Sanchez v. Swift Transportation Co. of Arizona, LLC et al

Filing 262

ORDER GRANTING 190 Motion to Strike ; GRANTING 219 Motion to Strike Signed by Chief Judge Louis Guirola, Jr. (mb1)

FILED
JUN

IN THE UNITED STATES DISTRICT COURT CLERK, U.S
FOR THE WESTERN DISTRICT OF TEXAS WE RNI
PECOS DIVISION

29

2017

TRICT COURT

7OF TEXAS

PUTY

PLAINTIFFS

ALBERT SANCHEZ, ET AL.

CAUSE NO. 4:15CV15-LG

v.

SWIFT TRANSPORTATION COMPANY
OF ARIZONA, LLC, ET AL.

DEFENDANTS

ORDER GRANTING MOTIONS TO STRIKE AND EXCLUDE
PLAINTIFFS' VOCATIONAL EXPERT EVIDENCE
BEFORE THE COURT are the [190] Opposed Motion to Strike and Exclude

Jacqueline Vallencia, Carolina Valencia, and Viola G. Lopez (Def. Mot.
[219] Opposed Motion to

1),

and the

Strike and Exclude Three New Supplemental Expert

Reports Issued by Jacqueline Valencia, Carolina Valencia, and Viola G. Lopez (Def.
Mot. 2). Both Motions were filed by the defendants and have been fully briefed by

the parties. The Motions are considered together because they concern the same
series of events and present similar legal issues. After due consideration, the Court
finds that the expert reports should be stricken and opinion testimony of the three

named experts should be disallowed.
ANALYSIS

The defendants move to strike and exclude the reports and opinion testimony
of Plaintiffs' designated vocational experts, Jacqueline Valencia, Caroline Valencia

and Viola G. Lopez, pursuant to Fed. R. Civ. P. 37(c). Rule 37(c) provides: "If a

party fails to provide information

. . .

not allowed to use that information.

as required by Rule 26(a) or (e), the party is
. .

to supply evidence on a motion, at a hearing,

or at a trial, unless the failure was substantially justified or is harmless." Fed. R.

cti

Civ. P. 37(c)(1).

Defendants contend that although Plaintiffs timely provided what is

purported to be "expert reports" concerning Plaintiffs Sanchez and Phillips from the
vocational experts, the reports violated Rule 26(a) because they contained

background information but did "not proffer any expert opinions, whatsoever" as

required by Rule 26(a)(2)(B)(i). (Def. Mot.

1,

at 3, ECF No. 190). At the time of the

reports, vocational testing was pending, and the experts wrote that they would

supplement their reports once updated medical information was received and
vocational testing was complete.
62-8; Ex. I,

at

1, 4,

(See P1.

Design. of Experts Ex. H, at 1, 4, ECF No.

ECF No. 62-9). The initial reports contain only medical and

vocation background information for Phillips and Sanchez. (Id.).

When the defendants filed this Motion, two months after the plaintiffs'

January 3, 2017, designation deadline had passed, there had been no
supplementation. However, approximately one month after defendants' Motion, the
reports were "supplemented" to include expert vocational opinions.

(See P1.

Resp.

Ex. A, B, & C, ECF Nos. 203-1, 203-2, & 203-3). Thus, the plaintiffs were three

months late in fully complying with Rule 26. The defendants also object to

introduction of the three "supplemental" reports, requesting that the reports be

stricken for untimeliness. (Def. Mot 2, ECF No. 219).
Rule 26(a)(2)(B) requires that expert reports must contain the following: (1)
"a complete statement of all opinions the witness will express and the basis and

reasons for them"; (2) "the facts or data considered by the witness in forming them";
-2-

(3) "any

exhibits that will be used to summarize or support them"; (4) "the witness's

qualifications ..."; (5) a list of cases in which the expert testified during the previous
four years; and (6) a statement of the compensation received by the expert for his

study and testimony. Fed. R. Civ. P. 26(a)(2)(B). The Court has carefully reviewed

the initial "reports" of these vocational experts and there is no question that the
initial vocational expert reports tendered by the plaintiffs fail to meet the criteria of
Rule 26(a). The "supplemental" reports are little more than untimely expert reports

and opinions in the guise of supplemental reports. "The purpose of supplementary
disclosures is just that

to supplement. Such disclosures are not intended to

provide an extension of the expert designation and report production deadline."
Metro Ford Truck Sales, Inc.

v.

Ford Motor Co., 145 F.3d 320, 324 (5th Cir. 1998).

Plaintiffs cannot fulfill their disclosure obligations by providing sketchy, vague or
incomplete reports with no expert opinions. And providing untimely experts reports

labeled as "supplemental" is insufficient. See Sierra Club, Lone Star Chapter v.
Cedar Point Oil Co., Inc., 73 F. 3d 546 (5th Cir. 1996)(affirming a decision to
exclude an expert report where the initial report was merely an outline, although

the report was "supplemented" after the deadline); See also Harmon

v.

Georgia Gulf

Lake Charles L.L.C., 476 F. App'x 31 (5th Cir. 2012)

"[U]nder Rule 37(c), the presumptive sanction for failing to.

. .

supply a

required expert report or summary disclosures is to exclude or limit the expert's
testimony unless the failure was substantially justified or harmless." Honey-Love

-3-

v.

United States, 664 F. App'x 358, 362 (5th Cir. 2016). "The burden is on the party
facing sanctions to prove that its failure to comply with Rule 26(a) was

'substantially justified or harmless." Rembrandt Vision Techs., L.P.

v.

Johnson &

Johnson Vision Care, Inc., 725 F.3d 1377, 1381 (Fed. Cir. 2013) (citing Yeti by
Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001)); see also

R.C. Olmstead, Inc.,

v.

CU Interface, LLC, 606 F.3d 262, 271-72 (6th Cir. 2010). The

Court's decision on this issue is subject to an abuse of discretion standard. See
Texas A&M Research Found. v. Magna Transp., Inc., 338 F.3d 394, 402 (5th Cir.
2003).

"In evaluating whether a violation of rule 26 is harmless," district courts
"look to four factors: (1) the importance of the evidence; (2) the prejudice to the

opposing party of including the evidence; (3) the possibility of curing such prejudice
by granting a continuance; and (4) the explanation for the party's failure to
disclose." Texas A&M Research Found., 338 F.3d at 402.
1)

The Importance of the Evidence

Plaintiffs do not directly address this factor. It is nevertheless apparent that

the wholesale exclusion of vocational expert evidence sought by Defendants would
deprive Plaintiffs of any opportunity to prove economic damages. Accordingly, this

factor weighs in favor of Plaintiffs, as the opinion evidence that can only be

presented through the vocational experts is important to Plaintiffs' case.
2) Prejudice to

Defendants

-4-

The prejudice alleged by Defendants is their inability to counter the opinions
of Plaintiffs' vocational experts with their own vocational expert. Defendants

contend that with timely notice of the Plaintiffs' expert vocational opinions, they
could have designated their own vocational expert to counter them. Because

Defendants' expert designation deadline had passed by the time Plaintiffs provided

them with complete expert reports containing opinions, Defendants had lost the
opportunity. This factor weighs in favor of the defendants.
3)

The Reason for the Delay

Plaintiffs state that the delay in supplementation of the report for Phillips
was necessary because Phillips had only recently been given more permanent post-

surgery restrictions.

(P1.

Resp. 3-4, ECF No. 225). They state that Sanchez, also,

"has continual recommendations from his treating physicians," and that they

promptly supplied this information to the vocational experts. (Id., at 4). Although

this might explain why supplementation would have been necessary, it does not
explain why the vocational experts did not provide initial opinions about the

Plaintiffs in a timely manner. The plaintiffs were two and a half years postaccident by the time of their expert designation deadline. Regardless of whether
medical treatment was ongoing, the vocational outlook for each Plaintiff could and

should have been initially assessed before the expert designation deadline. The

Court finds this factor to weigh heavily in favor of the defendants.
4) The

Possibility of Cure

This case is scheduled for trial within two months
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a date that has been

continued at least four times. In order to cure prejudice to the defendants, another

continuance of the trial date would be necessary to allow defendants additional
discovery and perhaps to retain a vocational expert and make the expert available
for deposition and trial. Given that the case has been ready for trial for some time,

it is the Court's opinion that another continuance is not warranted, as that will only

result in additional delay and increase the expense of defending the case.
Hamburger

v.

State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 883 (2004). "As [the

Fifth Circuit] has noted, a continuance does not, in and of itself, 'deter future
dilatory behavior, nor serve to enforce local rules or court imposed scheduling
orders." Barrett

v.

Ati. Richfield Co., 95 F.3d 375, 381 (5th Cir. 1996) (quoting

Geiserman v. MacDonald, 893 F.2d 787, 792 (5th Cir. 1990)). Accordingly, this

factor weighs in favor of the defendants.
CoNcLusIoN

It is the Court's opinion that Plaintiffs' late production of its expert vocational
reports was neither harmless nor substantially justified. The Court will exercise its
discretion to exclude the reports and testimony of Plaintiffs' vocational experts. The
Motions to exclude any evidence from the three vocational experts will be granted.

IT IS THEREFORE ORDERED AND ADJUDGED that the [190] Opposed
Motion to Strike and Exclude Jacqueline Valencia, Carolina Valencia, and Viola G.
Lopez; and the [219] Opposed Motion to Strike and Exclude Three New

Supplemental Expert Reports Issued by Jacqueline Valencia, Carolina Valencia,

and Viola G. Lopez are GRANTED.

SO ORDERED AND ADJUDGED this the 29th day of June, 2017.

S/

c

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE