. 8
Sheppard brings claims for “negligence, intentional tort, fraud, and
strict liability,” and alleges that all defendants are “jointly, severally, and in

R. Doc. 1-1 at 5.
Id. at 6.
5
Sheppard’s complaint is inconsistent on this point. Sheppard alleges
variously that his tenure at Freeport, and exposure to asbestos, ran from
“approximately 1967 through 1992,” from “approximately 1967 through
1994,” and “from 1967 through 1976.” R. Doc. 1-1 at 5, 6.
6
R. Doc. 1-1 at 6.
7
Id. at 6, 7.
8
Id. at 3, 4, 8.
2
3

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solidio liable.”9 He seeks damages for, among other things, physical and
mental pain, loss of life, loss of income, and medical expenses. 10

II.

DISCUSSION
The Federal Rules of Civil Procedure impose disclosure requirements

upon proponents of expert testimony. Fed. R. Civ. P. 26. Experts retained
by a party must provide an expert report pursuant to Rule 26(a)(2)(B).
Hooks v. Nationwide Hous. Sys., LLC, No. 15-729, 2016 WL 3667134, at *3
(E.D. La. July 11, 2016). Before 2010, non-retained experts, such as treating
physicians, were exempt from disclosure requirements under certain
circumstances. Id. (citing Perdomo v. United States, No. 11-2374, 2012 WL
2138106 at *1 (E.D. La. 2012)). Following Congress’ 2010 amendments to
Rule 26, non-retained experts are subject to a separate, less stringent
disclosure regime than their retained counterparts.

Id.

Under Rule

26(a)(2)(C), the propounding party must prepare a “disclosure” regarding
any expert witness who does not provide a written report. “[T]his disclosure
must state: (i) the subject matter on which the witness is expected to present
evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a

9
10

Id. at 29.
Id.
3

summary of the facts and opinions to which the witness is expected to
testify.” Fed. R. Civ. P. 26(a)(2)(C). The 2010 Advisory Committee Notes
pertaining to Rule 26(a)(2)(C) make clear that treating physicians fall under
the Rule’s limited disclosure requirement.
Here, defendants assert that Sheppard produced no Rule 26(a)(2)(C)
disclosures regarding the treating physicians. Sheppard does not dispute
this. Sheppard did turn over medical records produced by the treating
physicians, but “disclosures consisting of medical records alone are
insufficient to satisfy the disclosure standard of Rule 26(a)(2)(C).” Hooks,
2016 WL 3667134, at *5 (citing Williams v. State, No. 14-00154, 2015 WL
5438596, at *4 (M.D. La. Sept. 14, 2015)); see also Knighton v. Lawrence,
No. 14-718, 2016 WL 4250484, at *2 (W.D. Tex. Aug. 9, 2016) (“[Under Rule
26(a)(2)(C),] it does not suffice to reference large bodies of material sources
of facts without stating a brief account of the main points from those large
bodies on which the expert relies.”).
“Failure to comply with the deadline for disclosure requirements
results in ‘mandatory and automatic’ exclusion under Federal Rule of Civil
Procedure 37(c)(1).” Hooks, 2016 WL 3667134, at *3. Excluded witnesses or
information may not be used “to supply evidence on a motion, at a hearing,
or at trial, unless the failure was substantially justified or is harmless.” Red
4

Dot Bldgs. v. Jacob Tech., Inc., 2012 WL 2061904, at *3 (E.D. La. 2012)
(quoting Fed. R. Civ. P. 37). Here, Sheppard has made no showing that his
omission was either justified or harmless.

Accordingly, the treating

physicians are excluded from offering any expert opinion testimony.
In the context of this case, any testimony regarding Sheppard’s
diagnosis or the cause of his illness is an expert opinion under Rule 702.
Although lay witnesses may offer opinions, they may not testify regarding
any opinions “based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.” Fed. R. Evid. 701. A leading treatise provides
a concrete illustration of the distinction between a physician’s lay and expert
opinions:
When the physician testifies that the plaintiff was coughing and
running a fever, this is lay witness testimony governed by Rule
701. However, if the physician also testifies that he diagnosed
the patient as having Reactive Airways Dysfunction Syndrome
caused by exposure to a toxic chemical, then this is testimony
based on scientific, technical, or other specialized knowledge and
must be qualified under Rule 702.4.
S. Saltzburg, M. Martin, D. Capra, Federal Rules of Evidence Manual §
701.02[7], at 701–17 (9th ed.2006).
Asbestosis and lung cancer are complex diseases. Diagnosing these
illnesses or assessing their cause requires scientific, technical, and
specialized knowledge far beyond the ordinary experience of lay persons.
5

Accordingly, treating physicians who did not provide either a report or
disclosure under Rule 26 are limited to lay testimony, and may not testify
regarding the diagnosis or causation of Sheppard’s alleged illnesses. See
Daniels v. D.C., 15 F. Supp. 3d 62, 70 (D.D.C. 2014) (treating physician
testifying as a lay witness could not testify to any opinions regarding
diagnosis or causation of illness); Montoya v. Sheldon, 286 F.R.D. 602, 614
(D.N.M. 2012) (same).
The Court is cognizant that this analysis may be inconsistent with its
discussion of this issue at the pretrial conference. But upon reflection, the
Court is confident that this order accurately applies the post-2010 expert
disclosure regime.

III. CONCLUSION
For the forgoing reasons, defendants’ motion is GRANTED.
Sheppard’s treating physicians may offer only lay testimony at trial.

New Orleans, Louisiana, this _____ day of February, 2017.
2nd
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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