# Smith v. Transocean Offshore USA, Inc.

> District Court, E.D. Louisiana · April 19, 2021

URL: https://www.frixlaw.com/law-library/cases/10186563

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** April 19, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10186563

## How later opinions describe it (automated extraction)

- declining to sanction plaintiff or award attorney’s fees and costs to defendants after granting defendants’ motion to strike exhibit list
- finding that the third factor weighed against the movant because plaintiff would assert a different cause of action in the amended pleading, and the defendant would be required to conduct additional discovery

## Opinion text

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ORLANDO SMITH CIVIL ACTION

VERSUS NO. 19-14738-WBV-KWR

TRANSOCEAN OFFSHORE USA, INC. SECTION: D (4)

ORDER AND REASONS
Before the Court is a Consolidated Motion to Strike Supplemental Witness and
Exhibit Lists and Motion in Limine, filed by defendants, Transocean RIGP DIN LLC
and Triton Asset Leasing GmbH (collectively, “Defendants”).1 Plaintiff opposes the
Motion,2 and Defendants have filed a Reply.3 Also before the Court is a Contested
Motion for Leave to File Complainant’s Second Supplemental Witness and Exhibit
Lists4 and a Contested Motion for Leave to File Complainant’s Third Supplemental
Witness List and to Allow Supplemental Expert Reports,5 both filed by Plaintiff.
Defendants oppose both Motions for Leave.6
After careful consideration of the parties’ memoranda and the applicable law,
Defendants’ Motion to Strike is GRANTED and Plaintiff’s two Motions for Leave are
DENIED.

1 R. Doc. 114.
2 R. Doc. 117.
3 R. Doc. 131.
4 R. Doc. 118.
5 R. Doc. 124.
6 R. Docs. 129, 132.
I. FACTUAL AND PROCEDURAL BACKGROUND
This is an action to recover damages for personal injuries allegedly sustained
by plaintiff, Orlando Smith, while working about a vessel owned and operated by

defendant, Transocean Offshore USA, Inc. Plaintiff alleges that the Court has subject
matter jurisdiction over this matter under 28 U.S.C. § 1333 and general maritime
law.7 On December 23, 2019, Plaintiff filed a Complaint in this Court, alleging that
he was injured on January 22, 2019 while employed by Haliburton Energy Services,
Inc. on a slickline crew rendering services to Transocean on the rig floor of the
DISCOVERER INSPIRATION.8 Plaintiff alleges that while he was working aboard
the vessel, he “was caused to trip over an unpainted and unmarked pipe racker stop

causing serious and disabling injuries to his right shoulder and spine.”9 Plaintiff
further alleges that Transocean’s negligence in “failing [to] perform its turnover duty,
active control duty and duty to intervene” was a proximate cause of the accident.10
Plaintiff claims that he sustained “serious, disabling and permanent injuries to his
right shoulder and spine,” and seeks several categories of damages, including past
and future mental and physical pain and suffering, past and future lost wages, past

and future medical expenses and loss of enjoyment of life, for a total sum of
$5,000,000.00.11

7 R. Doc. 1 at ¶ I.
8 Id. at ¶ IV.
9 Id.
10 Id. at ¶ V.
11 Id. at ¶ VI.
On January 27, 2020, the Court granted Plaintiff’s Motion for Leave to File
First Amended Complaint.12 The First Amended Complaint names Triton Asset
Leasing GmbH (“Triton”) as an additional defendant in this matter.13 Plaintiff

alleges in the First Amended Complaint that at all material times, Transocean and
Triton (collectively, “Defendants”) were both “the owner, owner pro hac vice and
operator of the ultra-deepwater dual-activity drillship, DISCOVERER
INSPIRATION.”14 Plaintiff further alleges that on January 22, 2019, while working
on the rig floor of the DISCOVERER INSPIRATION, he “was caused to trip over an
unpainted and unmarked pipe racker parking latch causing serious and disabling
injuries to his right shoulder and spine.”15 Plaintiff claims that a proximate cause of

his accident was the negligence of Transocean and Triton “in failing to perform its
[sic] turnover duty, active control duty (inadequate pre-existing equipment
placement) and duty to intervene.”16 Plaintiff again alleges that he sustained
“serious, disabling and permanent injuries to his right shoulder and spine,” and seeks
the same categories of damages as in the original Complaint, for a total sum of
$5,000,000.00.17

On April 9, 2020, the Court issued a Scheduling Order, setting this matter for
a jury trial on September 28, 2020 and, pertinent to the instant dispute, setting a
June 12, 2020 deadline for the parties to file their witness and exhibit lists.18 The

12 See, R. Docs. 6, 7, 8, 9, 10, 11.
13 R. Doc. 11 at ¶ II.
14 Id. at ¶ III.
15 Id. at ¶ IV.
16 Id. at ¶ V.
17 Id. at ¶ VI.
18 R. Doc. 20 at p. 3.
Court specified in the Scheduling Order that, “The Court will not permit any witness,
expert or fact, to testify or any exhibits to be used unless there has been compliance
with this Order as it pertains to the witness and/or exhibits, without an order to do

so issued on motion for good cause shown.”19 The Court subsequently granted
Plaintiff’s unopposed motion to continue the parties’ expert report deadlines, which
were continued to June 2, 2020 and July 2, 2020, respectively.20
On June 8, 2020, Defendants filed a Motion to Continue, seeking a continuance
of all of the remaining pretrial deadlines, including the September 28, 2020 jury trial,
based upon the significant impact of COVID-19 on Defendants’ ability to obtain
meaningful discovery.21 Defendants also requested expedited consideration of the

Motion to Continue, which the Court granted.22 Plaintiff opposed the Motion,
asserting that a continuance was not warranted because the parties were still able to
conduct adequate and thorough discovery during the pandemic.23 On July 1, 2020,
the Court issued an Order, denying the Motion to Continue without prejudice in part,
to the extent Defendants sought a continuance of deadlines that had not yet expired,
and denying the Motion to Continue as moot in part, to the extent Defendants sought

a continuance of the Final Pretrial Conference and jury trial dates, as those had been
continued without date on June 30, 2020 by the Chief Judge’s General Order No. 20-
9.24

19 Id.
20 R. Docs. 22, 23.
21 R. Doc. 25.
22 R. Docs. 26, 30.
23 R. Doc. 37.
24 R. Doc. 44 (citing R. Doc. 42).
While the Motion to Continue was pending, Plaintiff and Defendants each filed
their witness and exhibit lists on June 12, 2020, in accordance with the Scheduling
Order.25 Plaintiff subsequently filed supplemental witness and exhibit lists without

leave of Court on July 10, 2020,26 and Defendants filed supplemental witness and
exhibit lists on July 11, 2020.27 The discovery deadline in this case was July 13,
2020.28
On July 17, 2020, the Court issued an Amended Scheduling Order, containing
new dates for the jury trial and Final Pretrial Conference in this matter, and
specifying that, “All other deadlines set forth in the court’s previous Scheduling
Order, R. Doc. 20, remain in effect with the exception of the deadlines contained

herein.”29 Shortly thereafter, on July 27, 2020, the parties filed several pretrial
motions, including two motions for summary judgment and three motions in limine.30
On September 25, 2020, the parties participated in a settlement conference with the
assigned Magistrate Judge, which was unsuccessful.31 On January 7, 2021, the Court
issued another Amended Scheduling Order, resetting only the trial and Final Pretrial
Conference dates due to the COVID-19 pandemic.32 That Order, too, advised that all

other deadlines set forth in the Court’s previous Scheduling Orders remain in effect.

25 R. Docs. 31, 32, 33, 34.
26 R. Docs. 51, 52.
27 R. Docs. 54, 55.
28 R. Doc. 20 at p. 3.
29 R. Doc. 60.
30 R. Docs. 62, 63, 64, 65, 66.
31 R. Doc. 106.
32 R. Doc. 110.
On February 18, 2021, Plaintiff filed a Second Supplemental Witness List and
a Second Supplemental Exhibit List into the record without seeking leave of Court.33
The Second Supplemental Witness List names only one additional witness – Dr.

Donald Dietze and/or a Representative(s) of Dietze & Logan Spine Specialists, LLC.34
The Second Supplemental Exhibit List likewise lists only one additional exhibit –
“Medical and medical billing records of Dr. Donald Dietze and/or Dietze & Logan
Spine Specialists, LLC.”35
On February 26, 2021, Defendants filed the instant Motion to Strike
Supplemental Witness and Exhibit Lists & Motion in Limine (“Motion to Strike”),
asking the Court to strike Plaintiff’s untimely and prejudicial supplemental witness

and exhibit lists filed on February 18, 2021, and to exclude all evidence regarding
Plaintiff’s alleged spinal injury, which was first raised as an issue in this case in
February 2021, including photographs, videos, lay testimony and expert testimony.36
Defendants also seek fees and costs for filing their Motion to Strike, pursuant to Fed.
R. Civ. P. 37.37 Defendants assert that after the alleged injury, Plaintiff was
diagnosed with a Grade III AC joint separation of the right shoulder, and that

Plaintiff kept his arm in a sling for almost five months before undergoing successful
shoulder surgery in June 2019.38 Defendants claim that prior to February 2021,
Plaintiff has submitted that his damages relate to his shoulder injury and “pain and

33 R. Docs. 112, 113.
34 R. Doc. 112.
35 R. Doc. 113.
36 R. Doc. 114.
37 R. Doc. 114-1 at p. 1.
38 Id. at p. 2.
ulnar nerve dysfunction in his right elbow,” and even filed a dispositive motion on
causation for the injuries to his right shoulder and elbow.39 Defendants note that
their trial position is that the right elbow injury caused by prolonged immobilization

of Plaintiff’s right arm was a result of Plaintiff’s failure to mitigate his damages since
he waited several months to undergo shoulder surgery.40
Defendants assert that following the close of discovery, after filing pretrial and
dispositive motions, and after two successful surgeries to Plaintiff’s elbow and
shoulder, Plaintiff now seeks to change his theory of causation and damages to
include a neck injury that was never previously raised by Plaintiff, his treating
physicians, his experts, or any other witness in this matter until February 2021.41

Defendants claim that Plaintiff first referenced a neck injury on February 18, 2021,
when Plaintiff produced additional medical records and filed, without consent or
leave of court, untimely supplemental witness and exhibit lists “in an attempt to
ambush the defense at trial.”42 Defendants assert that the supplemental witness and
exhibit lists should be stricken because they were untimely-filed after the June 12,
2020 deadline set forth in the Scheduling Order and leave of Court was neither

requested nor obtained prior to filing them into the record.43 Defendants point out
that they previously sought an extension of certain pretrial deadlines, including the
deadline to file witness and exhibit lists, and that Plaintiff “vehemently objected” to

39 Id. at pp. 2, 3 (citing R. Doc. 64-1; R. Doc. 114-2 at p. 4, Response to Interrogatory No. 6).
40 R. Doc. 114-1 at p. 3.
41 Id. at pp. 3-4.
42 Id. at p. 4 (citing R. Docs. 112, 113).
43 R. Doc. 114-1 at p. 5.
the requested continuance, which was ultimately denied.44 Defendants also note that
this Court has previously excluded untimely supplemental discovery and disclosures
in other cases so as to not encourage a party’s failure to comply with scheduling order

deadlines.45 Defendants emphasize that Plaintiff filed his supplemental witness and
exhibit lists on February 18, 2021, eight months after the Court’s June 12, 2020
deadline to do so and seven months after the discovery deadline. Defendants argue
that Plaintiff has clearly failed to comply with the Scheduling Order and has failed
to show good cause to allow his untimely filings. As such, Defendants assert that the
supplemental witness and exhibit lists should be stricken from the record, neither
Dr. Dietze nor any other witness should be allowed to offer testimony or evidence

regarding Plaintiff’s neck injury, and any medical records referencing the neck injury,
including those of Dr. Dietze, should be excluded from trial.46
Defendants further assert that Plaintiff’s supplemental witness and exhibit
lists and supplemental medical records regarding his neck injury should be excluded
under Fed. R. Civ. P. 37 and Fifth Circuit precedent because the untimely disclosure
is not substantially justified or harmless.47 Defendants claim that in determining

whether to exclude evidence under Rule 37 and whether the untimely disclosure is
substantially justified or harmless, the Fifth Circuit considers the following factors:
(1) the explanation given for the failure to timely move for leave to amend; (2) the

44 Id. (citing R. Docs. 25, 37, 44).
45 R. Doc. 114-1 at pp. 5-6 (quoting Tucker v. United States, Civ. A. No. 18-4056, 2019 WL 4187745, at
*1 (E.D. La. Sept. 4, 2019) (Vitter, J.)) (internal quotation marks omitted).
46 R. Doc. 114-1 at p. 6.
47 Id. (citing Fed. R. Civ. P. 37).
importance of the evidence; (3) the prejudice to the opposing party; and (4) the
possibility that a continuance would cure the potential prejudice.48 Defendants argue
that a prior case from this Court, Matter of Honey Island Adventure, LLC, in which

this Court struck untimely-filed supplemental exhibit and witness lists under similar
circumstances, is directly on point and that the same result should be reached in this
case.49 As in that case, Defendants argue that all four of the foregoing factors weigh
against amending the Scheduling Order in this case to allow Plaintiff’s untimely
second supplemental witness and exhibit lists. Regarding the first factor, Defendants
assert the fact that the late disclosure and filings resulted from alleged new
treatment not previously identified by Plaintiff’s treating physician is not sufficient

to allow the evidence as to causation or damages, nor is it an excuse for the untimely-
filed supplemental witness and exhibit lists in derogation of the Scheduling Order.50
As to the second factor, Defendants assert that the additional evidence
regarding a neck injury is not relevant because all of the evidence in this case prior
to February 2021 concerns Plaintiff’s shoulder injury and a nerve/elbow injury.51
Regarding the third factor, Defendants assert that the untimely evidence and witness

disclosures are clearly prejudicial to Defendants because they present a new theory
of causation and damages after the close of discovery and over two years after the

48 R. Doc. 114-1 at pp. 6-7 (citing Sw. Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003)).
The Court notes that this is a mischaracterization of the analysis in Southwestern Bell Tel. Co.,
wherein the Fifth Circuit applied those four factors to determine whether good cause existed under
Fed. R. Civ. P. 16(b) to allow an amended pleading after the scheduling order deadline. 346 F.3d at
546-47.
49 R. Doc. 114-1 at p. 7 (citing Matter of Honey Island Adventure, LLC, Civ. A. No. 16-6940 c/w 16-
10728 c/w 17-2652 c/w 17-2896, 2017 WL 6559871 (E.D. La. Dec. 22, 2017) (Brown, C.J.)).
50 R. Doc. 114-1 at p. 8.
51 Id.
alleged accident.52 Defendants assert that they have been prejudiced as a result of
Plaintiff’ failure to identify Dr. Dietze and/or to produce associated records regarding
a neck injury because Defendants’ IME physician and other proposed experts are not

able to evaluate and respond to any opinions regarding Plaintiff’s treatment for a
neck injury because the expert report and pretrial motion deadlines have passed.53
Turning to the fourth factor, Defendants contend that while a continuance of the
discovery deadline could potentially cure the prejudice, Plaintiff previously objected
to continuances of the discovery and trial deadlines, the trial has been continued
several times already due to COVID-19 and this case has been trial-ready for several
months.54 Defendants point out that while a further continuance may cure the

potential prejudice, a continuance will require the reopening of discovery and
essentially start a completely new case on Plaintiff’s causation and damages. As
such, Defendants assert that Plaintiff’s supplemental witness and exhibit lists should
be stricken and all evidence, reference or argument regarding Plaintiff’s neck injury
should be excluded from trial.
Plaintiff opposes the Motion to Strike, asserting that his neck injury is directly

related to the underlying accident, which resulted in “a number of serious and
disabling injuries, which have ultimately proven hard to correctly diagnose.”55
Plaintiff claims that he sustained a “Grade 3+ traumatic separation of his right AC
join in his shoulder” as a result of the accident, that he attempted conservative

52 Id. at pp. 8-9.
53 Id.
54 Id. at p. 9.
55 R. Doc. 117 at p. 2.
treatment to no avail, and that his treating orthopedist, Dr. Carey Wilder, performed
surgery and reconstruction of his shoulder on June 19, 2019.56 Plaintiff asserts that
as a result of joint immobility from the surgery, cubital tunnel syndrome developed

requiring a cubital tunnel release surgery that was performed by Dr. Rasheed Ahmad
on July 27, 2020.57 Plaintiff claims that after the cubital tunnel release surgery, he
“continued experiencing general neck pain, as well as neurological symptoms with
pain radiating from his neck into his hand.”58
Plaintiff contends that several medical records show that his complaints of
cervical pain are related to the underlying accident, including a May 7, 2020 medical
narrative from Dr. Winder stating that Plaintiff’s diagnosis of cubital tunnel

syndrome and the need for surgical intervention were directly related to the accident,
which required shoulder surgery and prolonged immobilization.59 Plaintiff avers that
Dr. Winder and Dr. Ahmad recommended that he undergo a cubital tunnel release
surgery, which was delayed due to the workers’ compensation carrier’s failure to
approve the procedure.60 Plaintiff points out that both doctors opined that delaying
the cubital tunnel release surgery could result in more damage to his ulnar nerve.61

After receiving the surgery on July 27, 2020, Plaintiff returned to Dr. Winder on
January 21, 2021, who noted that Plaintiff initially reported improvement of

56 Id. The Court notes that Plaintiff erroneously refers to a Dr. Carey Wicker, but the medical records
attached to the Opposition brief confirm that his treating orthopedist is Dr. Carey Winder. See, R.
Doc. 117-1.
57 R. Doc. 117 at p. 2.
58 Id. at pp. 2-3.
59 Id. at p. 3 (quoting R. Doc. 117-1).
60 R. Doc. 117 at p. 3.
61 Id. (citing R. Docs. 117-1, 117-2).
symptoms to Dr. Ahmad, but subsequently reported neurological symptoms in the
palm of his hand.62 Plaintiff asserts that he reported neck pain, pain that radiates
from his fingers into his neck, as well as some shoulder pain, which led to Dr. Ahmad

ordering repeat nerve conduction and EMG studies that revealed possible cervical
injury.63 Plaintiff emphasizes that Dr. Winder opined during that visit that Plaintiff,
“has always had some of this nerve pain from the timeframe probably at least a month
or so after his AC joint reconstruction, and it is certainly a possibility that he could
have had a cervical injury as well that may account from some of these symptoms.”64
Plaintiff asserts that he underwent a cervical spine MRI on January 28, 2021,
which revealed a disc protrusion at C6-7, causing mild overall spinal stenosis and

severe foraminal stenosis.65 Plaintiff claims that he had a follow-up appointment
with Dr. Winder on February 1, 2021, who confirmed the MRI results and opined
that, “This is certainly a problem that also could have been caused by his original
work injury or at least exacerbated by his work-related injury and subsequent
surgery on his shoulder and the immobilization associated with that as well.”66 Based
on the MRI results, Dr. Winder referred Plaintiff to a spine surgeon.67 Plaintiff

asserts that he began treating with Dr. Donald Dietze, a neurosurgeon at Dietze &
Logan Spine Specialists, on February 11, 2021, who diagnosed Plaintiff with, among

62 R. Doc. 117 at p. 4 (citing R. Doc. 117-4).
63 R. Doc. 117 at p.4 (citing R. Doc. 117-4).
64 R. Doc. 117 at p. 4 (quoting R. Doc. 117-4) (internal quotation marks omitted).
65 R. Doc. 117 at p. 5 (citing R. Doc. 117-5).
66 R. Doc. 117 at p. 5 (quoting R. Doc. 117-6) (internal quotation marks omitted).
67 R. Doc. 117 at p. 5 (citing R. Doc. 117-6).
other things, cervical discogenic pain syndrome and cervical radiculopathy at C7.68
Dr. Dietze also indicated that Plaintiff was a candidate for a C6-7 anterior cervical
fusion, but elected to follow-up with Plaintiff in the following months with patient

visits and a second cervical MRI to reassess his neck injury, and indicated that
epidural steroid injections were a possible avenue of treatment.69 Plaintiff avers that
Dr. Dietze authored a letter concerning his treatment on March 15, 2021, in which
Dr. Dietze opined that, “the C6-7 disc herniation was caused by the work related
injury on January 22, 2019 that was overlooked because of the right shoulder
significant injury.”70 Plaintiff claims Dr. Dietze set forth several future treatment
options for Plaintiff in the letter, including bilateral C6-7 selective nerve root blocks

and cervical surgery in the form of an anterior C6-7 cervical fusion.71
Addressing Defendants’ argument that the Court should strike any evidence,
reference or argument regarding his neck injury because he failed to seek leave to file
his supplemental witness and exhibit lists, Plaintiff asserts that he will correct this
defect by filing a motion for leave to file the supplemental lists “today.”72 Plaintiff
argues that the foregoing medical records concerning his complaints of neck pain

“clearly establish” that “good cause absolutely exists” to allow his supplemental
exhibit and witness lists past the Court-imposed deadline and to allow evidence of his
“previously undiagnosed neck pain.”73 Plaintiff contends that “multiple doctors,”

68 R. Doc. 117 at p. 5 (citing R. Doc. 117-7). The Court notes that these findings are in Dr. Dietze’s
treatment note under the heading, “Assessment/Impression.” R. Doc. 117-7 at p. 4.
69 R. Doc. 117 at pp. 5-6 (citing R. Doc. 117-7).
70 R. Doc. 117 at p. 6 (quoting R. Doc. 117-8) (internal quotation marks omitted).
71 R. Doc. 117 at p. 6.
72 Id.
73 Id. at pp. 6-7.
including Dr. Winder and Dr. Dietze, have indicated that Plaintiff’s complaints of
neck pain are very likely related to the underlying accident.74 Plaintiff insists that
he has diligently treated with qualified physicians since the accident, and the fact

that it has taken several physicians longer than expected to diagnose him with a
cervical condition “is unfortunate, but his cervical injury cannot be discredited or
discounted as Defendants argue simply because it went specifically undiagnosed for
some time, especially in light of the medical records presented herein.”75 Plaintiff
maintains that the medical records show that good cause exists to allow evidence and
testimony concerning his neck injury. Plaintiff further argues that any prejudice to
Defendants in allowing the evidence could potentially be cured by a continuance of

the discovery deadline, especially since the trial in this matter has been continued
multiple times due to COVID-19 and had not yet been reset as of the date of the
Opposition brief.76 The Court notes that Plaintiff cites no legal authority in its
Opposition brief.77
On the same day that Plaintiff filed his Opposition brief to Defendants’ Motion
to Strike, Plaintiff filed a Contested Motion for Leave to File Complainant’s Second

Supplemental Witness and Exhibit Lists, asserting that good cause exists to allow
his untimely-filed supplemental witness and exhibit lists previously filed on February
18, 2021.78 In the Memorandum in Support, Plaintiff “adopts and incorporates” the

74 Id. at p. 7.
75 Id.
76 Id.
77 See, generally, R. Doc. 117.
78 R. Doc. 118 at p. 1 (citing R. Docs. 112, 113).
arguments set forth in his Opposition brief to Defendants’ Motion to Strike “that good
cause exists to warrant the filing of” his supplemental witness and exhibit lists.79
Plaintiff offers no further arguments in support of his Motion for Leave. The Second

Supplemental Witness List, attached to Plaintiff’s Motion for Leave, is identical to
the Second Supplemental Witness List filed without leave on February 18, 202180
and lists only one supplemental witness – “Dr. Donald Dietze and/or
Representative(s) of Dietze & Logan Spine Specialists, LLC.”81
Three days later, on March 18, 2021, Plaintiff filed a Contested Motion for
Leave to File Complainant’s Third Supplemental Witness List and to Allow
Supplemental Expert Reports.82 Plaintiff seeks to update the expertise of his

previously-disclosed vocational rehabilitation expert, Kasey Crawford, to include the
qualification of certified future life care planner regarding Plaintiff’s cervical
condition, and seeks to submit supplemental expert reports from Crawford and
Plaintiff’s previously-disclosed economist, Dr. Randolph Rice, addressing Plaintiff’s
cervical condition.83 Plaintiff’s counsel contemplates that Crawford will need to
supply a report addressing future medical costs regarding Plaintiff’s cervical

condition, and that Dr. Rice will have to supplement his previous report to address
the present value of said future cervical medical costs.84 Plaintiff asserts that forcing
him to go to trial without this evidence “precludes Complainant the opportunity to

79 R. Doc. 118-1 at p. 1 (citing R. Docs. 112, 113, 117).
80 R. Doc. 112.
81 R. Doc. 118-2.
82 R. Doc. 124.
83 Id. at p. 1; R. Doc. 124-1 at p. 1.
84 R. Doc. 124-1 at pp. 1-2.
obtain justice.”85 In support of the Motion, Plaintiff again “adopts and incorporates”
the argument set forth in his Opposition brief to Defendants’ Motion to Strike that
good cause exists to file a Third Supplemental Witness List past the deadline “to allow

for the admission of critical evidence concerning Mr. Smith’s previously undiagnosed
neck condition as it relates to the accident involved herein.”86 Plaintiff argues that
he has made clear, through direct reference to relevant medical records, that his
treating physicians – Dr. Winder and Dr. Dietze – have “clearly indicated that his
complaints of neck pain are very likely related to the accident which is the subject of
the present suit.”87 As such, Plaintiff argues that his timely-retained experts should
be given the opportunity to address his cervical condition.88 The Third Supplemental

Witness List submitted with Plaintiff’s Motion names only one supplemental witness
– “Kasey L. Crawford, MHS, LRC, CRC, CCM, CLCP.”89
Defendants filed an Opposition brief to Plaintiff’s Motion for Leave to File
Second Supplemental Witness and Exhibit Lists.90 In the interest of judicial
economy, Defendants adopted and incorporated the arguments set forth in their
Motion to Strike and their proposed Reply brief in support of their Motion to Strike,

asserting that good cause does not exist to warrant the filing of Plaintiff’s second
supplemental witness and exhibit lists.91

85 Id. at p. 2.
86 Id.
87 Id.
88 Id.
89 R. Doc. 124-2.
90 R. Doc. 129.
91 Id. at p. 1 (citing R. Docs. 114 through 114-5; R. Docs. 128 through 128-5). The Court notes that
Defendants’ Motion for Leave to File Reply was pending at the time Defendants filed their Opposition
brief, but was subsequently granted by the Court. See, R. Docs. 128, 130.
On March 23, 2021, Defendants filed a Reply brief in further support of their
Motion to Strike, largely reiterating the arguments made in their Motion. 92
Defendants assert that Plaintiff acknowledged the prejudicial effect of the new

evidence in his Opposition brief, but failed to address why or how he and his
physicians failed to mention any neck injury or neck pain for more than two years
after the underlying injury.93 Defendants point out that Plaintiff failed to mention
any neck injuries or neck pain during his deposition taken over eight months ago.94
Defendants further argue that Plaintiff’s reliance on a 2021 notation from Dr. Winder
that the neck pain may be related to the underlying injury is speculative and
contradicted by Dr. Winder’s contemporaneous medical notes, which do not mention

any neck pain or nerve issues prior to February 2021.95 Defendants note that Dr.
Winder did not mention any neck issues during his July 7, 2020 deposition.96
Defendants further suggest that after two years of treating his elbow and
shoulder, Plaintiff was sent to Dr. Dietze “for the purpose of this litigation and to
receive medical treatment for the purpose of changing Plaintiff’s damages theory” to
circumvent Defendants’ trial defenses.97 Defendants argue that Plaintiff is asking

the Court to allow him to start this case over, as Plaintiff has moved to amend a third
time to allow his experts to provide supplemental reports and create an entirely
different case when this case has been trial-ready for over seven months. 98

92 R. Doc. 131.
93 Id.
94 Id. at p. 3 (citing R. Doc. 114-3).
95 R. Doc. 131 at p. 3 (citing R. Doc. 131-1).
96 R. Doc. 131 at p. 4 (citing R. Doc. 131-3).
97 R. Doc. 131 at p. 5; Id. at n. 13.
98 Id. at pp. 2, 5-6.
Defendants point out that the Court would need to issue a new scheduling order and
reopen discovery, as additional written discovery would be needed, Plaintiff and his
treating physicians and the experts would need to be re-deposed, Defendants would

need to perform another IME regarding Plaintiff’s neck injury and hire additional
experts on that issue, and Defendants’ existing experts would need to produce
supplemental expert reports.99 Defendants maintain that the second supplemental
exhibit and witness lists are clearly untimely and not substantially justified or
harmless and, therefore, should be stricken.
That same day, March 23, 2021, Defendants filed an Opposition brief to
Plaintiff’s Third Supplemental Witness List and to Allow Supplemental Expert

Reports, again adopting the arguments raised in support of its Motion to Strike and
in its Opposition brief to Plaintiff’s Motion for Leave to File Second Supplemental
Witness and Exhibit Lists.100
II. LEGAL STANDARD
The Federal Rules of Civil Procedure “authorize[] federal courts to control and
expedite the discovery process through a scheduling order.”101 The Federal Rules of

Civil Procedure specifically authorize this Court to sanction a party for failing to
comply with its scheduling order by excluding evidence.102 “Federal Rule of Civil
Procedure 16 allows a court to exclude expert testimony or strike pleadings if a party

99 R. Doc. 131 at pp. 6-7.
100 R. Doc. 132 (citing R. Docs. 114, 129, 131).
101 Barrett v. Atlantic Richfield Co., 95 F.3d 375, 380 (5th Cir. 1996) (citing Fed. R. Civ. P. 16).
102 In re Pool Products Distribution Market Antitrust Litigation, MDL No. 2328, 2014 WL 3353232, at
*1 (E.D. La. July 9, 2014) (Vance, J.) (citing Fed. R. Civ. P. 16(f), 37(b)(2)).
fails to comply with deadlines imposed by a scheduling order.103 A district court has
broad discretion in determining how to best preserve the integrity and purpose of its
scheduling order.104

Federal Rule of Civil Procedure 16(b)(4) provides that a Scheduling Order “may
be modified only for good cause and with the judge’s consent.”105 According to the
Fifth Circuit, “The good cause standard requires the ‘party seeking relief to show that
the deadlines cannot reasonably be met despite the diligence of the party needing the
extension.’”106 In determining whether the movant has met its burden of proving
“good cause” under Rule 16(b)(4), this Court must consider four factors: (1) the
movant’s explanation for failing to meet the deadline; (2) the importance of the

requested relief; (3) the potential prejudice in granting the relief sought; and (4) the
availability of a continuance to cure such prejudice.107 In determining whether to
exclude witnesses and exhibits as a sanction for violating a Rule 16 scheduling order,
the Fifth Circuit considers the same four factors.108 That determination is within the
Court’s wide discretion.109

103 Matter of Honey Island Adventure, LLC, Civ. A. No. 16-6940 c/w 16-10728 c/w 17-2652 c/w 17-2896,
2017 WL 6559871, at *2 (E.D. La. Dec. 22, 2017) (citing Fed. R. Civ. P. 16(f)(1); Fed. R. Civ. P.
37(b)(2)(A)).
104 Huffman v. Turner Indus. Grp., LLC, Civ. A. No. 12-1061, 2013 WL 2285124, at *5 (E.D. La. May
22, 2013) (Brown, J.) (citing Sw. Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 547 (5th Cir. 2003)).
105 Fed. R. Civ. P. 16(b)(4).
106 S&W Enterprises, L.L.C. v. SouthTrust Bank of Alabama, NA, 315 F.3d 533, 535 (5th Cir. 2003)
(quoting 6A Charles Alan Wright et al., Federal Practice and Procedure § 1522.1 (2d ed. 1990)).
107 Cartier v. Egana of Switzerland (America Corp.), Civ. A. No. 3:08-CV-0001-D, 2009 WL 614820, at
*3 (N.D. Tex. Mar. 11, 2009) (citing S&W Enterprises, L.L.C., 315 F.3d at 536).
108 Williams v. American Strategic Ins. Corp., Civ. A. No. 13-5411, 2014 WL 1246846, at *1 (E.D. La.
Mar. 25, 2014) (Africk, J.) (citing Bailey v. Shell W. E&P, Inc., 609 F.3d 710, 729 (5th Cir. 2010)).
109 Williams, Civ. A. No. 13-5411, 2014 WL 1246846, at *1 (citing Bennett v. GEO Grp., Inc., Case No.
12-60017, 2013 WL 5916765, at *4 (5th Cir. May 22, 2013)).
III. ANALYSIS
A. Plaintiff has not shown that good cause exists to modify the
Scheduling Order under Fed. R. Civ. P. 16(b) as to the witness and
exhibit list deadline or the expert report deadline.

Here, Plaintiff filed a Second Supplemental Witness List and a Second
Supplemental Exhibit List on February 18, 2021,110 eight months after the June 12,
2020 deadline set forth in the Court’s Scheduling Order,111 without leave of Court and
without providing good cause at the time of the filings for the delay. It was only after
Defendants moved to strike the filings that Plaintiff filed a Motion for Leave to File
Second Supplemental Witness and Exhibit Lists, attempting to show good cause for
his failure to comply with the deadlines set forth in the Court’s Scheduling Order.112
Plaintiff has further moved for leave to file a third supplemental witness list and to
file supplemental expert reports based regarding his alleged neck injury.113 The
Court notes that the trial in this matter has been continued four times due to the
closure of the United States District Court for the Eastern District of Louisiana Court
building due to the COVID-19 pandemic, discovery has been closed for months, and
that the trial is currently set for September 13, 2021.114

In the Motion to Strike, Defendants assert that all four factors of Fed. R. Civ.
P. 16(b)’s good cause analysis weigh against finding good cause exists to amend the
Scheduling Order to allow Plaintiff’s untimely supplemental witness and exhibit lists.

110 R. Docs. 112, 113.
111 R. Doc. 20 at p. 3.
112 R. Doc. 118.
113 R. Doc. 124.
114 See, R. Docs. 42, 60, 101, 103, 107, 110, 111, 138.
In his Opposition brief, Plaintiff addresses only one of the four factors of the good
cause analysis – the availability of a continuance to cure any potential prejudice –
and makes no mention of Rule 16. In fact, Plaintiff fails to cite any legal authority at

all in his Opposition brief or in his two Motions for Leave.115 Instead, Plaintiff asserts
that the medical records of his treating physicians, Dr. Winder and Dr. Ahmad, and
those of Dr. Dietze “clearly establish” that “good cause absolutely exists to allow the
supplementation” of his witness and exhibit lists past the Scheduling Order deadline
“to allow for the admission of critical evidence concerning Mr. Smith’s previously
undiagnosed neck pain.”116 The Court has reviewed the medical records submitted
by the parties, and finds Plaintiff’s conclusory assertion unpersuasive.117

Turning to the good cause analysis under Rule 16(b), the Court finds the
decision from another Section of this Court in Matter of Honey Island Adventure, LLC
persuasive.118 There, the plaintiffs filed a supplemental witness and exhibit list a
month after the deadline set forth in the court’s scheduling order without seeking
leave of court.119 A week later, the defendants filed a motion to strike the
supplemental witness and exhibit lists, which prompted plaintiffs to simultaneously

file a response to the motion and a second supplemental witness and exhibit list.120
At that point, the defendants filed a motion to strike the second supplemental witness

115 See, R. Docs. 117, 118, 124.
116 R. Doc. 117 at pp. 6-7.
117 See, R. Docs. 117-1, 117-2, 117-3, 131-1.
118 Civ. A. No. 16-6940 c/w 16-10728 c/w 17-2652 c/w 17-2896, 2017 WL 6559871 (E.D. La. Dec. 22,
2017).
119 Civ. A. No. 16-6940 c/w 16-10728 c/w 17-2652 c/w 17-2896, 2017 WL 6559871 at *1.
120 Id.
and exhibit list, which plaintiffs opposed.121 The plaintiffs asserted that one of the
plaintiff’s, unbeknownst to their counsel, sought further treatment after the deadline
for filing witness and exhibit lists, and that plaintiffs’ counsel filed the supplemental

witness and exhibit list immediately upon learning of the additional treatment, and
served defense counsel with a copy of the medical records within hours after receiving
them.122 This Court concluded that a majority of the Rule 16(b) good cause factors
weighed against modifying the scheduling order with respect to the witness and
exhibit list deadline. Specifically, the Court found the plaintiffs’ explanation for the
late filing was unpersuasive, the plaintiffs had failed to show the importance of the
additional evidence, the defendants would be greatly prejudiced by the additional

evidence, and the plaintiffs had failed to timely prepare their case despite a prior
continuance granted by the Court.123 As such, the Court concluded that good cause
did not exist to modify the scheduling order to allow plaintiffs to introduce the
recently identified witnesses and exhibits, and the Court granted the defendants’ two
motions to strike the supplemental witness and exhibit lists.124
The Court reaches the same result in this case. Despite having three

opportunities to demonstrate to the Court that good cause exists under Rule 16(b) to
allow him to file supplemental witness and exhibit lists after the deadline set forth
in the Court’s Scheduling Order – in his Opposition brief and two subsequently-filed
Motions for Leave –Plaintiff has failed to show that good cause exists to modify the

121 Id.
122 Civ. A. No. 16-6940 c/w 16-10728 c/w 17-2652 c/w 17-2896, 2017 WL 6559871 at *2.
123 Civ. A. No. 16-6940 c/w 16-10728 c/w 17-2652 c/w 17-2896, 2017 WL 6559871 at *3.
124 Civ. A. No. 16-6940 c/w 16-10728 c/w 17-2652 c/w 17-2896, 2017 WL 6559871 at *4.
Scheduling Order. Regarding the first factor, the explanation for Plaintiff’s failure to
comply with the witness and exhibit list deadline and the expert report deadline,
Plaintiff asserts only that the late filings resulted from the fact that he did not

experience neck pain until January 2021 and, therefore, was not treated for such pain
until February 2021, months after the June 12, 2020 witness and exhibit list
deadline. Plaintiff, however, never sought a continuance of the Scheduling Order
deadlines. Instead, Plaintiff filed a second supplemental witness list and a second
supplemental exhibit list into the record on February 18, 2021 without the Court’s
permission, which prompted Defendants to file the instant Motion to Strike. It was
only then that Plaintiff moved for leave of Court to file his second supplemental

witness and exhibit lists, to file a third supplemental witness list and to file
supplemental expert reports.
The Court notes that Plaintiff has known about the witness and exhibit list
deadline since the April 9, 2020 Scheduling Conference, which was attended by two
of Plaintiff’s counsel of record.125 Plaintiff has also known of his June 2, 2020 expert
report deadline since May 11, 2020, when the Court granted his motion to continue

the expert report deadlines.126 Although Plaintiff claims that his neck injury went
undiagnosed until February 2021, after those deadlines had passed, Plaintiff offers
no explanation for his failure to seek an extension of the deadlines, even after
Defendants raised the issue in their Motion to Strike. More importantly, however,
Plaintiff has not offered any explanation for why he failed to bring this new injury to

125 R. Doc. 20.
126 R. Docs. 22, 23.
the Court’s attention when he first became aware of it in February 2021, beyond
merely filing supplemental witness and exhibit lists into the record without leave of
Court. As such, the Court finds the first factor weighs against finding good cause

exists to amend the Scheduling Order with respect to the witness and exhibit list
deadline and the expert report deadlines.
Turning to the second factor of the good cause analysis, the importance of the
requested relief, the Court finds that, like in Matter of Honey Island Adventure, LLC,
while the additional evidence and testimony regarding Plaintiff’s neck pain could help
Plaintiff recover additional damages, Plaintiff has not made clear how great these
additional damages may be.127 Although Plaintiff describes the additional evidence

as “critical” in his Opposition brief,128 he does not argue that it is central to his case.129
The Court notes that prior to February 2021, Plaintiff alleged, through his Complaint,
written discovery, and in his deposition, that the underlying accident only resulted
in an injury to his right shoulder and his right elbow.130 Nonetheless, to the extent
that the additional evidence is important, “the importance of the evidence cannot
‘singularly override the enforcement of local rules and scheduling orders.’”131 As

such, the Court finds this factor weighs slightly in favor of finding good cause exists
to modify the Scheduling Order.

127 Civ. A. No. 16-6940 c/w 16-10728 c/w 17-2652 c/w 17-2896, 2017 WL 6559871 at *3.
128 R. Doc. 117 at pp. 6-7, 8.
129 See, Perez v. City of New Orleans, 173 F. Supp. 3d 337, 347 (E.D. La. 2016) (Barbier, J.).
130 See, R. Docs. 1, 11, 64, 64-1.
131 Perez, 137 F. Supp. 3d at 347 (quoting Barrett v. Atlantic Richfield Co., 95 F.3d 375, 381 (5th Cir.
1996)); See, Hamburger v. State Farm Mut. Auto Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004) (quoting
Geiserman v. MacDonald, 893 F.2d 787, 792 (5th Cir. 1990)) (same).
The Court further finds that the third factor, the potential prejudice in
granting the relief sought, weighs heavily against Plaintiff because Defendants would
be severely prejudiced by the additional testimony and exhibits concerning Plaintiff’s

alleged neck injury. The Court finds this factor significant. As Defendants point out,
and Plaintiff does not dispute, prior to February 2021, Plaintiff’s alleged injuries from
the underlying accident included only a right shoulder and right elbow injury. Thus,
all of the discovery and pretrial motion practice up to this point has focused
exclusively upon these two injuries.132 In fact, Plaintiff filed a Motion for Summary
Judgment on the Issue of Medical Causation on July 27, 2020, arguing that no
genuine issues of material fact exist surrounding the medical causation opinions of

his treating physicians that his right shoulder injury and elbow nerve damage
resulted from the January 2019 accident.133 As Defendants correctly point out, the
discovery deadline in this case was July 13, 2020,134 seven months before Plaintiff
filed his supplemental witness and exhibit lists concerning his alleged neck injury.
Thus, allowing Plaintiff to introduce additional witnesses and exhibits regarding his
neck injury would significantly prejudice Defendants, who have not had an

opportunity to conduct any discovery regarding Plaintiff’s alleged neck injury.135
Accordingly, the third factor weighs against finding good cause exists to amend the
Scheduling Order.

132 See, R. Doc. 114-2 at p.4; R. Doc. 114-3; R. Doc. 117-1; R. Doc. 131-1; R. Doc. 131-2; R. Doc. 131-3.
133 R. Doc. 64.
134 R. Doc. 20 at p. 3.
135 See, S&W Enterprises, LLC v. SouthTrust Bank of Alabama, NA, 315 F.3d 533, 536-37 (5th Cir.
2003) (finding that the third factor weighed against the movant because plaintiff would assert a
different cause of action in the amended pleading, and the defendant would be required to conduct
additional discovery).
Turning to the fourth and final factor, the availability of a continuance to cure
such prejudice, the Court finds this factor also weighs against Plaintiff. This matter
is set for a jury trial on September 13, 2020, which is quickly approaching. The Court

finds that a continuance will not cure the prejudice to Defendants because they will
be forced to conduct additional discovery to address a new theory of causation and
damages raised two years after the underlying accident. Thus, the Court agrees with
Defendants that a continuance, while it may cure prejudice, will require the
reopening of significant discovery in a case that has been trial-ready for months, as
additional written discovery will be needed, all of the witnesses will have to be re-
deposed, and the parties’ experts will need to provide supplemental expert reports.

Not only will a continuance further delay the trial in this matter, which has already
been continued several times, but Defendants will be forced to incur significant costs
in conducting additional discovery, including a second IME of Plaintiff.
It is not lost on the Court that Plaintiff previously opposed Defendants’ request
for a continuance of all of the pretrial deadlines in June 2020, asserting that, “Mr.
Smith will absolutely be prejudiced for a number of reasons by a continuance of the

deadlines and/or trial date herein.”136 In opposing the prior motion, Plaintiff insisted
that a continuance was not warranted because “this case involves a straightforward
set of facts that requires simple and uncomplicated discovery,” and that both parties
had ample resources and time to conduct adequate discovery and to prepare the case
for trial by the end of September.137 In contrast, Plaintiff now asserts in his

136 R. Doc. 37 at p. 5.
137 Id. at pp. 2, 5.
Opposition brief that a continuance of the discovery deadlines in this case would not
prejudice Defendants.138 The Court notes that Plaintiff now appears open to a
continuance of the pretrial deadlines because he stands to benefit from a continuance.

The Court also agrees with Defendants that granting a continuance would encourage
similar tactics in the future and would condone Plaintiff’s failure to comply with the
Scheduling Order deadlines, “which is behavior this Court is not eager to
encourage.”139 For the foregoing reasons, the Court finds that the fourth factor
weighs against finding good cause exists to modify the Scheduling Order.
After conducting the four-factor analysis set forth in S&W Enterprises, L.L.C.
v. SouthTrust Bank of Alabama, NA,140 the Court concludes that Plaintiff has failed

to show that good cause exists to modify the Scheduling Order with respect to the
June 12, 2020 witness and exhibit list deadline and his June 2, 2020 deadline to
provide expert reports.141 Although Plaintiff did not complain of, or seek treatment
for, neck pain until January 2021, which explains why Plaintiff failed to meet the
foregoing deadlines, Plaintiff has failed to offer any explanation for his failure to seek
a continuance of those deadlines once he became aware of a potential neck injury.

While the additional evidence may increase Plaintiff’s damages, Plaintiff offers no
information regarding the extent of those additional damages. Additionally,
Defendants will be significantly prejudiced by the additional testimony and evidence

138 R. Doc. 117 at p. 7.
139 Red Dot Bldgs. v. Jacobs Technology, Inc., Civ. A. No. 11-1142, 2012 WL 2061904, at *4 (E.D. La.
June 7, 2012) (Barbier, J.) (citing Phillips v. Gen. Motors Corp., Civ. A. No. 99-3423, 2000 WL 1285380,
at *5 (E.D. La. Sept. 12, 2000)).
140 315 F.3d 533, 536 (5th Cir. 2003).
141 See, R. Docs. 20, 23.
regarding an injury not asserted until two years after the underlying accident, and a
continuance will not cure that prejudice, as it will require the reopening of discovery
on a new theory of damages and causation. While not taken into account in the

analysis, the Court further notes that it, too, would be inconvenienced by amending
the Scheduling Order at this late date. The Court, therefore, finds that the balance
of the competing interests and equities in this particular case weigh against
modifying the Scheduling Order with respect to the witness and exhibit list deadline
and Plaintiff’s expert report deadline. As such, Defendants’ Motion to Strike is
granted and Plaintiff’s Motions for Leave are denied.
To the extent Defendants seek “fees and costs for having to move to strike the

untimely, deficient supplemental disclosures and filings,” pursuant to Fed. R. Civ. P.
37(b)(2)(C) or 37(c)(1)(C),142 that request is denied.143
IV. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that the Consolidated
Motion to Strike Supplemental Witness and Exhibit Lists and Motion in Limine,144
filed by defendants, Transocean RIGP DIN LLC and Triton Asset Leasing GmbH is

GRANTED, and Plaintiff’s Second Supplemental Witness List 145 and Second
Supplemental Exhibit List146 are hereby STRICKEN from the record. IT IS
FURTHER ORDERED that Plaintiff shall be precluded from introducing any

142 R. Doc. 114-1 at pp. 1, 10.
143 See, Perez v. City of New Orleans, 173 F. Supp. 3d, 337, 348 (E.D. La. 2016) (declining to sanction
plaintiff or award attorney’s fees and costs to defendants after granting defendants’ motion to strike
exhibit list).
144 R. Doc. 114.
145 R. Doc. 112.
146 R. Doc. 113.
evidence at trial regarding his alleged neck injury, which was first raised in February
2021.
IT IS FURTHER ORDERED that Plaintiff's Contested Motion for Leave to
File Complainant’s Second Supplemental Witness and Exhibit Lists/47 and Plaintiffs
Contested Motion for Leave to File Complainant’s Third Supplemental Witness List
and to Allow Supplemental Expert Reports!48 are DENIED.
New Orleans, Louisiana, April 19, 2021.

Od; & Vottic
WENDY B/ VITTER
United States District Judge

M47 R, Doc. 118.
148 R, Doc. 124.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10186563. Public record. Not legal advice.