Collins v. Nova Casualty Company

Filing 14

ORDER granting 13 Motion to Strike Witnesses. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 3/20/2014. (SMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

RAVEN COLLINS

CIVIL ACTION

VERSUS

NO. 13-351-BAJ-RLB

NOVA CASUALTY COMPANY

ORDER
Before the Court is defendant Nova Casualty Company’s (Nova) Motion to Strike
Witnesses, filed on February 20, 2014. (R. Doc. 13). Nova requests the Court to issue an order
striking certain expert witnesses listed by plaintiff in her witness list but for whom no expert
reports were timely provided. Any opposition to this motion was required to be filed within 21
days after service of the motion. L.R. 7.4. Plaintiff has not filed an opposition as of the date of
this Order. The motion is therefore unopposed.
This case was originally filed in state court based on an automobile accident resulting in
certain injuries to the plaintiff. (R. Doc. 1-3 at 4). On June 3, 2013, the case was removed to
federal court. (R. Doc. 1). The scheduling order in this case was entered on August 30, 2013.
(R. Doc. 7). The discovery deadlines at issue were those recommended by the parties (R. Doc.
6). Plaintiff’s deadline to disclose the identities and resumes of experts was January 2, 2014.
Plaintiff’s deadline to submit expert reports to the defense was February 3, 2014. Discovery
from experts must be completed by April 1, 2014.

In the motion, defendant represents that certain individuals were identified in plaintiff’s
witness list as potential experts. 1 However, no resumes or reports from these individuals have
been provided in accordance with the deadlines in the scheduling order. As a sanction,
defendant urges the court to prohibit those individuals from testifying at trial and prohibiting
plaintiff from introducing any evidence of reports or opinions of those experts at trial.
Taking the unchallenged representations of defendant as true, it is unclear whether
plaintiff even intends to present the witnesses or evidence at issue. 2 To the extent that plaintiff
does so intend to offer these individuals as experts, the Court finds that plaintiff has violated the
scheduling order deadlines. Plaintiff has failed to identify these individuals as expert witnesses
and provide their resumes and qualifications. Plaintiff has likewise failed to provide any expert
reports for these individuals.
Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure requires that expert reports must
contain the following: (1) “a complete statement of all opinions the witness will express and the
basis and reasons for them”; (2) “the facts or data considered by the witness in forming them”;
(3) “any exhibits that will be used to summarize or support them”; (4) “the witness’s
qualifications, including a list of all publications authored in the previous 10 years”; (5) a list of
cases in which the expert testified during the previous four years; and (6) a statement of the
compensation received by the expert for his study and testimony. Fed. R. Civ. P. 26(a)(2)(B).
By failing to identify expert witnesses, provide resumes, or provide reports in accordance
with Rule 26, plaintiff has failed to comply with her obligations.

1

These potential experts are identified as “Bobby Roberts (presumably an expert in vocational rehabilitation) and
Randy Rice (presumably an expert economist).” (R. Doc. 13-1).
2
In the status report, plaintiff indicated an intention to “offer medical expert testimony regarding injuries sustained
in the subject accident. At this time, no other experts have been retained.” (R. Doc. 6 at 3).

2

Having concluded that plaintiff has violated the scheduling order (if plaintiff still intends
to offer these witnesses), the court must now determine whether the requested sanction of
excluding any such expert testimony is proper. In making this decision, the court has considered
(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. See Harmon v.
Georgia Gulf Lake Charles L.L.C., 476 Fed. App’x 31, 36 (5th Cir. 2012).
With respect to the first and second factors, the plaintiff’s failure to file any opposition or
response supports the requested sanction. Defendant speculates that Mr. Roberts is an expert in
vocational rehabilitation and Mr. Rice is an expert economist. These subject matters could be
relevant to certain claims for damages, such as lost wages and earning capacity. Neither party
has indicated that these are the only witnesses or evidence that would go to those categories of
damages or even that plaintiff still intends to offer these witnesses at trial. Assuming that
plaintiff has even retained these individuals for the purpose of providing expert testimony, there
is nothing to indicate that either would provide the testimony as to the medical expert testimony
represented in the status report. Expert testimony as to that topic is not the subject of the motion.
The third factor also weighs in favor of the requested sanction. The purpose of these
deadlines is to provide the required notice to the opposing party so that they may determine
whether to similarly retain experts to rebut or contradict plaintiff’s experts. Defendant’s
reciprocal deadlines to disclose identities and resumes of experts, and to provide expert reports,
were set one month following plaintiff’s respective deadlines. In addition, as of the date of this
order, only 12 days remain to conduct expert discovery. To allow plaintiff to utilize such
experts, without the timely disclosures required under the scheduling order, would deprive

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defendant of both the opportunity to retain its own experts as well as to obtain any discovery
from plaintiff’s experts. The prejudice would be significant.
The fourth factor leads to the same conclusion. The remaining pretrial and trial deadlines
have been put in place based on the parties suggested deadlines. Dispositive and Daubert
motions are due in less than a month. Any continuance afforded to plaintiff to comply with the
disclosure requirements would necessarily entail a similar continuance of all of defendant’s
reciprocal deadlines. The extent of the required continuance would upset all of the remaining
pretrial and trial deadlines. The court has an interest in maintaining the deadlines on its docket.
While those deadlines can be modified upon a showing of good cause, no such showing has been
offered and no request for a continuance has been made. Therefore,
IT IS ORDERED that defendant’s Motion to Strike Witnesses (R. Doc. 13) is
GRANTED, such that the potential expert witnesses, Mr. Bobby Roberts and Mr. Randy Rice,
are excluded from offering any expert testimony at trial and any reports or opinions rendered by
these individuals in their capacity as experts is also excluded.
Signed in Baton Rouge, Louisiana, on March 20, 2014.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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