Opinion
NO. 2021-C-0205
05-13-2021
DOMINIC VIGNE, ET AL v. COOPER AIR FREIGHT SERVICES, NATIONAL INTERESTATE INSURANCE, CURTIS HOUSE, AND THE ERNEST N. MORIAL NEW ORLEANS EXHIIBITION HALL AUTHOIRITY
SCJ
JENKINS, J., DISSENTS WITH REASONS
I respectfully dissent. I find no manifest error in the trial court's ruling granting defendants' motion to exclude evidence regarding the untimely life care expert report, undisclosed expert opinions, and certain testimony by plaintiffs' expert.
The trial court is afforded great discretion and power over the control of proceedings: "A court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done." La. C.C.P. art. 1631. The Louisiana Code of Civil Procedure affords trial courts wide to implement pretrial orders and insure that their terms are enforced. La. C.C.P. art. 1551; See Robertson v. Lafayette Ins. Co., 11-0975 (La. App. 4 Cir. 2/8/12), 85 So.3d 186, 189-90. Our courts have recognized that the avoidance of surprise and the orderly disposition of each case are inherent in the theory of pre-trial civil procedure and are sufficient reasons for allowing the trial judge to require adherence to the pre-trial order in the conduct of an action. See id. (citing Eanes v. McKnight, 262 La. 915, 931-32, 265 So.2d 220, 226-27 (1972) and Brooks v. Sewerage and Water Bd. of New Orleans, 02-2246, p. 5 (La. App. 4 Cir. 4/30/03), 847 So.2d 639, 643). An attorney's failure to obey a pretrial order or to participate in a pretrial conference in good faith may be penalized by a wide range of sanctions, under La. C.C.P. art. 1551(C), including making an order prohibiting the disobedient party from introducing designated matters in evidence. La. C.C.P. art. 1471(A)(2).
La. C.C.P. article 1551 provides:
A. In any civil action in a district court the court may in its discretion direct the attorneys for the parties to appear before it for conferences to consider any of the following:
(1) The simplification of the issues, including the elimination of frivolous claims or defenses.
(2) The necessity or desirability of amendments to the pleadings.
(3) What material facts and issues exist without substantial controversy, and what material facts and issues are actually and in good faith controverted.
(4) Proof, stipulations regarding the authenticity of documents, and advance rulings from the court on the admissibility of evidence.
(5) Limitations or restrictions on or regulation of the use of expert testimony under Louisiana Code of Evidence Article 702.
(6) The control and scheduling of discovery including any issues relating to disclosure or discovery of electronically stored information, and the form or forms in which it should be produced.
(7) Any issues relating to claims of privilege or protection of trial preparation material, and whether the court should include agreements between counsel relating to such issues in an order.
(8) The identification of witnesses, documents, and exhibits.
(9) The presentation of testimony or other evidence by electronic devices.
(10) Such other matters as may aid in the disposition of the action.
B. The court shall render an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel. Such order controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.
C. If a party's attorney fails to obey a pretrial order, or to appear at the pretrial and scheduling conference, or is substantially unprepared to participate in the conference or fails to participate in good faith, the court, on its own motion or on the motion of a party, after hearing, may make such orders as are just, including orders provided in Article 1471 (2), (3), and (4). In lieu of or in addition to any other sanction, the court may require the party or the attorney representing the party or both to pay the reasonable expenses incurred by noncompliance with this Paragraph, including attorney fees.
D. If a suit has been pending for more than one year since the date of filing of the original petition and no trial date has been assigned, upon motion of any party, the court shall set the matter for conference for the purpose of resolving all matters subject to the provisions of this Article, including the scheduling of discovery, assignment for trial, and any other matters that will expedite the resolution of the suit. The conference may be conducted in chambers, by telephone, or by video teleconference.
In this case, the pre-trial order to which both parties agreed and signed provided that plaintiffs submit all expert reports, excluding treating physicians, by February 19, 2020. Plaintiffs failed to meet this deadline and provided the defendants with Ms. Nunez's report on March 9, 2020. At the hearing, plaintiffs admitted the failure to comply and stated the only justification for the late filing was that they did not receive Ms. Nunez's report until March 2020. However, plaintiffs did not show that they attempted communication with Ms. Nunez to get the report timely. Additionally, plaintiffs did not file a motion to extend the deadlines in the pre-trial order or even communicate the delay to the defendants. But, plaintiffs contend that the defendants should not be surprised or prejudiced by Ms. Nunez's appearance as an expert witness because she was listed on the witness and exhibit list. However, the witness and exhibit list only identified Ms. Nunez as a licensed rehabilitation counselor. Plaintiffs did not indicate nor make a showing that Ms. Nunez had specialized expert knowledge regarding plaintiffs' future medical care and costs to which she would testify at trial. In granting the defendants' motion, the trial court recognized that the plaintiffs' physicians would be able to provide sufficient evidence and testimony as to the plaintiffs' future medical care and cost. Thus, the plaintiffs would still be able to introduce similar evidence through the testimony of treating physicians at trial.
Finally, I note that plaintiffs can seek to proffer Ms. Nunez's testimony and expert report at trial, thereby protecting their rights for appeal.
For the foregoing reasons, I find that the trial court acted within its wide discretion in granting defendants' motion to exclude the untimely life care expert report, undisclosed expert opinions, and certain testimony of plaintiffs' expert, Ms. Nunez. Accordingly, I would deny the writ.