Zaragoza v. Hartford Fire Insurance Company et al

Filing 33

ORDER AND REASONS GRANTING 15 Motion to Strike the plaintiff's expert witnesses for failure to comply with the scheduling order. Signed by Judge Martin L.C. Feldman on 1/22/2019. (jeg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

VINCENTE ZARAGOZA

CIVIL ACTION

v.

NO. 18-6150

HARTFORD FIRE INSURANCE
COMPANY, ET AL.

SECTION "F"

ORDER AND REASONS
Before
plaintiff’s

the

Court

expert

scheduling order.

is

the

witnesses

defendants’

for

failure

to

motion
comply

to

strike

with

the

For the reasons that follow, the motion is

GRANTED.
Background
This personal injury lawsuit arises from a car accident.
Vincente Zaragoza alleges that Joshua Emery, who drove a van while
working for Rent-A-Center, crashed into Zaragoza’s Trailblazer
while the two were driving east on U.S. Highway 90B in Orleans
Parish.
Zaragoza sued Emery, Rent-A-Center, Inc., and Hartford Fire
Insurance Company in state court to recover for his injuries.

The

defendants removed the case to this Court, invoking the Court’s
diversity jurisdiction.

The Court issued a scheduling order

selecting a March 25, 2019 jury trial date as well as other
deadlines including deadlines for exchanging expert reports.
1

The

scheduling order mandates that the plaintiff’s written expert
reports must be delivered to the defendants no later than December
6, 2018 and that the defendants’ written expert reports must be
delivered to the plaintiff no later than January 3, 2019. 1

The

Court admonishes counsel in the scheduling order that:
The Court will not permit any witnesses, expert or fact,
to testify or any exhibits to be used unless there has
been compliance with this Order as it pertains to the
witness and/or exhibits, without an order to do so issued
on motion for good cause shown.
...
Deadlines, cut-off dates, or other limits fixed herein
may only be extended by the Court upon timely motion
filed in compliance with the Local Rules and upon showing
of good cause....

The plaintiff did not provide the defendants with any expert
reports by December 6, 2018.

However, in his witness list filed

on January 3, 2019, the plaintiff lists two expert witnesses, Aaron
Wolfson, Ph.D. and Ralph A. Litolff, Jr., CPA/CFF/ABV, CVA, MBA.
The defendants now move to strike and exclude these two expert
witnesses.
I.
Rule 16 of the Federal Rules of Civil Procedure “authorizes
federal courts to control and expedite the discovery process

On December 14, 2018, the Court granted the defendants’ unopposed
motion to extend their deadline to submit written expert reports;
their written expert reports must be produced by February 3, 2019.
2
1

through a scheduling order.”
95

F.3d

375,

380

(5th

Barrett v. Atlantic Richfield Co.,

Cir.

1996).

Required

content

of

the

scheduling order includes deadlines to amend pleadings, complete
discovery, and file motions.

The scheduling order may be modified

“only for good cause and with the judge’s consent.” FED. R. CIV. P.
16(b)(4).

“The good cause standard requires the party seeking

relief to show that the deadlines cannot reasonably be met despite
the diligence of the party needing the extension."

S&W Enters. v.

Southtrust Bank of Ala., 315 F.3d 533, 535 (5th Cir. 2003).
“Consistent with the authority vested in the trial court by
Rule 16 . . . the trial court [has] broad discretion to preserve
the integrity and purpose of the pretrial order.”

Geiserman v.

MacDonald, 893 F.2d 787, 790 (5th Cir. 1990)(internal citations
omitted).

This broad discretion includes the decision to exclude

evidence as a means of enforcing a pretrial order.
Duplantis, 448 F.2d 918, 921 (5th Cir. 1971).

Davis v.

Rule 37(c) also

vests the Court with discretion to impose sanctions, including the
decision to exclude expert testimony for violations of Rule 26.
Barrett, 95 F.3d at 380.

The trial court’s “decision as to the

extent that pretrial activity should prevent the introduction of
otherwise competent and relevant testimony at trial must not be
disturbed unless it is demonstrated that he has clearly abused the

3

broad discretion vested in him by Rule 16.”

Davis, 448 F.2d at

921.
To determine if the district court abused its discretion in
excluding expert testimony, four factors are examined:
(1)

the explanation, if any, for the party’s failure to
comply with the discovery order;

(2)

the prejudice to the opposing party of allowing the
witness to testify;

(3)

the possibility of curing such prejudice by granting a
continuance; and

(4)

the importance of the witness’s testimony.

Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., 73
F.3d 546, 572 (5th Cir. 1996)(citation omitted).

Notably, as to

the fourth factor, “the importance of such proposed testimony
cannot singularly override the enforcement of local rules and
scheduling orders.” Geiserman v. MacDonald, 893 F.2d 787, 792 (5th
Cir. 1990).
II.
The defendants urge the Court to strike and exclude the
plaintiff’s two expert witnesses identified for the first time in
the plaintiff’s witness list, which (although the list itself was
timely filed) was filed almost 30 days after the plaintiff’s expert
deadline.

The defendants submit that the plaintiff has offered no

explanation for his failure to comply with the scheduling order.
4

The defendants aver that they would suffer prejudice, given that
the trial is three months away, they still have not received any
expert

reports,

and

they

lack

sufficient

time

to

depose

the

plaintiff’s experts and to retain experts of their own to refute
the plaintiff’s experts.

The defendants concede that a trial

continuance may cure the resulting prejudice, but neither party
has requested a trial continuance.
The plaintiff counters that the two experts he lists in his
witness list are “rebuttal witnesses not subject to this Court’s
Scheduling Order deadline;” and that striking the plaintiff’s socalled

rebuttal

witnesses

will

unfairly

prejudice

him,

“particularly [given his] professional courtesy in voluntarily
extending Defendants’ deadline for submission of their expert
reports.”

If the Court rejects the rebuttal witness theory, the

plaintiff argues that “good cause” exists for extending the expert
deadline, given that: the plaintiff’s doctor has recommended an
anterior cervical disc fusion as his next treatment option and
post-operative

recovery

period

for

the

surgery

is

unknown; 2

amendment of the scheduling order deadline to exchange expert

Notably, the plaintiff offers little detail concerning the timing
of this recommendation, if or when the recommended surgery is
scheduled; nor has he moved to continue the trial in light of his
allegedly uncertain medical condition and the resulting unsettled
extent of his damages.
5
2

reports is critical to the plaintiff’s ability to carry his burden
of proof; the plaintiff does not oppose defendants’ motion to
extend their written expert report deadline; and a continuance is
available to cure any prejudice to the defendants by the tardy
submission of expert reports.
The plaintiff has offered no persuasive explanation for his
failure to meet the expert deadline.

And, the plaintiff offers no

explanation for his failure to request an extension of his expert
deadline. 3

Moreover, insofar as the plaintiff suggests that he

needs his two experts to testify in order to carry his burden of
proof, the claimed importance of the expert testimony underscores
the need for compliance with the deadlines, or at least informing
the Court in advance if good faith compliance was not possible.
Plaintiff did neither.
The plaintiff does not dispute that he failed to submit timely
expert reports -- indeed, there is no dispute that still to this
date no expert reports have been produced.

But the plaintiff

nevertheless seeks to characterize the experts he identified in
his witness list as “rebuttal experts” because, he claims, he

3

Again, the Court’s scheduling order provides:
Deadlines, cut-off dates, or other limits fixed herein
may only be extended by the Court upon timely motion
filed in compliance with the Local Rules and upon showing
of good cause....
6

technically identified his two experts one day after the defendants
filed their witness list in which they identified experts.

Even

if the plaintiff could persuade the Court that rebuttal experts
are permitted by the Court’s scheduling order, the plaintiff’s
characterization of his expert witnesses as “rebuttal” experts
betrays the burden of proof and this Court’s orderly scheme of
expert disclosure set forth in the scheduling order based on that
burden of proof.

The Court declines to sanction the plaintiff’s

attempt to upset this Court’s scheduling order by allowing Ralph
Litloff,

Jr.

witnesses.”

and

Dr.

Aaron

Wolfson

to

testify

as

“rebuttal

To permit the plaintiff’s listed experts to testify

as rebuttal experts when neither expert has produced any report
(let

alone

a

timely

report)

that

has

been

disclosed

to

the

defendants would prejudice the defendants with more discovery,
subvert the orderly scheme of expert disclosure, and disturb the
trial

schedule

to

accommodate

the

plaintiff’s

tardiness

and

failure to comply with the scheduling order. The Court underscores
that the plaintiff has not produced any expert reports and has
never requested additional time within which to produce reports by
the experts he has listed on his witness list.

7

Accordingly, the defendants’ motion to strike the plaintiff’s
expert witnesses for failure to comply with the scheduling order
is hereby GRANTED.
New Orleans, Louisiana, January __, 2019

_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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