Deal v. State of Louisiana

Filing 73

RULING: The Motion in Limine to Exclude Testimony and Original and Supplemental Reports of Plaintiffs Expert Dan Cliffe (R.Doc. 67) filed by the Defendant State of Louisiana, through Department of Justice, Office of Attorney General is DENIED; and FURTHER ORDERED that the Defendant shall have until one (1) week before trial, or until November 10, 2014, to re-take the deposition of Plaintiffs expert Dan Cliffe. Signed by Judge John W. deGravelles on 10/21/2014. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CIVIL ACTION NO. 11-743

PAUL DEAL

JUDGE JOHN W. deGRAVELLES
v.
MAG. JUDGE RICHARD L.
BOURGEOIS, JR.

STATE OF LOUISIANA, THROUGH
DEPARTMENT OF JUSTICE, OFFICE
OF ATTORNEY GENERAL

JURY TRIAL

RULING AND ORDER ON MOTION IN LIMINE
This matter came before the Court on the Motion in Limine to Exclude Testimony and
Original and Supplemental Reports of Plaintiff’s Expert Dan Cliffe (R.Doc. 67) (“Motion in
Limine”) filed by the Defendant State of Louisiana, through Department of Justice, Office of
Attorney General (“Defendant”). Oral argument is not necessary.
For the reasons stated below, the Motion in Limine is denied. However, the Court will
give the Defendant until one (1) week before trial, or until November 10, 2014, to re-depose
Plaintiff’s expert Dan Cliffe.
A.

The Parties’ Positions
Defendant argues that the supplemental expert report of Plaintiff’s expert Dan Cliffe was

untimely. Further, Defendant argues that the supplemental and original report of Plaintiff’s
expert should be excluded under Daubert (1) because they are based on erroneous facts
regarding plaintiff’s entitlement to retirement benefits; (2) because they employ flawed
methodology regarding work life expectancy; and (3) because they are based on incorrect
presumptions regarding annual increases in calculation of future lost wages.
Plaintiff opposes the motion. Plaintiff explains that his expert prepared his supplemental
report more than a year before the current trial date after it became apparent during the expert’s
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deposition that there was an error concerning Plaintiff’s retirement benefits. Moreover, the
corrected supplemental report does not substantially alter the expert opinion set forth in the
original report. Plaintiff further argues that his attorney consented to allowing the expert to be
re-deposed, but Defendant did not request to do so. Finally, Plaintiff claims that the defendant is
objecting to the evidence analyzed but not the methodology.
B.

Reliability of the Reports
“Trial courts have ‘wide discretion’ in deciding whether or not a particular witness

qualifies as an expert under the Federal Rules of Evidence.”

As explained in Scordill v.

Louisville Ladder Group, L.L.C., No. 02-2565, 2003 WL 22427981, at *3 (E.D.La. Oct. 24,
2003) (Vance, J.):
The Court notes that its role as a gatekeeper does not replace the traditional
adversary system and the place of the jury within the system. See Daubert, 509
U.S. at 596 [113 S.Ct. 2786]. As the Daubert Court noted, “[v]igorous crossexamination, presentation of contrary evidence, and careful instruction on the
burden of proof are the traditional and appropriate means of attacking shaky but
admissible evidence.” Id. (citing Rock v. Arkansas, 483 U.S. 44, 61, 107 S.Ct.
2704, 97 L.Ed.2d 37 (1987)). The Fifth Circuit has added that, in determining the
admissibility of expert testimony, a district court must defer to “‘the jury's role as
the proper arbiter of disputes between conflicting opinions. As a general rule,
questions relating to the bases and sources of an expert's opinion affect the
weight to be assigned that opinion rather than its admissibility and should be
left for the jury's consideration.’ ” United States v. 14.38 Acres of Land, More
or Less Sit. in Leflore County, Miss., 80 F.3d 1074, 1077 (5th Cir.1996) (quoting
Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir.1987))(emphasis
added).
“Notwithstanding Daubert, the Court remains cognizant that ‘the rejection of expert testimony is
the exception and not the rule.’” Johnson v. Samsung Electronics America, Inc., 277 F.R.D. 161,
165 (E.D.La. 2011) (citing Fed.R.Evid. 702 Advisory Committee Notes to 2000 Amendments).
For the above reasons, and for the reasons stated in Plaintiff’s Memorandum in
Opposition to Motion in Limine (R.Doc. 69), the Court believes that the issues raised by the

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Defendant go toward the weight that should be given to Plaintiff’s expert testimony rather than
the admissibility of same. Accordingly, the Court will deny the Defendant’s Motion in Limine
on this ground.
C.

Untimeliness of the Supplemental Report
The district court has “exceedingly wide” discretion in making scheduling decisions such

as those involving the exclusion of an expert report. See Versai Mgmt. Corp. v. Clarendon
America Ins. Co., 597 F.3d 729, 740-741 (5th Cir. 2010) (finding no abuse of discretion in a trial
court’s denial of a motion to extend the deadline to produce expert witness reports). When
reviewing whether trial courts have abused their discretion in excluding expert testimony for
untimeliness, appellate courts have considered the following factors: (1) the explanation for the
failure to submit the expert report; (2) the importance of the report; (3) potential prejudice in
allowing the report; and (4) the availability of a continuance to cure such prejudice. Id. (citing
Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990).
Considering these factors, the Court will not exclude the supplemental expert report.
Plaintiff has submitted a valid reason for the failure to submit the expert report timely –
specifically, that the expert had been under an incorrect belief that the Plaintiff was enrolled in
an annuity retirement plan when the Plaintiff was in fact not.
Further, there was little potential prejudice to the Defendant. Defendant received the
supplemental expert report in November 2013 (R.Doc. 71-1, p. 6). Counsel for Plaintiff advised
counsel for Defendant on November 26, 2013, that she would make the expert available for a
second deposition (R.Doc. 69-1, p. 10). At that time, bench books were not due until March 24,
2014, (R.Doc. 59), and trial was scheduled for April 14, 2014 (R.Doc. 58). The case was later
rescheduled for a November 17, 2014 trial date. (R.Doc. 65). The Defendant had plenty of time

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to re-depose in the roughly one year between when the supplemental expert report was original
received and the new trial date.
Further, while the Court will not grant a continuance, the Court can cure any potential
prejudice by allowing the Defendant additional time to take the expert’s deposition. Thus,
Defendant will have until one (1) week before trial, or until November 10, 2014, to take the
deposition of Dan Cliffe.
C.

Conclusion
Accordingly,
IT IS ORDERED that the Motion in Limine to Exclude Testimony and Original and

Supplemental Reports of Plaintiff’s Expert Dan Cliffe (R.Doc. 67) filed by the Defendant State
of Louisiana, through Department of Justice, Office of Attorney General is DENIED; and
IT IS FURTHER ORDERED that the Defendant shall have until one (1) week before
trial, or until November 10, 2014, to re-take the deposition of Plaintiff’s expert Dan Cliffe.
Signed in Baton Rouge, Louisiana, on October 21, 2014.

S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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