George v. Fresenius Medical Care North America et al

Filing 49

ORDER: BMAs Motion to Exclude Expert Testimony 30 isGRANTED IN PART and DENIED IN PART. Plaintiffs Motion for Extension 39 is GRANTED IN PART and DENIED IN PART. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 08/01/2016. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TAMMY GEORGE
CIVIL ACTION
VERSUS
NO. 15-14-RLB
FRESENIUS MEDICAL CARE
NORTH AMERICA ET AL.

CONSENT CASE
ORDER

Before the court is Bio-Medical Applications of Louisiana, LLC’s (“BMA”) Motion to
Exclude Expert Testimony. (R. Doc. 30). Plaintiff filed an Opposition (R. Doc. 41). BMA filed
a Reply. (R. Doc. 47).
Also before the Court is Plaintiff’s “Motion for Leave to File a Motion to More
Particularly Identify Expert Witnesses and Accompanying Reports” pursuant to Rule 26(a)(2)(B)
and/or Rule 26(a)(2)(C). (R. Doc. 39). BMA filed an Opposition. (R. Doc. 44).
I.

Background
On or about November 21, 2014, (“Plaintiff”) filed this proceeding in Louisiana state

court alleging that she was discriminated against by her employer Biomedical Applications of
Louisiana, LLC (“BMA”)1 and her supervisor Sheryl Wilcutt in violation of the Americans with
Disability Act, 42 U.S.C. § 12101, et seq., and Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq. (R. Doc. 1-1). Plaintiff alleges that was subjected to a hostile work
environment based on her race (African-American) and her disabilities (breast cancer and
lymphedema). BMA removed the action on January 12, 2015. (R. Doc. 1).

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BMA alleges in the Notice of Removal that the plaintiff incorrectly identified it in the Petition as
Fresenius Medical Care North America.

On May 7, 2015, the Court held a telephone scheduling conference with the parties. (R.
Doc. 10). The Court set, among other things, the deadline for Plaintiff to identify experts on
October 16, 2015; the deadline for Plaintiff to submit expert reports on November 6, 2015; the
deadline to complete expert discovery on February 29, 2016; and the deadline to file dispositive
and Daubert motions on March 31, 2016. The trial is scheduled to commence on October 3,
2016. (R. Doc. 10 at 2-3).
On May 18, 2015, the parties consented to proceed before the undersigned for all
purposes of the action, including trial. (R. Doc. 11). Trial remains set to commence on October
3, 2016. (R. Doc. 17).
On July 9, 2015, Plaintiff provided her initial disclosures which identified, among other
potential witnesses, “Medical Personnel including Physicians who treated Ms. George and are
aware of her physical and emotional [condition] due to the facts and circumstances, as well as
disability issues.” (R. Doc. 30-2).
On October 5, 2015, Plaintiff supplemented her response to an interrogatory requesting
identification of individuals expected to testify at trial, and identified the following five medical
professionals and their addresses:






Dr. Derrick Spell: Physician: Diagnosis for Lymphedema Cancer;
Betty Blackmon: LP NPC at RKM: mental records;
Susan Herrod: Mental Health Staff at RKM: mental records;
Christie Denicola: Mental Health Staff at RKM: mental records; and
Dr. Kelly Ray: Mental Health Staff at RKM: mental records.

(R. Doc. 30-5 at 5-6).
On October 24, 2015, Plaintiff further supplemented her response to the interrogatory,
and identified the following three medical professionals and their addresses:


Dr. Venu Kakarala: M.[D.] of Zachary Internal Medicine Clinic, LLC: “Pertinent
to all health issues regarding Tammy George.”
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


Betty Blackmon: “Diagnosis for anxiety and depression”
Dr. Derrick Spell: “Chemotherapy, Breast Cancer, & Lymphedema (4-5) pound
life limitations”

(R. Doc. 30-6 at 4).
On February 28, 2016, Plaintiff’s counsel contacted defense counsel stating that
her mother passed away on February 26, 2016, and requesting an informal extension of
the “expert witness deadlines.” (R. Doc. 30-7). Expert discovery closed the next day.
On March 31, 2016, the deadline to file dispositive motions and Daubert motions, the
parties filed motions for summary judgment. (R. Doc. 29; R. Doc. 31). Those motions remain
pending. BMA also filed its Motion to Exclude Expert Testimony (R. Doc. 30), representing
that at the time the motion was filed Plaintiff had not properly disclosed experts or provided any
expert reports. In the alternative to an order excluding any expert testimony offered by Plaintiff,
BMA suggested that the Court should order Plaintiff to comply with Rule 26(a)(2)(C) and allow
for discovery regarding any properly-disclosed expert that need not provide an expert report. (R.
Doc. 30-1 at 6-7).
On June 7, 2016, Plaintiff filed an Opposition to BMA’s motion to exclude. (R. Doc.
41).2 Plaintiff argues that if she did not properly disclose her treating physicians as Rule
26(a)(2)(C) experts, the Court should grant her the opportunity to properly disclose those
experts. Plaintiff notes that despite having the contact information for each of the disclosed
treating physicians, BMA never attempted to depose those treating physicians. Furthermore,
Plaintiff argues that there is good cause to grant her an extension of time to disclose experts in

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Generally, Local Rule 7(g) requires an Opposition to be filed within 21 days of service of the motion.
The Court’s Scheduling Order in this action, however, set the deadline to respond to any motion in limine
for September 8, 2016. On May 17, 2016, the Court ordered Plaintiff to file any Opposition to BMA’s
motion within 21 days of the date of the Order. (R. Doc. 36). Accordingly, Plaintiff’s Opposition filed is
timely.

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light of her counsel’s ensuing grief resulting from the loss of her mother. The preceding day,
Plaintiff moved for leave to properly disclose her experts and to submit any accompanying
reports raising similar arguments to those raised in her Opposition to BMA’s motion to exclude.
(R. Doc. 39).
On June 5, 2016, BMA filed an Opposition to Plaintiff’s Motion for Extension (R. Doc.
44), in which BMA highlights Plaintiff’s delay in seeking extensions. (R. Doc. 44). BMA also
filed a Reply in support of its Motion to Exclude, arguing that Plaintiff delayed requesting an
extension of expert-related deadlines despite having been put on notice of the deficiencies raised
in BMA’s motion over two months prior to the filing of an opposition. (R. Doc. 47 at 2). In
addition, BMA notes that Plaintiff’s counsel’s personal loss occurred on February 26, 2016, long
after the expert disclosure and report deadlines had passed, and just days before the close of
expert discovery. (R. Doc. 47 at 2).
On July 20, 2016, the parties filed a proposed pretrial order, in which Plaintiff suggests
that she plans on submitting into evidence expert reports by Ms. Blackmon and Dr. Spell. (R.
Doc. 48 at 10). Of the six potential experts identified in the supplemental responses to BMA’s
interrogatory, Plaintiff identifies Dr. Karkarala, Ms. Blackmon, and Dr. Spell on her witness list
in the proposed pre-trial order. (R. Doc. 48 at 20).
II.

Law and Analysis
Under Rule 37(c)(1), if a party fails to provide expert disclosures within the established

deadlines, “the party is not allowed to use that information or witness to supply evidence on a
motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.” To
be clear, the exclusion “is mandatory and automatic unless the party demonstrates substantial
justification or harmlessness.” Red Dot Bldgs. v. Jacob Technology, Inc., No. 11-1142, 2012 WL

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2061904, at *3 (E.D. La. June 7, 2012); see also Lampe Berger USA, Inc. v. Scentier, Inc., No.
04-354, 2008 WL 3386716, at *2 (M.D. La. Aug. 8, 2008) (noting that exclusion of nondisclosed expert testimony is automatic and mandatory unless the party can show substantial
justification or harmlessness). When determining whether to strike evidence, including expert
witnesses, under Rule 37(c)(1), trial courts should look to the same four factors articulated by the
Fifth Circuit to determine whether good cause exists to modify a scheduling order under Rule 16
for guidance: (1) the explanation, if any, for the party’s failure to comply with the discovery
order; (2) the prejudice to the opposing party of allowing the witnesses to testify; (3) the
possibility of curing such prejudice by granting a continuance; and (4) the importance of the
witnesses’ testimony. Barrett v. Atlantic Richfield Co., 95 F.3d 375, 380 (5th Cir. 1996)
(applying factors to determine whether district court abused its discretion in striking testimony).3
There are two types of testifying experts who must be disclosed pursuant to Rule 26—
witnesses who must provide a written report pursuant to Rule 26(a)(2)(B) and witnesses who do
not provide a written report pursuant to Rule 26(a)(2)(C). The disclosure of expert witnesses
who must provide a written report must be “accompanied by a written report--prepared and
signed by the witness--if the witness is one retained or specially employed to provide expert
testimony in the case or one whose duties as the party's employee regularly involve giving expert

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Rule 16(b)(4) of the Federal Rules of Civil Procedure allows for the modification of a scheduling order
deadline upon a showing of good cause and with the judge’s consent. The Fifth Circuit has explained that
a party is required “to show that the deadlines cannot reasonably be met despite the diligence of the party
needing the extension.” Marathon Fin. Ins. Inc., RRG v. Ford Motor Co., 591 F.3d 458, 470 (5th Cir.
2009) (quoting S&W Enters., LLC v. Southtrust Bank of Ala., NA, 315 F.3d 533, 535 (5th Cir. 2003)).
The Court consider four factors in determining whether to allow a party to disclose an expert or submit an
expert report beyond the deadline set in the court’s scheduling order: “(1) the explanation for the failure
to [disclose an expert or] submit a complete report on time; (2) the importance of the testimony; (3)
potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such
prejudice.” Reliance Ins. Co. v. Louisiana Land & Expl. Co., 110 F.3d 253, 258 (5th Cir. 1997) (citing
Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990)).

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testimony.” Fed. R. Civ. P. 26(a)(2)(B). The 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). Furthermore, expert disclosures must be
made “at the times and in the sequence the court orders.” Fed. R. Civ. P. 26(a)(2)(D).
Plaintiff did not notify BMA prior to the expert report deadline that she intended to
designate any of her treating physicians as experts pursuant to Rule 26(a)(2)(B). Plaintiff’s own
motion seeking an opportunity to properly disclose experts and submit any accompanying reports
makes no attempt to identify any potential experts pursuant to Rule 26(a)(2)(B). The first
indication to the Court that Plaintiff desired to disclose Ms. Blackmon and Dr. Spell as experts
pursuant to Rule 26(a)(2)(B) came in the form of Plaintiff’s exhibit list found within the parties
proposed pre-trial order. (R. Doc. 48 at 10). Furthermore, Plaintiff’s counsel’s personal loss did
not occur until over three months after the deadline to provide expert reports. For the foregoing
reasons and in consideration of the factors set forth above, the Court finds no basis for allowing
Plaintiff to designate experts pursuant to Rule 26(a)(2)(B) or to provide any accompanying
expert reports.
The Court turns to whether Plaintiff’s treating physicians were properly designated as
experts pursuant to Rule 26(a)(2)(C). Where an expert witnesses “is not required to provide a
written report, [the expert] disclosure must state: (i) the subject matter on which the witness is
expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a

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summary of the facts and opinions to which the witness is expected to testify.” Fed. R. Civ. P.
26(a)(2)(C). There is no dispute that Plaintiff did not provide specific expert disclosures
accompanied by resumes as required by the Court’s scheduling order. In supplemental responses
to discovery, however, Plaintiff identified five “potential” experts on October 5, 2015 (11 days
before the disclosure deadline) and one additional “potential” expert on October 24, 2015 (8 days
after the disclosure deadline). Of these potential experts, Plaintiff only identifies Dr. Karkarala,
Ms. Blackmon, and Dr. Spell on her witness list submitted with the proposed pre-trial order. (R.
Doc. 48 at 20).
Taken together, the supplemental disclosures to discovery broadly identified the “subject
matter” on which each of these three treating physicians were expected to testify. The
supplemental disclosures to discovery did not, however, provide “a summary of the facts and
opinions” to which each of these treating physicians is expected to testify. Proper designation of
a treating physician as a testifying expert pursuant to Rule 26(a)(2)(C) requires production of “an
actual summary of the facts and opinions to which the witness is expected to testify.” Williams v.
State, No. 14-00154, 2015 WL 5438596, at *4 (M.D. La. Sept. 14, 2015) (disclosure consisting
of medical records alone is insufficient to satisfy the disclosure standard of Rule 26(a)(2)(C)).
The foregoing supplemental disclosures—one of which was provided after the deadline
to disclose experts—do not satisfy the standard set forth in Rule 26(a)(2)(C). In addition to
ignoring the Court’s requirement that resumes of experts must be provided to the opposing party,
Plaintiff did not provide any summaries of the facts and opinions to which the treating physicians
would testify. It is not the duty of an opposing party to sift through medical records to
determine the issues a particular treating physician may testify about if ultimately be called to
testify as an expert.

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The Court will now consider each of the appropriate factors in determining whether to
allow Plaintiff an extension of the deadline to disclose experts pursuant to Rule 26(a)(2)(C): (1)
the explanation, if any, for the party’s failure to comply with the discovery order; (2) the
prejudice to the opposing party of allowing the witnesses to testify; (3) the possibility of curing
such prejudice by granting a continuance; and (4) the importance of the witnesses’ testimony.
The first factor weighs against Plaintiff. Plaintiff has not satisfactorily explained why she
did not specifically and properly disclose her treating physicians as experts within the deadlines
provided by the Court. There is no dispute that Plaintiff’s counsel’s personal loss occurred on
February 26, 2016, well after the October 16, 2015 deadline to disclose experts and the deadline
to submit expert reports on November 6, 2015, and just days prior to the close of expert
discovery on February 29, 2016.
The second and third factors are neutral. Allowing any of Plaintiff’s treating physicians
to testify as experts would prejudice BMA. BMA has not had the opportunity to designate
competing experts in light of the identification of Plaintiff’s treating physicians as experts.
Furthermore, BMA has not had the opportunity to depose Plaintiff’s treating physicians as
properly designated experts. Allowing Plaintiff to now identify treating physicians as experts
would, at a minimum, require the Court to provide BMA an opportunity to identify competing
experts, thus reopening discovery at this late stage. The deadline to file dispositive motions and
Daubert motions expired months ago. The parties have submitted a proposed pre-trial order.
Trial is set to commence on October 3, 2016.
That said, there is sufficient time for BMA to have an opportunity to depose Dr.
Karkarala, Ms. Blackmon, and Dr. Spell if desired. Furthermore, an order requiring expedited

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discovery regarding these experts and the opportunity for BMA to designate its own experts, if
desired, is still possible.
The final factor favors Plaintiff. Plaintiff has provided supplemental responses to
interrogatories on October 5, 2015 and October 14, 2015 identifying certain treating physicians /
medical personnel and, with regard to Dr. Karkarala, Ms. Blackmon, and Dr. Spell, basic
information identifying the subject matter on which they would testify. While it remains unclear
what proposed testimony would be provided by Dr. Karkarala, the proposed testimony of Dr.
Spell is relevant to Plaintiff’s claims regarding her ADA claims and the proposed testimony of
Ms. Blackmon is relevant to Plaintiff’s mental state resulting from the alleged events. Without
allowing Plaintiff to designate these individuals as experts pursuant to Rule 26(a)(2)(C), their
testimony will be limited to lay testimony regarding their treatment of the Plaintiff. This may
lead to jury confusion. As testifying experts pursuant to Rule 26(a)(2)(C), these treating
physicians will be able to testify regarding facts or data obtained or observed in the course of the
sequence of events giving rise to the litigation and opinions based on such facts and data.
LaShip, LLC v. Hayward Baker, Inc., 296 F.R.D. 475, 480 (E.D. La. 2013); see Mangla v.
University of Rochester, 168 F.R.D. 137, 139 (W.D.N.Y. 1996); Knorr v. Dillard's Store Servs.
Inc., No. 04-3208, 2005 WL 2060905, at *3 (E.D. La. Aug. 22, 2005). Such expert testimony is
undoubtedly important to Plaintiff.
Given the record, the Court does not find good cause for extending the deadline for
Plaintiff to designate experts pursuant to Rule 26(a)(2)(B) or to provide any accompanying
expert reports. Similarly, the Court finds no basis for allowing Plaintiff to designate as experts
pursuant to Rule 26(a)(2)(C) any of the “potential” experts identified in supplemental discovery

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disclosures but not identified as witnesses in the joint proposed pretrial order (namely, Ms.
Herrod, Ms. Denicola, and Dr. Ray).
The Court finds good cause, however, for granting Plaintiff the opportunity, on an
expedited basis, to properly identify Dr. Karkarala, Ms. Blackmon, and Dr. Spell as experts
solely for the purpose of Rule 26(a)(2)(C). To address any prejudice to BMA, the Court will
provide BMA a corresponding opportunity to depose Dr. Karkarala, Ms. Blackmon, and Dr.
Spell and identify a rebuttal expert if desired. Modification of the trial date may be considered,
if deemed necessary.
III.

Conclusion
For the foregoing reasons,
IT IS ORDERED that BMA’s Motion to Exclude Expert Testimony (R. Doc. 30) is

GRANTED IN PART and DENIED IN PART. Plaintiff will not be allowed to provide any
evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence at trial with the
exception of any expert testimony offered by Dr. Karkarala, Ms. Blackmon, and Dr. Spell.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Extension (R. Doc. 39) is
GRANTED IN PART and DENIED IN PART.
Plaintiff must provide supplemental expert disclosures in conformity with Rule
26(a)(2)(C) for Dr. Karkarala, Ms. Blackmon, and Dr. Spell on or before August 10, 2016. No
additional expert disclosures are allowed by Plaintiff. The parties shall be prepared to discuss
any necessary modifications of the current deadlines in this matter, including the trial date, at the
conference currently set for August 11, 2016 at 2:30 p.m. (R. Doc. 17).
Signed in Baton Rouge, Louisiana, on August 1, 2016.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE
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