Slattery Co Inc v. Chesapeake Louisiana L P et al

Filing 113

MEMORANDUM ORDER granting 87 Motion to Exclude Additional Untimely Disclosed Witnesses; granting 92 Motion to Exclude Additional Untimely Disclosed Witnesses. Plaintiffs request to modify the Scheduling Order to permit the untimely designation of additional witnesses is denied. All requests for costs and fees in connection with both motions are denied. Signed by Magistrate Judge Mark L Hornsby on 1/6/14. (crt,Kennedy, T)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

SLATTERY CO., INC.

CIVIL ACTION NO. 11-cv-1399

VERSUS

JUDGE FOOTE

CHESAPEAKE LOUISIANA, LP, ET AL

MAGISTRATE JUDGE HORNSBY

MEMORANDUM ORDER
Before the court are two motions to exclude witnesses (Docs. 87 and 92) filed by
Defendant. For the reasons that follow, both motions are granted.
Motion to Exclude Untimely Disclosed Witnesses (Doc. 87):
Defendant argues that, on October 17, 2013, over six months after fact discovery
closed, Plaintiff submitted an amended witness list adding nine new witnesses, four of which
had never been disclosed in the case. Those four, which Defendant argues should be
excluded from trial are: Jeff Edgren, Ernest Nix, Raymond Lasseigne, and Marshall Jones.
Defendant has no objection to the addition of the five other witnesses, all of whom have been
deposed.
Plaintiff argues that the four new witnesses are necessary to rebut Defendant’s latestage attempt to sandbag Plaintiff with custom and usage evidence under the guise of expert
testimony. In the alternative, Plaintiff asks that the Scheduling Order be modified to permit
the late designation of the witnesses.

Plaintiff’s justification for the late designations, including its argument regarding
Defendant’s attempt to sandbag Plaintiff with custom and usage evidence, is not persuasive.
As Defendant points out, Plaintiff raised custom and usage as an issue in Plaintiff’s amended
complaint that was filed two years ago. Doc. 33. In fact, Plaintiff’s own experts were
tendered as experts in industry custom and practice regarding the payment of royalties.
Furthermore, Plaintiff cannot justify the late designation by claiming the witnesses are
simply rebuttal witnesses. These are not rebuttal witnesses; their testimony goes to the merits
of an issue that Plaintiff raised two years ago. Stumbaugh v. American Commercial Lines,
2009 WL 2922312 (E.D. La. 2009)(Vance, J.)(witness whose purpose is to contradict an
expected and anticipated portion of a case in chief can never be considered a rebuttal witness
or anything analogous to one).
The court’s Scheduling Order does not allow Plaintiff to test the water by presenting
its own experts and obtaining Defendant’s expert reports before deciding whether additional
expert testimony is necessary. The court and the parties are too far along in this hard-fought
case to open the door to new witnesses, new experts, additional depositions, and the
inevitable round of additional motion practice. Accordingly, the Motion to Exclude (Doc.
88) is granted. Plaintiff’s request for alternative relief is denied.
Motion to Exclude Additional Untimely Disclosed Witnesses (Doc. 92):
Defendant argues that, on November 12, 2013, almost seven months after the close
of discovery, Plaintiff served Defendant with a second amended witness list adding three
completely unknown and new witnesses. Defendant states that this is the eighth time
Page 2 of 3

Plaintiff has not complied with the court’s Scheduling Order, and the fifth time Defendant
has been forced to ask the court for assistance in responding. Defendant also notes that all
discovery, fact and expert, is now closed. Daubert motions have been submitted. Defendant
argues that allowing these additional witnesses would be severely prejudicial to Defendant.
Plaintiff argues that its three new witnesses, Julius Leitner, Tony Bouso, and Mark
Kraus, have been designated as rebuttal witnesses to the testimony of Defendant’s expert
witnesses. More specifically, Plaintiff believes that the four rebuttal witnesses will testify
that there is no “custom and usage” to deduct all post-production costs, especially
transportation costs, from a lessor’s royalty, contrary to the opinions of Defendant’s experts.
Plaintiff’s attempt to characterize these witnesses’ expected testimony as rebuttal is
also unpersuasive. The expected substance of the witnesses’ testimony bears directly on the
claims and defenses in this case. Instead, it seems clear, at least to the undersigned, that these
new witnesses are being offered to contradict an expected portion of Defendant’s defense.
Accordingly, Defendant’s Motion to Exclude (Doc. 92) is granted. Plaintiff’s request to
modify the Scheduling Order to permit the untimely designation of additional witnesses is
denied.
All requests for costs and fees in connection with both motions are denied.
THUS DONE AND SIGNED in Shreveport, Louisiana, this 6th day of January, 2014.

Page 3 of 3