Davidson v. Ga. Pac., LLC

TINA DAVIDSON, ET AL v. GEORGIA PACIFIC, LLC, ET AL

CIVIL ACTION NO. 12-cv-1463

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION

January 6, 2014

JUDGE STAGG

MAG. JUDGE HAYES

MEMORANDUM ORDER¹

Before the Court is a Motion for Clarification filed by Plaintiffs Tina Davidson, Kathryn Davidson, and Kristen Davidson Benoit, as well as a Motion to Strike filed by Defendants Georgia-Pacific LLC, Beazer East, Inc., CertainTeed Corporation, and Union Carbide Corporation. Plaintiffs first ask the Court to rule that their expert report disclosures are sufficient; in the alternative, Plaintiffs ask the Court for an extension of time in which to submit full Rule 26-compliant expert reports. Defendants ask the Court to strike Plaintiffs' expert witnesses. For reasons set forth below, Plaintiffs' first request, [doc. # 70], is DENIED, Plaintiffs' alternative request for an extension of time, [doc. # 70], is GRANTED in part and DENIED in part, and Defendants' Motion to Strike, [doc. # 84], is GRANTED in part and DENIED in part.

Background

The above-captioned matter was originally filed in Orleans Parish as a personal injury action for Decedent William Cleve Davidson ("Decedent"). [See doc. # 70-3, p. 2]. Decedentalleged that he was exposed to injurious levels of asbestos from products manufactured by Defendants. Id. On the eve of trial, the matter was removed to the United States Court for the Eastern District of Louisiana, and ultimately was transferred to the Eastern District of Pennsylvania. Id. There, Judge Robreno heard and denied Defendants' motions for summary judgment. Id.

Subsequently, on October 30, 2011, Decedent passed away. Id. Plaintiffs here, the surviving widow and children of Decedent, elected to file the instant wrongful death and survival action in the Civil District Court for the Parish of Bossier, State of Louisiana, alleging that they lost the love, affection, society, support, and services of Decedent as a direct and proximate result of Defendants' delictual conduct. [doc. # 1-2]. On June 1, 2012, Defendants removed the matter to the United States District Court for the Western District of Louisiana. [doc. # 1]. On June 17, 2013, Magistrate Judge Hornsby held a status conference and subsequently issued a scheduling order.² [doc. # 45]. On August 12, 2013, the matter was transferred to the undersigned. [doc. # 55].

The instant dispute centers around the timeliness and adequacy of Plaintiffs' expert witness reports. Plaintiffs aver that Judge Hornsby, at the aforementioned status conference, verbally instructed them to produce only supplemental expert reports—as opposed to full Rule 26(a)(2)(B) expert reports—by the August 30, 2013, deadline for submitting expert reports. [See doc. # 45, p. 1]. Plaintiffs contend that Judge Hornsby required them to submit only supplemental expert reports from their three expert witnesses, Mr. William Ewing, Dr. David Schwartz, and Dr. Arnold Brody, because "[e]xpert discovery regarding the fundamental factsunderlying this action—namely what asbestos products [Decedent] was exposed to and what levels of exposure [Decedent] incurred from those products—was complete well in advance of his death . . . ." [doc. # 70-3, p. 4]. Aside from one supplemental report necessary to address a new issue stemming from Decedent's death, Plaintiffs contend that the preliminary reports, depositions, and affidavits that they produced in the prior state court proceeding fulfilled their duty to disclose expert reports in this proceeding. Id.

Pursuant to Judge Hornsby's verbal order, Plaintiffs submitted a supplemental report authored by Dr. Schwartz that detailed Dr. Schwartz's opinion on whether Decedent's treatment and costs of treatment in his final months of life were reasonable. Id. at 5. They submitted the supplemental report on August 2, 2013, twenty-eight days in advance of the August 30, 2013, deadline for submitting expert reports. [doc. # 84-2]. Notably, Defendants do not directly dispute³ Plaintiffs' averment that Judge Hornsby verbally instructed Plaintiffs to produce only supplemental expert reports.⁴

On October 15, 2013, counsel for Defendant Georgia-Pacific, LLC, produced Defendant's expert reports and simultaneously informed Plaintiffs that "[w]e are submitting these reports even though plaintiffs have not submitted any expert reports in this matter, fully reserving our rights to supplement and/or amend these reports as well as object to any plaintiffs'expert lacking a timely filed report as required by the scheduling order." [doc. # 70-1, p. 1]. Counsel for Defendant stated further, "[t]he Scheduling Order issued by the Magistrate . . . plainly states that all expert reports 'shall be in compliance with Rule 26(a)(2)(B).'" Id. Counsel's statements prompted Plaintiffs, on October 31, 2013, to file the instant Motion asking the Court to rule that the combination of their supplemental expert report and previous disclosures from the prior proceeding fulfills their expert report production obligations, absent a successful Daubert challenge. [doc. # 70-3, p. 1]. In the alternative, Plaintiffs request an extension of time to submit full Rule 26(a)(2)(B) reports. [doc. # 70-3, p. 7].

As a ruling in Plaintiffs' favor would essentially preempt any motion to strike Plaintiffs' expert witnesses, Defendants responded to Plaintiffs' Motion by filing a Motion to Strike in combination with their opposition to Plaintiffs' Motion. [doc. # 83]. Defendants contend that Plaintiffs have never submitted full Rule 26-compliant expert reports in this action or in a prior action. [doc. # 83, p. 6]. Defendants argue that discovery performed in a separate state court case, along with a brief letter opinion submitted in this action (Dr. Schwartz's supplemental expert report), cannot possibly satisfy Plaintiffs' federal disclosure requirements. Id. They contend further: This "is a newly filed action with new parties and new claims which is entitled to its own proceedings and procedural development. Defendants are entitled to a complete report which sets forth all of the opinions Plaintiffs' experts will offer at trial." Id. Consequently, Defendants argue, as Plaintiffs have not produced Rule 26-compliant expert reports and as the August 30, 2013, deadline for submitting expert reports has passed, Plaintiffs' experts should be barred from testifying at trial. Id. at 12.

The matter is now before the undersigned.

Law and Analysis

I. Plaintiffs Have Not Submitted Complete Rule 26 Expert Reports

The reports, affidavits, and depositions from the previous personal injury action that Plaintiffs produced and transmitted to Defendants do not constitute Rule 26-compliant expert reports. As Defendants state, Plaintiffs' appeal to this "inconsistent patchwork of opinions in the separate state court case" does not satisfy their duty of disclosure in this action. [See doc. # 83, p. 10].

Rule 26 of the Federal Rules of Civil Procedure requires parties to disclose to the other parties the identity of any expert witness it may use at trial and to accompany this disclosure with a "written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony . . . ." FED. RULE CIV. P. 26(a)(2)(B). Further, "[t]he report must contain:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;

(ii) the facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and testimony in the case.

Id. The expert reports must be disclosed at the times that the court orders or, in the absence of a court order, "at least 90 days before the date set for trial or for the case to be ready for trial." Id.§ (a)(2)(D). "The basic purpose of [Rule 26(a)(2)(B) ] . . . is to prevent unfair surprise with respect to the expert's testimony." Davis v. Parker Drilling Co., 2003 WL 1824834, at *1 (E.D. La. Apr. 7, 2003) (citing Reed v. Iowa Marine & Repair Corp., 16 F.3d 82, 85 (5^th Cir. 1994)). In addition, a "report must be complete such that opposing counsel is not forced to depose an expert in order to avoid an ambush at trial; and moreover the report must be sufficiently complete so as to shorten or decrease the need for expert depositions and thus to conserve resources." Beane v. Util. Trailer Mfg. Co., 934 F. Supp. 2d 871, 877 (W.D. La. 2013) (citing Salgado v. Gen. Motors Corp., 150 F.3d 735, 742, n.6 (7^th Cir. 1998)).

Here, the Court finds that Plaintiffs' disclosures thus far run afoul of the letter of the Rule as well as the basic purpose of the Rule.⁵ First, Plaintiffs' disclosures violate the spirit of the Rule because the information in the various disclosures has been inconsistent. In other words, Plaintiffs' disclosures have not given Defendants the peace of mind that the Rule seeks to afford. Defendants explain Dr. Schwartz's inconstant opinions as follows:

In [the first state court action] Plaintiff initially provided a report prepared by Dr. Schwartz. [doc. # 83-3]. Based on that report, Defendants deposed Dr. Schwartz. In that deposition, Dr. Schwartz acknowledged that his report did not contain any opinions regarding joint compound products or any Georgia-Pacific products specifically and when asked if he had any such opinions, he testified that he had no opinion as to joint compound exposure or any exposure to joint compound products manufactured by Georgia-Pacific. [doc. # 83-4]. Then, at a second deposition, without issuing a new report, Dr. Schwartz's opinions inexplicably changed.

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As the second deposition progressed, Dr. Schwartz indeed offered new...