Opinion
Civil Action No. 03-0457 SECTION "N" (1).
July 12, 2004
ORDER AND REASONS
Before the Court is a Motion in Limine to Strike Expert Witnesses and Evidence filed on June 9, 2004, by the City of Hammond, Louis J. Tallo, in his former capacity as Mayor of Hammond, Dr. Lavanna Brown, Toni Licciardi, Nicky Muscarello, Jerry Correjolles, and Osa Williams, in their respective capacities as Councilmembers and/or former Councilmembers for the City of Hammond, Ron S. Macaluso, in his capacity as former City Attorney for the City of Hammond, and Lanita V. Johnson, in her capacity as Clerk of the Council for City of Hammond (the "City of Hammond defendants"). For the reasons that follow, defendants' motion is GRANTED IN PART, in that (i) plaintiffs are prohibited from offering the expert testimony of Dr. Charles R. Genovese, Jr., Dr. John Megison and Shael Wolfson, M.S.; and (ii) plaintiffs must pay the reasonable expenses, including attorney's fees, incurred by defendants in filing this motion; and DENIED IN PART, in that the Court will not strike Thomas Dalton, Ph.D., as an expert witness.
I. BACKGROUND
By Minute Entry dated June 18, 2003, the Court established a Scheduling Order based on a February 19, 2004 pre-trial conference date and March 8, 2004 trial date. (Rec.Doc. 23). The Scheduling Order set forth certain discovery deadlines, including a November 21, 2004 date for the delivery of written reports of experts, including treating physicians, who may be witnesses for plaintiffs. Id. The Court also ordered that deadlines fixed in the Scheduling Order "may only be extended by the Court upon a timely motion filed in compliance with the Plan and Local Rules and upon a showing of good cause." Id. On November 20, 2003, plaintiffs filed a Consent Motion to Continue and Reschedule Some of the Deadline Dates of the Scheduling Order. (Rec.Doc. 33). Included was a request that the deadline for the exchange of plaintiffs' expert reports be extended to January 8, 2004. Id. The Court granted the motion on November 26, 2003. Id.Thereafter, on January 7, 2004, the parties filed a Joint Motion for Continuance of Discovery Deadlines and Trial Date as the parties had then identified 46 potential witnesses and needed more time to prepare for trial. (Rec.Doc. 35). On January 16, 2004, after having conducted a status conference via telephone, the Court granted the joint motion and continued the final pretrial conference to July 29, 2004 and the trial date to August 9, 2004. (Rec.Doc. 36). The deadline for the delivery of plaintiffs' expert reports was extended to May 3, 2004, and for defendants' expert reports, the deadline was extended to June 4, 2004. Id.
On June 1, 2004, plaintiffs filed their Witness List. (Rec.Doc. 63). Included as potential witnesses are (1) Dr. Charles R. Genovese, Jr., the treating physician of plaintiff Alan Levith; (2) Dr. John Megison, the treating physician/ob-gyn of plaintiff Teresa Benton Levith; (3) Shael Wolfson, M.S., a forensic economist; and (4) Thomas R. Dalton, Ph.D., a forensic economist. See id.
The City of Hammond defendants now complain that plaintiffs have failed to identify any experts as potential witnesses in any of its Rule 26(a) disclosures and that any expert reports are untimely. Defendants move the Court to prohibit plaintiffs from introducing the testimony of any expert evidence of any type at the trial of this case and to impose upon plaintiffs such other sanctions as the Court deems appropriate.
II. LAW AND ARGUMENT
Federal Rule of Civil Procedure 16(b) authorizes district courts to control and expedite the discovery process through a scheduling order. Consistent with this authority, the Court has "broad discretion" to enforce its scheduling order. See Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990). Rule 16(f) specifically authorizes the Court to sanction a party for failing to comply with its scheduling order by excluding evidence. Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 509 (5th Cir. 1999).
In Geiserman v. MacDonald, the Fifth Circuit listed four factors that a court should consider in exercising its discretion to exclude evidence: (1) a party's explanation for its failure to timely identify its witnesses and exhibits; (2) the importance of the proposed evidence; (3) potential prejudice in allowing the admission of the exhibits or testimony; and (4) the availability of a continuance to cure such prejudice. 893 F.2d at 790.
As a preliminary matter, the Court notes that plaintiffs have only responded to the motion in limine with respect to Thomas Dalton, Ph.D., plaintiffs' expert in forensic economics. Plaintiffs' explanation for the late designation of Dalton is the unexpected withdrawal of plaintiffs' first expert, Dr. Randall Rice. Plaintiffs assert that they retained Dr. Rice in December of 2003; however, days before the May 3, 2004 deadline for submission of expert reports, Dr. Rice informed plaintiffs that he could not participate in light of his relationship with one of the defendants. Plaintiffs explain that they immediately contacted Forensic Economics Corporation, and in less than three weeks, Mr. Dalton prepared and submitted a detailed report.
The Court finds that plaintiffs have presented a satisfactory explanation for the failure to timely submit the expert report. However, the Court also finds that plaintiffs' delay in identifying an expert economist and delivering his report, which estimates Global ADR's economic loss to exceed $2 million, two months prior to trial no doubt has prejudiced defendants. At the very least, plaintiffs' noncompliance with the Court's Scheduling Order and the Federal Rules of Civil Procedure has placed defendants in the position of having very little time to respond with follow-up discovery or to engage their own expert witness(es). Still, before a determination can be made, the Court must consider the two remaining Geiserman factors — the importance of the testimony sought to be excluded and the possibility of a continuance. See Geiserman, 893 F.2d at 790.
With respect to the relative importance of the testimony of Thomas Dalton, Plaintiffs submit that Dalton will testify as to past and future lost profits allegedly incurred by Global ADR, and that without his testimony, they will have a difficult, if not impossible, task of presenting evidence of lost profits to the jury without the testimony of their economic expert. See, e.g., Stewart v. Rowan Companies, Inc., 2002 WL 362847, *2 (E.D.La. March 7, 2002).
The final factor to consider is the possibility of a continuance. As the Court indicated to all counsel following the June 9, 2004 hearing, the Court's docket would allow the current trial date to be extended for 60 to 90 days, from August 9, 2004, to an October or November 2004 date. Plaintiffs state in their Opposition that they would consent to a reasonable continuance of the trial date; defendants have not indicated otherwise.
Having considered all relevant factors, the Court finds that striking Mr. Dalton as an expert witness would severely impact plaintiffs' case, and that any such harm can be avoided by a reasonable continuance of the trial if the parties determine that such is necessary. A continuance of 60 to 90 days will cure any prejudice to the defendant. Accordingly, the Court will deny the City of Hammond defendants' motion insofar as it seeks to strike the expert testimony of Mr. Dalton.
Nevertheless, the Court does find that plaintiffs should be penalized for their failure to earlier identify Dr. Rice, or any other economist, as their expert. In their Opposition, plaintiffs have not presented the Court with any explanation as to why they did not previously disclose the identity of Dr. Randall Rice. Had plaintiffs done so, defendants would have at least been aware that an expert report, in the field of forensic economics, would be forthcoming around the time of plaintiffs' May 8, 2004 deadline for expert reports. Accordingly, the Court finds that a just and proper penalty for plaintiffs' noncompliance is to order that plaintiffs pay the reasonable expenses, including attorney's fees, incurred by the City of Hammond defendants in preparing and filing this motion.
Plaintiffs have not opposed the motion as it relates to Dr. Genovese, Dr. Megison and Mr. Wolfson. Therefore, the Court will prohibit plaintiffs from offering the expert testimony of these three witnesses at trial. With respect to the expert testimony of the two treating physicians, the Court notes that this case is one about the loss of a conditional use variance and the resultant economic loss — primarily future income — allegedly sustained by a business. The technical testimony of Mr. Dalton is necessary for plaintiffs to present evidence of lost profits to the jury. On the other hand, the importance of presenting medical testimony to the jury, presumably as evidence of emotional distress, is minimal in comparison to the importance to plaintiffs of presenting the testimony of Mr. Dalton. Medical expert testimony is one form of evidence that may be presented to the jury, and the testimony of lay witnesses only may suffice to prove by a preponderance of the evidence entitlement to emotional distress damages. While Drs. Genovese and Megison may testify as lay witnesses regarding their personal knowledge of their respective patient's expressed state of mind and what they observed about his or her demeanor at times relevant to this matter, they may not render an expert opinion.
The Fifth Circuit in Brady v. Fort Bend County, 145 F.3d 691 (5th Cir. 1998) discussed the proof necessary to recover mental anguish damages, citing the criteria established in Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 939 (5th Cir. 1996). In addition to holding that there must be a "specific discernable injury to the claimant's emotional state", the Court noted that "a claimant's testimony alone may not be sufficient to support anything more than a nominal damage award," and evidence of mental anguish " may include corroborating testimony or medical or psychological evidence." Brady, 145 F.3d at 718, citing Patterson, 90 F.3d at 938-40. While the Brady court rejected the mental anguish award of the plaintiffs there because the testimony supporting it was "vague, conclusory and uncorroborated," it also plainly stated:
In reaching our conclusion we do not now hold, nor have we ever held, that a plaintiff may never prove mental anguish damages with his own testimony alone. In certain cases a plaintiff's testimony alone may be sufficient proof of mental damages. . . . Patterson does not conflict with that proposition. Under Patterson it does not matter what type of evidence is used to satisfy Carey's [ Carey v. Piphus, 435 U.S. 247, 264 n. 20, 98 S.Ct. 1042 (1978)] specificity requirement, so long as that standard is successfully met. When a plaintiff's testimony is particularized and extensive, such that it speaks to the nature, extent, and duration of the claimed emotional harm in a manner that portrays a specific and discernable injury, then that testimony alone may be sufficient.145 F.3d at 720.
III. CONCLUSION
Accordingly, for all of the foregoing reasons, IT IS ORDERED that:
(1) Defendants' Motion in Limine is GRANTED IN PART, in that(i) plaintiffs are prohibited from offering the expert testimony of Dr. Charles R. Genovese, Jr., Dr. John Megison and Shael Wolfson, M.S.; and (ii) plaintiffs must pay the reasonable expenses, including attorney's fees, incurred by defendants in filing this motion; and
(2) Defendants' Motion in Limine is DENIED IN PART, in that the motion is denied in all other respects.