Leggett v. Dolgencorp LLC et al

Filing 39

ORDER AND REASONS granting 15 Motion to Strike. For the foregoing reasons, the Court GRANTS defendant's motion. Dr. Robert may offer only lay testimony at trial. Signed by Judge Sarah S. Vance on 10/24/2017. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
REBECCA LEGGETT

CIVIL ACTION

VERSUS

NO. 16-17264

DOLGENCORP, LLC d/b/a DOLLAR
GENERAL

SECTION “R” (3)

ORDER AND REASONS
Before the Court is defendant’s motion to strike the expert testimony
of Dr. Everett Robert. 1

For the following reasons, the Court grants

defendant’s motion.

I.

BACKGROUND
On December 16, 2015, plaintiff Rebecca Leggett slipped and fell at a

Dollar General store in Luling, Louisiana.2 Plaintiff sued defendant DG
Louisiana, LLC for damages in Louisiana state court on November 9, 2016.3
Plaintiff alleged that the slippery floor at the Dollar General store constituted
an unreasonably dangerous condition, and that defendant was negligent in

R. Doc. 15.
R. Doc. 1-1.
3
Id.
Plaintiff also sued Dolgencorp, LLC and Dollar General
Corporation, but has since stipulated to their dismissal. R. Doc. 34.
1
1

2

failing to prevent the dangerous condition and failing to warn of the danger.4
Defendant removed the case to this Court on December 13, 2016, on the basis
of diversity of citizenship.5
According to the Court’s scheduling order, plaintiff’s deadline for
providing written expert reports as required by Federal Rule of Civil
Procedure 26(a)(2)(B) was July 28, 2017. 6

Defendant’s expert report

deadline was one month later. 7 Plaintiff now seeks to elicit expert testimony
from Dr. Everett Robert, plaintiff’s treating neurosurgeon.8 Dr. Robert
would testify that plaintiff’s fall caused injury to her lumbar spine. 9
Defendant moves to exclude Dr. Robert’s expert testimony as untimely. 10

II.

DISCUSSION
The Federal Rules of Civil Procedure impose disclosure requirements

upon proponents of expert testimony. Fed. R. Civ. P. 26. Expert witnesses
who are “retained or specially employed to provide expert testimony” must
submit written reports. Fed. R. Civ. P. 26(a)(2)(B). Treating physicians like

4
5
6
7
8
9
10

R. Doc. 1-1 at 2.
R. Doc. 1 at 3.
R. Doc. 7 at 2.
Id.
See R. Doc. 19.
See R. Doc. 22-1.
R. Docs. 15, 22.
2

Dr. Robert, however, are exempt from this reporting requirement. See
Sheppard v. Liberty Mut. Ins. Co., No. 16-2401, 2017 WL 467092, at *1 (E.D.
La. Feb. 2, 2017); see also Fed. R. Civ. P. 26 advisory committee’s notes to
1993 & 2010 amendments. Instead, Rule 26(a)(2)(C) requires non-reporting
expert witnesses to disclose: “(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 summary of the facts and opinions to which the witness is
expected to testify.” Fed. R. Civ. P. 26(a)(2)(C). Plaintiff disclosed this
information to defendant on September 12, 2017, only after defendant filed
its motion to strike Dr. Robert’s expert opinion.11
Plaintiff’s disclosure of Dr. Robert’s expert opinion was untimely. The
federal rules provide that absent a stipulation or court order, all expert
disclosures are due “at least 90 days before the date set for trial.” 12 Fed. R.
Civ. P. 26(a)(2)(D)(i). The Court’s scheduling order sets out deadlines for
expert reports under Rule 26(a)(2)(B), but these deadlines do not apply to
Dr. Robert’s expert opinion under Rule 26(a)(2)(C).13 Thus, plaintiff should

R. Doc. 19 at 3; R. Doc. 22 at 3;
There is a separate deadline for rebuttal opinions—within thirty days
after the other party’s disclosure—but plaintiff does not argue that Dr.
Robert’s opinion “is intended solely to contradict or rebut evidence on the
same subject matter identified by another party[’s]” expert. Fed. R. Civ. P.
26(a)(2)(D)(ii). Moreover, plaintiff bears the burden of proving spine injury.
13
R. Doc. 7 at 2.
3
11

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have disclosed Dr. Robert’s opinion by August 8, 2017, ninety days before the
scheduled trial date of November 6.
The Court now turns to whether Dr. Robert’s expert opinion should be
excluded at trial. “When a party fails to disclose information required by
Federal Rule of Civil Procedure 26(a), ‘the party is not allowed to use that
information . . . to supply evidence on a motion . . . or at a trial, unless the
failure was substantially justified or is harmless.’” In re Complaint of C.F.
Bean L.L.C., 841 F.3d 365, 372 (5th Cir. 2016) (quoting Fed. R. Civ. P.
37(c)(1)). In Geiserman v. MacDonald, 893 F.2d 787 (5th Cir. 1990), the
Fifth Circuit described four factors to determine whether “to exclude
evidence that was not properly designated”: (1) the explanation for the failure
to adhere to the deadline; (2) the importance of the proposed modification
of the scheduling order; (3) the potential prejudice that could result from
allowing the modification; and (4) the availability of a continuance to cure
that prejudice. Id. at 791.
With regard to the first factor, plaintiff has not provided a convincing
explanation for her failure to comply with the scheduling order. Plaintiff
contends that Dr. Robert did not examine her until August 11, 2017—after
plaintiff’s deadlines for expert disclosures passed. 14 But plaintiff has failed

14

R. Doc. 19 at 3; R. Doc. 19-1 at 1.
4

to explain why she did not seek treatment from Dr. Robert earlier. Plaintiff’s
accident occurred in December 2015, so she had more than a year and a half
to seek treatment from a neurosurgeon and to elicit an opinion about injury
to her lumbar spine. See Sierra Club, Lone Star Chapter v. Cedar Point Oil
Co. Inc., 73 F.3d 546, 573 (5th Cir. 1996) (finding that untimely expert
disclosures were not justified because party “had over nine months to solicit
experts and prepare reports” on contested issues). Thus, the first Geiserman
factor weighs against admitting Dr. Robert’s expert testimony.
As to the second factor, plaintiff has failed to show that Dr. Robert’s
testimony is essential. Dr. Robert’s expert testimony would be limited to
whether plaintiff’s fall injured her lumbar spine. With regard to plaintiff’s
alleged damages for physical disfigurement,15 this testimony is clearly
important. But the testimony is not necessary to prove either defendant’s
liability or other damages, such as pain and suffering. Cf. Betzel v. State
Farm Lloyds, 480 F.3d 704, 707 (5th Cir. 2007) (finding that expert
testimony was “essential” because without experts, the plaintiff could not
prove any damages); Complete Prop. Res., LLC v. City of New Orleans, No.
04-3267, 2006 WL 197006, at *2 (E.D. La. Jan. 25, 2006) (denying leave to
file untimely expert report because “[w]hile plaintiff’s damages may be of

15

R. Doc. 1-1 at 3.
5

importance to its case, plaintiff has not established that an expert is
necessary”). Thus, this factor weighs against plaintiff.
As to the third Geiserman factor, allowing Dr. Robert to offer expert
testimony would prejudice defendant in light of the fast approaching trial
date. Plaintiff disclosed Dr. Robert’s opinion on September 12, two weeks
before the discovery deadline and less than two months before trial.
Defendant had little opportunity either to solicit a neurosurgeon expert to
rebut Dr. Robert’s opinion, or to depose Dr. Robert as to his expert opinion.
See Consol. Envtl. Mgmt., Inc.-Nucor Steel La. v. Zen-Noh Grain Corp., 981
F. Supp. 2d 523, 536 (E.D. La. 2013) (noting that “[t]his Court has found
prejudice when a party submitted its expert report as few as three days late,
leaving the opposing party with less than a month before the close of
discovery to depose the expert, hire its own expert, and obtain a written
report from him”). Allowing Dr. Robert to offer an expert opinion at this
point would mean that defendant could not depose him before trial. The
third factor therefore weighs against plaintiff.
Finally, turning to the fourth Geiserman factor, the Fifth Circuit has
“emphasized that a continuance is the preferred means of dealing with a
party’s attempt to designate a witness out of time.” Betzel, 480 F.3d at 708
(quoting Campbell v. Keystone Aerial Surveys, Inc., 138 F.3d 996, 1001 (5th
6

Cir. 1998)). Here, continuing the discovery deadline and trial date would
give defendant a fair opportunity to depose Dr. Robert and provide a rebuttal
opinion. But the Fifth Circuit has also warned that “a continuance would not
deter future dilatory behavior, nor serve to enforce local rules or court
imposed scheduling orders.” Geiserman, 893 F.2d at 792 (citing Bradley v.
United States, 866 F.2d 120, 126 (5th Cir. 1989)).
On balance, even though a continuance would cure prejudice to the
defendant, the first three Geiserman factors weigh against allowing Dr.
Robert to provide expert testimony at trial. Plaintiff has failed to show that
its untimely designation of expert testimony was substantially justified or
harmless.

III. CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s motion. Dr.
Robert may offer only lay testimony at trial.

New Orleans, Louisiana, this _____ day of October, 2017.
24th
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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