Opinion
Civil Action No. 03-0330, Section C (3).
August 10, 2004
ORDER
Before the Court are two motions by the litigants, one seeking exclusion of certain witnesses and exhibits and another seeking extension of certain deadlines contained in the Court's Scheduling Order. By minute entry dated August 3, 2004 (Rec. doc. 115), the Court granted expedited hearing to consider Defendants' Motion to Preclude Certain of Plaintiff's Witnesses From Testifying as Experts and to Strike Certain of Plaintiffs' Exhibits (Rec. doc. 114) and Plaintiff's opposition thereto (Rec. doc. 116). The Court also granted expedited hearing (Rec. doc. 118) to consider Plaintiffs' Motion for Leave of Court to File Amended Witness and Exhibit List and to Extend the Discovery Period and Incorporated Memorandum in Support (Rec. doc. 117) and Defendants' opposition thereto (Rec. doc. 119). These two matters are interrelated and are accordingly addressed in tandem. For the reasons that follow, Defendants' Exclusionary Motion is granted in part and denied in part and Plaintiffs' Motion is granted in
part and denied in part.
PROCEDURAL and LEGAL BACKGROUND
On April 21, 2004, the Court approved the litigants' joint amended scheduling order. (Rec. doc. 84). Pursuant to that scheduling order, Plaintiffs were required to provide written reports of all experts, including treating physicians, by May 19, 2004 and lists of potential witnesses and exhibits were to be exchanged by July 16, 2004. Defendants' were required to provide written reports of all experts, including treating physicians, by July 2, 2004. Depositions are to be completed by September 1, 2004 and trial is scheduled to commence on November 1, 2004.
Plaintiffs' provided Defendants with a copy of an expert report for Dr. Francisco Candel in accordance with the scheduling order; Defendants provided expert reports for seven experts to Plaintiffs in compliance with the scheduling order. Similarly, witness and exhibit lists were exchanged on July 16, 2004, in compliance with the scheduling order. (Rec. docs. 107-110). It is in response to this exchange of documents that these motions have been filed.
Defendants also object to Plaintiffs' witness and exhibit lists, claiming that they were not served until receipt by facsimile on July 20, 2004, this despite certification of process by Plaintiffs that these lists were served on Defendants by United States Mail on July 16, 2004. See Rec. doc. 114, Memorandum in Support of Defendant's Motion to Preclude Certain of Plaintiffs' Witnesses From Testifying as Experts and to Strike Ceratin of Plaintiffs' Exhibits, at 2 n. 2; see also Rec. docs. 109, 110. However, because these documents were recorded in the Court's record on July 16, 2004, because counsel for Plaintiffs certified mailing on July 16, 2004, and because Defendants' motion does not rest on this issue, a presumption that the documents were delivered in accordance with the scheduling order is reasonable.
The Fifth Circuit grants district courts "broad discretion to preserve the integrity and purpose of the pretrial scheduling order." Barrett v. Atl. Richfield Co., 95 F.3d 375, 380 (5th Cir. 1996) (quoting Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990). Pursuant to Rules 16(f) and 37(b)(2)(B) of the Federal Rules of Civil Procedure, a district court has authority to bar an expert witness from testifying where counsel has failed to comply with deadlines spelled out in the scheduling order. FED R. CIV. PROC. 16(f); FED R. CIV. PROC. 37(b)(2)(B); Std. Servs. Co. v. Witex USA, Inc., 2003 U.S. Dist. LEXIS 7233, 2003 WL 2004442, at *2 (E.D. La. Apr. 30, 2003). A district court is to weigh the following four factors in determining whether to exclude an expert's proposed testimony:
(1) the explanation, if any, for the party's failure to comply with the discovery order;
(2) the prejudice to the opposing party of allowing the witnesses to testify;
(3) the possibility of curing such testimony by granting a continuance; and
(4) the importance of the witness's testimony.
Barrett, 95 F.3d at 380. This standard applies not just to expert testimony, but to all evidence covered by the Court's scheduling orders. See Geiserman, 893 F.2d at 790-91 ("a trial court's decision to exclude evidence as a means of enforcing a pretrial order "must not be disturbed" absent a clear abuse of discretion").
I. Defendants' Objections to Expert Witnesses
As a result of Plaintiffs' alleged failure to comply with the amended scheduling order, Defendants move for total exclusion of the potential expert witnesses, listed as numbers 12 through 30 in Plaintiffs' July 16, 2004 Witness List (Rec. doc. 109). These witnesses can be divided into two broad categories: (1) previously undisclosed experts for whom no expert report has been provided (witnesses 14-19, 22) and (2) witnesses who remain undisclosed (apart from an institutional designation) and for whom no expert report has been made available to Defendants (witnesses 12, 13, 20, 21, 23-30). Plaintiffs offer two explanations for the lack of compliance with the scheduling order: (1) that these witnesses are merely fact witnesses and document custodians who will testify to the accuracy of records and the treatment received by Mrs. Carter and (2) they are listed as experts "out of an abundance of caution" in response to the number of experts the defendants intend to call at trial.
Defendant's concede that one expert witness, Dr. Francisco Candel, a treating physician of Mrs. Carter, was properly identified as an expert and his expert's report was exchanged in compliance with the amended scheduling order. Their exclusionary motion does not extend to Dr. Candal.
To the extent these witnesses are named and are fact witnesses who will discuss the treatments provided to Mrs. Carter, Plaintiffs are in compliance with the scheduling order and the witnesses will be allowed to testify. Limiting those named witnesses to such testimony, and precluding their testimony as expert witnesses, which Plaintiffs apparently concede is appropriate, will pose no undue hardship to Defendants.
With respect to the unnamed witnesses, and based on their limited purpose at trial, which is apparently to authenticate medical records only, the parties are instructed to reach stipulations as to authenticity. Any disputes as to authenticity may be raised by motion in limine.
II. Defendants' Objection to Documentary Evidence
Defendants also object to items 3, 6, 9, 11, 12 and 13 contained in Plaintiffs' list of potential trial exhibits. (Rec. doc. 110).
Defendants' objection to items 3, 6, 9, 11 and 12 is that these are overly general and comprise thousands of pages. Plaintiffs concede the point but argue that these documents are in Defendants' sole control and therefore their introduction at trial would pose no prejudice to the Defendants. The fact that Defendants control all of their records does not eliminate the undue burden and surprise that might result from the production of any one particular document at trial without prior notice, particularly where all parties agree to the potentially limitless number of such documents. Hence specification is required.
Defendants also object to item 13 of Plaintiffs' list of potential trial exhibits. (Rec. doc. 110). That item deals with depositions conducted in the preparation of this case. The basis for Defendants' objection is that this item is also general and denies Defendants proper notice of what is intended to be introduced at trial. Plaintiffs counter that, to the extent some witnesses may be unavailable for personal appearance at trial, the depositions of those unavailable witnesses should be available to be read into the record.
With respect to items 3, 6, 9, 11 and 12, it is necessary for Plaintiffs to particularize which of these records they intend to produce at trial. Plaintiffs shall provide an amended Exhibit List identifying specific items contained within those categories by Friday, August 20th, 2004.
With respect to item 13, Defendants' objections have less merit. Item 13, taken in conjunction with Plaintiffs' witness list, provides adequate notice to Defendants and enables them to prepare for trial.
III. Plaintiffs' Extension of Deadlines and Expansion of Expert Witnesses
Plaintiffs seek to extend the discovery deadlines in order that they may obtain additional expert witnesses to present at trial. Plaintiffs' Motion is grounded in a desire to respond to the experts listed by the defense. Pursuant to the amended scheduling order, Defendants provided Plaintiffs with seven (7) expert reports. These reports were provided over one month ago. During the interceding weeks, Plaintiffs did not seek an extension or leave to expand their list of experts, until after Defendant's filed their exclusionary motion. The seven witnesses named by the Defendants are responsive to the second supplemental complaint filed in April by the Plaintiffs. As the Plaintiffs themselves filed the Supplemental Complaint, it was their responsibility in May to provide any additional expert witnesses to support their allegations. Any additions now are clearly untimely and jeopardize the trial date, as well as the deadline for dispositive motions. Accordingly,
IT IS ORDERED that Defendants' Motion to Preclude Certain of Plaintiff's Witnesses From Testifying as Experts and to Strike Certain of Plaintiffs' Exhibits is GRANTED to the extent that Plaintiffs intend to call as expert witnesses individuals listed in their Witness List as items 12-30, but is DENIED to the extent that it seeks to exclude those individuals from testifying as fact witnesses or custodians of records;
IT IS FURTHER ORDERED that the parties meet to confect stipulations as to the authenticity of the medical records sought to be introduced;
IT IS FURTHER ORDERED that Defendants' Motion to Preclude Certain of Plaintiff's Witnesses From Testifying as Experts and to Strike Certain of Plaintiffs' Exhibits is GRANTED to the extent that Plaintiffs' items 3, 6, 9, 11 and 12, are overly broad categories of potential trial exhibits. Plaintiffs are ORDERED to supply by Friday August 20, 2004 an amended Exhibit List identifying specific exhibits they intend to seek to introduce at trial;
IT IS FURTHER ORDERED that Defendants' Motion to Preclude Certain of Plaintiff's Witnesses From Testifying as Experts and to Strike Certain of Plaintiffs' Exhibits is DENIED to the extent it seeks exclusion of deposition testimony, listed as item 13 in Plaintiffs' Exhibit List;
IT IS FURTHER ORDERED that Plaintiffs' Motion for Leave of Court to File Amended Witness and Exhibit List and to Extend the Discovery Period and Incorporated Memorandum in Support is DENIED insofar as it seeks to expand discovery deadlines and expand Plaintiffs' expert witness list, but is GRANTED insofar as Plaintiffs' Witness and Exhibit Lists already filed shall be amended in accordance with the portions of this Order requiring such amendments.