Greenberg v. Board of Supervisors of Louisiana University and Agricultural and Mechanical College

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ERIC GREENBERG CIVIL ACTION

VERSUS No. 19-137

BOARD OF SUPERVISORS OF LOUISIANA SECTION I

STATE UNIVERSITY AND AGRICULTURAL

AND MECHANICAL COLLEGE

ORDER & REASONS

Before the Court is plaintiff Eric Greenberg’s (“Greenberg”) motion1 for leave

to amend his witness list to include three additional witnesses: Dr. Charles Hilton

(“Hilton”), Charles C. Theriot (“Theriot”), and Edward J. Comeaux, III (“Comeaux”).

Defendant, the Board of Supervisors of Louisiana State University and Agricultural

and Mechanical College (“LSU Board”), opposes the motion.2 For the following

reasons, the motion is denied.

Hilton, Theriot, and Comeaux, the latter two of whom are proposed experts,

were included on the LSU Board’s initial witness list, which was filed on September

9, 2019.3 Greenberg’s initial witness list, also filed on September 9, 2019, included

Hilton, but not Theriot or Comeaux.4 In the parties’ joint proposed pretrial order,

which was filed on February 18, 2020, the LSU Board included Hilton and Comeaux

as witnesses it “may call”; it did not include Theriot.5 Greenberg did not list Hilton

1 R. Doc. No. 179.

2 R. Doc. No. 185.

3 R. Doc. No. 36.

4 R. Doc. No. 37.

5 R. Doc. No. 152, at 41.

as a potential witness in the joint proposed pretrial order, and he has not previously

identified Theriot or Comeaux as witnesses whom he intends to call.6

I.

This case centers on Greenberg’s claims of retaliation and hostile work

environment based on religion against the LSU Board, pursuant to Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., following his termination from the

Emergency Medicine Residency Program at Louisiana State University Health

Sciences Center – New Orleans. To support his allegation that he has suffered

economic loss as a result of his termination, Greenberg retained Julie Sherriff

(“Sheriff”) and Dr. Stan v. Smith (“Dr. Smith”) as proposed experts to establish his

economic damages.7 Both Sheriff and Dr. Smith prepared expert reports for

Greenberg.8

The LSU Board retained Theriot and Comeaux to analyze Dr. Smith’s expert

report and to conduct a separate analysis of Greenberg’s alleged past and future lost

earnings.9 Theriot and Comeaux’s conclusions are set forth in a joint expert report

that they prepared for the LSU Board.10

6 See R. Doc. No. 152, at 36–42.

7 See R. Doc. No. 56; R. Doc. No. 57; R. Doc. No. 152, at 38–39. Sherriff is the founder

and president of a physician search firm serving the healthcare industry. R. Doc. No.

50-3, at 1. Dr. Smith, the president of Smith Economics, is an economic and financial

consultant. R. Doc. No. 52-4, at 1.

8 R. Doc. Nos. 50-3 & 52-4.

9 R. Doc. No. 52-12, at 2. Theriot and Comeaux are Certified Public Accountants with

the firm Charles C. Theriot & Company, L.L.C. Id. at 54–59.

10 R. Doc. No. 52-12.

Hilton, the Associate Dean for the Office of Academic Affairs at Louisiana State

University Health Sciences Center – New Orleans, would testify on behalf of the LSU

Board to the “procedures and policies that were in place concerning [Greenberg’s]

termination.”11

Trial was initially scheduled to commence on December 9, 2019.12 Pursuant to

the scheduling order, each party’s witness list was due by September 9, 2019, written

reports of Greenberg’s proposed experts were due by August 9, 2019, and written

reports of the LSU Board’s proposed experts were due by September 9, 2019.13 The

scheduling order also required the timely filing of a joint pretrial order that includes

a list of the party’s witnesses.14

On November 26, 2019, based on the Court’s finding that certain aspects of

Sherriff’s and Dr. Smith’s proposed testimony were unreliable, the Court limited the

testimony that each witness would be able to provide at trial.15 With respect to

compensation figures, Sherriff may only testify to the average salaries of emergency

medicine physicians based on survey data from the American Medical Group

Association (AMGA), American College of Emergency Physicians (ACEP), and

Merritt Hawkins & Associates (MHA), but only if it is established at trial that such

data are based upon the reported salaries of board-certified emergency medicine

11 R. Doc. No. 152, at 41.

12 R. Doc. No. 25, at 4.

13 Id. at 2–3. The parties agreed to a two-week extension of the expert report

deadlines. R. Doc. No. 172-1, at 1–2.

14 R. Doc. No. 25-1, at 8.

15 See R. Doc. No. 100.

physicians.16 Dr. Smith’s testimony is limited to his conclusion regarding the

compensation that Greenberg would have received pursuant to an alleged

employment agreement with Metroplex Adventist Hospital in Austin, Texas.17

Greenberg must establish a proper evidentiary foundation for such testimony to be

admissible.18

Due to various scheduling conflicts and the outbreak of COVID-19, there have

been four trial continuances.19 Trial is currently scheduled to commence on October

5, 2020.20 Notwithstanding, the deadlines for witness lists and expert reports have

remained as previously set forth in the scheduling order issued in connection with

the initial December 9, 2019 trial date.21

II.

Pursuant to Federal Rule of Civil Procedure 37(c), if a party fails to identify a

witness as required by Rule 26(a) or (e), the party is not allowed to use that witness

to supply evidence at trial, unless the failure was substantially justified or is

16 Id. at 20. Sherriff may also offer her opinions that most hospitals require emergency

medicine physicians to be board-certified and that there is a high demand for

emergency medicine physicians. Id. at 13.

17 Id. at 29 n.77.

18 Id. Dr. Smith is not permitted to testify to Greenberg’s projected compensation

relating to an alleged employment agreement with St. David’s South Austin Medical

Center Facility, his wage offset, or his overall loss of wages. Id. Dr. Smith is also not

permitted to testify to a second report he completed, provided by Greenberg to the

LSU Board on March 4, 2020, which included new wage loss calculations. See R. Doc.

No. 176.

19 R. Doc. No. 125 (continuing trial to March 9, 2020); R. Doc. No. 166 (continuing

trial to April 6, 2020); R. Doc. No. 175 (continuing trial to June 15, 2020); R. Doc. No.

178 (continuing trial to October 5, 2020).

20 R. Doc. No. 178.

21 R. Doc. No. 25.

harmless.22 Four factors guide the court’s Rule 37(c) analysis: (1) the explanation for

the failure to identify the witness; (2) the importance of the testimony; (3) potential

prejudice to the opposing party in allowing the testimony; and (4) the availability of

a continuance to cure such prejudice. Betzel v. State Farm Lloyds, 480 F.3d 704, 707

(5th Cir. 2007).

Rule 16(b) of the Federal Rules of Civil Procedure authorizes the district court

to control and expedite pretrial discovery through a scheduling order. Geiserman v.

MacDonald, 893 F.2d 787, 791 (5th Cir. 1990). Pursuant to Rule 16(b)(4), a scheduling

order may be modified only for good cause and with the judge’s consent. Fed. R. Civ.

P. 16(b)(4). District courts have broad discretion to preserve the pretrial discovery

process. See Geiserman, 893 F.3d at 791. In connection with that discretion, the court

may, pursuant to Rule 16(f), “[on] motion or on its own . . . issue any just orders,

including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney . . .

fails to obey a scheduling or other pretrial order.” Fed. R. Civ. P. 16(f)(1). When

determining whether to exclude witnesses as a sanction for a violation of a scheduling

or other pretrial order, the United States Court of Appeals for the Fifth Circuit looks

to the same factors as those described with respect to Rule 37 to determine whether

the district court properly exercised its discretion. Barrett v. Atl. Richfield Co., 95

F.3d 375, 380 (5th Cir. 1996); Geiserman, 893 F.2d at 791.

The Court will examine each factor in turn.

22 Rule 26(a) delineates required disclosures, and Rule 26(e) governs the duty to

supplement or correct Rule 26(a) disclosures.

i. Greenberg’s Explanation

Greenberg does not provide any explanation with respect to his request to

include Hilton—whom Greenberg did not list as a witness in the joint proposed

pretrial order—in an amended witness list. Given the lack of information, this factor

does not weigh in Greenberg’s favor with respect to Hilton.

As to Theriot and Comeaux, Greenberg explains that he seeks to include them

in an amended witness list to “secure their availability at trial in case [the LSU

Board] does not call them.”23 Otherwise, Greenberg asserts, he “risks conducting a

trial with no expert testimony as to front pay,” in light of the Court’s rulings with

respect to the testimony of Sherriff and Dr. Smith.24 As previously stated, Theriot

and Comeaux were included on the LSU Board’s September 9, 2019 witness list.25

However, the LSU Board only included Comeaux—not Theriot—as a “may call”

witness in the parties’ joint proposed pretrial order.26

As an initial matter, Greenberg’s assertion that the testimony of Theriot and

Comeaux may establish a potential front pay award puzzles the Court. The Court has

informed counsel for both parties that an award of front pay would not be appropriate

based on the facts of this case.27 The Court has also advised counsel that it will not

instruct the jury as to a front pay determination.

23 R. Doc. No. 188, at 2.

24 Id.

25 R. Doc. No. 36, at 4.

26 R. Doc. No. 152, at 41.

27 “[F]ront pay is a prospective remedy that estimates the damage plaintiff will

continue to suffer after the date of final judgment” as a result of the discriminatory

conduct. Palasota v. Haggar Clothing Co., 499 F.3d 474, 490–91 (5th Cir. 2007), order

Regardless, the Court is not persuaded by Greenberg’s explanation, which does

not provide sufficient detailed justification for an untimely designation. The Court is

mindful that the scope of admissible testimony by Greenberg’s experts, Sherriff and

Dr. Smith, has been limited significantly. Notably, however, such limitations were

known to Greenberg since November 26, 2019—nearly six months before he filed the

instant motion. At no time during this period, which included several trial

continuances, did Greenberg move to amend his witness list. He has not sufficiently

explained why he intends to do so now, at this late stage of the litigation. While

Greenberg did attempt to buttress the expert testimony that Dr. Smith could offer by

completing a new report, the second report, which was based on new data and

contained new conclusions, was not disclosed to the LSU Board until five days before

what was then the first day of trial.28 The Court granted the LSU Board’s motion to

exclude Dr. Smith’s second report because Greenberg did not demonstrate that its

untimely disclosure was substantially justified or harmless pursuant to Rule 37(c).29

clarified (Sept. 27, 2007). Front pay “is intended to compensate the plaintiff for wages

and benefits he would have received from the defendant employer in the future if not

for the discrimination.” Julian v. City of Houston, Tex., 314 F.3d 721, 729 (5th Cir.

2002). Even if Greenberg’s termination from the emergency medicine residency

program was not unlawful, the LSU Board would have only continued to pay him

through the duration of his residency, which would have ceased prior to the entry of

final judgment. See Tyler v. Union Oil Co. of California, 304 F.3d 379, 402 (5th Cir.

2002) (holding that the plaintiffs were not entitled to front pay because the defendant-

employer terminated all of its employees prior to the entry of final judgment; even

absent discrimination, the plaintiffs would not have continued to work for the

defendant-employer after the date of entry of final judgment).

28 R. Doc. No. 176, at 3.

29 Id. at 11.

Greenberg’s failure to properly prepare expert testimony establishing his economic

damages is not a compelling reason to grant him the relief he now seeks.

As with Hilton, this factor also does not weigh in favor of allowing Greenberg

to amend his witness list to include Theriot and Comeaux.

ii. Importance of the Testimony

Greenberg has not explained the importance of Hilton’s testimony. Thus, this

factor does not support Greenberg’s request to add Hilton to an amended witness list.

Greenberg argues that Theriot’s and Comeaux’s testimony would be important

to establish front pay because, in light of the Court’s rulings, it is “unclear” whether

his previously-designated experts will be able to offer “meaningful testimony” on that

issue.30

As stated previously, any testimony as to front pay would not be appropriate

in this case. To the extent that Greenberg intends to use Theriot’s and Comeaux’s

testimony to establish the value of his lost future earnings, such testimony may be of

some importance. However, Greenberg has not sufficiently explained why he needs

Theriot’s and Comeaux’s testimony to establish his lost future earnings.

Greenberg has not asserted a compelling need for Theriot and Comeaux to

testify, nor has he demonstrated why their testimony would be vital to establish his

damages. Furthermore, while the scope of admissible testimony by Sherriff and Dr.

Smith has been limited, Greenberg has not been precluded from calling these timely-

30 R. Doc. No. 188, at 2.

designated experts and having them testify in accordance with the Court’s prior

orders.31

Once again, like with Hilton, this factor does not weigh in favor of Greenberg

with respect to Theriot and Comeaux.

iii. Potential Prejudice to the LSU Board

The LSU Board argues that it would be prejudiced if the Court permitted

Greenberg to amend his witness list to include Theriot and Comeaux, because

Greenberg has not disclosed the opinions that he intends to elicit from them.32 In

response, Greenberg stated that he would question Theriot and Comeaux regarding

the expert report they jointly prepared for the LSU Board.33 However, Greenberg did

not identify the specific testimony he intends to introduce.

The Court is perplexed by the LSU Board’s contention that it would be

prejudiced because it “has not had the opportunity to cross those opinions or show the

basis for them may be unsupported.”34 The LSU Board retained Theriot and Comeaux

for this case, and it is, presumably, familiar with the conclusions in their report and

31 See Jasty v. Wright Med. Tech., Inc., 528 F.3d 28, 39 (1st Cir. 2008) (finding no

abuse of discretion by the district court in denying the plaintiff’s motion to compel the

defendant’s damages expert to testify “in the absence of any showing of any need for

the plaintiff to call the witness”).

32 R. Doc. No. 185, at 3.

33 R. Doc. No. 188, at 3. Neither party will be permitted to elicit testimony concerning

any portions of the expert report by Theriot and Comeaux that address analyses and

conclusions by Dr. Smith that the Court has found to be inadmissible.

34 R. Doc. No. 185, at 3. If the LSU Board intends to call Comeaux, it should not seek

to introduce expert testimony that is not based on a reliable foundation. See Kumho

Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999); Daubert v. Merrell Dow Pharm.,

Inc., 509 U.S. 579, 597 (1993).

the bases for those conclusions. Moreover, as previously stated, Theriot and Comeaux

were included on the LSU Board’s September 9, 2019 witness list,35 and Comeaux is

listed as a “may call” witness for the LSU Board in the February 18, 2020 joint

proposed pretrial order.36 This factor weighs in favor of Greenberg with respect to

Theriot and Comeaux.

As to Hilton, the LSU Board did not provide any specific reason explaining why

it would be prejudiced by allowing Greenberg to include Hilton on an amended

witness list. The Court also finds little reason for prejudice. Hilton is a fact witness

whom the LSU Board “may call” on its own behalf.37 Moreover, the LSU Board was

aware of the possibility that Greenberg might call Hilton when Greenberg included

Hilton on his September 9, 2019 witness list. Thus, the LSU Board would not incur

any undue surprise by Hilton’s testimony. This factor also weighs in favor of

Greenberg with respect to Hilton.

iv. Availability of a Continuance to Cure Prejudice

Considering the trial date of October 5, 2020 and the multiple continuances

that have been granted, the Court is disinclined to continue trial any further.

Furthermore, a continuance would not address any alleged prejudice to the LSU

Board, as discovery deadlines have long passed. The Court also notes that neither

party has requested a continuance.

35 R. Doc. No. 36, at 2, 35.

36 R. Doc. No. 152, at 41.

37 It appears that the LSU Board does, in fact, intend to call Hilton, as it concedes

that Hilton “will be available for cross-examination” by Greenberg at trial. R. Doc.

No. 185, at 2 n.5.

This factor does not support Greenberg’s request to amend his witness list to

include Hilton, Theriot, and Comeaux.

III.

Considering the balance of factors, particularly those that do not weigh in

Greenberg’s favor, the addition of Theriot, Comeaux, and Hilton to Greenberg’s

witness list is not substantially justified, and good cause has not been demonstrated.

Accordingly,

IT IS ORDERED that the motionis DENIED.

New Orleans, Louisiana, June 15, 2020.

AA__

UNITED STATES DISTRICT JUDGE

11