Hardy v. New Jersey Manufacturers Insurance Company

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

ROSALYN HARDY CIVIL ACTION

VERSUS NO. 22-153-SDD-RLB

NEW JERSEY MANUFACTURERS

INSURANCE COMPANY, ET AL.

ORDER

Before the Court is Defendants’ Motion to Strike Untimely Expert Report of David

Ferachi, MD and for Sanctions (“Motion to Strike”) (R. Doc. 23). The motion is opposed. (R.

Doc. 28).

I. Background

This is a personal injury action involving a motor vehicle accident that was removed to

federal court. The instant dispute pertains to whether Plaintiff timely disclosed a “rebuttal” report

pursuant to Rule 26(a)(2)(D)(ii) of the Federal Rules of Civil Procedure despite the absence of a

specific deadline in the Court’s Scheduling Order pertaining to the disclosure of “rebuttal”

reports. In relevant part, the Scheduling Order required the following; Plaintiff must provide the

identities and resumés of experts on November 4, 2022; Defendants must provide the identities

and resumés of experts on December 5, 2022; Plaintiff must provide expert reports by December

5, 2022; Defendants must provide expert reports by February 3, 2023; expert discovery must be

completed by March 31, 2023; dispositive motions and Daubert motions must be filed by April

28, 2023; and motions in limine must be filed by October 24, 2023. (R. Doc. 5).

On July 15, 2022, Plaintiff’s treating physician, Dr. Eric Oberlander, a neurosurgeon,

reviewed Plaintiff’s cervical and lumbar MRIs on October 5, 2021, stating, among other things,

that she is “a candidate for an ACDF [anterior cervical discectomy with fusion] [at the C5-7

level] at any point should she continue to fail conservative treatment” and also “may need a

lumbar surgery someday.” (R. Doc. 23-3 at 6). Defendants represent that, to date, Plaintiff has

not scheduled this surgery. (R. Doc. 23-1 at 2). Plaintiff represents that she timely disclosed Dr.

Oberlander as a non-retained expert and timely provided his report. (R. Doc. 28 at 2).

On January 10, 2023, Defendants disclosed to Plaintiff the expert report of Dr. Patrick

Juneau. (R. Doc. 23-4 at 1-6; see R. Doc. 23-5 at 3). Dr. Juneau opined in his expert report that

he did not “see any neural impingement” based on Plaintiff’s cervical and lumbar MRIs. (R.

Doc. 23-4 at 5). In addition, Dr. Juneau opined that Plaintiff does not need “surgical intervention

upon her lumbar spine or upon her cervical spine” or “any further steroid injunctions, such as

medial branch blocks or epidurals” given that Plaintiff is “essentially at maximum medical

improvement at this point.” (R. Doc. 23-4 at 4).

On February 2, 2023, Plaintiff informed Defendants that she intended on retaining a

“rebuttal” expert witness, and Defendants objected to any rebuttal report as untimely. (R. Doc.

23-5 at 2). The next day, Plaintiff informed Defendants that Dr. David Ferachi was the proposed

rebuttal expert. (R. Doc. 23-5 at 1). Plaintiff formally identified Dr. Ferachi as the rebuttal expert

on February 6, 2023. (R. Doc. 23-6 at 1). Plaintiff’s counsel then requested a status conference

with the Court.

On February 7, 2023, the Court held a telephone conference with the parties to discuss

the parties’ dispute on whether, and to what extent, Plaintiff was allowed to disclose an expert

rebuttal report (by a newly disclosed expert witness) in response to Defendants’ expert report

provided on January 10, 2023. (R. Doc. 18). The Court specifically informed “the parties that

while the Scheduling Order (R. Doc. 5) does not include a specific expert rebuttal report

deadline, Federal Rule of Civil Procedure 26(a)(2)(D)(ii) states that ‘[a]bsent a stipulation or a

court order,’ an expert rebuttal disclosure is allowed ‘if the evidence is intended solely to

contradict or rebut evidence on the same subject matter identified by another party under Rule

26(a)(2)(B) or (C), within 30 days after the other party’s disclosure.’” (R. Doc. 18 at 1). The

Court also informed the parties that any dispute regarding the scope of the expert rebuttal

disclosure could be resolved by filing an appropriate motion after the disclosure is received.” (R.

Doc. 18 at 3).

Immediately after the telephone conference, Plaintiff provided Defendants with a 1-page

expert report by Dr. Ferachi. (R. Doc. 23-6). In relevant part, Dr. Ferachi opines that Plaintiff’s

cervical MRI shows “evidence of cervical degenerative disc disease with spondylosis from C5

through C7” and that Plaintiff “has worse than right neuroforaminal narrowing at C5-C6, as well

as C6-C7.” (R. Doc. 23-6 at 3). Dr. Ferachi further opines that if Plaintiff “failed at least three

months of conservative care, then she would be a candidate for C5 through C7 anterior cervical

discectomy and fusion.” (R. Doc. 23-6 at 3).1

On February 9, 2023, Defendants provided Plaintiff with the “supplemental” report of

De. Juneau. (R. Doc. 23-4). In relevant part, this supplemental report provides that based on

review of Dr. Oberlander’s deposition and explanation of Plaintiff’s cervical MRI, he needs to

make “some clarification” of his earlier report to clarify that while he “did not see any neural

impingement” at the C5-7 level in his original report, a “more accurate description is that

Plaintiff “does not have any impingement upon the spinal cord at that level.” (R. Doc. 23-4 at 1).

On February 27, 2023, Defendants filed the instant Motion to Strike. (R. Doc. 23). In

support of the motion, Defendants argue that (1) no rebuttal reports are allowed by the

1 Plaintiff subsequently sought to file Dr. Ferachi’s report into the record. (R. Doc. 19). Given that the motion did

not present a dispute regarding the contents of the report, the Court denied the motion pursuant to Rule 5(d)(1)(A) of

the Federal Rules of Civil Procedure. (R. Doc. 22). In denying the motion, the Court specifically noted that a

rebuttal report could be disclosed to Defendants as allowed under Rule 26(a)(2)(D)(ii). (R. Doc. 22).

undersigned’s Scheduling Order, (2) the rebuttal report should be excluded because it is, in fact,

an untimely initial expert disclosure, and (3) sanctions should be awarded pursuant to 28 U.S.C.

§ 1927. (R. Doc. 23). In opposition, Plaintiff argues that the motion should be denied because (1)

the rebuttal report was timely under Rule 26(a)(2)(D)(ii), (2) the rebuttal report is within the

scope of Rule 26(a)(2)(D)(ii), (3) Plaintiff will be prejudiced if the rebuttal report is disallowed

whereas Defendants will face no prejudice if the rebuttal report is allowed, and (4) Plaintiff’s

counsel acted reasonably and in good faith with respect to the rebuttal report. (R. Doc. 28).

II. Law and Analysis

A. Whether the Scheduling Order allows Rebuttal Reports

In arguing that Dr. Ferachi’s report is untimely and must be struck from the record,

Defendants rely primarily on Broyles v. Cantor Fitzgerald & Co., No. 10-857-JJB-CBW (M D.

La. Aug. 11, 2016)2 in support of the proposition that the undersigned’s Scheduling Order

precludes a rebuttal expert report after the provided expert report deadline. In Broyles, the

plaintiffs filed a putative class action seeking damages resulting from alleged wrongful

investment transactions involving a collateralized debt obligation. After expert discovery closed,

Judge Brady was faced with several motions in limine, including one brought by the plaintiffs to

exclude as untimely “supplemental” reports provided by two defendants. In granting the motion,

Judge Brady excluded not only the defendants’ “supplemental” reports, but also the plaintiff’s

“rebuttal” reports, which were all provided after the specific expert report deadlines set by the

scheduling order in the case.3 Without discussing the scope of the excluded “rebuttal” and

“supplemental” reports, Judge Brady found that these reports were untimely because they were

2 Defendants incorrectly characterize this decision as issued by the undersigned. The Broyles decision was in fact

issued by the late Judge James Brady.

3 The scheduling order referenced by Judge Brady was issued by Magistrate Judge Stephen Riedlinger. Broyles,

ECF No. 322.

“not provided at the time and in the sequence as the Court ordered.” Id. at *2. In issuing this

decision, Judge Brady relied on one of his previous decisions in which he “held that a

Scheduling Order that used identical language . . . did not permit production of rebuttal or

supplemental reports after the deadline for expert reports.” Id. (citing Terrebonne Par. NAACP v.

Jindal, No. 14-069, 2015 WL 5943400, at *2 (M.D. La. Oct. 13, 2015) (“[T]he Scheduling Order

would have specifically provided a deadline for disclosure of supplemental reports had the Court

intended for those to be filed after [the deadline for expert reports].”).

To be clear, the undersigned has already informed the parties in this personal injury

action “that while the Scheduling Order (R. Doc. 5) does not include a specific expert rebuttal

report deadline, Federal Rule of Civil Procedure 26(a)(2)(D)(ii) states that ‘[a]bsent a stipulation

or a court order,’ an expert rebuttal disclosure is allowed ‘if the evidence is intended solely to

contradict or rebut evidence on the same subject matter identified by another party under Rule

26(a)(2)(B) or (C), within 30 days after the other party’s disclosure.’” (R. Doc. 18 at 3; see R.

Doc. 22). Accordingly, notwithstanding the conclusion in Brolyes, the Court concludes that Dr.

Ferachi’s report is timely to the extent it falls within the scope of a rebuttal report under Rule

26(a)(2)(D)(ii). The undersigned has specifically held that the expert report deadlines provided in

the undersigned’s scheduling orders do not preclude a timely rebuttal report under Rule

26(a)(2)(D)(ii). See, e.g., Dillard v. Nat'l Cas. Co., No. 19-716-SDD-RLB, 2021 WL 9274417, at

*3 (M.D. La. Apr. 19, 2021) (“Rule 26 sets a default rule allowing a party to submit a rebuttal

disclosure within 30 days of any expert disclosure absent stipulation or court order.”) (citing Fed.

R. Civ. P. 26(a)(2)(D)(ii)); Favaro v. Wright Nat'l Flood Ins. Co., No. 17-1711-SDD-RLB, 2020

WL 8831588, at *2 (M.D. La. Aug. 14, 2020) (“Defendant could have identified Dr. Poche as a

rebuttal expert within 30 days after receiving Mr. Arnold’s report.”) (citing Fed. R. Civ. P.

26(a)(2)(D)(ii)); Hebert v. Ascension Par. Sch. Bd., No. 17-641-SDD-RLB, 2018 WL 11395456,

at *2 (M.D. La. Dec. 6, 2018) (“Defendant may disclose a rebuttal expert in response to Dr.

Warshowsky pursuant to Rule 26(a)(2)(D)(ii)); Est. of Christman v. Liberty Mut. Ins. Co., No.

20-739-BAJ-RLB, 2021 WL 3177415, at *3-4 (M.D. La. July 26, 2021) (extending deadline to

provide rebuttal reports as allowed by Rule 26(a)(2)(D)(ii)); Brown v. Daniel Logue, Logue

Farms Transp., L.L.C., No. 15-193-RLB, 2015 WL 11718119, at *1 (M.D. La. Nov. 17, 2015)

(“Defendants have the opportunity to provide rebuttal evidence to Mr. Roberts’ report if

appropriate.”) (citing Fed. R. Civ. P. 26(a)(2)(D)(ii)). Indeed, under certain circumstances, the

undersigned concluded that sur-rebuttal reports may be allowed. See Louisiana Health Care Self

Ins. Fund v. United States, No. 12-766-JJB-RLB, 2014 WL 3720526, at *1 (M.D. La. July 25,

2014) (“Rule 26(a)(2)(D)(ii) grants each party the opportunity to, within 30 days, submit a

rebuttal report ‘intended solely to contradict or rebut’ its opponent’s expert report—not its

opponent’s rebuttal expert report. The Rule does not grant any right to rebuttal beyond that initial

rebuttal report. That said, the Court also does not read Rule 26(a)(2)(D)(ii) to prohibit the filing

of sur-rebuttal reports.”).4

4 Defendants fail to reference any of these decisions by the undersigned. Other courts have reached the same

conclusion. Rodgers v. Beechcraft Corp., 759 F. App'x 646, 664 (10th Cir. 2018) (“If nothing in the scheduling or

case management order speaks to rebuttal, then 26(a)(2)(D)’s 30-day rule applies.”); Stonestreet v. United States,

No. 20-65, 2021 WL 6804211, at *1 (S.D. Miss. Apr. 21, 2021) (“[B]y operation of Fed. R. Civ. P. 26(a)(2)(D)(ii),

Plaintiff’s rebuttal experts were due on or before February 15, 2021.”); Midwest Feeders, Inc. v. Bank of Franklin,

No. 14-78, 2016 WL 4074432, at *1 (S.D. Miss. July 29, 2016) (“This Court finds that, given the procedural history

of this case and the absence of an express order regarding rebuttal witnesses, the provisions of Rule 26(a)(2)(D)(ii)

apply, allowing Plaintiff to designate a rebuttal expert within thirty days after Defendant’s designation.”); Comeaux

v. United States, No. 19-12801, 2021 WL 53310, at *2 (E.D. La. Jan. 6, 2021) (“In addition, to the extent Dr. Lurie’s

testimony is considered rebuttal to the Government’s expert’s report, that report was provided to plaintiff on

November 25, 2020—which means that Plaintiff had until December 25, 2020 to provide Dr. Lurie’s rebuttal

report.”); Hostetler v. Dillard, 2014 WL 11514964 (S.D. Miss. Aug. 29, 2014) (holding that because the case

management order was silent as to rebuttal experts, Rule 26(a)(2)(D)(ii) controlled and allowed the plaintiff to

designate a rebuttal expert thirty days after the defendant’s expert designation); Teledyne Instruments, Inc. v. Cairns,

No. 12-854-ORL-28, 2013 WL 5781274, at *17 (M.D. Fla. Oct. 25, 2013) (“The [Case Management and Scheduling

Order’s] failure to set a deadline for the disclosure of rebuttal expert witness reports does not mean that rebuttal

expert witness reports are not permitted. It simply means that rebuttal expert witness reports must be submitted

within the period set forth in Rule 26(a)(2)(D)(ii). This is the prevailing rule . . . throughout the country.”) (citating

cases); but see Broyles, 2016 WL 4267955, at *1; Roth v. Sentry Ins., No. 20-1298, 2021 WL 1534499, at *1 (E.D.

The Court recognizes the potential abuse in the over-designation of “rebuttal” or

“supplemental” expert disclosures to circumvent the Court’s expert report deadlines. See Sierra

Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546, 571 (5th Cir. 1996) (“The

purpose of rebuttal and supplementary disclosures is just that—to rebut and to supplement. These

disclosures are not intended to provide an extension of the deadline by which a party must

deliver the lion’s share of its expert information.”). Given the record, however, the Court does

not find that the disclosure of Dr. Ferachi was an attempt to circumvent the Court’s expert report

deadlines. The instant motion is denied to the extent it seeks a blanket ruling that the Court’s

Scheduling Order does not a party to provide a “rebuttal” report within the default deadline set

by Rule 26(a)(2)(D)(ii) of the Federal Rules of Civil Procedure.5

As discussed above, the Court finds no basis for excluding Dr. Ferachi’s report, to the

extent it is within the scope of rebuttal as allowed under Rule 26(a)(2)(D)(ii), as untimely in light

La. Apr. 19, 2021) (disclosure of new expert to provide rebuttal report was untimely where (1) defendants disclosed

experts one month prior to plaintiff’s expert disclosure deadline, (2) the scheduling order specifically provided: “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”; and the Court’s Local Rule 26.1 provided that the Court would set the timing and sequence

of the parties’ Rule 26 expert disclosures); LeBeouf v. Manning, No. 12-2583, 2016 WL 9411380, at *7 (E.D. La.

Feb. 2, 2016) (relying in part on the Court’s Local Rule 26.1).

5 The Court notes that Defendants have also disclosed an expert report outside of the deadlines set by the Court’s

Scheduling Order. On February 9, 2023 (six days after the only deadline set by the Scheduling Order for the

Defendants to provide expert reports), Defendants provided Plaintiff with the “supplemental report” of Dr. Juneau

without obtaining leave of court. A supplemental expert report disclosure is allowed when required under Rule

26(e). See Fed. R. Civ. P. 26(a)(2)(E). The scope of a supplemental expert report is limited: the party must provide a

supplemental report “in a timely manner if the party learns that in some material respect the disclosure . . . is

incomplete or incorrect, and if the additional or corrective information has not been made known to the other parties

during the discovery process or in writing” or “as ordered by the court.” Fed. R. Civ. P. 26(e)(1)(A). “For an expert

whose report must be disclosed under Rule 26(a)(2)(B), the party’s duty to supplement extends both to information

included in the report and to information given during the expert’s deposition.” Fed. R. Civ. P. 26(e)(2). “Courts

routinely reject untimely ‘supplemental’ expert testimony where the opinions are based upon information available

prior to the deadline for expert disclosures and disclosure ‘departs from [or] expands upon [the] original report in

[any] material respects.’” Holcombe v. United States, 516 F. Supp. 3d 660, 670 (W.D. Tex. 2021) (quoting Sobrino-

Barrera v. Anderson Shipping Co., 09-3642, 2011 WL 5245396, at *3 (S.D. Tex. Oct. 24, 2011)); see Pratt v.

Landings at Barksdale, No. 09-1734, 2013 WL 5375951, at *2 (W.D. La. Sept. 24, 2013) (striking a declaration

after finding that it “contains new opinions, not mere logical extensions, that go beyond those previously presented”

and that “appear to be based upon information available prior to the deadline for service of initial expert reports.”).

of the Scheduling Order in this action. To the extent necessary, the Court finds good cause under

Rule 16(b)(4) of the Federal Rules of Civil Procedure to modify the Scheduling Order to allow

Plaintiff to identify Dr. Ferachi as a “rebuttal” expert for the purposes of submitting his 1-page

report. The Court will turn to whether Defendants have made any convincing arguments that Dr.

Ferachi’s expert report falls outside of the scope of Rule 26(a)(2)(D)(ii) or should otherwise be

excluded at this time.

B. Whether Dr. Ferachi’s Expert Report is a “Rebuttal” Report and Should be

Excluded from Evidence

The Court will turn to Defendants’ arguments that “Dr. Ferachi’s opinions are clearly not

rebuttal because he says the same things as Dr. Oberlander and both are spine surgeons” [and]

Dr. Ferachi’s report is “simply an attempt to bolster Dr. Oberlander’s opinion versus Dr.

Juneau’s opinion.” (R. Doc. 23-1 at 4). In relevant part, Dr. Ferachi opines that Plaintiff is a

potential “candidate for C5 through C7 anterior cervical discectomy and fusion,” observing that

Plaintiff’s cervical MRI shows “evidence of cervical degenerative disc disease with spondylosis

from C5 through C7” and that Plaintiff “has worse than right neuroforaminal narrowing at C5-

C6, as well as C6-C7.” (R. Doc. 23-6 at 3). Defendants do not direct the Court to a single

decision supporting a finding that these opinions are not “intended solely to contradict or rebut

evidence on the same subject matter” provided by Dr. Juneau, who conversely opined that based

on his review of the same cervical MRI that he didn’t “see any neural impingement” at the C5-7

levels and that Plaintiff was not a candidate for surgery.6

6 “The scope of rebuttal testimony is ordinarily a matter to be left to the sound discretion of the trial judge.”

Tramonte v. Fibreboard Corp., 947 F.2d 762, 764 (5th Cir. 1991). “When addressing whether an expert witness is a

rebuttal witness, district courts often ask three questions: First, what evidence does the rebuttal expert purport to

contradict or rebut? Second, is the evidence disclosed as rebuttal evidence on the same subject matter as that

identified by another party in its Rule 26(a)(2)(B) disclosure? Third, is the evidence disclosed as rebuttal evidence

intended solely to contradict or rebut that evidence?” Gibson Brands, Inc. v. Armadillio Distribution Enterprises,

Inc., No. 19-00358, 2021 WL 231764, at *1 (E.D. Tex. Jan. 22, 2021). Defendants do not address these standards.

Instead, Defendants rely on their first premise – that Dr. Ferachi’s report is really an

“initial” report because his “opinions are exactly the same as Dr. Oberlander’s opinions” – in

support of the argument that the report is untimely. (R. Doc. 23-1 at 3). In seeking to exclude this

untimely “initial” report, Defendants appear to seek relief pursuant to Rule 37(c)(1) of the

Federal Rules of Civil Procedure.7 Rule 37(c)(1) provides, in relevant part, the following: “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 harmless.” Fed. R. Civ. Proc. 37(c)(1);

see also Honey-Love v. United States, 664 F. App'x 358, 362 (5th Cir. 2016) (“[U]nder Rule

37(c), the presumptive sanction for failing to disclose a testifying expert or supply a required

expert report or summary disclosures is to exclude or limit the expert’s testimony unless the

failure was substantially justified or harmless.”). When determining whether to strike evidence,

including expert witnesses, under Rule 37(c)(1), trial courts should look to the same four factors

articulated by the Fifth Circuit to determine whether good cause exists to modify a scheduling

order under Rule 16 for guidance: (1) the explanation, if any, for the party’s failure to comply

with the discovery order; (2) the prejudice to the opposing party of allowing the witnesses to

testify; (3) the possibility of curing such prejudice by granting a continuance; and (4) the

importance of the witnesses’ testimony. Barrett v. Atlantic Richfield Co., 95 F.3d 375, 380 (5th

Cir. 1996); see Texas A&M Research Found. v. Magna Transp., Inc., 338 F.3d 394, 402 (5th Cir.

2003) (“In evaluating whether a violation of [R]ule 26 is harmless, and thus whether the district

court was within its discretion in allowing the evidence to be used at trial, we look to four

7 Defendants do not cite Rule 37(c)(1). Instead, Defendants state that they are seeking an order striking the expert

report pursuant to Rule 37(a)(3) of the Federal Rules of Civil Procedure. (See R. Doc. 23 at 1). That subsection of

Rule 37 is inapplicable because it pertains solely to motions to compel. The Court will assume that Defendants are

seeking relief pursuant to Rule 37(c)(1).

factors: (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.”).

Assuming that Dr. Ferachi’s report is best characterized as an “initial” report, the Court

nevertheless concludes that this untimely disclosure was substantially justified or harmless.8 The

expert testimony is important to Plaintiff as it addresses Dr. Juneau’s opinion that he didn’t “see

any neural impingement” at the C5-7 levels and that Plaintiff was not a candidate for surgery.

Even Dr. Juneau thought it was necessary to provide “clarification” on the issue of not seeing

any neural impingement and providing a “more accurate description” in a “supplemental” report

provided after Defendants’ receipt of Dr. Ferachi’s report. (R. Doc. 23-4 at 7-8). The Court finds

Plaintiff’s explanation for the disclosure of Dr. Ferachi’s report – to rebut Dr. Juneau’s purported

equivocation on the existence of any neural impingement – to be reasonable. There is no undue

prejudice to Defendants by allowing this expert disclosure given that Dr. Juneau has provided a

“supplemental” report after receipt of Dr. Ferachi’s “rebuttal” report.9 A continuance of the

expert deadlines will be unnecessary given that the deadline to complete expert discovery

deadline is March 31, 2023. To the extent necessary, the parties can seek and obtain a brief

continuance of the expert discovery deadline to the extent necessary to complete expert

discovery with respect to Dr. Ferachi. In short, even if Dr. Ferachi’s report is best characterized

as an untimely “initial” expert report, this untimely disclosure was nevertheless “substantially

justified or harmless” under Rule 37(c).

8 Nothing would have precluded Plaintiff from disclosing a retained expert to provide an opinion substantially

similar to her treating physician’s opinion.

9 Interestingly, Dr. Juneau does not mention any review of Dr. Ferachi’s report. If Dr. Juneau did not review Dr.

Ferachi’s report prior to providing his “supplemental” report, then Defendants may seek leave to support a report

solely to contradict or rebut Dr. Juneau’s opinions.

Under these circumstances, the Court will deny the relief sought by Defendant pursuant

to Rule 37. After the close of expert discovery, Defendants may seek any appropriate relief from

the district judge to seek to exclude Dr. Ferachi’s opinion testimony from evidence. See U.S. Sec.

& Exch. Comm'n v. Commonwealth Advisors, Inc., No. 12-700 JWD-SCR, 2017 WL 107974, at

*2 (M.D. La. Jan. 11, 2017) (refusing to strike timely filed rebuttal report because “[w]hether or

not specific opinions do, or do not, fall within the “same subject matter” of the opinions given by

Defendant’ expert Ronald Filler, so as to properly be considered rebuttal evidence, will be

considered in a timely filed Daubert motion, should Defendants choose to file one.”).

C. Sanctions under 28 U.S.C. § 1927

Section 1927 sanctions are awardable where an attorney “multiples the proceedings in

any case unreasonably and vexatiously.” 28 U.S.C. § 1927. Defendants now seek sanctions under

Section 1927 because that Plaintiff misrepresented the law in her motion seeking leave to file Dr.

Ferachi’s report into the record and Plaintiff did not provide Dr. Ferachi’s report to Defendant

until after the Court’s telephone status conference. (R. Doc. 23-1 at 6-8).

Plaintiff’s counsel did not act unreasonably and vexatiously. At most, Plaintiff’s counsel

mistakenly sought to file an expert report into the record notwithstanding Rule 5(d)(1)(A). As

discussed above, Plaintiff’s counsel reasonably relied on decisions by the undersigned, and

others following the majority view, that allow rebuttal disclosures under the default 30-day

period set by Rule 26(a)(2)(D)(ii). Furthermore, that Plaintiff’s counsel did not disclose the

context of Dr. Ferachi’s report to the undersigned at the telephone status conference is irrelevant.

The purpose of the Court’s telephone status conference was to address whether Plaintiff could

timely provide a rebuttal report pursuant to Rule 26(a)(2)(D)(ii), not whether Plaintiff had

already secured a rebuttal expert and corresponding report.

The Court finds no basis to award sanctions under Section 1927.

III. Conclusion

Based on the foregoing,

IT IS ORDERED that Defendants’ Motion to Strike Untimely Expert Report of David

Ferachi, MD and for Sanctions (R. Doc. 23) is DENIED. The Court finds no basis to exclude Dr.

Ferachi’s report, or to award any sanctions, based on the arguments raised in the instant Motion.

The parties shall proceed with expert discovery, including Dr. Ferachi’s deposition if secured by

Defendants. The parties shall bear their own costs.

IT IS FURTHER ORDERED that any future motion to exclude Dr. Ferachi’s report

shall be filed after the close of expert discovery and shall be directed to the district judge as a

motion in limine or Daubert motion.

Signed in Baton Rouge, Louisiana, on March 14, 2023.

S

RICHARD L. BOURGEOIS, JR.

UNITED STATES MAGISTRATE JUDGE