Boggs v. BP Exploration & Production, Inc. et al

Filing 281

ORDER AND REASONS granting 222 Motion for Leave to File Amend, Supplement, And/or Correct Dr. Dominici's Expert Report. FURTHER ORDERED that Defendants, upon review of Dr. Dominici's data disclosed on 11/25/2024, will inform the Court on or before 12/16/2024 whether they have all the information and data files they need to properly evaluate pages 14-17 of Dr. Dominici's supplemental report and calculations. By that date, if Defendants determine they do not have all required inf ormation, they shall inform the Court by letter to the Court's efile address, [e-mail], of the additional data needed from Plaintiff.FURTHER ORDERED that the Plaintiff will pay the reasonable expenses of any additional deposition of Dr. Dominici, if applicable.FURTHER ORDERED that the current scheduling order is VACATED IN PART. All remaining deadlines, other than the deadlines with respect to Dr. Rothman, are VACATED. FURTHER ORDERED that, after 12/16/2024, the Court will contact the parties for the purpose of scheduling a status conference to set a new trial date and accompanying deadlines. Signed by Judge Susie Morgan on 11/27/2024. (go)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHARLES A. BOGGS,
Plaintiff

CIVIL ACTION

VERSUS

NO. 16-13476

BP EXPLORATION & PRODUCTION,
INC., ET AL.,
Defendants

SECTION: “E” (4)

ORDER AND REASONS
Before the Court is Plaintiff, Charles Boggs, who filed a Motion for Leave to Amend,
Supplement, and/or Correct Dr. Francesca Dominici’s Expert Report.1 The motion is
opposed by Defendant BP.2 Plaintiff also filed a reply in support of his motion.3
BACKGROUND
This action is a “B3” case arising out of the 2010 Deepwater Horizon oil spill in the
Gulf of Mexico.4 B3 cases assert “claims for personal injury and wrongful death due to
exposure to oil and/or other chemicals used during the oil spill response (e.g.,
dispersant).”5 Plaintiff filed the instant lawsuit over eight years ago, alleging his exposure
to Deepwater Horizon toxins, while residing in a home in Long Beach, Mississippi, that
fronts the Gulf of Mexico, caused him to suffer a host of adverse medical conditions.6 Trial
is scheduled for January 6, 2025.7

1 R. Doc. 222. The Plaintiff filed a motion for a status conference, which the Court granted. R. Docs. 218,

220. At the status conference, the Court ordered the Plaintiff to file his motion to amend or supplement
Dr. Dominici’s report and the Defendant to file its response. R. Doc. 223.
2 R. Doc. 245.
3 R. Doc. 246-1; R. Doc. 263.
4 See R. Doc. 8 (severing 780 cases in the B3 pleading bundle and re-allotting them among the EDLA
district judges.) (Barbier, J.).
5 In re Oil Spill by Oil Rig “Deepwater Horizon” in Gulf of Mexico, on Apr. 20, 2010, No. MDL 2179, 2021
WL 6053613, at *10 (E.D. La. Apr. 1, 2021) (Barbier, J.).
6 See R. Doc. 1
7 See R. Doc. 242 (November 8, 2024 Amended Scheduling Order).

Relevant to the instant motion, Plaintiff’s expert report deadline was July 5, 2024.8
Plaintiff timely provided Dr. Dominici’s expert report to Defendants on that date. 9
Defendants’ expert report deadline was extended to September 10, 2024.10 On October 7,
2024, Plaintiff timely listed Dr. Dominici as an expert witness on his first witness list.11
Dr. Dominici is a Professor of Biostatistics at the Harvard T.H. Chan School of Public
Health.12 In Plaintiff’s witness list, Dr. Dominici’s expertise is described as “the
development of statistical methods for the analysis of large datasets and for combining
information across heterogeneous data sources,” including “environmental impacts on
health outcomes.”13
On October 25, 2024, the extended deadline for all discovery in this matter,14 Dr.
Dominici sat for her deposition.15 At her deposition, for the first time, Dr. Dominici
disclosed to the Defendants corrections she made to her original report, along with new
calculations, in a document Plaintiff entitles “Notes & Supplemental Calculations from
Dr. Dominici.”16 Notably, on pages 14-17 of the document, Dr. Dominici (1) explains her
error in using the incorrect address for Plaintiff in her exposure analysis, (2) attaches new
graphs and tables reflecting the exposure data relevant to Plaintiff’s correct address, and

8 R. Doc. 148, p. 8 (February 20, 2024 Amended Scheduling Order).
9 See R. Doc. 222-1, p. 15.
10 R. Doc. 163, p. 2 (August 8, 2024 Amended Scheduling Order).
11 R. Doc. 198-1, p. 7.

12 R. Doc. 215-1, p. 7.
13 Id.
14 R. Doc. 202, p. 6 (October 11, 2024 Amended Scheduling Order).
15 R. Doc. 222-1, p. 7; R. Doc. 222-3, p. 2.

16 R. Doc. 222-1, p. 7; id. at p. 4. Plaintiff cites the “Notes and Supplemental Calculations” as Exhibit 2 to

his motion, at R. Doc. 222-3. However, R. Doc. 222-3 as filed on the record is a transcript of Dr.
Dominici’s deposition. BP attached Dr. Dominici’s Notes & Supplemental Calculations to its opposition at
R. Doc. 245-1.

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(3) concludes that the corrections reflecting Mr. Boggs’ accurate home location do not
affect the overall results and conclusions of her report.17
On November 4, 2024, Plaintiff requested a status conference with the Court to
address “the need for Plaintiff to supplement Dr. Dominici’s report to correct a minor
miscalculation error.”18 On November 5, 2024, the Court held a status conference. At the
conference, BP objected to the Plaintiff being allowed to supplement Dr. Dominici’s
report. Plaintiff informed the Court that he wished to file a motion for leave to amend Dr.
Dominici’s report that day.19 The Court informed the parties that the briefing schedule for
any Daubert motion filed with respect to Dr. Dominici would be determined after the
Court decided whether to allow Dr. Dominici to file a supplemental report.20
On November 5, 2024, Plaintiff filed his motion for leave of Court to “Amend,
Supplement, and/or Correct” the expert report of Dr. Francesca Dominici.21 Plaintiff
states in his motion that Dr. Dominici’s supplemental “testimony is crucial to Mr. Boggs’
case because the Fifth Circuit requires toxic tort plaintiffs to introduce expert testimony
proving causation, and Dr. Dominici’s report, along with Plaintiff’s other experts reports,
collectively establish general and specific causation for Plaintiff . . . . Dr. Dominici is the
only expert who calculated Mr. Boggs’ Particulate Matter exposure.”22
Defendant timely filed its opposition, arguing that Dr. Dominici’s supplemental
report and data are an impermissible attempt to alter her original report and implement
new calculations after the expert report deadline.23 Defendant further argued that,

17 R. Doc. 245-1, pp. 14-17.
18 R. Doc. 218, p. 1.

19 R. Doc. 223, p. 2.
20 Id.
21 R. Doc. 222.

22 R. Doc. 222-1, p. 9.
23 R. Doc. 245.

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because the supplemental report, using the corrected address, altered the geographic
“zone” of Dr. Dominici’s exposure analysis, the new calculations “must be based upon the
inclusion of significant new data.”24 Defendant represented that “BP’s experts cannot
confirm” whether the new report calculations included “significant new data” because Dr.
Dominici did not provide “the backup files for which she claims to base the new
calculations in her New Report.”25
On November 22, 2024, the Court requested counsel for BP confirm whether BP
was still in need of additional materials to assess whether Dr. Dominici’s amended
calculations contained “significant new data.” On November 25, 2024, BP informed the
Court that Plaintiff had provided BP with the amended “backup files” that morning. BP
attached a declaration from its expert, Dr. Ranjit Machado, stating that he needed twoto-three weeks to “verify whether [the] production includes all of the associated data”
contained in Dr. Dominici’s new calculations. On November 26, 2024, Plaintiff informed
the Court that “BP has not reached out to Plaintiff’s counsel, has not attempted to meet
and confer, and submitted its expert’s declaration to the Court without ever
communicating with the Plaintiff.” Plaintiff also attached a declaration from Dr. Dominici
stating that “all methods and data to analyze the BP mobile monitoring data and PM2.5
predictions dataset were previously made available” to BP on the date of the original
report disclosure.
LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 26(a)(2)(B), an expert report must
contain the following:

24 Id. at p. 8.
25 Id. at p. 9.

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(i) a complete statement of all opinions the witness will express and the basis and
reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them.26
Rule 26(e) requires that litigants timely supplement previous expert disclosures,
including information contained in expert reports, if they learn “that in some material
respect the disclosure or response is incomplete or incorrect, and if the additional or
corrective information has not otherwise been made known to the other parties during
the discovery process or in writing.”27 “Any additions or changes to this information must
be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due.”28
Pursuant to Rule 26(a)(3)(B), the deadline for pretrial discloses is thirty days before trial,
“[u]nless the court orders otherwise.”29 “The purpose of supplementary disclosures is just
that—to supplement. Such disclosures are not intended to provide an extension of the
expert designation and report production deadline.”30
In determining whether a violation of Rule 26 is harmless or substantially justified,
a court considers: “(1) the importance of the evidence; (2) the prejudice to the opposing
party of including the evidence; (3) the possibility of curing such prejudice by granting a
continuance; and (4) the explanation for the party’s failure to disclose.”31 “Failure to abide
by Rule 26(a) [or 26(e)’s] disclosure requirements prompts sanctions under Federal Rule

26 FED. R. CIV. P. 26(a)(2)(B)(i)-(iii).
27 FED. R. CIV. P. 26(e)(1)-(2).
28 FED. R. CIV. P. 26(e)(2).

29 LaShip, LLC v. Hayward Baker, Inc., No. CV 11-0546, 2013 WL 12238849, at *1 (E.D. La. Oct. 25,

2013) (quoting Fed. R. Civ. Pro. 26(a)(3)(B)).
30 Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 324 (5th Cir. 1998) (footnotes omitted).
31 Texas A&M Research Found. v. Magna Transp., Inc., 338 F.3d 394, 402 (5th Cir. 2003).

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of Civil Procedure 37(c).”32
Rule 37(c) provides:
(1) Failure to Disclose or Supplement. If 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.
A district court may exercise discretion in determining whether to exclude an
expert on these grounds.33 In determining whether a party’s failure to disclose or
supplement is harmless or substantially justified, a court generally considers: “(1) the
explanation for the failure to identify the witness [or the material]; (2) the importance
of the testimony; (3) potential prejudice in allowing the testimony; and (4) the
availability of a continuance to cure such prejudice.” 34 Additionally, “[t]he language
of Rule 37(c)(1) gives the court broad discretion to fashion a remedy, as the court ‘may
impose other appropriate sanctions.’”35
Rule 16(b)(4) provides “[a] schedule may be modified only for good cause.”
“Good cause requires a showing that the relevant scheduling order deadline cannot
reasonably be met despite the diligence of the party needing the extension.” Courts
consider several factors in determining whether a party has provided good cause to
modify a discovery deadline, including: “‘(1) the explanation for the failure to [timely
move for leave]; (2) the importance of the [revised expert report]; (3) potential prejudice

32 Honey-Love v. United States, 664 F. App'x 358, 361-62 (5th Cir. 2016); Greenberg v. Bd. of Supervisors

of Louisiana State Univ. & Agric. & Mech. Coll., No. CV 19-137, 2020 WL 1689876, at *3 (E.D. La. Apr. 7,
2020).
33 Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990).
34 Id.
35 Williams v. BP Expl. & Prod., Inc., No. CV 18-9753, 2019 WL 6615504, at *2 (E.D. La. Dec. 5, 2019)
(quoting Reed v. Binder, 165 F.R.D. 424, 431 (D.N.J. 1996)).

6

in allowing the [revised expert report]; and (4) the availability of a continuance to cure
such prejudice.’”36 This analysis is substantively similar to that under Rule 37.
LAW AND ANALYSIS
Plaintiff argues that supplementation of Dr. Dominici’s report is proper because
Dr. Dominici made a “harmless error when inputting the residential address of Plaintiff
into her computer model.”37 Plaintiff asserts that Dr. Dominici inputted Mr. Boggs’
address as “630 West Beach Boulevard” while his correct address is “630 Beach Boulevard
West.”38 Plaintiff argues the error was minimal, unintentional, and does not change Dr.
Dominici’s overall conclusions.39 Plaintiff argues Dr. Dominici “felt it necessary to use the
same methodology to correct the error and recalculate her numbers using Mr. Boggs’
correct residential address.”40 Plaintiff characterizes this correction as a proper exercise
of the Rule 26(e) duty to supplement disclosures and responses.41
Plaintiff’s motion generally argues that he should be allowed to supplement Dr.
Dominici’s report.42 Plaintiff clarifies in a few places that he seeks only to supplement Dr.
Dominici’s original report with pages 14-17 of the “new” report.43 For example, in the
conclusion of his argument, Plaintiff requests “admission of Dr. Dominici’s Supplemental
Calculations” rather than the admission of her “Supplemental Report” in its entirety.44
Plaintiff argues that he timely proffered Dr. Dominici’s amended calculations under Rule

36 Reliance Ins. Co. v. La. Land & Exploration Co., 110 F.3d 253, 257 (5th Cir. 1997) (quoting Geiserman v.

MacDonald, 893 F.2d 787, 791 (5th Cir. 1990)).
37 R. Doc. 222-1, p. 2.
38 Id.
39 Id.
40 Id.
41 Id.
42 Id. at p. 4 (“Plaintiff respectfully requests the Court admit her Supplemental report formally on the
record.”).
43 See, e.g., id. at p. 4, n.3, n.5; id. at p. 17, n.41.
44 Id. at p, 4, 17.

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26(e) because he disclosed her supplemental report to Defendants before the pretrial
disclosure deadline.45 Plaintiff argues that the “discovery/pretrial disclosure deadline”
was October 25, 2024, the discovery deadline, and Dr. Dominici timely disclosed the
corrections during her deposition on that day.46 In the alternative, Plaintiff argues that, if
the Court determines the supplemental disclosure was untimely, the late disclosure was
substantially justified and harmless under the Fifth Circuit’s Rule 37 analysis. 47 Plaintiff
argues that any prejudice to BP because of the late disclosure may be cured through
permitting BP to conduct an additional deposition of Dr. Dominici.48 Plaintiff argues that,
if the Court determines that the disclosure was untimely and warrants an award of
sanctions, the Court should exercise discretion to impose a lesser sanction rather than
complete exclusion of Dr. Dominici’s supplemental report.49
BP opposes the motion, arguing that Defendant’s request to supplement Dr.
Dominici’s report is an improper attempt to “offer new opinions once the scheduling
order’s deadline has passed” or to “supplement [her] earlier report with ‘material
additions.’”50 Defendant argues that Dr. Dominici’s new report “is an improper attempt
to fix her original report,” and that much of the report contains new opinions and data
that are “not limited to a reworking of calculations associated with Boggs’ correct
address.”51 Defendant argues the new report incorporates data and sources that were the
subject of defense expert critiques of Dr. Dominici’s initial report.52 Defendant argues that

45 Id. at p. 7.
46 Id. at p. 8.
47 Id. at pp. 9-14.
48 Id. at p. 14.

49 Id. at pp. 16-18.
50 R. Doc. 245, p. 4.
51 Id. at pp. 7, 9.

52 Id. at pp. 9-11.

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Dr. Dominici’s report is prejudicial to BP because defense experts were unable to analyze
the data and methodology underlying her new calculations and findings. 53 Finally,
Defendant argues the late disclosure was “untimely” because (1) the use of the improper
address for Mr. Boggs was the subject of defense expert reports disclosed in September,
and (2) Dr. Dominici’s billing records indicate she billed time throughout September and
October to reviewing defense reports and preparing for her deposition such that
disclosure on October 25, 2024 was untimely.54
In his reply, Plaintiff clarifies that he “specifically only requested pages 14-17 [as]
supplement [to] Dr. Dominici’s report.”55 Plaintiff argues that “BP’s complaints that Dr.
Dominici’s notes related to her rebuttal opinions are misplaced because that is not the
relief sought here.”56 Plaintiff states that he “does not re-request that Dr. Dominici be
granted leave to submit a Rule 26 rebuttal report or offer a new formal report . . . . [t]he
issue . . . is whether Dr. Dominici should be permitted to re-calculate her exposure
numbers where the original report calculated numbers based on an incorrect residential
address of the Plaintiff.”57
I.

Plaintiff’s request to amend Dr. Dominici’s report based on the
corrected address data is not merely “supplemental” under Rule
26(e)(2).
The Court ordered the Plaintiff to disclose his expert reports to the Defendants on

or before July 5, 2024.58 Plaintiff disclosed the new report and data from Dr. Dominici on

53 Id. at pp. 11-12.

54 Id. at pp. 12-13.
55 R. Doc. 263, p. 2.
56 Id. at p. 1.

57 Id. at pp. 3-4.
58 R. Doc. 148, p. 8 (February 20, 2024 Amended Scheduling Order); see In re Complaint of C.F. Bean

L.L.C., 841 F.3d 365, 371-74 (5th Cir. 2016) (stating that “[i]nitial expert disclosures must be ‘full and
complete,’” and the proper analysis for untimely disclosures is why the party failed “to request an
extension of the expert disclosure deadline.”).

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October 25, 2024.59 The Fifth Circuit has recognized that “when a party files an additional
expert report after the expert disclosure deadline, the question is whether the report is
‘supplemental.’ If it is, then it falls within Rule 26(e) and is admissible. If not, i.e., the
report asserts new analysis or conclusions, it runs afoul of Rule 26(e), and Federal Rule
of Civil Procedure 37(c)(1) governs its admissibility.”60
Though Plaintiff clarifies that he only seeks to supplement pages 14-17 of Dr.
Dominici’s new report, which he alleges account for the exposure analysis reflecting the
corrected address for Mr. Boggs, the Court finds that the corrected data, tables, and
figures are not merely an “incomplete” or “incorrect” disclosure as contemplated by Rule
26(e).61 Dr. Dominici, as admitted by Plaintiff, is an essential causation expert, as she “is
the only expert who calculated Mr. Boggs’ Particulate Matter exposure.”62 The geographic
data that forms the basis of her opinions is a substantial component of her causation
expert testimony—and to her response to the defense experts’ critique of her opinions.
While Plaintiff characterizes the difference in addresses as a “scrivenor’s error” because
the incorrect address is “less than six miles from Mr. Boggs’ actual residence [and] . . .
within the zone that Dr. Dominici pulled data from in her initial report,” 63 Defendant
points out that the corrections and recalculations based on Mr. Boggs’ correct address rely
on two newly-compiled datasets64 from different geographic areas than those in the first
report, which is a substantive alteration to the bases of Dr. Dominici’s causation

59 See R. Doc. 222-1, p. 7.
60 Majestic Oil, Inc., No. 21-20542, 2023 WL 2549892, at *2 (5th Cir. Mar. 17, 2023).
61 See FED. R. CIV. P. 26(e).
62 R. Doc. 222-1, p. 9.
63 Id. at p. 2.

64 R. Doc. 245, p. 8 (explaining the datasets contain a “prediction” dataset and a “mobile monitoring

handheld device dataset”).

10

opinions.65 The amended calculations are “based on information available prior to the
missed deadline for service of initial disclosures” rather than new or previously
unavailable information.66 Further, the address correction and reformulated data
analysis followed Plaintiff’s receipt of defense expert reports highlighting the
geographical error.67
For the foregoing reasons, the Court concludes that Dr. Dominici’s amended
datasets, figures, and exposure findings based on Mr. Boggs’s correct address contain new
analyses such that the materials do not fall under Rule 26(e).68 As a result, the Court must
analyze whether Dr. Dominici’s late disclosure is substantially justified or harmless to
determine whether exclusion is warranted.69
II.

The Geiserman factors weigh in favor of allowing Dr. Dominici to
supplement her report.
In effect, Plaintiff seeks leave of Court to extend his expert disclosure deadline from

July 5, 2024 to October 25, 2024, when Dr. Dominici disclosed her new report and related
materials.70 The Court assesses the following factors to determine whether to exclude
untimely expert materials: “(1) the explanation for the failure to identify the
[information]; (2) the importance of the [information]; (3) potential prejudice in allowing
the [information]; and (4) the availability of a continuance to cure such prejudice.”71

65 R. Doc. 245, pp. 7-9.
66

Raju v. Medtronic, Inc., No. 3:17-cv-357-CWR-LGI, 2021 WL 1232102, at *4 (S.D. Miss. Mar. 31, 2021).

67 See R. Doc. 245, p. 5 n.9 (depicting a figure illustrating “the magnitude of the difference in location

between Dr. Dominici’s selection of Boggs’ address (circled in blue) and Boggs’ actual address (circled in
black)”) (noting that the figure was excerpted from the report of BP’s expert Ranjit Machado).
68 In re Complaint of C.F. Bean L.L.C., 841 F.3d 365, 372 (5th Cir. 2016).
69 FED. R. CIV. P. 37(c)(1).
70 See R. Doc. 222. See also FED. R. CIV. P. 16(b), (f) (authorizing district courts to exercise control over
pretrial discovery and allowing the award of sanctions for failure to adhere to scheduling order deadlines).
71 Certain Underwriters at Lloyd's, London v. Axon Pressure Prod. Inc., 951 F.3d 248, 270 (5th Cir. 2020);
Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990).

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The first factor is the Plaintiff’s explanation for Dr. Dominici’s failure to timely
disclose the supplemental data and calculations.72 Plaintiff asserts that “when
electronically searching for 630 West Beach Boulevard, the [incorrect] address in Pass
Christian, MS is the first search result that populates, whereas the [correct] address in
Long Beach, MS, is . . . 630 Beach Boulevard West.”73 Plaintiff argues that “the incorrect
address is less than six miles from Mr. Boggs’ actual residence and the actual address is
within the zone that Dr. Dominici pulled data from in her initial report.”74 Plaintiff argues
that Dr. Dominici’s “mistake and any purported delay in proffering her Supplement were
not due to bad faith or a lack of diligence.”75 Plaintiff states he provided Dr. Dominici with
a copy of BP’s expert reports to review in preparation for her deposition, and that Dr.
Dominici realized she made a mistake as to the address while preparing for her
deposition.76 Plaintiff further argues that “the lag in Dr. Dominici’s discovery of said
mistake” is due to her “extremely busy schedule, and her calendar was especially booked
in the months leading up to her deposition” with travel and university and academic
engagements.77 Plaintiff represents that upon discovery of her error while preparing for
her deposition, Dr. Dominici immediately disclosed the error and the supplemental
calculations during her deposition.78 Plaintiff argues “Dr. Dominici should not be
punished for making a mistake.”79

72 See Geiserman, 893 F.2d at 791.
73 R. Doc. 222-1, p. 15.
74 Id. at p. 2.

75 Id. at p. 15.
76 Id.
77 Id. at p. 16.
78 Id.
79 Id.

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The Court notes that how the error occurred is understandable and does not
demonstrate bad faith or lack of diligence because of the similarity of the two addresses.
Dr. Dominici appropriately sought to correct her mistake after becoming aware of the
error when she received the defense expert’s critique. This factor weighs in favor of
Plaintiff.
The second factor is the importance of the supplemental information to the
Plaintiff.80 Dr. Dominici is an important causation expert regarding Mr. Boggs’
particulate matter exposure, which is entirely dependent on Mr. Boggs’ geographic
location. Plaintiff argues that “[i]f Dr. Dominici’s supplemental report is denied
admission, Plaintiff would be prejudiced[,] as the mistakes in Dominici’s original report
may be improperly used by BP detrimentally at the Daubert phase to exclude the expert
on minor procedural technicalities resulting from a calculation error or used to attack her
credibility with the jury.”81 The Court agrees with Plaintiff that reformulated data and
figures based on the correct address are of great importance to Plaintiff’s case. The Court
recognizes that Dr. Dominici’s particulate matter exposure analysis, which is dependent
on using Mr. Boggs’ accurate location, is essential for Plaintiff to prove causation in his
toxic tort case. Even if the error did not change Dr. Dominici’s ultimate conclusions as to
Plaintiff’s particulate matter exposure because his correct address was within the
geographic “zone” of data Dr. Dominici originally analyzed, the Court finds that accurate
data supporting specific causation is important to Plaintiff’s case.82 The second factor
weighs in favor of Plaintiff.

80 See Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990).
81 R. Doc. 222-1, pp. 9-10.
82 See id. at p. 2.

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The third factor is the potential prejudice to BP in allowing the supplemental
information.83 The Court recognizes there is significant prejudice to BP in allowing the
new calculations at this stage. This case is in late stages of litigation, as trial is set to begin
January 6, 2025. Dr. Dominici disclosed the new calculations and data at the close of
discovery on October 25, 2024 during her deposition, leaving BP and its experts unable
to meaningfully analyze her new calculations and data prior to that date. BP’s experts have
already completed their reports based on Dr. Dominici’s original report and calculations.
BP has filed a motion for summary judgment84 based on the Plaintiff’s current causation
experts and their July 5, 2024 reports.85 BP represents it has only recently received Dr.
Dominici’s supplemental data and is expending resources to analyze it by having its expert
evaluate and verify the new data. Because of this late request to supplement Dr.
Dominici’s report, BP has been unable to submit a Daubert motion as to Dr. Dominici,
and both parties presently await the Court’s decision on the instant motion in order to
submit appropriate Daubert briefing.86 “[D]elay of even a few weeks in disclosing expert
testimony disrupts the court's schedule and the opponent's preparation and is thus
prejudicial.”87 As a result, this factor weighs in favor of BP.
The fourth factor is the availability of a continuance to cure prejudice to BP.88 The
Court finds that any prejudice to BP may be cured by granting a continuance in this
matter. The Fifth Circuit has repeatedly stated “that a continuance is the ‘preferred means

83 Geiserman, 893 F.2d at 791.
84 R. Doc. 231.
85 Dr. Dominici, Dr. Savitz, and Dr. Durrani.
86 See R. Doc. 223.

87 Buxton v. Lil' Drug Store Prod., Inc., No. 2:02CV178KS-MTP, 2007 WL 2254492 (S.D. Miss. Aug. 1,

2007), aff'd, 294 F. App'x 92 (5th Cir. 2008) (citing Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir.
1990)).
88 See Geiserman, 893 F.2d at 791.

14

of dealing with a party's attempt to designate a witness out of time.’”89 Although the Court
has continued this matter several times over the years90 and has a substantial interest in
finally moving this case to trial, a continuance is the most appropriate remedy in this
situation. BP represents that its expert needs two-to-three weeks to evaluate Dr.
Dominici’s new data, while Plaintiff disputes BP’s representation that it has only recently
obtained the new data for analysis. The Defendants’ anticipated Daubert motion must be
decided before the Court may decide Defendants’ summary judgment motion on
causation.91 Because of the supplemental disclosure, the parties do not yet have a deadline
for filing a Daubert motion with respect to Dr. Dominici. Depending on BP’s expert’s
findings, the parties may require an additional deposition of Dr. Dominici and may wish
to file a supplemental defense expert report in respect to Dr. Dominici’s testimony. Trial
is quickly approaching on January 6, 2025. Without a continuance, there is insufficient
time for the parties and the Court to prepare the case for trial. A continuance will ensure
the parties are adequately prepared and will reduce prejudice to either party. This factor
weighs in favor of a continuance.
As a result, the Court finds that, based on the Geiserman factor analysis, a
continuance is necessary to resolve the issues concerning the pending Daubert motions,
the pending motion for summary judgment on causation, and any motions that may result
from the supplemental report by Dr. Dominici. The Court will grant Plaintiff’s motion.92
Accordingly;

89 In re Complaint of C.F. Bean L.L.C., 841 F.3d 365, 374 (5th Cir. 2016) (quoting Campbell v. Keystone

Aerial Surveys, Inc., 138 F.3d 996, 1001 (5th Cir. 1998)).
90 See, e.g., R. Docs. 70, 123, 128, 131, 148, 163.
91 R. Doc. 231.
92 R. Doc. 222.

15

CONCLUSION
IT IS ORDERED that Plaintiff’s motion93 is GRANTED. Plaintiff is permitted
to supplement, amend, and/or correct Dr. Dominici’s July 5, 2024 report94 with pages 1417 of Dr. Dominici’s “Notes & Supplemental Calculations,” including her calculations and
data based on Plaintiff’s corrected address.95
IT IS FURTHER ORDERED that Defendants, upon review of Dr. Dominici’s
data disclosed on November 25, 2024, will inform the Court on or before December
16, 2024 whether they have all the information and data files they need to properly
evaluate pages 14-17 of Dr. Dominici’s supplemental report and calculations. By that date,
if Defendants determine they do not have all required information, they shall inform the
Court by letter to the Court’s efile address, [e-mail], of the
additional data needed from Plaintiff.
IT IS FURTHER ORDERED that the Plaintiff will pay the reasonable expenses
of any additional deposition of Dr. Dominici, if applicable.96
IT IS FURTHER ORDERED that the current scheduling order97 is VACATED
IN PART. All remaining deadlines, other than the deadlines with respect to Dr.
Rothman,98 are VACATED.
93 Id.
94 R. Doc. 222-2.
95 Throughout Record Document 222, Plaintiff cites the “Notes and Supplemental Calculations” as Exhibit

2 to his motion, at R. Doc. 222-3. However, R. Doc. 222-3 as filed on the record is a transcript of Dr.
Dominici’s deposition. BP attached Dr. Dominici’s Notes & Supplemental Calculations to its opposition at
R. Doc. 245-1. See R. Doc. 245-1, pp. 14-17.
96 The Court has the discretion to award a lesser sanction rather than complete exclusion of Dr. Dominici’s
amended calculations. See, e.g., Williams v. BP Expl. & Prod., Inc., No. CV 18-9753, 2019 WL 6615504, at
*2 (E.D. La. Dec. 5, 2019) (quoting Reed v. Binder, 165 F.R.D. 424, 431 (D.N.J. 1996)).
97 R. Doc. 242.
98 The deadlines with respect to Dr. Rothman remain in place: Deposition and limited discovery solely
with respect to Dr. Rothman must be completed by December 2, 2024; Non-evidentiary pretrial motions
and motions in limine regarding the admissibility of expert testimony solely as to Dr. Rothman must be
filed and served no later than December 9, 2024; Responses/oppositions to non-evidentiary pretrial
motions solely as to Dr. Rothman must be filed and served no later than December 13, 2024; Replies in

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IT IS FURTHER ORDERED that, after December 16, 2024, the Court will
contact the parties for the purpose of scheduling a status conference to set a new trial date
and accompanying deadlines.
New Orleans, Louisiana, this 27th day of November, 2024.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

support of non-evidentiary pretrial motions solely as to Dr. Rothman must be filed and served no later
than December 16, 2024.

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