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discussing Supreme Court's recognition of present value method for calculation of lost wages
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CIVIL ACTION NO. 18-8941
2020-02-10
Allen TAYLOR v. B&J MARTIN, INC., et al.
Jim S. Hall, Jennifer L. Crose, Matthew B. Moreland, Jim S. Hall & Associates, Metairie, LA, for Plaintiff. Jefferson Randolph Tillery, Catherine Barrett Rice, Sara Barry Kuebel, Jones Walker, Laurence R. DeBuys, IV, Patrick Miller, LLC, New Orleans, LA, Sidney Daniel Meeks, Kristen Elizabeth Meeks, Meeks & Associates, LLC, Metairie, LA, Phyllis Esther Glazer, Louisiana Department of Justice, Baton Rouge, LA, for Defendants.
Jim S. Hall, Jennifer L. Crose, Matthew B. Moreland, Jim S. Hall & Associates, Metairie, LA, for Plaintiff.
Jefferson Randolph Tillery, Catherine Barrett Rice, Sara Barry Kuebel, Jones Walker, Laurence R. DeBuys, IV, Patrick Miller, LLC, New Orleans, LA, Sidney Daniel Meeks, Kristen Elizabeth Meeks, Meeks & Associates, LLC, Metairie, LA, Phyllis Esther Glazer, Louisiana Department of Justice, Baton Rouge, LA, for Defendants.
SECTION "A" (1)
ORDER AND REASONS
JAY C. ZAINEY, UNITED STATES DISTRICT JUDGE
Before the Court are three separate motions. First, is a Motion to Exclude Testimony of Defendant's Safety Expert (Rec. Doc. 71) filed by the Plaintiff Allen Taylor. Second, a Motion to Exclude Certain Testimony of Shael N. Wolfson (Rec. Doc. 73) filed by the Defendant B&J Martin, Inc. ("B&J Martin"). Third, a Motion to Exclude Opinions and Testimony of Lacy Sapp (Rec. Doc. 74) filed by B&J Martin. These three motions are all opposed. Further, these motions were submitted for consideration on January 8, 2020 and are before the Court on the briefs without oral argument.
The Court notes that the Defendant Houston Casualty Company also adopted the motions to exclude the testimony of Shael Wolfson and Lacy Sapp. (Rec. Doc. 80).
I. Background
This is a Jones Act case arising out of an accident that occurred on a vessel on the morning of October 14, 2015. (Rec. Doc. 71-2, p.1, Taylor's Memorandum in Support). On that morning, Taylor claims that he got up from his bunk, put on a pair of slippers (commonly known as "Crocs"), and proceeded out of his cabin into the vessel's wheelhouse. Id. He then exited the wheelhouse through a door onto a platform on the exterior of the vessel. Id. While stepping onto this platform, his foot landed on a BIC lighter laying on the floor of the platform. Id. Landing on the lighter caused his foot to slide, and he fell down a nearby stairway attached to the platform and landed on his back. Id.
Taylor then filed suit, and the parties hired various experts to help them prepare for trial. Once the experts completed their reports, the parties moved the Court to exclude the testimony and opinions of three of these experts. More specifically, Taylor wants to exclude the report and testimony of B&J Martin's Safety Expert, (Rec. Doc. 71), and B&J Martin seeks to exclude the reports and testimony of Taylor's Economic Loss Expert (Rec. Doc. 73) and Life Care Expert (Rec. Doc. 74). To address these motions in limine, the Court will first present the overarching legal principles that govern these motions, and then the Court will analyze each parties’ arguments.
II. Legal Standard
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert witness testimony. See Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 588, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ; United States v. Hitt , 473 F.3d 146, 148 (5th Cir. 2006). Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
"To qualify as an expert, ‘the witness must have such knowledge or experience in [his] field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth.’ " United States v. Hicks , 389 F.3d 514, 524 (5th Cir. 2004) (quoting United States v. Bourgeois , 950 F.2d 980, 987 (5th Cir. 1992) ). Additionally, Rule 702 states that an expert may be qualified based on "knowledge, skill, experience, training, or education." Hicks , 389 F.3d at 524 ; see also Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (discussing witnesses whose expertise is based purely on experience).
Because there is no jury demand in this case, the Court is the trier of fact. Accordingly, "[m]ost of the safeguards provided for in Daubert are not as essential in a case such as this where a district court judge sits as the trier of fact in place of a jury." Gibbs v. Gibbs , 210 F.3d 491, 500 (5th Cir. 2000). "Daubert requires a binary choice—admit or exclude—and a judge in a bench trial should have discretion to admit questionable technical evidence, though of course he must not give it more weight than it deserves." Thompson v. Rowan Cos. , 2007 WL 724646, at *1 (E.D. La. 2007) (internal citations omitted). Even still, expert testimony should be excluded if the court finds that "the jury could adeptly assess [the] situation using only their common experience and knowledge." Peters v. Five Star Marine Serv. , 898 F.2d 448, 450 (5th Cir. 1990). Likewise, expert testimony should be excluded in a bench trial if the Court finds that the proffered testimony deals only with common sense issues with which the Court, in its role as trier of fact, needs no expert assistance to resolve. See Thomas v. Global Explorer, LLC , 2003 WL 943645, at *2 (E.D. La. 2003).
III. Discussion
A. Safety Expert – Robert E. Borison
In his report, B&J Martin's Safety Expert, Robert E. Borison, rendered the following four opinions: (1) Taylor violated safety rules when he exited the wheelhouse not wearing proper footwear, (2) Taylor failed to pay close attention to his surroundings and to watch where he was stepping, considering his unsafe footwear, (3) the vessel's deck and stairs did not violate any codes, safety standards, or industry safety standards, and (4) there was sufficient lighting over the platform where Taylor slipped. (Rec. Doc. 71-3, Borison's Report).
However, Taylor argues that Borison's opinions are inadmissible because "they relate to issues within [the] common knowledge, experience, and understanding of the Court, the fact finder in this case." (Rec. Doc. 71-2, p. 5, Taylor's Memorandum in Support). Counsel for Taylor explained by saying, "[Taylor] stepped on a BIC lighter which was left on the deck of a vessel and the lighter caused him to slip down and fall injuring himself." Id. at 6. "How the lighter got there, who is responsible for the lighter, whether the footwear was appropriate for [the] circumstances and ultimately where fault is be found, if any, [should be] determined by this Court [as the trier of fact] without the assistance of the expert opinion of Robert Borison." Id.
Conversely, B&J Martin contends that, "this case is no ordinary slip and fall within the common experience and knowledge of an average layman." (Rec. Doc. 82, p. 5, B&J Martin's Opposition). "Rather, this case involves an accident occurring offshore in the Gulf of Mexico, while a seaman wore improper footwear against company regulations, custom, and maritime industry standards." Id. "The specific facts of this case warrant the specialized knowledge and experience of Borison in the area of marine safety." Id.
Here, the Court finds that the opinions expressed in Borison's report will assist the Court in its role as the trier of fact. More specifically, Borison's opinions offer valuable insight into the slip resistant nature of the vessel's deck and how various types of footwear interact with this type of material. Thus, Mr. Borison's report meets the two-pronged test articulated in Daubert . Further, because this is a bench trial, the Court will make the determination as to Mr. Borison's credibility and will assign due weight to his testimony when he testifies before the Court at trial. See Gibbs , 210 F.3d at 500.
B. Economic Loss Expert – Shael N. Wolfson
i. Case Law
Next, B&J Martin seeks to exclude the testimony of Taylor's Economic Loss Expert, Shael N. Wolfson. (Rec. Doc. 73-1, p. 1, B&J Martin's Memorandum in Support). More specifically, B&J Martin believes that Wolfson's methodology for calculating Taylor's lost wages essentially allows Taylor to "double-dip" because Wolfson "utilizes both the below-market-discount method and also increases [Taylor's] base wage rate for inflation." Id. To analyze B&J Martin's contentions, the Court must first consider the overarching case precedent that governs these calculations.
The Supreme Court in Jones & Laughlin Steel Corp. v. Pfeifer stated that there are two basic elements for calculating lost wages: "(1) the amount that the employee would have earned during each year that he could have been expected to work after the injury; and (2) the appropriate discount rate, reflecting the safest available investment." 462 U.S. 523, 537-38, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983). "The trier of fact should apply the discount rate to each of the estimated installments in the lost stream of income, and then add up the discounted installments to determine the total award." Id. at 538, 103 S.Ct. 2541. Thus, in other words, each future payment in the income stream must be discounted to present value as of the day of the accident . Id. at n.22. Further, the Court in Pfeifer also considered three different competing methods for how to incorporate the effects of inflation into the calculations. Id. at 538-40, 103 S.Ct. 2541. These three methods were: the "case-by-case" method, the "below-market-discount" method, and the "total-offset" method. Id. Lastly, although the Court considered these three methods, it did not require the use of one method over another. Id.
As the Supreme Court has noted, "[i]t is both easier and more precise to discount the entire lost stream of earnings back to the date of injury-the moment from which earning capacity was impaired." Jones & Laughlin Steel Corp. v. Pfeifer , 462 U.S. 523, 538 n.22, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983). "The plaintiff may then be awarded interest on that discounted sum for the period between injury and judgment, in order to ensure that the award when invested will still be able to replicate the lost stream." Id.
After Pfeifer was decided, the Fifth Circuit in Culver v. Slater Boat Co. ("Culver II "), 722 F.2d 114 (5th Cir. 1983) (en banc) held that the "below-market-discount" method must be used when conducting loss of income calculations. In Culver II , the Fifth Circuit described this method by saying, "the trier of fact [first starts by] estimat[ing] the wage increases the plaintiff would have received each year as a result of all factors other than inflation ." Id. (emphasis added). Next, "[t]he resulting income stream is discounted by a below-market discount rate." Id. "This discount rate represents the estimated market interest rate, adjusted for the effect of any income tax, and then [is] offset by the estimated rate of general future price inflation. Id. This rate can either be reached by stipulation or by introducing competing expert opinions. Id. at 122.
Thus, in sum, a trier of fact in the Fifth Circuit must utilize the "below-market-discount" method when performing a lost wages calculation.
The Fifth Circuit has also subsequently recognized this requirement. See e.g., Rhodes v. Guiberson Oil Tools , 82 F.3d 615, 623 (5th Cir. 1996) ("One of the available methods we discussed in Culver is the ‘case-by-case’ method[.] In Culver we acknowledged that the case-by-case method was ‘theoretically accurate,’ but we squarely rejected its use in the Fifth Circuit , largely due to the length and complexity of the proceedings necessary to engage in forecasts of future inflation.").
ii. Application to Wolfson's Report
In his report, Wolfson made two calculations that are relevant in considering this motion in limine: (1) Taylor's lost wages between the accident and trial and (2) Taylor's lost wages from trial to the end of his work life expectancy. First, to calculate Taylor's lost wages between the accident and the trial, Wolfson started with an earning base of $94,075 and applied an incremental rate of 2.3% over 5 years. This incremental rate was based on the historical rate reported in the Employment Cost Index from 2015-2020. Id. at 3. This Index "is an indicator of cost pressures within companies that could lead to price inflation for finished goods and services." (Rec. Doc. 73-3, p. 1, The Employment Cost Index: What Is It?). Thus, Wolfson's calculations produced the following table:
The Court notes that Martinez v. Offshore Specialty Fabricators, Inc. mandates that the "[c]alculation of lost income begins with the gross earnings of the injured party at the time of the injury [.]" 481 F. App'x 942, 949 (5th Cir. 2012) (internal citations omitted). Wolfson instead used Taylor's annual income for 2014, the last full year before the accident occurred. B&J Martin points out this flaw by saying that, "Wolfson clearly did not use Plaintiff's gross earnings at the time of the injury." (Rec. Doc. 88, p. 4, B&J Martin's Memorandum in Support). However, the Court finds that Taylor's annual income for 2014 is comparable to Taylor's 2015 annualized income. For instance, by the Court's own calculations, Taylor's 2015 annualized income is $93,326 ($73,638 × 365/288), which is also close to the $93,978 amount calculated by B&J Martin's expert John Theriot. Thus, the Court concludes that Wolfson's use of Taylor's 2014 income was reasonable.
2015 - $94,075
2016 - $96,239
2017 - $98,452
2018 - $100,717
2019 - $103,033
2020 - $105,403
(Rec. Doc. 73-2, p. 2, Wolfson's Report).
The amounts listed for 2016-2019 were combined with the prorated amounts for 2015 and 2020 and resulted in a total of $436,493 (before tax) in lost wages between the accident and the date of Taylor's trial. (Rec. Doc. 73-2, p. 2, Wolfson's Report).
These two years were prorated because the injury occurred on October 14, 2015, and the Trial is set to commence on March 2, 2020.
Second, Wolfson calculated Taylor's post-trial loss to be $1,805,609 (before tax). Wolfson did this by first taking the 2020 earning base of $105,403 and incrementally increasing that number by 2.7% for Taylor's work life expectancy of 17.6 years. This incremental rate was different than the 2.3% rate utilized above to calculate Taylor's lost earnings between the accident and the trial because this rate incorporated: "(i) the influence of inflation upon wages, wage rates, and total employee compensation [and] (ii) productivity measured by temporal changes in output per manhour reported by the Bureau of Labor Statistics." (Rec. Doc. 73-2, p. 3, Wolfson's Report) (emphasis added). After increasing Taylor's income over 17.6 years, Wolfson then discounted Taylor's annual salary stream to present value (i.e. , as of the day of trial) by using a discount rate of 3%. Id. Wolfson noted that this discount rate included consideration of: "(i) liquidity, ready convertibility into cash without penalty (ii) credit risk, the risk of default (iii) market risk, including variability of interest rates and security prices, (iv) safety of principal, and (v) appropriate term to maturity." Id.
Thus, for the purposes of deciding this motion in limine, the Court finds that Wolfson improperly applied the "below-market-discount" method when he (1) calculated Taylor's lost wages between his accident and trial and (2) Taylor's lost wages from the trial through his work life expectancy. First, as to the calculation for Taylor's lost wages between the accident and the trial, Wolfson never calculated the present value of Taylor's lost income amounts between 2015-2020 as of the date of Taylor's accident. Wolfson's methodology plainly contradicted the requirements set forth in Culver II . Accordingly, the amount calculated by Wolfson of Taylor's "loss between accident and trial" is wrong as a matter of law and must be excluded from trial.
Second, Wolfson's calculations for loss from trial through Taylor's work life equivalent allow Taylor to "double-dip" on the effect of inflation on Taylor's wage loss. As noted above, Wolfson increased Taylor's annual income by using an incremental factor of 2.7%, and then Wolfson discounted each of these annual income stream payments to present value by using a discount rate of 3%. (Rec. Doc. 73-2, p. 3, Wolfson's Report). This incremental factor incorporated "the influence of inflation upon wages[.]" Id. The use of an incremental factor that incorporates inflation directly contradicts Culver II : "the trier of fact estimates the wage increases the plaintiff would have received each year as a result of all factors other than inflation." 722 F.2d at 118. Thus, the amount calculated by Wolfson denoting Taylor's loss from trial to work life expectancy is wrong as a matter of law and also must be excluded from trial.
The Court notes that the only amount that is arguably correct as a matter of law in Wolfson's report is Taylor's employer fringe contribution loss of $251,721. (Rec. Doc. 73-2, p. 1, Wolfson's Report).
However, in an attempt to salvage Wolfson's report, Taylor contends in his Opposition that the Fifth Circuit no longer requires the "below-market-discount" when calculating lost wages. (Rec. Doc. 83, p. 4, Taylor's Memorandum in Support). More specifically, Taylor states that "[B&J Martin relies] upon Culver II and the below discount rate set by the Fifth Circuit when that decision was seriously called into question in 1988 when the United States Supreme Court decided Monessen Southwestern Railway Co. v. Morgan , 486 U.S. 330 [108 S.Ct. 1837, 100 L.Ed.2d 349] (1988)." Id. "In fact, one could argue that the Supreme Court emasculated [ ] Culver II concerning [the] below market discount rate when it decided Monessen ." Id. " Monessen held that the fact finder was free to choose among alternate discounting methods and that experts could not be compelled to use any one method."
Taylor's interpretation of Monessen is patently incorrect. Monessen only analyzed the present value calculation within the "below-market-discount" method, not the validity of the entire method. As the Supreme Court noted, "the present value calculation is to be made by the ‘trier of fact,’ " and the trial judge cannot impose "rigid mathematical limitations" on that calculation. Monessen , 486 U.S. at 341-42, 108 S.Ct. 1837. Thus, Monessen only stands for the proposition that a court cannot mandate a particular discount rate for the present value calculation within the "below-market-discount" method. Monessen does not prevent a circuit from implementing a particular method for calculating lost wages.
Thus, in sum, the Court finds that Wolfson's report is excluded as to the following calculated amounts for Taylor: (1) the "loss between accident and trial" of $318,203 ($436,493 before tax), (2) the "loss from trial without return to gainful employment" of $1,300,203 ($1,805,609 before tax) and (3) the "after credit loss from trial" of $1,079,662 ($1,547,281 before tax). (Rec. Doc. 73-2, p. 1, Wolfson's Report). Lastly, due to a conflict in the Court's schedule, this matter must be continued for reasons that are unrelated to this matter. Thus, although the amounts listed above are excluded in their current form, the Court will, in the interest of justice, allow Wolfson an additional 20 days to amend his report and utilize the proper methodology detailed above. B&J Martin will be given 30 days to respond to this amended report from the date of Wolfson's report.
C. Life Care Planner – Lacy Sapp
Taylor retained a Life Care Planner, Lacy Sapp, to offer an expert opinion as to Taylor's future medical treatment and other medically necessary expenses. (Rec. Doc. 74-2, Sapp's Expert Report). Sapp reported the following costs that Taylor will, according to Sapp, more probably than not need to incur:
| Service / Item | Low | High |
|---|---|---|
| Surgeries/Procedures | $233,825.00 | $233,825.00 |
| Future Medical Care, Routine | $15,912.00 | $15,912.00 |
| Projected Evaluations | $100.00 | $150.00 |
| Projected Therapeutic Modalities | $1,350.00 | $2,400.00 |
| Labs/Diagnostics | $5,798.07 | $9,897.73 |
| Medications | $25,912.08 | $27,475.74 |
| Equipment/Supplies | $181.46 | $248.46 |
| Household Services | $94,554.00 | $177,174.00 |
| Total Costs | $377,632.61 | $467,082.93 |
Sapp based her estimates on a short conference that she had with one of Taylor's treating physicians, Dr. Kevin Coyle. (Rec. Doc. 90-2, Sapp's Summary of Conference). This conversation took place only between Dr. Coyle and Sapp, without any lawyers present. Id. at 1. However, when Dr. Coyle was subsequently deposed on January 6, 2020, he contradicted Sapp's recollection of their conversation and indicated that only the following items were, more probably than not, needed: (1) future medical care, routine, (2) projected evaluations, (3) labs/diagnostics, and (4) medications. (Rec. Doc. 90-1, p. 9-13, Deposition of Dr. Coyle). Further, Dr. Coyle specifically disputed recommending any additional surgeries (i.e., a spinal cord stimulator ) or household services. Id.
Accordingly, B&J Martin now seeks to exclude Sapp's expert opinions and testimony for the following three reasons. First, based on Dr. Coyle's deposition, there is no basis for Sapp's opinion on the necessity of any future surgeries or household services. (Rec. Doc. 90, p. 2-3, B&J Martin's Reply). Second, "Sapp's entire life care plan is based upon mere possibilities of future medical treatment." Id. at 3. "The possibility of future medical treatment cannot serve as a basis for recovery of future medical expenses as an item of damage." Id. at 4. Third, Taylor never made proper disclosures for Dr. Coyle under Rule 26. Id. at 5. "Instead of proper disclosure pursuant to Rule 26(a)(2)(C), Plaintiff simply provided a life care plan from Lacy Sapp, which alerted B&J Martin to Sapp's alleged hearsay conversation with Dr. Coyle regarding possible future medical treatment. Id. at 7." Until Plaintiff disclosed his life care plan on November 13, 2019, B&J Martin was unaware of any potential medically necessary future medical treatment, especially considering the fact that Plaintiff reached maximum medical improvement in May 2019. Id. Thus, "[t]his failure to disclose has resulted in both prejudice and surprise to B&J Martin." Id.
The Court will next address B&J Martin's three contentions in order.
i. Sapp's Opinions on Need for Surgeries and Household Services
"As a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned to that opinion rather than its admissibility and should be left for the jury's consideration." United States v. 14.38 Acres of Land , 80 F.3d 1074, 1077 (5th Cir. 1996) ; see also Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 596, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ("Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence."). Wilcox v. Max Welders, L.L.C. , No. CIV.A. 12-2389, 2013 WL 4517907, at *1 (E.D. La. Aug. 22, 2013).
Here, Sapp based her expert report and opinions on a private consultation with Dr. Coyle. Although Dr. Coyle doubts the conclusions that Sapp made after they spoke, these doubts and potential contradictions go to the weight of Sapp's report and opinions, not its admissibility. Further, the Court is well aware of defense counsel's extensive and capable cross-examination abilities. If there are any supposed falsehoods or contradictions in Sapp's opinions or testimony, the Court is confident that B&J Martin's counsel will be able to expose them through the cross-examination process. Thus, B&J Martin's first argument has no merit.
ii. Possibility of Future Life Treatment
In Sapp's expert report, she stated that Taylor will "more probably than not" need: (1) a spinal cord stimulator, (2) a thoracic MRI, and (3) housekeeping services. (Rec. Doc. 74-2, p. 7, Sapp's Report) Similarly, Sapp noted that Taylor will "likely need": (1) a back brace, (2) physical therapy after surgery, (3) follow-ups with a pain management physician, (4) medications, and (5) lab testing. Id. As B&J Martin argued in its Reply memorandum, "[t]he court may exclude evidence of future treatment costs if the evidence establishes it is only treatment the plaintiff might need, rather than treatment the plaintiff will probably need." See also Brandner v. State Farm Mut. Auto. Ins. Co. , No. CV 18-982, 2019 WL 636423, at *3 (E.D. La. Feb. 14, 2019). Here, Sapp's use of the phrases "more probably than not" and "likely need" provide a much higher probability than the phrase "might need" or "probably need." Thus, the Court finds that B&J Martin's contentions as to this argument have no merit.
iii. Taylor's Failure to Disclose Dr. Coyle
Lastly, B&J Martin argues that Sapp's opinions and report must be excluded because Taylor failed to make proper disclosures of Dr. Coyle's testimony. More specifically, Rule 26(a)(2) of the Federal Rules of Civil Procedure governs the disclosure of expert testimony. An expert that is retained by a party for the purposes of litigation is required to provide an expert report pursuant to Rule 26(a)(2)(B). See Fed. R. Civ. P. 26(a)(2)(B). Prior to 2010, non-retained experts, such as treating physicians, were exempt from Rule 26 ’s expert reporting requirements. Tucker v. United States , 2019 WL 4198254, at *2 (E.D. La. Sept. 4, 2019) (citations omitted). In 2010, Rule 26(a)(2)(C) was added, which provides a modified disclosure requirement applicable to non-retained experts, such as treating physicians. Id. (citations omitted). Rule 26(a)(2)(C) requires that a party, with respect to a non-retained expert, provide a disclosure stating: "(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705 ; and (ii) a summary of the facts and opinions to which the witness is expected to testify." Fed. R. Civ. P. 26(a)(2)(C).
A Rule 26(a)(2)(C) disclosure "need not be extensive," but must include "an abstract, abridgement, or compendium of the opinion and facts supporting the opinion." Causey v. State Farm Mut. Auto. Ins. Co. , 2018 WL 2234749, at *2 (E.D. La. May 16, 2018) (internal quotation marks and citation omitted; emphasis in original). Although "the rule does not require overly comprehensive disclosure ... it does require disclosure in at least some form" in order "to provide opposing parties the opportunity to prepare for effective cross-examination and to arrange for testimony from other experts, if necessary." Id. (citation omitted; emphasis in original). Moreover, "disclosures consisting of medical records alone are insufficient to satisfy the disclosure standard of Rule 26(a)(2)(C)." Hooks v. Nationwide Housing Sys., LLC , 2016 WL 3667134, at *5 (E.D. La. July 11, 2016) (citation omitted); see also Knighton v. Lawrence , 2016 WL 4250484, at *2 (W.D. Tex. Aug. 9, 2016) ("[Under Rule 12(a)(2)(C),] it does not suffice to reference large bodies of material sources of facts without stating a brief account of the main points from those large bodies on which the expert relies.").
"Failure to comply with the deadline for disclosure requirements results in mandatory and automatic exclusion under Federal Rule of Civil Procedure 37(c)(1)." Tucker , 2019 WL 4198254, at *2 (internal quotation marks and citations omitted). And the excluded witnesses may not offer testimony to "supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). In determining whether the failure was substantially justified or harmless, courts consider: "(1) the explanation for the failure to adhere to the deadline; (2) the importance of the proposed modification of the scheduling order; (3) the potential prejudice that could result from allowing the modification; and (4) the availability of a continuance to cure that prejudice." Leggett v. Dolgencorp. LLC , 2017 WL 4791183, at *2 (E.D. La. Oct. 24, 2017) (citing Geiserman v. MacDonald , 893 F.2d 787, 791 (5th Cir. 1990) ).
Here, the Court notes that Taylor failed to make the required disclosures under Rule 26(a)(2)(C) for Dr. Coyle. These disclosures were required to be made by no later than ninety days before trial, or December 2, 2019. However, the Court finds that Taylor's failure to make these disclosures is harmless. Because B&J Martin had Taylor's extensive medical records for an extended period of time, the Court concludes that B&J Martin will not incur any prejudice by not receiving Dr. Coyle's timely disclosures. This is bolstered by the fact that Taylor underwent three successive surgeries, so it is highly unlikely that B&J Martin was "unaware of any potential medically necessary future medical treatment" that Taylor would need. (Rec. Doc. 90, p. 7-8, B&J Martin's Reply). However, and importantly, since the trial will be continued, B&J Martin will not be prejudiced if it needs additional time to prepare in light of the testimony of Dr. Coyle and Sapp.
Accordingly;
IT IS ORDERED that the Motion to Exclude Testimony of Defendant's Safety Expert (Rec. Doc. 71) filed by the Plaintiff Allen Taylor is DENIED .
IT IS FURTHER ORDERED that the Motion to Exclude Certain Testimony of Shael N. Wolfson (Rec. Doc. 73) filed by the Defendant B&J Martin is GRANTED . Wolfson's report is excluded as to the following calculated amounts for Taylor: (1) the "loss between accident and trial" of $318,203 ($436,493 before tax), (2) "loss from trial without return to gainful employment" of $1,300,203 ($1,805,609 before tax) and (3) "after credit loss from trial" of $1,079,662 ($1,547,281 before tax). (Rec. Doc. 73-2, p. 1, Wolfson's Report). Further, Wolfson has 20 days to amend his report and utilize the correct methodology that the Court has detailed above. B&J Martin will have 30 days to respond to this amended report.
IT IS FURTHER ORDERED that the Motion to Exclude Opinions and Testimony of Lacy Sapp (Rec. Doc. 74) filed by B&J Martin is DENIED .
IT IS FURTHER ORDERED that, due to a conflict in the Court's schedule, the pretrial conference and the trial in this matter are CONTINUED . Further, the pretrial conference set for February 13, 2020 at 9:30 AM is CONVERTED to a status conference. The Court will then select a new pretrial conference date and a new trial date at this status conference.