Comeaux v. United States of America

Filing 26

ORDER AND REASONS: DENYING 16 Motion to Strike/Limit Testimony of Dr. Lurie to Medical Records as set forth in document. Signed by Judge Mary Ann Vial Lemmon on 1/6/2021. (ajn)

Case 2:19-cv-12801-MVL-DMD Document 26 Filed 01/06/21 Page 1 of 4

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KEVIN R. COMEAUX

CIVIL ACTION

VERSUS

NO: 19-12801

UNITED STATES OF AMERICA

SECTION: "S" (3)

ORDER AND REASONS
IT IS HEREBY ORDERED that the Motion to Strike/Limit Testimony of Dr. Lurie
to Medical Records (Rec. Doc. 16) filed by defendant, the United States of America, is
DENIED.
BACKGROUND
In this motor vehicle accident case, the Government has moved to strike the testimony of
plaintiff's witness, Dr. Lurie, arguing that plaintiff failed to provide a summary of Dr. Lurie’s
testimony as required by Fed. R. Civ. Proc. 26(a)(2)(C). In particular, the Government seeks to
exclude an affidavit produced by Dr. Lurie during his December 22, 2020 deposition that the
Government alleges includes his opinion on medical causation.
DISCUSSION
Under Federal Rule of Civil Procedure 26(a)(2)(B), if a witness is “retained or specially
employed to provide expert testimony in the case,” the witness must prepare and sign a written
expert report that includes a “complete statement of all opinions the witness will express and the
basis and reasons for them.” Non-retained experts, such as treating physicians, do not need to
prepare an expert report. FED. R. CIV. P. 26(a)(2)(C)(i-ii). Rather, “[a] treating physician may

Case 2:19-cv-12801-MVL-DMD Document 26 Filed 01/06/21 Page 2 of 4

testify to his opinions about a plaintiff's injuries if his testimony is based on knowledge acquired
during the course of his treatment of the plaintiff,” without having to provide a report. Knorr v.
Dillard's Store Servs., Inc., 2005 WL 2060905, at *3 (E.D. La. Aug. 22, 2005).
However, parties must disclose the subject matter on which non-retained experts will
present evidence and “a summary of the facts and opinions to which [they are] expected to
testify.” FED. R. CIV. P. 26(a)(2)(C)(i-ii). Most of the disclosures must be made “at least 90 days
before the date set for trial or for the case to be ready for trial.” FED. R. CIV. P. 26(a)(2)(D)(i).
However, “if the evidence is intended solely to contradict or rebut evidence on the same subject
matter identified by another party under Rule 26(a)(2)(B) or (C)” then the disclosures must be
made “within 30 days after the other party's disclosure.” FED. R. CIV. P. 26(a)(2)(D)(ii).
In this case, the non-jury trial is set for March 8, 2021, making December 8, 2020 the
deadline for providing disclosures of testifying, non-retained expert witnesses. It is not disputed
that disclosure of Dr. Lurie's causation opinion testimony did not occur until his December 22,
2020 deposition.
“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 harmless.” FED. R. CIV.
PROC. 37(c)(1). To determine whether a violation of Rule 26 is harmless under Rule 37(c), the
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. Tex. A & M Research Found. v.
2

Case 2:19-cv-12801-MVL-DMD Document 26 Filed 01/06/21 Page 3 of 4

Magna Transp., Inc., 338 F.3d 394, 402 (5th Cir. 2003).
In this case, in explanation for the failure to timely disclose, plaintiff's counsel states that
he did not believe that a full summary outside the scope of the medical records was necessary
since Dr. Lurie was both a non-retained expert witness and a lay witness who treated Comeaux
for shoulder pain. As for the testimony's importance, Dr. Lurie, plaintiff's treating physician, is
plaintiff's sole causation witness. Obviously, his testimony is critical to plaintiff's case.
Regarding prejudice to the Government, the nature of the testimony was disclosed to
defense counsel at the deposition of Dr. Lurie on December 22, 2020, two weeks after the
deadline for providing it. While such disclosure is untimely, defense counsel questioned Dr.
Lurie about medical causation in his deposition, and the Government has its own retained expert
that will address causation. In addition, to the extent Dr. Lurie's testimony is considered rebuttal
to the Government's expert's report, that report was provided to plaintiff on November 25,
2020—which means that Plaintiff had until December 25, 2020 to provide Dr. Lurie’s rebuttal
report. Thus, any prejudice to the Government is minimal, if it exists at all. There being no
substantial prejudice to the Government, a continuance is not required to cure it.
Accordingly, for all of the foregoing reasons,
IT IS HEREBY ORDERED that the Motion to Strike/Limit Testimony of Dr. Lurie

3

Case 2:19-cv-12801-MVL-DMD Document 26 Filed 01/06/21 Page 4 of 4

to Medical Records (Rec. Doc. 16) filed by defendant, the United States of America, is
DENIED.

6th
New Orleans, Louisiana, this _____ day of January, 2021.
____________________________________
MARY ANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE

4