Ortego v. Merial L L C

Filing 45

MEMORANDUM RULING AND ORDER: Before the Court is Defendant Merial LLCs Motion to Limit Testimony of Dr. Armand Coreil. (Rec. Doc. 31) Argument was presented by the parties at the Pre-Trial Conference on this date. For the following reasons herein, and the reasons stated at the Pre-Trial Conference, the motion to limit testimony is DENIED IN PART and DEFERRED IN PART. Signed by Magistrate Judge Patrick J Hanna on 7/12/2011. (crt,Putch, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
JOHN “RALPH” ORTEGO

CIVIL ACTION NO. 10-510

VERSUS

MAGISTRATE JUDGE HANNA

MERIAL, LLC

BY CONSENT OF THE PARTIES
MEMORANDUM RULING AND ORDER

Before the Court is Defendant Merial LLC’s Motion to Limit Testimony of Dr. Armand
Coreil. (Rec. Doc. 31) Argument was presented by the parties at the Pre-Trial Conference on this
date. For the following reasons, and the reasons stated at the Pre-Trial Conference, the motion to
limit testimony is DENIED IN PART and DEFERRED IN PART.
Argument of the Parties
Merial, LLC, seeks to preclude Plaintiff from utilizing Armand B. Coreil III, DVM, as an
expert witness in this case, to limit Dr. Coreil’s testimony at trial to his care and treatment of the
plaintiff’s dogs, and to preclude Dr. Coreil from offering at trial any expert testimony that was not
previously memorialized in a written expert report.1 Merial argues that it is entitled to the relief
requested because Plaintiff did not properly designate Dr. Coreil as an expert witness or produce an
expert report by Dr. Coreil on or before the expert report deadline.
Plaintiff argues that the defendants were on notice that Dr. Coreil would be called to testify
as an expert because Dr. Coreil was identified as the treating veterinarian and listed in initial
disclosures and answers to interrogatories. Plaintiff also points out that Merial deposed Dr. Coreil,
so there is no prejudice from the lack of formal designation or absence of an expert report.

1

Rec. Doc. 31.

Law and Analysis
Federal Rule of Civil Procedure 26(a)(2) governs the disclosure of expert testimony. It
provides that, in addition to the disclosures required by Rule 26(a)(1), a party must disclose to the
other parties the identity of any expert witnesses it may use at trial. The disclosure must be
accompanied by a written report, prepared and signed by the witness, if the witness is 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.2 Dr. Coreil was not retained or specially
employed to provide expert testimony in this case; he is the treating veterinarian. A plaintiff’s
treating physician is not bound by the Rule 26 reporting requirements.3 Therefore, Plaintiff was not
required to provide an expert report from Dr. Coreil, and he will be allowed to testify at trial.
As a treating veterinarian, Dr. Coreil can certainly testify to his patients’ diagnosis and
treatment. A treating physician may be asked questions that implicate his expertise.4 However, in
the event that Dr. Coreil is asked to give an expert opinion that he is not qualified to render, or if the
nature and scope of Dr. Coreil’s testimony strays from the core of treatment, or the diagnoses and
observations that he made, the defendant may raise an objection and Dr. Coreil’s testimony may be
limited accordingly.
It is within the discretion of the trial court whether to bar an expert witness based on untimely

2

Fed. R. Civ. P. 26(a)(2)(B).

3

See, e.g., Beechgrove Redevelopment, LLC v. Carter & Sons Plumbing, 2009 WL
981724 (E.D.La. Apr. 9, 2009)(unreported); Boudreaux v. J.P. Morgan Chase & Co., 2007 WL
4162908, *2 (E.D.La. Nov.21,2007); Knorr v. Dillard's Store Servs. Inc., 2005 WL 2060905, *3
(E.D.La. Aug.22, 2005).
4

See Herrera v. U.S., 2005 WL 492833 (W.D.Tex. Feb. 23, 2005)(citing Robert Young, et
al. v. U.S., 181 F.R.D. 344 (W.D.Tex. 1997).
2

designation.5 Plaintiff identified Dr. Coreil as the treating veterinarian and a “may call witness” in
initial disclosures on April 22, 2010.6 Additionally, according to Merial, Plaintiff indicated in his
answers to interrogatories of August 20, 2010, that Dr. Coreil would serve as an expert witness.7
Merial took Dr. Coreil’s deposition on November 3, 2010, and asked questions regarding Dr.
Coreil’s expertise and ability to render opinions as to causation.8 The Court finds that Merial will
not suffer prejudice by Dr. Coreil testifying at trial. To ensure that no prejudice is suffered, Merial
can raise an objection at trialto specific questions asked, and the Court may limit Dr. Coreil’s
testimony accordingly if necessary.
Conclusion
IT IS ORDERED that Defendant Merial LLC’s Motion to Limit Testimony of Dr. Armand
Coreil (Rec. Doc. 31) is DENIED IN PART AND DEFERRED IN PART.
Thus done and signed at Lafayette, Louisiana, this 12th day of July, 2011.

5

Rule 16(b) authorizes federal courts to control and expedite the discovery process
through a scheduling order. Fed.R.Civ.P. 16(b). “Consistent with the authority vested in the trial
court by rule 16, our court gives the trial court broad discretion to preserve the integrity and
purpose of the pretrial order.” Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir.1990)
(internal quotation omitted).
6

Rec. Doc. 31.

7

Rec. Doc. 31.

8

Rec. Doc. 31.
3