Lemings et al v. Taylor et al

Filing 71

ORDER denying 38 Motion to Strike Plaintiffs' Expert Witnesses; 43 Motion to Strike; 41 Motion to Quash consistent with the body of this Order; and granting 46 MOTION for Leave to Submit Supplemental Expert Reports consistent with the body of this Order and 53 Motion to Supplement and Amend Plaintiffs' Expert Witness List. The parties shall bear their own costs. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 10/9/2019. (EDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
MATTHEW LEMINGS, ET AL.

CIVIL ACTION

VERSUS

NO. 18-768-BAJ-RLB

CHARLES TAYLOR, ET AL.
ORDER
Before the Court is Defendants’ Motion to Strike Plaintiffs’ Expert Witnesses Randolph
Rice, Stephanie Chalfin, and Seth Michael Broussard. (R. Doc. 38). In opposing the motion,
Plaintiffs filed a Motion to Supplement and Amend Plaintiffs’ Expert Witness List. (R. Doc. 53).
Also before the Court is Defendants’ Motion to Strike Treating Physicians. (R. Doc. 43).
The motion is opposed. (R. Doc. 56). Defendants filed a Reply. (R. Doc. 66).
Also before the Court is Defendants’ Motion for Leave to Submit Supplemental Expert
Reports. (R. Doc. 46). The motion is opposed. (R. Doc. 51). Defendants filed a Reply. (R. Doc.
67).
Also before the Court is Plaintiffs’ Motion to Quash Subpoena to Kirby Humbles and
Baton Rouge General Physicians, Marcus Rovira and Our Lady of the Lake Physician Group
Ascension, and Mohammed Siddiqui and Notice of Records Deposition and Stay of the Return
and Request for Protective Order. (R. Doc. 41). The motion is opposed. (R. Doc. 58).
On October 2, 2018, the Court held oral argument on the foregoing motions. (R. Doc.
68).
This is a personal injury action involving a motor vehicle accident that occurred on or
about April 6, 2017. (R. Doc. 1-2). Plaintiffs allege that Matthew Lemings swerved his vehicle
to the left to avoid a collision on the interstate with a tractor-trailer driven by the defendant

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Charles Taylor, resulting in his vehicle ramming into the interstate barrier and flipping over. (R.
Doc. 1-2 at 2). Mr. Lemings allegedly suffered severe contusions and lacerations, a broken nose,
and serious and permanent injuries to his spine and legs, and is seeking, among other things, to
recover for physical and emotional injuries, medical expenses, and lost wages. (R. Doc. 1-2 at 24). Defendants removed the action from state court on August 14, 2018. (R. Doc. 1).
On October 17, 2018, the Court held a scheduling conference in which Plaintiff’s
counsel represented that Mr. Lemings had reached maximum medical improvement. (R. Doc. 8).
The Court set various deadlines in this action, including a 5-day jury trial to commence on April
6, 2020. (R. Doc. 8). The Court subsequently reset the discovery and motion deadlines for the
purposes of providing the parties additional time to conduct depositions and to provide Plaintiffs
with additional time to obtain and submit expert reports. (R. Docs. 13, 37).
Defendants’ motions to strike concern the following individuals identified as experts by
Plaintiff: Randolph Rice (economist), Stephanie Chalfin (vocational rehabilitation), Seth
Michael Broussard (physical therapist), Jennifer Marino (physical therapist); Dr. Kyle Girod
(orthopedics); Dr. Mark John (pain management); Dr. Brandon Tilley (primary care); and Dr.
Jeffrey Laborde (radiology). (R. Docs. 38, 46). In short, Defendants seek an order precluding
Mr. Rice, Ms. Chalfin, Mr. Broussard, and Ms. Marino from providing expert testimony on the
basis that they failed to provide expert reports in conformity with Rule 26(a)(2)(B) of the Federal
Rules of Civil Procedure. There is no dispute that Mr. Rice, Ms. Chalfin, and Ms. Marino did
not provide any expert reports by the August 19, 2019 deadline to do so. While Mr. Broussard
produced a timely functional capacity evaluation and CV, Defendants argue that this report does
not meet the specific requirements of Rule 26(a)(2)(B). Defendants similarly seek an order
excluding the testimony of Dr. Girod, Dr. John, Dr. Tilley, and Dr. Laborde on the basis that

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Plaintiff did not provide timely summaries of the subject matter, facts and opinions to which
these treating physicians are expected to testify as required by Rule 26(a)(2)(C). Finally,
Defendants seek leave to submit supplemental reports in light of additional information obtained
regarding Mr. Lemings’ treatment after Defendants’ deadline to provide expert reports. (R. Doc.
46).
At oral argument, it became clear that Mr. Lemings has not in fact reached maximum
medical improvement. (R. Doc. 68), In addition to various representations regarding Mr.
Lemings’ continuing treatment, Plaintiffs’ counsel submitted a medical report indicating that Mr.
Lemings made his initial visit with a new treating physician, Dr. Joseph Turnipseed, on
September 26, 2019 and will be scheduled for diagnostic facet joint injections. (R. Doc. 69)
(under seal). Plaintiffs’ counsel further represented that Mr. Rice and Mr. Chalfin, while
retained for the purpose of providing expert reports, did not provide timely expert reports in light
of the uncertainties created by Mr. Lemings’ continuing treatment with respect to his life plan.
The Court suspended the remaining deadlines in the Scheduling Order pending a telephone
conference with the parties on October 30, 2019 to discuss Mr. Lemings’ continued treatment.
(R. Doc. 68 at 2).
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 beyond the deadline set in the Court’s

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scheduling order: “(1) the explanation for the failure to [disclose the expert] 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)).
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). An expert is required to provide a
written report “if the witness is one retained or specifically 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). Where an expert witness “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). 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)).
Many of the issues raised by the foregoing motions could have been resolved had counsel
discussed Mr. Lemings’ continuing treatment and notified the Court of such prior to the
expiration of expert deadlines. That said, the Court finds found good cause under Rule 16(b)(4)
to provide for additional limited discovery with respect to Plaintiffs’ continuing treatment, and

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will set new deadlines with respect to expert disclosures, reports, and discovery as merited based
upon Mr. Lemings’ need for continued treatment and as detailed further below. Plaintiffs’
counsel has explained that the deadlines were not satisfied in light of Mr. Lemings’ continuing
treatment and the expert testimony is of paramount portance to Plaintiffs’ claims. Defendants
will not be prejudiced by these new deadlines as they will have an opportunity to provide any
necessary supplemental and/or rebuttal expert reports and to depose Plaintiffs’ experts. The
Court will discuss with the parties at the October 30, 2019 telephone conference the scope of any
additional discovery that may be required and the setting of a new trial date if necessary.
In the context of opposing Defendant’s Motion to Strike Treating Physicians, Plaintiffs’
counsel provided supplemental Rule 26(a)(2)(C) disclosures with respect to Dr. John, Dr. Girod,
Dr. Laborde, and Dr. Tilley. (R. Doc. 56 at 6-7). The Court finds good cause to allow these
supplemental disclosures in light of Mr. Lemmings’ continued treatment and the suspension of
the remaining deadlines in this action. Plaintiffs’ counsels shall supplement these disclosures
further to the extent any additional treating physicians, such as Dr. Turnipseed, are identified
while Mr. Lemings continues treatment.
The foregoing supplemental disclosure also provides, however, a summary of opinions
for Ms. Marino and Mr. Broussard. Plaintiffs’ counsel represented at oral argument that Ms.
Marino was identified as an expert out of an abundance of caution because she is a senior
physical therapist who reviews Mr. Broussard’s work at Moreau Physical Therapy. There is no
dispute that Plaintiff has not treated with either Ms. Marino or Mr. Broussard. Accordingly, the
Court finds the disclosure of Ms. Marino and Mr. Broussard as experts who would not be
required to provide written reports under Rule 26(a)(2)(C) to be inappropriate. Defendants may

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renew their motion to strike with respect to Ms. Marino and/or Mr. Broussard should Plaintiffs
attempt to again identify them as experts who are not required to provide written reports.
Given Mr. Lemings’ continuing treatment, the Court also finds good cause for extending
the deadline for Plaintiffs to submit expert reports by Mr. Rice and Ms. Chalfin, as well as any
necessary supplements to Mr. Broussard’s report to meet the requirements of Rule 26(a)(2)(B),
within any new deadline for Plaintiff to provide expert reports established by the Court. The
Court does not, however, find good cause for allowing Plaintiffs to identify any additional
retained experts not previously disclosed to Defendants. Defendants will not be prejudiced by
these extensions as the foregoing experts have been previously identified and the Court will
provide Defendants the opportunity to conduct appropriate expert discovery with respect to any
additional expert reports, as well as the opportunity to provide additional supplemental and/or
rebuttal reports. Based on the foregoing, the Court will deny Defendants’ motions to strike as
moot and without prejudice to refiling as necessary with respect to any untimely expert
disclosures or reports under the newly established deadlines.1 The Court will also grant
Defendants’ motion to supplement their expert reports (R. Doc. 46) as necessary in light of Mr.
Lemings’ continuing treatment.
Finally, the Court will deny Plaintiffs’ motion to quash and/or protective order (R. Doc.
41), which seeks an order quashing various subpoenas issued and served by Defendants on
certain healthcare provides. Among other issues, Plaintiffs’ motion does not attach the
underlying subpoenas or explain the nature of the information sought by the subpoenas.
Accordingly, the Court cannot assess, based upon Plaintiff’s motion, whether the subpoenas are
valid under Rule 45 and whether a protective order should be issued under Rule 26. As

Defendants may challenge the sufficiency of Mr. Broussard’s’ report in an appropriate motion in limine or through
cross-examination.
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discussed at oral argument, the medical records sought are within the scope of discovery in light
of the damages sought. Furthermore, the Court has addressed any issues with respect to the
confidential nature of the information sought by the subpoenas by requiring the documents to
remain in the custody of counsel, to not be disclosed to any third party or filed in open court, and
to be filed under seal with leave of court if necessary. (See R. Doc. 68).
Based on the foregoing, as well as the oral reasons provided at argument,
IT IS ORDERED that Defendants’ Motion to Strike Plaintiffs’ Expert Witnesses
Randolph Rice, Stephanie Chalfin, and Seth Michael Broussard (R. Doc. 38) and Defendants’
Motion to Strike Treating Physicians (R. Doc. 43) are DENIED and Defendants’ Motion for
Leave to Submit Supplemental Expert Reports (R. Doc. 46) is GRANTED consistent with the
body of this Order.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Supplement and Amend
Plaintiffs’ Expert Witness List. (R. Doc. 53) is GRANTED and Plaintiffs’ Motion to Quash
Subpoena to Kirby Humbles and Baton Rouge General Physicians, Marcus Rovira and Our Lady
of the Lake Physician Group Ascension, and Mohammed Siddiqui and Notice of Records
Deposition and Stay of the Return and Request for Protective Order (R. Doc. 41) is DENIED
consistent with the body of this Order.
IT IS FURTHER ORDERED that the parties shall bear their own costs.
Signed in Baton Rouge, Louisiana, on October 9, 2019.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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