In re: In the Matter of Honey Island Adventure, L.L.C.
Filing
158
ORDER granting 149 and 154 Motion to Strike Supplemental Witness and Exhibit List as stated herein. Signed by Judge Nannette Jolivette Brown on 12/21/2017. (Reference: all cases)(cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN THE MATTER OF THE PETITION OF HONEY
ISLAND ADVENTURE, L.L.C.
CIVIL ACTION
NO. 16-6940
c/w 16-10728
c/w 17-2652
c/w 17-2896
SECTION: “G”(5)
ORDER
After the deadline in the Court’s “Scheduling Order,”1 Plaintiffs Leticia Keiger, Ricardo
Perez (“Perez”), and Ignacio Perez (collectively, “Plaintiffs”) filed a supplemental witness and
exhibit list and a second supplemental witness and exhibit list. Pending before the Court are
Defendants, Honey Island Adventures, L.L.C., XL Specialty Insurance Company, Earl Mofield,
Tray Nobles, Neil Benson d/b/a Pearl River Eco Tours, and Travelers Property Casualty Company
of America’s (collectively, “Defendants”) “Motion to Strike Supplemental Witness and Exhibit
List”2 and “Motion to Strike Second Supplemental Witness and Exhibit List.”3 Having considered
the Defendants’ motions, Plaintiffs’ oppositions to the motions, the record, and the applicable law,
the Court will grant the motions.
1
Rec. doc. 48.
2
Rec. Doc. 149.
3
Rec. Doc. 154.
1
I. Background
Honey Island Adventure, LLC filed a “Petition for Exoneration from, or Alternatively,
Limitation of Liability” on May 24, 2016.4 In its original scheduling order, this Court scheduled
trial for July 27, 2017.5 On April 20, 2017, all parties enrolled at that time filed a “Joint Motion
to Continue.”6 On April 26, 2017, the Court granted the motion to continue and ordered a new
trial date for January 2018.7
On June 15, 2017, the Court issued a new scheduling order, which set a deadline of
November 9, 2017, for parties to “file in the record and serve upon their opponents a list of all
witnesses who will be called to testify at trial and all exhibits which will be used at trial . . . .”8
On December 5, 2017, Plaintiffs filed a “Supplemental Witness and Exhibit List of
Claimant/Plaintiffs.”9 On December 13, 2017, Defendants filed the instant “Motion to Strike
Supplemental Witness and Exhibit List.”10 On December 14, 2017, Plaintiffs filed a response in
opposition to Defendants’ motion.11 On December 14, 2017, Plaintiffs also filed “Second
Supplemental Witness and Exhibit List.”12 On December 14, 2017, Defendants filed the instant
4
Rec. Doc. 1.
5
Rec. Doc. 27 at 4.
6
Rec. Doc. 46.
7
Rec. Doc. 48.
8
Id.
9
Rec. Doc. 144.
10
Rec. Doc. 149.
11
Rec. Doc. 151.
12
Rec. Doc. 152.
2
“Motion to Strike Second Supplemental Witness and Exhibit List.”13 On December 15, 2017,
Plaintiffs filed opposition to Defendants’ motion to strike the second list.14
II. Parties’ Arguments
A. Defendants’ Motion to Strike
Defendants assert that Plaintiffs did not file the “Supplemental Witness and Exhibit List of
Claimant/Plaintiffs” until December 5, 2017.15 As a result, Defendants argue that this list “should
be stricken from the record and Dr. Rafael Gurrerro should not be allowed to offer testimony
regarding his treatment of Ricardo Perez, nor should Dr. Rafael Gurrerro’s medical records
including any records of testing performed or ordered by Dr. Rafael Gurrerro, be introduced as
exhibits at trial.”16
Defendants also assert that the inclusion of Plaintiffs’ supplemental witness and exhibit
list, as well as Dr. Gurrerro’s testimony and reports, would prejudice Defendants at trial.17
Defendants aver that Defendants’ “IME physicians and other proposed experts are not able to
evaluate and respond to any opinions . . . pertaining to Dr. Rafael Gurrerro’s treatment of Ricardo
Perez since his identity was never disclosed or discussed, nor were his medical records ever
provided.”18
Finally, Defendants state that Plaintiffs had an affirmative burden to provide this
13
Rec. Doc. 154.
14
Rec. Doc. 156.
15
Rec. Doc. 149–1 at 3.
16
Id.
17
Id. at 4.
18
Id.
3
information in accordance with the Federal Rules of Civil Procedure and the Court’s “Scheduling
Order.”19 Defendants assert that Plaintiffs failed to meet this burden, so the witness and exhibit
list, along with Dr. Gurrerro’s testimony should be excluded.20
Defendants’ motion to strike the second supplemental witness and exhibit list includes the
same arguments as above.21
B. Plaintiffs’ Opposition to Defendants’ Motion
Plaintiffs assert that the list is a result of further treatment/evaluation of Plaintiff Ricardo
Perez, as opposed to a “last second ambush.”22 Plaintiffs aver that they will file a motion to
continue if the Court is amenable to continuing the case, despite repeated statements from the
Court that the Court will not consider such action.23
Plaintiffs then assert that the original list of witnesses and exhibits was filed timely to the
court with the “then known and anticipated witnesses and documents.”24 Plaintiffs assert that,
unbeknownst to Plaintiffs’ counsel, Perez sought further treatment on November 30, 2017.25
Plaintiffs’ counsel was not made aware of this appointment and the resulting Q EEG and SPECT
Scan until December 5, 2017.26 Plaintiffs assert that the supplemental witness and exhibit list was
19
Id.
20
Id.
21
Rec. Doc. 154.
22
Rec. Doc. 151 at 1.
23
Id. at 2.
24
Id.
25
Id.
26
Id.
4
filed immediately upon Plaintiffs’ counsel’s knowledge.27 Plaintiffs’ counsel then states that
counsel did not hear from Perez until December 13, 2017, despite multiple attempts to reach him.28
However, immediately upon reaching Perez, Plaintiffs’ counsel obtained Dr. Gurrerro’s records
and served Defendants’ counsel within hours of receiving them.29
Plaintiffs argue that no doctor had recommended neuro-psychologist treatment, EEG
testing, or Spect scan testing before early November 2017, despite the fact that Perez was examined
by many eye doctors, including two neuro-opthamalogists.30 Plaintiffs’ counsel discussed this
recommended treatment with Perez, but “counsel understood that [Perez] did not want such an
evaluation when this was discussed at the end of the first week of November.” However, Plaintiffs
assert that Perez’s family has since intervened “after they detected worsening of his emotional and
mental status over the last month or so.”31
Finally, Plaintiffs acknowledge that there may not be sufficient time for Defendants to
acquire an expert to rebut this testimony, but “plaintiff’s counsel will cooperate fully to do so.”32
Plaintiffs then request that the Court continue the trial or sever only the damages portion of Perez’s
case, if the Court is inclined to grant the motion to strike.33
Plaintiffs state that they oppose Defendants’ motion to strike the second supplemental
witness and exhibit list “for the same reasons and on the same grounds as plaintiffs fully set forth
27
Id. at 2–3.
28
Id. at 3.
29
Id.
30
Id. at 4.
31
Id.
32
Id. at 5.
33
Id.
5
in their opposition to Defendants Motion to Strike Supplemental Witness and Exhibit List.”34
III. Legal Standard
The Federal Rules of Civil Procedure “authorize[] federal courts to control and expedite
the discovery process through a scheduling order.”35 Federal Rule of Civil Procedure 16 allows a
court to exclude expert testimony or strike pleadings if a party fails to comply with deadlines
imposed by a scheduling order.36
Federal Rule of Civil Procedure 16(b)(4) states, “A schedule may be modified only for
good cause and with the judge’s consent.” The Fifth Circuit has stated that the four factors bearing
on good cause are: “(1) the explanation for the failure to timely move for leave to amend; (2) the
importance of the amendment; (3) potential prejudice in allowing the amendment; and (4) the
availability of a continuance to cure such prejudice.”37 The Fifth Circuit has stated that these
factors are “relevant to good cause,” but has imposed no requirement that all factors weigh in favor
of the party seeking leave to amend in order for the district court to allow an untimely
amendment.38 A district court has broad discretion in determining how to best preserve the
integrity and purpose of its scheduling order.39
34
Rec. Doc. 156.
35
Barrett v. Atlantic Richfield Co., 95 F.3d 375, 380 (5th Cir. 1996); see Fed. R. Civ. P. 16
36
Fed. R. Civ. P. 16(f)(1); see Fed. R. Civ. P. 37(b)(2)(A).
37
Sw. Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003).
38
Fahim v. Marrior Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008).
39
Sw. Bell, 346 F.3d at 546 (citing S&W Enters., L.L.C. v. SouthTrust Bank of Ala., N.A., 315 F.3d 533, 536 (5th
Cir. 2003)).
6
IV. Analysis
Here, Plaintiffs have filed a First and Second Supplemental Witness and Exhibit List after
the deadline set forth in the Court’s Scheduling Order, without leave of Court and without
providing good cause at the time of the filings for the delay. Now, after Defendants moved to strike
the filings, Plaintiffs attempt to show good cause for their failure to comply with the deadlines set
forth in the Court’s Scheduling Order. The trial date has already been continued on one occasion
and the current trial date is quickly approaching. The record is replete with admonishments to the
parties from the Court about their dilatory tactics and lack of diligence in moving this case forward.
As noted above, the Court analyzes four factors in determining whether good cause exists
to allow parties to file a witness and exhibit list after a deadline set forth in a scheduling order. As
to the first factor, Plaintiffs have stated that the late filings result from the fact that the treatment
at issue was not recommended until early November 2017. Here, Plaintiffs did not even seek leave
of court to amend. Instead, Plaintiffs just filed the witness and exhibit lists into the record without
the Court’s permission, and Defendants had to file the instant motions to strike. Plaintiffs also
acknowledge that Perez “did not want such an evaluation when this was discussed at the end of
the first week of November.” Therefore, Plaintiffs were also delayed by Perez’s failure to act.
Thus, the Court finds Plaintiffs’ explanation unpersuasive.
As to the importance of the amendment, although this additional evidence and testimony
could help Plaintiffs recover additional damages, Plaintiffs have not made clear how great these
additional damages may be. Moreover, Plaintiffs have yet to explain why they failed to bring this
issue to the Court’s attention before the deadline to file the witness and exhibit list or even when
they first became aware.
As to the potential prejudice to the Defendants, Defendants argue that allowing Plaintiffs’
7
supplemental witness and exhibit lists would greatly prejudice their case, since their experts would
not have the time to evaluate or respond to Plaintiffs’ proposed expert testimony and exhibits.
Plaintiffs do not dispute this potential prejudice. Instead, Plaintiffs offer to cooperate with
Defendants, and request the Court to grant another continuance.
Finally, as to the fourth factor, whether a continuance could cure the prejudice, the Court
has already granted a continuance in this case. Despite the additional time provided, Plaintiffs have
failed to timely prepare their case. Moreover, the Court has repeatedly stated that such a request
for a continuance will not be granted.
Considering these factors, the Court does not find good cause to modify the scheduling
order and allow Plaintiffs to introduce the recently identified witnesses and exhibits.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ “Motion to Strike Supplemental Witness
and Exhibit List”40 is GRANTED.
IT IS FURTHER ORDERED that Defendants’ “Motion to Strike Supplemental Witness
and Exhibit List”41 is GRANTED.
NEW ORLEANS, LOUISIANA, this 21st day of December, 2017.
____
_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
40
Rec. Doc. 149.
41
Rec. Doc. 154.
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?