Louisiana Corral Management, LLC v. Axis Surplus Insurance Company

Filing 61

ORDER & REASONS granting 37 Motion in Limine for the reasons stated herein. Signed by Judge Lance M Africk on 1/19/2023. (mm)

Case 2:22-cv-02398-LMA-DPC Document 61 Filed 01/19/23 Page 1 of 6

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LOUISIANA CORRAL MANAGEMENT, LLC

CIVIL ACTION

VERSUS

No. 22-2398

AXIS SURPLUS INSURANCE COMPANY

SECTION I

ORDER & REASONS
Before the Court is a motion in limine 1 by defendant Axis Surplus Insurance
Company (“Axis”) to exclude expert testimony by Stuart Wood (“Wood”), David
Conklin (“Conklin”), Gary Custer (“Custer”), and Danielle Parks (“Parks”). The
motion was noticed for submission on January 11, 2023. To date, plaintiff Louisiana
Corral Management, LLC (“LCM”) has not filed an opposition. For the reasons below,
the Court grants the motion.
I.

FACTUAL BACKGROUND

This is an insurance dispute. Axis insured LCM’s Golden Corral restaurant,
which was damaged during Hurricane Ida. 2 LCM alleges that Axis has underpaid for
that damage. 3
LCM’s witness and exhibit list identified Wood, Conklin, Custer, and Parks as

R. Doc. No. 37.
R. Doc. No. 1.
3 Id.
1
2

Case 2:22-cv-02398-LMA-DPC Document 61 Filed 01/19/23 Page 2 of 6

witnesses. 4 Of these four, only Wood was explicitly listed as an expert. 5 Wood
apparently had no personal involvement with the events giving rise to the instant
action. The remaining three were personally involved in the mitigation of damage at
LCM’s property. 6
LCM previously filed a motion for extension of the deadline to provide expert
reports and disclosures. 7 Axis opposed the motion. 8 The Court denied the motion,
finding that LCM had failed to establish good cause for the proposed extension. 9
According to Axis, LCM was required to provide expert reports and disclosures for
the above-referenced witnesses, but it has failed to do so, and their testimony should
therefore be excluded.
II.

STANDARD OF LAW

“[W]here testimony consists of opinions based on scientific, technical, or other
specialized knowledge[,] regardless of whether those opinions were formed during the
scope of interaction with a party prior to litigation, the testimony is [ ] that of an

R. Doc. No. 30
Id. at ¶ 6 (describing Wood as “an expert economist that will [be] utilized to assist
in calculating the additional business los[s]es that were incurred as a result of Axis’
failure to pay this claim timely.”).
6 Id. at ¶ 2 (stating that Conklin “is a representative of Coastal Equipment who
participated in furnishing replacement equipment for the Golden Corral after
Hurricane Ida”), ¶ 3 (describing Parks as “the owner of Cat 5 Pro that completed
water mitigation, pack out, and contents related work at the Golden Corral location
after Hurricane Ida”), ¶ 5 (describing Custer as “the representative of the White Tree
Group who served as the contractor performing rebuilding services at the Golden
Corral location at issue in the lawsuit”).
7 R. Doc. No. 26.
8 R. Doc. No. 32.
9 R. Doc. No. 35.
4
5

2

Case 2:22-cv-02398-LMA-DPC Document 61 Filed 01/19/23 Page 3 of 6

expert.” Hooks v. Nationwide Housing Sys., LLC, No. 15-729, 2016 WL 3667134, at
*3 (E.D. La. July 11, 2016) (Barbier, J.) (citation and quotation omitted).
If a witness is “retained or specially employed to provide expert testimony,” the
witness must provide a written report containing, among other things, their
qualifications, the opinions they plan to offer in the matter, and the bases therefore.
Fed. R. Civ. P. 26(a)(2)(B). Expert witnesses who are not required to provide a written
report must still disclose the subject matter of their testimony and a summary of the
facts and opinions they plan to offer. Id. 26(a)(2)(C).
Litigants must disclose the identities of expert witnesses and the subject
matter of their testimony “at the times and in the sequence that the court orders.” Id.
26(a)(2)(D). “If a party fails to provide information or identify a witness as required
by Rule 26(a). . . 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.” Fed. R. Civ. P. 37(c)(1). “Rule 37(c)(1) implicitly places the
burden on the party facing sanctions to prove harmlessness or substantial
justification.” Allied Shipyard, Inc. v. Chubb Eur. Grp., SE, No. 20-640, 2022 WL
1228800, at *2 (E.D. La. Feb. 7, 2022) (Ashe, J.).
“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.’”
Ambrose v. State Farm Mut. Auto. Ins. Co., No. 20-1011, 2021 WL 2284299, at *3

3

Case 2:22-cv-02398-LMA-DPC Document 61 Filed 01/19/23 Page 4 of 6

(E.D. La. June 4, 2021) (Morgan, J.) (citing Tex. A&M Rsch. Found. v. Magna Transp.,
Inc., 338 F.3d 394, 402 (5th Cir. 2003)). “District courts have considerable discretion
to exclude untimely disclosed expert witness testimony as a sanction.” Havard v.
Offshore Specialty Fabricators, LLC, No. 14-824, 2019 WL 8643740, at *2 (E.D. La.
May 8, 2019) (Feldman, J.) (citing Bradley v. United States, 866 F.2d 120, 124 & n.7
(5th Cir. 1989)).
III.

ANALYSIS

Axis argues that the testimony of Wood, Conklin, Custer, and Parks should be
excluded because LCM did not provide expert reports by the relevant deadline. Axis
argues that such reports were required because “these individuals . . . will provide
testimony outside the common understanding of the jury.” 10 In support of this
proposition, it cites a litany of cases holding that expert testimony is generally
required to prove medical causation. 11 To the Court’s knowledge, there is no issue of
medical causation in this matter, so the relevance of these cases is unclear. Axis
makes no further argument as to why expert reports were required for the abovereferenced witnesses.
Because LCM has not filed any response to Axis’ motion, the Court looks to
LCM’s witness and exhibit list, as well as the attachments to Axis’ motion, to evaluate
whether expert reports were required for these witnesses.

10
11

R. Doc. No. 37-1, at 5.
Id.
4

Case 2:22-cv-02398-LMA-DPC Document 61 Filed 01/19/23 Page 5 of 6

As noted above, Wood is explicitly designated as an expert witness, and is to
testify regarding “additional business losses” allegedly incurred due to Axis’ failure
to pay LCM’s claim. Because Wood is so designated, the Court agrees that he was
required to provide an expert report in accord with Rule 26. LCM has provided no
such report, though the deadline to do so has passed. 12 As the proponent of his
testimony, LCM bears the burden of showing that the failure to timely provide an
expert report was harmless or substantially justified. Allied Shipyard, 2022 WL
1228800, at *2. As LCM has filed no response to the instant motion, the Court finds
that it has not carried that burden. Therefore, pursuant to Rule 37(c)(1), Wood’s
expert testimony will be excluded.
As to Conklin, Custer, and Parks, the stated subject matter of their testimony
may or may not be within the province of an expert. Hooks, 2016 WL 3667134, at *3.
The lack of both proper expert reports and an opposition to the motion in limine
makes it difficult to ascertain the precise subject matter of their proposed testimony.
However, if they are offered as experts, the documents that have been submitted to
support their testimony are insufficient to satisfy the expert report and disclosure
requirements of Rule 26. 13 And, as the deadline for plaintiff’s expert reports and

R. Doc. No. 13, at 2 (setting deadline for plaintiff’s expert reports and disclosures
on November 2, 2022).
13 R. Doc. Nos. 37-2 (Coastal Equipment purchase and sale agreement), 37-3 (CAT5
Pro estimate), 37-3 (White Tree Group proposal estimate). None of these documents
contain statements of the subject matter the witnesses are to testify to, the factual
bases of those opinions, or the witness’ qualifications. Fed. R. Civ. P. 26(a)(2)(B)-(C).
12

5

Case 2:22-cv-02398-LMA-DPC Document 61 Filed 01/19/23 Page 6 of 6

disclosures has passed, any expert testimony by these witnesses will be excluded
pursuant to Rule 37(c)(1).
Accordingly,
IT IS ORDERED that Axis’ motion in limine is GRANTED. Wood, Conklin,
Custer, and Parks will not be allowed to testify as experts at trial.
New Orleans, Louisiana, January 19, 2023.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

6