Stewart v. Moncla Marine Operations L L C, et al

Filing 184

MEMORANDUM ORDER granting in part and denying in part 176 MOTION to Strike Plaintiff's Updated Expert Reports. Signed by Magistrate Judge Carol B Whitehurst on 5/17/2023. (crt,Crick, S)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION

WILBERT STEWART

CASE NO. 6:17-CV-01260

VERSUS

JUDGE ROBERT R.
SUMMERHAYS

MONCLA MARINE OPERATIONS
LLC ET AL

MAGISTRATE JUDGE CAROL B.
WHITEHURST

MEMORANDUM ORDER
Before the Court is Defendants’ Motion to Strike Plaintiff’s Updated Expert
Reports (Rec. Doc. 176). Plaintiff opposed the Motion (Rec. Doc. 178), and
Defendants replied (Rec. Doc. 183).
This case, arising out of offshore accident, is over five years old. Trial has
been continued and re-set multiple times. Most recently, a bench trial was set for
September 5, 2023. (Rec. Doc. 170). The deadline for Plaintiff’s expert disclosures
expired on December 31, 2021. (Rec. Doc. 117. See also Rec. Doc. 123 thereafter
instructing that all deadlines preceding the deadline for filing motions in limine were
not to be re-set.) Nevertheless, in March 2023, nearly sixteen months after the
deadline, Plaintiff submitted updated expert reports from his life care planner, Aaron
Wolfson, his economist, John Theriot, and his safety expert, Robert Borison. (Rec.

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176-2). Defendants now move to dismiss Plaintiff’s updated expert reports as
untimely.
F.R.C.P. Rule 26(a)(2)(D) provides that a party must disclose the identities of
testifying expert witnesses and their written reports at the times and in the sequence
that the court orders. If a party fails to provide information required by Rule 26(a)
he is not allowed to use that information at trial unless the failure was “substantially
justified” or is “harmless.” F.R.C.P. Rule 37(c)(1). “The Fifth Circuit has provided
four factors to analyze when determining whether a Rule 26 violation is substantially
justified or harmless: (1) the explanation for the failure to identify the witness; (2)
the importance of the testimony; (3) potential prejudice in allowing the testimony;
and (4) the availability of a continuance to cure such prejudice.” Logan v. Westfield
Ins. Co., No. CV 17-29, 2020 WL 7007945, at *5 (W.D. La. Jan. 24, 2020), quoting
Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004).
Also applicable is Rule 26(e)(2), which permits supplementation of an expert
report, but “[a]ny additions or changes to [the] information must be disclosed by the
time the party’s pretrial disclosures under Rule 26(a)(3) are due.” Under Rule
26(a)(3), “[w]hen the Scheduling Order is silent, supplemental reports are generally
due 30-days pretrial.” Aikens v. Cent. Oregon Truck Co., Inc., No. 4:20-CV-00567,
2021 WL 4312712, at *3 (E.D. Tex. Sept. 22, 2021). The scheduling order in this
case does not provide a deadline for supplemental reports.
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The Court must determine the nature of Plaintiff’s newly submitted expert
reports:
As a threshold issue, the Court must determine if Plaintiff's
disclosures were supplemental or instead contain completely new
information. If the disclosures were supplemental, then Rule 26’s
supplemental procedures will determine whether the disclosures are
timely. If the disclosures were new, then they are governed by the
discovery deadline in the Scheduling Order.
Id., 21 WL 4312712, at *2.
As one court noted, “[C]ourts have routinely rejected untimely ‘supplemental’
expert testimony where the opinions are based upon information available prior to
the deadline for expert disclosures.” Lampe Berger USA, Inc. v. Scentier, Inc., No.
CIV.A. 04-354-C-M2, 2008 WL 3386716, at *2 (M.D. La. Aug. 8, 2008) (listing
cases). Likewise, “Courts have similarly made it clear that supplemental expert
reports cannot be used to ‘fix’ problems in initial reports.” Id. at fn. 3 (listing cases).
In his attempt to show “substantial justification and harmlessness” for his latesubmitted expert reports, Plaintiff argues that his liability expert, Mr. Borison,
reviewed information, including Defendants’ liability expert report and Plaintiff’s
deposition testimony, that was not available until after the deadline, and that,
regardless, his opinion ultimately did not change. Mr. Borison’s supplemental report
includes a new rebuttal section in response to Defendant’s expert. The Court finds
Mr. Borison’s updated report is not truly supplemental. Rather the updated report
includes new information and analysis based on Defendants’ expert report, which
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Plaintiff deems a rebuttal. Likewise, the fact that Plaintiff was not deposed until after
expiration of the expert deadlines is immaterial where the deposition was completed
prior to the discovery deadline.1 Regarding the potential prejudice factor, Defendants
should not be required to address a new report after this case has been pending for
over five years and trial is at last imminent. Though Plaintiff argues Mr. Borison’s
ultimate opinion did not change, the Court agrees that his analysis created a new,
rather than supplemental, report based on new substantive information. Thus, the
Court agrees Mr. Borison’s March 30, 2023 updated report should be stricken as
untimely.
Regarding Plaintiff’s updated life care plan and economist reports, Plaintiff
argues that ongoing medical treatment and concomitant expenses and lost wages
justify the updated reports. Review of the updated reports confirms that these
experts’ opinions are true supplements reflecting updates based on Plaintiff’s current
medical care. See Logan v. Westfield Ins. Co., No. CV 17-29, 2020 WL 7007945, at
*8 (W.D. La. Jan. 24, 2020) (post-deadline expert supplemental reports allowed
insofar as they addressed the known neck injury). Therefore, the Court finds that
these supplemental reports should be allowed, as permitted by Rule 26(e). The Court
notes that Rule 26(e) likewise permits Defendants to similarly supplement such

1

The discovery deadline expired on March 18, 2022. (Rec. Doc. 117). Plaintiff submits he
was deposed on March 3, 2022.

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expert reports based on updated medical evidence at least thirty (30) days before
trial.
ACCORDINGLY,
IT IS ORDERED that Defendants’ Motion to Strike Plaintiff’s Updated
Expert Reports (Rec. Doc. 178) is GRANTED IN PART AND DENIED IN PART.
The motion is GRANTED to the extent it seeks to strike Robert Borison’s
supplemental report of March 30, 2023. The motion is denied in all other respects.
Defendants may submit supplemental reports as authorized by Rule 26(e).
THUS DONE in Chambers, Lafayette, Louisiana on this 17th day of May,
2023.
______________________________
CAROL B. WHITEHURST
UNITED STATES MAGISTRATE JUDGE

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