The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SUZONNE SMITH CIVIL ACTION
VERSUS NO: 18-6635
TANGIPAHOA PARISH SCHOOL SECTION: "S" (2)
BOARD
ORDER AND REASONS
IT IS HEREBY ORDERED that the Motion in Limine to Exclude Identified Witnesses
as Experts, or Alternatively, to Limit Testimony (Rec. Doc. 20) filed by defendant, Tangipahoa
Parish School Board ("TPSB"), is DENIED.
In this motion in limine, defendant complains that plaintiff has failed to make timely
Federal Rule 26(a)(2) disclosures under the court's scheduling order, and thus, certain of
plaintiff's physician's should be prevented from testifying as experts, or alternatively, their
testimony should be limited.
Under the court's scheduling order, written reports of experts as defined by Federal Rule
26(a)(2)(B) who may be witnesses for plaintiff were required to be provided to TPSB not later
than April 8, 2019. Rec. Doc. 11. On January 22, 2109, plaintiff provided initial disclosures to
TPSB, which included a list of three treating healthcare providers. On May 22, 2019, plaintiff
submitted responses to interrogatories which listed seven healthcare providers who may be
called (including the three named in the initial disclosures). Plaintiff stated in her responses that
she intended "to call any and all treating healthcare providers to testify as fact and/or as expert
witnesses as permitted by the court. The healthcare providers may testify as to their evaluations,
examinations, and treatment of the Plaintiff, as well as any opinions derived therefrom."
However, TPSB complains that plaintiff did not provide any expert reports or other
documentation to establish the providers' expertise, or summaries of the facts and opinions to
which the treating physicians would testify. Plaintiff did provide copies of the medical records
for five of the seven providers.
Based on these events, TPSB argues that under Federal Rule 26(a)(2)(B), because
plaintiff failed to accompany her expert designations with a written report by the April 9, 2019
deadline, plaintiff's experts should be excluded. And, to the extent plaintiff intends to call the
witnesses as treating providers, TPSB argues that she failed to submit the required summary of
the facts and opinions to which the witnesses will testify. Moreover, TPSB contends that the
supplied medical records for five providers does not satisfy the summary requirement. TPSB
seeks the exclusion or limiting of the treating providers' testimony as a sanction pursuant to
Federal Rule 37. Under Rule 37, "If a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use that information or witness 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).
Plaintiff opposes, arguing that expert reports are not required because they are only
required under Federal Rule 26(a)(2)(B) "if the witness is one retained or specially employed to
provide expert testimony in the case or one whose duties as the party's employee regularly
involve giving expert testimony." Plaintiff posits that none of the persons whose testimony is the
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subject of the instant motion have been retained or identified as expert witnesses subject to this
rule. To the contrary, they are plaintiff's treating physicians and intend to testify as such.
However, plaintiff admits she did not provide the summaries required by Rule 26(a)(2)(C) for
any of her healthcare providers. Nevertheless, she contends that exclusion is not warranted when
such a failure is substantially justified or is harmless. Fed. R. Civ. P. 37(c)(1). Plaintiff
acknowledges that her failure was not justified, but argues that it was harmless.
To determine whether a violation of Rule 26 is harmless under Rule 37(c), the court
considers: (1) the importance of the evidence; (2) the prejudice to the opposing party of
including the evidence; (3) the possibility of curing such prejudice by granting a continuance;
and, (4) the explanation for the party's failure to disclose. Tex. A & M Research Found. v.
Magna Transp., Inc., 338 F.3d 394, 402 (5th Cir.2003).
Plaintiff has asserted claims, inter alia, under the Family and Medical Leave Act, 29
U.S.C. § 2601, et seq. (“FMLA”), the Federal Rehabilitation Act, 29 U.S.C. § 701, et seq.
(“FRA”), and the Louisiana Employment Discrimination Law, La. R.S. 23:301, et seq.
(“LEDL”). To prevail on her FMLA claim, plaintiff must demonstrate that she has a “serious
health condition” that renders her “unable to perform the functions of” her position. 29 U.S.C. §
2612(a)(1)(D). To prevail on her FRA claims, plaintiff must demonstrate that she has a
“disability” as defined in the FRA and the Americans with Disabilities Act of 1990, 42 U.S.C. §
12101, et seq. (“ADA”). To prevail on her claims under the LEDL, plaintiff must demonstrate
that she is a “person with a disability,” meaning that she “has a physical or mental impairment
which substantially limits one or more of the major life activities, or has a record of such an
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impairment, or is regarded as having such an impairment.” La. R.S. 23:322, 323. Accordingly,
the testimony of plaintiff's treating physicians is not merely important, it is critical.
Allowing the testimony of plaintiff's treating physicians will cause little, if any, prejudice
to the defendant. All of the treating healthcare providers were disclosed to the defendant four
months prior to the trial. Moreover, the trial is nearly two months away, which permits adequate
time for defense counsel to prepare its cross-examination, without the necessity of a
continuance. While plaintiff has not explained why she failed to disclose this information, the
court finds that omission was harmless, and can be cured by plaintiff's expeditious provision of
the Federal Rule 26(a)(2)(C) summary of facts and opinions to which her treating providers will
testify. Accordingly,
IT IS HEREBY ORDERED that the Motion in Limine to Exclude Identified Witnesses
as Experts, or Alternatively, to Limit Testimony (Rec. Doc. 20) filed by defendant, Tangipahoa
Parish School Board ("TPSB"), is DENIED;
IT IS FURTHER ORDERED that plaintiff's counsel shall provide Federal Rule
26(a)(2)(C) summary of facts and opinions to which her treating providers will testify within
seven (7) days of entry of this order.
New Orleans, Louisiana, this 15th day of July, 2019.
fill.
eg Mid Gorn —
UNITED STATES DISTRICT JUDGE