Robinson v. Sally Beauty Supply LLC

Filing 21

ORDER denying 16 Motion to Exclude Plaintiff's Experts by Sally Beauty Supply LLC. The deadline for Plaintiff to disclose her treating physicians as experts pursuant to Rule 26(a)(2)(C) is extended to July 18, 2017. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 8/1/17. (DCB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

SHARON ROBINSON

CIVIL ACTION

VERSUS
NO. 17-172-JWD-RLB
SALLY BEAUTY SUPPLY, LLC

ORDER
Before the Court is Defendant’s Motion to Exclude Plaintiff’s Experts (R. Doc. 16) filed
on July 16, 2017. The motion is opposed. (R. Doc. 18).
I.

Background
Sharon Robinson (“Plaintiff”) commenced this action on February 27, 2015 in the 19th

Judicial District Court, East Baton Rouge Parish, Louisiana, naming as the sole defendant Sally
Beauty Supply, LLC (“Defendant”). (R. Doc. 1-2, “Petition”). Plaintiff alleges that on or about
December 31, 2014, she slipped and fell while shopping at Defendant’s store in Zachary,
Louisiana. (Petition, ¶ 3).
On June 9, 2015, Plaintiff responded to written discovery propounded by Defendant. (R.
Doc. 16-2). In response to an interrogatory, Plaintiff asserted that “as a direct result of the
subject accident she suffers or has suffered from the following symptoms: Left arm pain, left
shoulder pain, neck, lower back pain and left leg pain.” (R. Doc. 16-2 at 69). In response to
another interrogatory, Plaintiff identified the following treating physicians and/or healthcare
provides: Oschner ER; Dr. Anthony Ioppolo, Pain Management Clinic; Field Memorial Hospital;
Dr. Pradeep K. Selvaraj, FMCH/Catching Clinic; and Bluebonnet Imaging Center. (R. Doc. 16-2
at 69).

On February 21, 2017, Plaintiff demanded $93,200 for “full and final settlement” of her
claims. (R. Doc. 7-2). The settlement demand asserted that Plaintiff suffered the following
injuries as a result of the incident: sprain and strain of her hip, thigh, shoulder, and upper arm;
contusions to her face, scalp, and neck; lower back, neck, and left leg pain; and disc herniation at
C3-C4. (R. Doc. 7-2 at 2). The settlement demand asserted that Plaintiff has underwent cervical
ESI injections, a “dorsal lumbar” medial branch block, and a “lumbar dorsal” medial branch
radiofrequency ablation. (R. Doc. 7-2 at 2). At the time the settlement demand was made,
Plaintiff had incurred $36,561.19 in medical expenses. (R. Doc. 7-2 at 3).
On March 22, 2017, Defendant removed the action in light of the representations
regarding the amount in controversy made by Plaintiff in the foregoing settlement demand and at
a deposition. (R. Doc. 1). Plaintiff moved to remand the motion for lack of diversity jurisdiction.
(R. Doc. 3). The Court denied the motion to remand. (R. Docs. 12, 15).
On May 30, 2017, the Court issued a Scheduling Order setting the deadlines in this action
based upon recommendations of the parties. (R. Doc. 14). Among other things, the Court set the
deadline for Plaintiff to disclose the identities and resumes of her experts on July 10, 2017; the
deadline for Defendant to disclose the identities and resumes of its experts on August 10, 2017;
the deadline for Plaintiff to submit any expert reports to Defendant on August 28, 2017; the
deadline for Defendant to submit any expert reports to Plaintiff on September 11, 2017; and for
expert discovery to close on October 11, 2017. Trial is set to commence on September 10, 2018.
On July 10, 2017, Plaintiff’s counsel faxed a letter to defense counsel stating, in relevant
part, the following: “Today is the deadline to turn over our expert witness lists. I will not be
introducing any experts beyond the Healthcare providers that treated Mrs. Robinson for her
injuries. You have their credentials and records from prior discovery.” (R. Doc. 16-2).

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On July 16, 2017, Defendant filed the instant Motion, which seeks an order excluding
Plaintiff’s treating physicians from testifying at trial on the basis that Plaintiff did not timely and
properly disclose her treating physicians as experts pursuant to Rule 26(a)(2)(C) of the Federal
Rules of Civil Procedure. (R. Doc. 16).
Plaintiff represents that she provided the requisite information on July 18, 2017. (R. Doc.
18 at 7).
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
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).

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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 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).
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 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. Instead, Plaintiff’s counsel asserted in the expert disclosure that
Plaintiff would be introducing her “Healthcare providers” as experts, further stating that defense
counsel had “their credentials and records from prior discovery.” (R. Doc. 16-2). Plaintiff
further asserts in her Opposition that “medical records and chart notes for both Dr. Anthony

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Ioppola and Dr. Sean Graham” had been provided to Defendant during discovery in state court.
(R. Doc. 18 at 5).
It appears that Plaintiff identified Dr. Anthony Ioppola and Dr. Sean Graham as treating
physician experts in a supplemental disclosure sent to defense counsel two days after the instant
motion was filed. (R. Doc. 18 at 7). Because Plaintiff did not submit a copy of the supplemental
disclosure with her Opposition, it is unclear whether Plaintiff has specifically identified the
“subject matter” on which each of these treating physicians is expected to testify, and whether
the supplemental disclosure provides “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 Court will turn to 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.
The second and third factors, however, weigh in favor of Plaintiff. Plaintiff did not
wholly ignore her duty to disclose the treating physicians as experts, even though the execution

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of the disclosure was deficient. It is hard to see any prejudice to Defendant. Plaintiff represents
that her counsel provided the information required by Rule 26(a)(2)(C) within two days of the
filing of this motion, and within eight days of the deadline to disclose experts. Defendant’s own
deadline to disclose experts has not yet expired. Even if Defendant was slightly prejudiced by
the insufficiency of the initial disclosure, there is clearly time to cure such prejudice by granting
a continuance. Indeed, the close of expert discovery is more than two months away, and trial is
not set to commence for over one year.
The final factor also favors Plaintiff. Without allowing Plaintiff to designate her treating
physicians 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 finds good cause for granting Plaintiff an extension of the
deadline to properly identify her treating physicians as experts solely for the purpose of Rule
26(a)(2)(C) up to July 18, 2017, the date on which Plaintiff represents she provided the required
disclosures.

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III.

Conclusion
For the foregoing reasons,
IT IS ORDERED that Defendant’s Motion to Exclude Plaintiff’s Experts (R. Doc. 16) is

DENIED.
IT IS FURTHER ORDERED that the deadline for Plaintiff to disclose her treating
physicians as experts pursuant to Rule 26(a)(2)(C) is extended to July 18, 2017.
Signed in Baton Rouge, Louisiana, on August 1, 2017.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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