Williams v. Michael Biesiada

Filing 43

MEMORANDUM AND ORDER GRANTED 36 MOTION for Leave to File Designate an Expert Witness Economist ( Deft Expert Report due by 3/31/2014., Discovery due by 4/18/2014., Dispositive Motion Filing due by 4/25/2014., Joint Pretrial Order due by 6/16/2014., Pltf Expert Report due by 3/3/2014., Docket Call set for 6/26/2014 at 02:00 PM in Courtroom 9F before Judge Nancy F. Atlas)(Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RANDY W. WILLIAMS, Trustee of the §
Chapter 7 Bankruptcy Estate of
§
Chad L. Hall and Dusky D. Hall,
§
Plaintiff,
§
§
v.
§
§
MICHAEL R. BIESIADA,
§
Defendant.
§

CIVIL ACTION NO. H-13-0990

MEMORANDUM AND ORDER
Pending before the Court is the Motion for Leave to Designate an Expert
Witness Economist [Doc. # 36] (“Motion”) filed by Plaintiff Randy Williams, Trustee
of the Chapter 7 Bankruptcy Estate of Chad L. Hall and Dusky D. Hall (“Williams”
or “Plaintiff”). Defendant Michael R. Biesiada (“Biesiada” or “Defendant”) filed a
Response [Doc. # 38] opposing the relief sought, and Williams filed a Reply [Doc.
# 42]. After reviewing the record and the applicable legal authorities, the Court
grants Plaintiff’s Motion.
I.

BACKGROUND
On October 23, 2010, Biesiada discharged a rifle while in his cabin at Cedar

Creek Hunting Club in Trinity County, Texas. First Amended Original Complaint
[Doc. # 17] (“Complaint”), ¶¶ 6-9. A bullet from the rifle traveled through the wall
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of Biesiada’s cabin and into Chad Hall’s (“Hall”) cabin, where it struck Hall in the
right thigh. Id., ¶ 9. As a result, Hall suffered a life-threatening injury. Id..
Hall filed a chapter 7 bankruptcy petition on December 8, 2010. See Report
and Recommendation [Doc. # 1], ¶ 1. On December 5, 2012, Williams, as trustee for
Hall’s bankruptcy estate, filed a complaint with the bankruptcy court against Biesiada
and Remington Arms Company, Inc. (“Remington”), seeking money damages for the
injuries Hall suffered from the October 23, 2010 shooting. Id., ¶ 2. Remington
requested a jury trial and asked that the reference of the case to the bankruptcy court
be withdrawn, a request that Williams did not oppose. Id., ¶¶ 3-4. On April 3, 2013,
United States Bankruptcy Judge David Jones, to whom the case was assigned,
recommended withdrawal of the reference of the case pursuant to 28 U.S.C. § 157(d).
See id., ¶¶ 8-9. The Court accepted the recommendation and the matter was
transferred to this Court. See Order [Doc. # 3]. On June 3, 2013, the Court granted
the parties’ Stipulation of Dismissal of Remington, who was dismissed from the case
without prejudice. See Order [Doc. # 10].
Under this Court’s original scheduling order [Doc. # 23], Plaintiff’s expert
designations and reports were due on November 1, 2013; Defendant’s expert
designations and reports were due on December 5, 2013. See id. On October 16,
2013, the Court granted the parties’ joint motion to extend the expert report deadlines,
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making Plaintiff’s experts’ reports due on December 13, 2013, and Defendant’s
experts’ reports due on January 17, 2014 [Doc. # 30]. The parties complied with the
new deadlines. See Plaintiff’s Designation of Expert Witnesses [Doc. # 33];
Defendant’s Disclosure of Expert Testimony [Doc. # 35].
In his pending Motion, Williams seeks leave to designate another expert
witness—an economist—who was not named in the previous filing. Trustee Williams
explains that Debtor Hall gave his deposition on January 24, 2014 (a week after
Defendant’s expert witness report deadline) and that Hall testified that “he had
recently changed jobs due to the injuries he suffered in the shooting.” Motion, ¶ 5.
Thus, Williams seeks to retain an economist to testify about Hall’s future loss of
earning capacity as a result of the injuries he suffered. Id.
II.

LEGAL STANDARD
Whether to exclude expert testimony for violation of a pretrial order is left to

the discretion of the district court. Betzel v. State Farm Lloyds, 480 F.3d 704, 707 n.2
(5th Cir. 2007). In determining whether to exclude a late-designated witness, the
district court should consider: “(1) the explanation for the failure to identify the
witnesses; (2) the importance of the testimony; (3) potential prejudice in allowing the
testimony; and (4) the availability of a continuance to cure such prejudice.” Id. at
707; see generally FED. R. CIV. P. 16(b)(4); Marathon Financial Ins., Inc. v Ford
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Motor Co., 591 F.3d 458, 470 (5th Cir. 2009) (quoting Sw. Bell Tel. Co. v. City of El
Paso, 346 F.3d 541, 546 (5th Cir. 2003)) (analyzing factors to establish good cause
under Rule 16).
III.

ANALYSIS
The Court concludes, in light of the Betzel factors, that Williams should be

permitted to designate an economist as an expert witness and the pretrial schedule
will be further amended.
A.

Explanation for Failure to Previously Identify Witness

Williams, who is the trustee of Hall’s bankruptcy estate and not Hall’s attorney,
states he first learned of the potential need for an economic expert on January 24,
2014, when Hall testified he had recently changed jobs because of the injuries he
suffered from the shooting. Motion, ¶ 5. Williams previously knew that Hall had
changed jobs and that Hall’s new job paid less than his prior position. Reply [Doc.
# 42], ¶ 2. It was only after Hall’s testimony, however, that Williams discovered Hall
claimed he could not perform his prior work, and that there may be a claim for loss
of future earning capacity, for which expert testimony is needed. Id.
Biesiada responds that Hall accepted his new position on June 3, 2013, and that
one of Williams’ experts, Dr. George Glass, submitted a report on November 7, 2013,
detailing the new position and Hall’s pay cut. Response [Doc. # 38], ¶ 2. Thus,
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Biesiada argues that Williams had at least six months prior to Plaintiff’s expert
designation deadline to investigate the reason for Hall’s change of jobs. Id., ¶ 3.
Additionally, Biesiada argues that there is no documentary evidence to support Hall’s
deposition testimony and “no competent testimony that Chad Hall’s future earning
capacity has been impaired.” Id., ¶¶ 2-3 (emphasis added).
Williams’ explanation for his late-designation of an expert economist, while
not strong, weighs slightly in his favor. Williams’ complaint contains a request for
damages for “lost earnings in the future.” See Complaint, ¶ 38. Williams, the trustee
for Hall’s bankruptcy estate, is not Hall’s attorney.1 It was only after Hall gave sworn
testimony that Williams had a material factual basis to actually move forward with
this particular damages request.
Biesiada attempts to distinguish between Hall’s potential loss of future
earnings and impairment of Hall’s future earning “capacity”: he argues that while
Hall’s testimony suggests he may have lost (and will continue to lose) earnings due
to his new job, there is no evidence to suggest that Hall’s capacity to earn more in the
future is impaired. See Response, ¶¶ 3-4. Williams has identified testimony that
potentially supports that theory, that the testimony was presented after the expert

1

While it is unclear whether Williams failed to inquire or was rebuffed by Hall
regarding the reasons for Hall’s job change, there is no dispute that Williams learned
the facts during Hall’s deposition.

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designation deadline, and that Williams now can justify the expense to the bankruptcy
estate of an expert economist.
B.

Importance of the Testimony

The second factor—the importance of the testimony—also weighs in Williams’
favor. Williams will need an expert economist to prove likely future damages
resulting from Hall’s alleged loss of earning capacity. While an expert economist is
not essential to proving Williams’ underlying claims, an economist’s testimony is
important to calculating lost future earnings. See Betzel, 480 F.3d at 707 (“[T]he two
experts are still necessary to Betzel’s case, particularly to his proof of the cost to
rebuild his house. Without his experts, Betzel cannot prove damages.”).
C.

Potential Prejudice

Plaintiff’s experts deadline expired December 13, 2013, six weeks prior to
Hall’s deposition and almost eight weeks before Williams’ motion. Biesiada would
suffer little prejudice by allowing Williams’ late-designated expert. The discovery
period in this case has not yet concluded, and no dispositive motions are pending;
thus, no significant delay of the Court’s schedule will accrue as a result of allowing
Williams’ proposed witness. See Geiserman v. MacDonald, 893 F.2d 787, 791 (5th
Cir. 1990) (finding prejudice resulting from late designation of an expert witness in
disruption of “the court’s discovery schedule and the opponent’s preparation.”).
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Biesiada will have adequate time to prepare for the expert’s testimony at trial by
deposing the witness, challenging the witness’s testimony on Daubert grounds, if
appropriate, and offering his own expert to rebut the witness’s testimony. Betzel, 480
F.3d at 708. While Biesiada may incur some additional expenses as a result of
Williams’ new expert, those expenses are no more than what would have been
incurred had Williams timely designated the witness and are, in any event, a function
of litigating this case.
D.

Availability of a Continuance

To the extent that Biesiada suffers any prejudice here because his experts
deadline has passed, the prejudice can be cured through a continuance. The Fifth
Circuit “has repeatedly emphasized that a continuance is the preferred means of
dealing with a party’s attempt to designate a witness out of time.” Id. at 708 (citing
Campbell v. Keystone Aerial Surveys, Inc., 138 F.3d 996, 1000 (5th Cir. 1998)). In
order to provide the parties additional time to prepare and depose their newlydesignated experts, the Court will modify the docket control order by extending the
discovery deadline for this purpose.
IV.

CONCLUSION AND ORDER
For the foregoing reasons, it is hereby
ORDERED that Plaintiff Randy Williams’ Motion for Leave to Designate an

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Expert Witness Economist [Doc. # 36] is GRANTED. Williams must provide
Biesiada with a report from his designated expert witness by March 3, 2014.
Biesiada, on or before March 31, 2014, may designate and serve a report from his
own economic and other experts, if any, to rebut Williams’ economist’s conclusions
and to address other issues tied to alleged lost earning capacity. It is further
ORDERED that deadlines in this case are modified as follows:
Discovery Deadline (all discovery)

April 18, 2014

Motions Deadline

April 25, 2014

Joint Pretrial Order

June 16, 2014

Docket Call (2:00 p.m.)

June 26, 2014

21st
SIGNED at Houston, Texas, this _____ day of February, 2014.

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