Green v. Mercury Insurance Company, et al
Filing
55
ORDER AND REASONS granting 38 Motion in Limine to Exclude Life Care Plan; denying 44 Motion for Reconsideration re 42 Order and Reasons; granting 18 Motion in Limine to Partially Exclude Testimony of Dr. Eric Lonseth; granting 19 Motion in Limine to Exclude Dr. Lacy Sapp as an Expert Witness for the reasons stated herein. Signed by Judge Sarah S. Vance on 4/27/2021. (mm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHRISTINA H. GREEN
VERSUS
CIVIL ACTION
NO. 20-1430
MERCURY INSURANCE COMPANY,
ET AL.
SECTION “R” (2)
ORDER AND REASONS
Before the Court is plaintiff Christina Green’s motion to reconsider1 an
order2 denying her request for an extension of her expert report deadline,
and defendant James River Insurance Company’s three motions in limine to
exclude Dr. Lacy Sapp’s testimony, 3 exclude the “life care plan” produced by
Dr. Sapp, 4 and partially exclude the testimony of Dr. Eric Lonseth. 5 For the
following reasons, the Court denies plaintiff’s motion to reconsider, and
grants defendant’s motions in limine.
1
2
3
4
5
R. Doc. 44.
R. Doc. 42.
R. Doc. 19.
R. Doc. 38.
R. Doc. 18.
I.
BACKGROUND
This case arises from a car accident. According to Green’s complaint,
on September 4, 2019, plaintiff was operating her vehicle as a rideshare for
Rasier, LLC (“Uber”), when defendant Natalie Petty negligently caused an
accident by crashing into the passenger side of plaintiff’s vehicle.6 Plaintiff
alleges that she suffered injuries to her upper and lower extremities, and
severe pain in her cervical, thoracic, and lumbar spine. 7
James River removed to this Court on May 13, 2020.8 James River
allegedly provides uninsured/underinsured motorist and medical benefits
through Uber. 9 Plaintiff seeks to hold James River liable to the extent that
Petty’s liability insurance is inadequate to cover her damages. 10
On June 18, 2020, the Court issued a scheduling order setting a trial in
this matter for March 22, 2021. 11 Under the scheduling order, plaintiff’s
expert disclosures were due by December 11, 2020.12 Plaintiff disclosed that
she expected to call on three witnesses at trial: (1) Dr. Samer Shamieh, one
R. Doc. 1-1 at 1-2, ¶¶ 2-4, 7.
Id. at 2, ¶ 5.
8
R. Doc. 1. On plaintiff’s motion, the state court dismissed Petty and
her liability insurer, Mercury Insurance Company. R. Doc. 1-2 at 1. James
River is the only remaining defendant in this action. R. Doc. 1.
9
R. Doc. 1-1 at 2, ¶ 7.
10
Id.
11
R. Doc. 9 at 4.
12
Id. at 2.
2
6
7
of plaintiff’s treating physicians who performed a “Bilateral Endoscopic
Rhizotomy;” (2) Dr. Eric Lonseth, another treating physician who performed
three “Lumbar Epidural Steroid Injections” (“ESIs”), and a “Lumbar Medical
[sic] Branch Block;” and (3) Dr. Lacy Sapp, a “Life Care Planner.”13
In three motions, defendant moves (1) to exclude Dr. Sapp’s testimony,
contending that plaintiff did not timely produce an expert report as required
under Federal Rule of Civil Procedure 26(a)(2)(B); 14 (2) to exclude Dr. Sapp’s
report, a “life care plan” which plaintiff untimely produced on February 9,
2021; 15 and (3) to partially exclude the testimony of Dr. Lonseth—specific
statements made at his deposition—contending that the relevant portions of
his testimony are speculative and unreliable.16 Additionally, plaintiff moves
for reconsideration of the Court’s order denying her request for an extension
to the expert report deadline. 17 The Court considers the parties’ motions
below.
13
14
15
16
17
R. Doc. 18-2 at 1-2.
R. Doc. 19.
R. Doc. 38.
R. Doc. 18.
R. Doc. 44.
3
II.
DISCUSSION
A.
Plaintiff’s Motion to Reconsider
The day after defendant moved in limine to exclude Dr. Sapp’s
testimony based on plaintiff’s failure to include a written report as required
by Rule 26(a)(2)(B),18 plaintiff moved for an extension to the expert report
deadline.19 The Court denied that motion, finding that plaintiff had not
shown good cause for the requested modification to the scheduling order. 20
Now, plaintiff moves under Federal Rule of Civil Procedure 54(b) for
reconsideration of the Court’s order denying an extension to the expert
report deadline.21
Rule 54(b) provides that an order that adjudicates fewer than all the
claims among all the parties “may be revised at any time” before the entry of
a final judgment. As Rule 54 recognizes, a district court “possesses the
inherent procedural power to reconsider, rescind, or modify an interlocutory
order for cause seen by it to be sufficient.” Melancon v. Texaco, Inc., 659
F.2d 551, 553 (5th Cir. 1981). Under Rule 54(b), “the trial court is free to
reconsider and reverse its decision for any reason it deems sufficient, even in
18
19
20
21
R. Doc. 19.
R. Doc. 21.
R. Doc. 42.
R. Doc. 44.
4
the absence of new evidence or an intervening change in or clarification of
the substantive law.” Austin v. Kroger Tex., L.P., 864 F.3d 326, 336 (5th Cir.
2017).
Plaintiff asserts that reconsideration is appropriate for the same
reasons stated in her original motion for an extension to the expert report
deadline.22 Specifically, plaintiff argues that Dr. Sapp could not produce a
report by the December 11 deadline because she needed to first consult with
plaintiff’s treating physician, Dr. Shamieh. 23 Plaintiff contends that this
consultation could not occur until January 2021, three months after Dr.
Shamieh performed a medical procedure.24
But Dr. Shamieh’s deposition was held on September 30, 2020.25
Thus, although plaintiff knew by September that Dr. Sapp could not produce
her report by the deadline, plaintiff waited to move 26 for an extension until
January 27, 2021—after defendant had moved to exclude Dr. Sapp’s
testimony.27 For the same reasons stated in the Court’s previous order,28 the
See R. Doc. 44-1 at 3-4; R. Doc. 21 at 4-5.
R. Doc. 44-1 at 4.
24
Id.; see also R. Doc. 18-4 at 35-38 (Dr. Shamieh Deposition at 34:1935:8).
25
R. Doc. 18-4 at 1 (Dr. Shamieh Deposition).
26
R. Doc. 21.
27
R. Doc. 19.
28
R. Doc. 42.
5
22
23
Court finds that plaintiff has failed to show good cause for her failure to
timely move for an extension.
Additionally, in the motion to reconsider, plaintiff’s counsel, Jatavian
Williams, states that his failure to timely move for an extension was
“inadvertent[,]” and that the pandemic created uncertainty about whether
courts would extend trial dates and deadlines.29 To be sure, the COVID-19
pandemic has created uncertainty surrounding when courts in the Eastern
District of Louisiana will hold jury trials. But there has never been any doubt
that deadlines other than the trial date remain in effect. The Chief Judge of
the Eastern District of Louisiana has promulgated several general orders
suspending jury trials in light of the pandemic, but each general order states
that “[t]hose continuances do not continue any pending deadlines other
than the trial dates.” E.g., Eastern District of Louisiana, General Order 202 at 1 (emphasis added). The general orders instruct that “[a]ttorneys should
contact the presiding judges in their continued cases if they seek to modify
such other deadlines.” Id. Nevertheless, plaintiff did not timely contact the
Court, and has not established good cause for her failure to do so.
Additionally, trial in this matter, originally scheduled for March 22, 2021,
was not continued by general order until January 14, 2021—over a month
29
R. Doc. 44-1 at 5-7.
6
after plaintiff’s expert report deadline expired.
See Eastern District of
Louisiana, General Order 21-1.
For these reasons, and for the reasons stated in the Court’s order
denying plaintiff’s request for an extension, the Court finds that plaintiff has
not shown good cause for an extension to the expert report deadline. The
Court denies plaintiff’s motion to reconsider.
B.
Dr. Lacy Sapp
In her expert disclosures, plaintiff states that she expects to call Dr.
Sapp, a retained expert, to “quantify [plaintiff’s future medical care needs]
within a Life Care Plan.”30 Defendant moves to exclude Dr. Sapp’s testimony,
contending that plaintiff failed to timely produce a report as required by
Federal Rule of Civil Procedure 26(a)(2)(B). 31 Defendant also moves to
exclude Dr. Sapp’s report, which plaintiff untimely produced on February 9,
2021. 32
1.
Disclosure Requirements
The Federal Rules of Civil Procedure impose disclosure requirements
on a party who intends to provide expert testimony. See Fed. R. Civ. P. 26.
Experts retained by a party must provide an expert report pursuant to Rule
30
31
32
R. Doc. 19-2 at 2, ¶ 3.
R. Doc. 19-1 at 1.
R. Doc. 38.
7
26(a)(2)(B). Expert reports for retained experts must include: (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; (iv) the
witness’s qualifications, including a list of all publications authored in the
previous 10 years; (v) a list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by deposition; and (vi) a
statement of the compensation to be paid for the study and testimony in the
case. Fed. R. Civ. P. 26(a)(2)(B).
The “presumptive sanction for failing to disclose a testifying expert or
supply a required expert report . . . is to exclude or limit the expert’s
testimony unless the failure was substantially justified or harmless.” HoneyLove v. United States, 664 F. App’x 358, 362 (5th Cir. 2016) (citing Fed. R.
Civ. P. 37(c)(1)). The Fifth Circuit has described four factors for courts to
evaluate whether to exclude testimony and expert reports that were not
properly disclosed: “(1) the importance of the excluded testimony, (2) the
explanation of the party for its failure to comply with the court’s order, (3)
the potential prejudice that would arise from allowing the testimony, and
(4) the availability of a continuance to cure such prejudice.” Harmon v.
Georgia Gulf Lake Charles L.L.C., 476 F. App'x 31, 36 (5th Cir. 2012) (citing
8
EEOC v. Gen. Dynamics Corp., 999 F.2d 113, 115 (5th Cir. 1993)). The Court
considers these factors below.
2.
Plaintiff’s Failure to Disclose Dr. Sapp’s Report
First, in her expert disclosures, plaintiff states that she will introduce
Dr. Sapp’s testimony to quantify the value of plaintiff’s future medical
needs.33
But plaintiff also discloses that she will rely on her treating
physician, Dr. Shamieh, for testimony on “the need for future treatment.” 34
Because plaintiff has listed a treating physician to testify to plaintiff’s future
medical needs, the Court finds that plaintiff has not shown that Dr. Sapp’s
testimony is so important as to outweigh the factors going in favor of
excluding Dr. Sapp’s testimony.
Second, plaintiff’s explanation is the same as she asserted in her
motions for an extension to pretrial deadlines and for reconsideration—that
Dr. Sapp could not produce a report until after consulting with Dr.
Shamieh.35 But, as plaintiff admits, she knew by September 30, 2020, from
Dr. Shamieh’s deposition, that the consultation would not take place until
January 2021. 36 Plaintiff provides no explanation for why she failed to move
33
34
35
36
R. Doc. 19-2 at 2, ¶ 3.
Id. at 1, ¶ 1.
R. Doc. 26 at 4.
Id.
9
for an extension until after defendant’s motion in limine to exclude Dr.
Sapp’s testimony. The Court finds that plaintiff’s explanation for failing to
adhere to the deadline is inadequate, and that this factor weighs in favor of
excluding Dr. Sapp’s testimony.
Third, if the Court granted the extension, defendant would suffer
prejudice in the form of additional litigation costs, discovery expenses, and
expert witness fees. In particular, if the Court were to grant the extension
plaintiff requests, defendant would need to undertake additional depositions
and expert discovery. The Court finds that this factor weighs in favor of
excluding Dr. Sapp’s testimony.
Finally, although the trial has already been continued by General Order
21-1, the continuance does not cure the prejudice discussed above.
Accordingly, the Court finds that this factor also weighs in favor of excluding
Dr. Sapp’s testimony.
Having found that the balance of the relevant
considerations weighs in favor of excluding Dr. Sapp’s testimony and life care
plan, the Court grants defendant’s motions in limine.
B.
Dr. Eric Lonseth
Defendant also moves in limine to partially exclude the testimony of
Dr. Lonseth, one of plaintiff’s treating physicians.37 In particular, defendant
37
R. Doc. 18.
10
moves the Court to limit Dr. Lonseth from testifying at trial that plaintiff will
need repeated “radio frequency ablations” (“RFAs”) every nine months for
five to seven years. 38 At his deposition, Dr. Lonseth stated that a need for
such repeated procedures was a “possibility.”39 Defendant argues that these
statements are unreliable, and accordingly moves to exclude them.
1.
Admissibility of Expert Testimony
The district court has considerable discretion to admit or exclude
expert testimony under Federal Rule of Evidence 702. See Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 138-39 (1997); Seatrax, Inc. v. Sonbeck Int’l, Inc., 200
F.3d 358, 371 (5th Cir. 2000). Rule 702, which governs the admissibility of
expert witness testimony, provides that an expert witness “qualified . . . by
knowledge, skill, experience, training, or education may testify” if:
(a)
(b)
the testimony is the product of reliable principles and
methods; and
(d)
39
the testimony is based on sufficient facts or data;
(c)
38
the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or determine a fact in issue;
the expert has reliably applied the principles and methods
to the facts of the case.
R. Doc. 18-1 at 1.
R. Doc. 18-3 at 35-36 (Dr. Lonseth Deposition at 35:24-36:23).
11
Fed. R. Evid. 702.
In Daubert, the Supreme Court held that Rule 702 “requires the
district court to act as a gatekeeper to ensure that ‘any and all scientific
testimony or evidence admitted is not only relevant, but reliable.’” Metrejean
v. REC Marine Logistics, LLC., No. 08-5049, 2009 WL 3062622, at *1 (E.D.
La. Sept. 21, 2009) (quoting Daubert, 509 U.S. at 589). This gatekeeping
function applies to all forms of expert testimony. See Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147 (1999).
The Court’s gatekeeping function consists of a two-part inquiry into
reliability and relevance. First, the Court must determine whether the
proffered expert testimony is reliable. The party offering the testimony bears
the burden of establishing its reliability by a preponderance of the evidence.
See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998). The
reliability inquiry requires the Court to assess whether the expert’s reasoning
and methodology underlying the testimony are valid. See Daubert, 509 U.S.
at 593. The aim is to exclude expert testimony based merely on subjective
belief or unsupported speculation. See id. at 590. Second, the Court must
determine whether the expert’s reasoning or methodology “fits” the facts of
the case and whether it will thereby assist the trier of fact to understand the
evidence; in other words, whether it is relevant.
12
See id. at 591.
“[F]undamentally unsupported” opinions “offer[] no expert assistance to the
[trier of fact]” and should be excluded. Guile v. United States, 422 F.3d 221,
227 (5th Cir. 2005).
The Court’s role as a gatekeeper does not replace the traditional
adversary system. As the Supreme Court noted in Daubert, “[v]igorous
cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596 (citing
Rock v. Arkansas, 483 U.S. 44, 61 (1987)). “As a general rule, questions
relating to the bases and sources of an expert’s opinion affect the weight,”
rather than the admissibility, of that opinion. United States v. Hodge, 933
F.3d 468, 478 (5th Cir. 2019) (quoting United States v. 14.38 Acres of Land,
More or Less Sit. In Leflore Cty., Miss., 80 F.3d 1074, 1077 (5th Cir. 1996)).
2.
Dr. Lonseth’s Testimony
At his deposition, Dr. Lonseth, an interventional pain management
doctor, 40 testified that he performed four procedures on plaintiff: three
lumbar epidural steroid injections (“ESIs”),41 and one lumbar medial branch
R. Doc. 18-2 at 38-40 (Dr. Lonseth CV).
R. Doc. 18-3 at 17, 20, 23 (Dr. Lonseth Deposition at 17:2-8, 20:6-18,
23:4-6)).
13
40
41
block.42 During his deposition, held on September 3, 2020, Dr. Lonseth
testified about those procedures, and about plaintiff’s future treatment plan.
Dr. Lonseth stated that plaintiff was unlikely to enjoy total pain relief from
the procedures performed to that date, and that she would need a
“rhizotomy” or RFA. 43
Dr. Lonseth stated that plaintiff would “definitely need” an initial RFA
or rhizotomy, and “more likely than not” she would need a second treatment
nine months after the first.44 Further, he noted that it was a “possibility” that
he would continue recommending these treatments into the future, and that
many of his patients undergo repeated procedures every nine months for five
to seven years.45 But he expressly declined to testify that it would be “more
probable than not” that plaintiff would need such ongoing treatment. 46
Defendant seeks to exclude the statements regarding the potential
need for RFAs or rhizotomies over a five- to seven-year period, arguing that
Dr. Lonseth’s testimony regarding plaintiff’s future medical needs is
unreliable, as it is based on unsupported speculation. Numerous district
Id. at 44 (Dr. Lonseth Deposition at 44:5-8).
At the deposition, Dr. Lonseth used the term “rhizotomy”
interchangeably with “RFA.” Id. at 35-36 (Dr. Lonseth Deposition at 35:936:23).
44
Id. (Dr. Lonseth Deposition at 35:24-36:23).
45
Id.
46
Id. at 37-38 (Dr. Lonseth Deposition at 37:21-38:3).
14
42
43
courts in the Fifth Circuit have excluded testimony relating to future medical
needs when “the evidence establishes [that] it is only treatment the plaintiff
might need, rather than treatment the plaintiff will probably need.”
Brandner v. State Farm Mut. Auto. Ins. Co., No. CV 18-982, 2019 WL
636423, at *3 (E.D. La. Feb. 14, 2019); see also Raborn v. Con-Way
Truckload, Inc., No. CV 15-2969, 2016 WL 11687944, at *3 (E.D. La. Dec. 1,
2016); Anders v. Hercules Offshore Servs., LLC, 311 F.R.D. 161, 165 (E.D. La.
2015).
Dr. Lonseth’s testimony regarding the need for RFAs over a period of
five to seven years is, by its own terms, speculative. Dr. Lonseth stated that
it was merely a “possibility” that she would need such treatment, and was
unwilling to say whether it would be “more likely than not.” 47 Because the
testimony is speculative, the Court finds that Dr. Lonseth’s testimony as to
the need for RFAs or rhizotomies over a five- to seven-year period is
unreliable. See Booker v. Moore, No. 08-309, 2010 WL 2426013, at *5 (S.D.
Miss. June 10, 2010) (finding that expert testimony as to surgery a plaintiff
“might need” was “too speculative and not reliable” because the expert could
not “opine to a reasonable degree of medical certainty whether the plaintiff
will need surgery in the future”). Accordingly, the Court grants defendant’s
47
Id. at 35-38 (Dr. Lonseth Deposition at 35:24-36:23; 37:21-38:3).
15
motion in limine. The Court limits Dr. Lonseth from testifying that plaintiff
may need RFAs or rhizotomies every nine months for five to seven years.
II.
CONCLUSION
For the foregoing reasons, the Court DENIES plaintiff’s motion for
reconsideration.
The Court GRANTS defendant’s motions in limine to
exclude the testimony of Dr. Sapp and her life care plan. The Court also
GRANTS defendant’s motion in limine to partially exclude Dr. Lonseth’s
testimony.
27th
New Orleans, Louisiana, this _____ day of April, 2021.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
16
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