Plaintiff’s Experts Precluded for Untimely Disclosure United States District Court, Eastern District of Louisiana, December 28, 2018

LOUISIANA — The plaintiff Victor Michel (plaintiff) initially filed suit in state court on July 28, 2017, alleging asbestos exposure as a result of his work as a mechanic and generator service technician from 1965-2005. The defendants removed the case to federal court on May 8, 2018. After the case was removed to federal court, a status conference was held at which the court asked the parties to notify it of any remaining discovery. There was no discussion as to any further expert discovery. The court then issued a scheduling order “that specifically listed the discovery in which the parties could engage; all other discovery, including disclosure of expert reports, remained closed”.

The defendants then filed a motion to exclude the expert testimony of the plaintiff’s experts, Dr. Arnold Brody and Dr. Barry Castleman, and argued the reports should be precluded because plaintiff failed to disclose expert reports, which was required under federal law. The plaintiff opposed the motion and argued that because the court’s existing scheduling order did not list a deadline for disclosures, he had no disclosure deadline for the reports of Dr. Brody and Dr. Castleman. The court disagreed and found discovery in the case was conducted largely in state court, the parties’ discovery deadline, including for disclosing expert reports, was March 30, 2018, and plaintiff failed to disclose by that deadline. The plaintiff also failed to mention either Dr. Brody and/or Dr. Castleman at the status conference in federal court. The court further emphasized that the plaintiff would not be prejudiced by the exclusion of these experts, because Dr. Brody and Dr. Castleman’s testimony was not essential to the plaintiff ‘s case as it would be largely cumulative and less helpful than the testimony of the other plaintiff experts Dr. Staggs and Dr. Finkelman. Finally, given the trial was less than 2 months away, a continuance to allow the admission of Dr. Brody and Dr. Castleman’s testimony would cause unnecessary expense and needless delay.

As such, defendants’ motion to exclude Dr. Brody and Dr. Castleman’s expert testimony was GRANTED.

Only the Westlaw citation is currently available at 2018 WL 6831102.

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