Michel v. Ford Motor Company (E.D. La., Dec. 28, 2018)

Our plain-English summary of Michel v. Ford Motor Company (U.S. District Court, Eastern District of Louisiana, December 28, 2018).

Victor Michel sued Ford, Cummins and other companies, claiming he developed mesothelioma from asbestos exposure while working as a parts delivery driver, truck mechanic, generator service technician and owner operator from 1965 to 2005. He filed in state court in 2017, the case was removed to federal court in 2018, and he died in June 2018. His survivors were substituted as plaintiffs. Ford and Cummins asked the court to exclude two plaintiffs' experts, Dr. Arnold Brody and Dr. Barry Castleman, because their reports were not disclosed on time. The expert disclosure deadline had been March 30, 2018, and plaintiffs sought to disclose the reports more than eight months late, about two months before trial. Applying four factors from a Fifth Circuit case, the court found no good reason for the delay. It also found the testimony not essential: Brody's was cumulative of other experts, and Castleman's subject could be covered through defendants' witnesses or exhibits. The court excluded both experts and denied the request to change the scheduling order.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, Eastern District of Louisiana
• Decided: December 28, 2018
• Docket: Civil Action No. 18-4738
• Stage: Discovery or evidence ruling
• State: Louisiana

Outcome. The court granted Cummins's and Ford's motion to exclude plaintiffs' experts Dr. Brody and Dr. Castleman for late disclosure of their reports and denied plaintiffs' motion to amend the scheduling order.

What the court held. Under Rule 37(c)(1) and the four Geiserman factors, expert reports disclosed months after the discovery deadline, without good cause, may be excluded, and a scheduling order that lists no deadline does not reopen a closed discovery period.

Issues decided: Expert Testimony, Trial Procedure and Discovery.

The people and their exposure

• Victor Michel: mesothelioma; died

Who	Work	Where	When	Products
Victor Michel	parts delivery driver, truck mechanic, generator service technician, and "owner operator"		1965 to 2005

The defendants

• Ford Motor Company (manufacturer)
• Cummins Inc (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Michel v. Ford Motor Company (August 28, 2018). The district court denied the plaintiffs' motion to remand, finding Louisiana defendant Taylor-Seidenbach was improperly joined and Cummins' removal was timely, so the case stays in federal court.
• Michel v. Ford Motor Company (January 7, 2019). The court denied Ford's and Cummins's motions to exclude or limit the expert testimony of Dr. Staggs, Dr. Finkelstein and Christopher Depasquale, so the plaintiffs' experts may testify.
• Michel v. Ford Motor Company (January 7, 2019). The court denied Cummins Inc.'s and Ford Motor Company's joint motion for summary judgment, so the plaintiffs (Michel's survivors) keep their claims against both defendants.
• Michel v. Ford Motor Co. (February 20, 2019). The court granted Ford's motion to quash the trial subpoena to Matthew Fyie, granted plaintiffs leave to designate Fyie's deposition testimony, and granted Ford's motion to strike plaintiffs' late objections to Ford's counterdesignations of Victor Michel's testimony.
• Michel v. Ford Motor Co. (February 20, 2019). The court granted the plaintiffs' motion to amend their complaint to add survival, wrongful death, premises and employer liability claims against Ford, found strict products liability claims already pleaded, and said a continuance would cure prejudice to Ford.
• Michel v. Ford Motor Co. (May 23, 2019). The court granted Ford Motor Company's motion to dismiss only as to plaintiffs' wrongful death employer liability claim, which was dismissed with prejudice, and otherwise denied it, so plaintiffs' other wrongful death claims against Ford continue.
• Michel v. Ford Motor Company (January 21, 2020). The magistrate judge granted the Michel plaintiffs' motion for leave to file a second supplemental and amended complaint adding Ford Leasing Development Company, LLC as a defendant, over Ford Motor Company's opposition.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

VICTOR MICHEL, ET AL.,

v.

FORD MOTOR COMPANY, ET AL., Section "R" (4).

Civil Action No. 18-4738.

December 28, 2018.

United States District Court, E.D. Louisiana.

Keith Michel, On behalf of Victor Michel, Norbert Michel, On Behalf of Victor Michel & Vickie Michel, On Behalf of Victor Michel, Plaintiffs, represented by Alex S. Dunn, Jr., Gori, Julian & Associates, P.C., Ashley Lynette Page, Gori, Julian & Associates, P.C. & Christopher Thomas Layloff, Gori Julian and Associates PC, pro hac vice.

Aurora Pump Company & Borg-Warner Morse Tec LLC, As successor-by-merger to Borg-Warner Corporation, Defendants, represented by Glenn Lyle Maximilian Swetman, MG+M The Law Firm, Bradley Adam Hays, MG+M The Law Firm, Brandie Mendoza Thibodeaux, MG + M The Law Firm, Christopher O. Massenburg, MG+M The Law Firm, Danielle Mikel Sczesny, Garrison, Yount, Forte & Mulcahy, LLC, David R. Frohn, MGM Law Firm, Helen Meredith Buckley, MG+M The Law Firm, Jeanette Seraile-Riggins, MG+M The Law Firm, Meghan B. Senter, MG+M The Law Firm, Natasha Amber Corb, MG+M The Law Firm & Quinn Kelcie Brown, MG+M The Law Firm.

Cummins Inc, Defendant, represented by Joseph Henry Hart, IV, Pugh, Accardo, LLC, Daniel E. Oser, Pugh, Accardo, LLC & Thomas A. Porteous, Pugh, Accardo, LLC.

Dana Companies LLC, formerly known as DCO, LLC & Pneumo Abex Corporation, Defendants, represented by Barbara Bourgeois Ormsby, Deutsch Kerrigan LLP, William Claudy Harrison, Jr., Deutsch Kerrigan LLP, Arthur Wendel Stout, III, Deutsch Kerrigan LLP, Jason P. Franco, Deutsch Kerrigan LLP & Jennifer E. Adams, Deutsch Kerrigan LLP. Dap, Inc., Defendant, represented by Kay Barnes Baxter, Foley & Mansfield, Ashley A. Edwards, Cosmich Simmons & Brown, PLLC, Forrest Ren Wilkes, Cosmich Simmons & Brown, PLLC, Georgia Noble Ainsworth, Cosmich Simmons & Brown, PLLC, Jason K. Elam, Forman, Watkins & Krutz LLP, Margaret Adams Casey, Cosmich Simmons & Brown, PLLC & Martin James Dempsey, Jr., Cosmich Simmons & Brown, PLLC.

Ford Motor Company, Defendant, represented by Deborah DeRoche Kuchler, Kuchler Polk Weiner, LLC, Amber B. Barlow, Kuchler Polk Weiner, LLC, Janika D. Polk, Kuchler Polk Weiner, LLC, Lee Blanton Ziffer, Kuchler Polk Weiner, LLC, Monique M. Weiner, Kuchler Polk Weiner, LLC & Terrence M.R. Zic, Whiteford, Taylor & Preston, LLP, pro hac vice. Honeywell International, Inc., in its capacity as successor to Bendix and successor in Interest to AlliedSignal, Inc., Defendant, represented by Eric Shuman, McGlinchey Stafford, PLLC & Sarah Elizabeth McMillan, McGlinchey Stafford, PLLC.

Bridgestone Americas, Inc., Incorrectly named in the Plaintiff's petition as Bridgestone-Firestone America's Holding, Inc, Defendant, represented by Benjamin J. Guilbeau, Jr., Stockwell, Sievert, Viccellio, Clements & Shaddock, LLP & John J. Simpson, Stockwell, Sievert, Viccellio, Clements & Shaddock, LLP.

ORDER AND REASONS

SARAH S. VANCE, District Judge.

Before the Court are: (1) defendants Cummins's and Ford's motion to exclude the expert testimony of Dr. Arnold Brody and Dr. Barry Castleman,[1] and (2) plaintiffs' motion to amend or correct the Court's scheduling order as to their expert disclosure deadline.[2] The Court grants defendants' motion to exclude Dr. Brody and Dr. Castleman and denies plaintiffs' motion to amend the scheduling order because plaintiffs have not shown good cause for their failure to timely disclose Dr. Brody's and Dr. Castleman's expert reports.

I. BACKGROUND

This case arises out of Victor Michel's alleged asbestos exposure as a result of his work as a mechanic and generator service technician.[3] Michel worked as a parts delivery driver, truck mechanic, generator service technician, and "owner operator" from 1965 to 2005.[4] He filed this action in state court on July 28, 2017, after being diagnosed with mesothelioma. [5] Defendants removed the case to federal court on May 8, 2018.[6] On June 12, 2018, Michel died.[7] The Court substituted his survivors as plaintiffs on July 10, 2018.[8] Defendants have now filed a motion to exclude the expert testimony of plaintiffs' experts, Dr. Arnold Brody and Dr. Barry Castleman.[9] Plaintiffs oppose the motion and have filed their own motion to amend the Court's scheduling order to allow them to disclose Dr. Brody's and Dr. Castleman's expert reports.[10] II. LEGAL STANDARD

The Federal Rules of Civil Procedure impose disclosure requirements on a party who intends to provide expert testimony. Fed. R. Civ. P. 26. Experts retained by a party must provide an expert report pursuant to Rule 26(a)(2)(B). Expert reports for retained experts must include: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. Fed. R. Civ. P. 26(a)(2)(B). Plaintiffs did not disclose expert reports for Dr. Brody or Dr. Castleman until after defendants filed their motion to exclude the experts' testimony.

"When a party fails to timely disclose information required by Federal Rule of Civil Procedure 26(a), `the party is not allowed to use that information. . . to supply evidence on a motion. . . or at a trial, unless the failure was substantially justified or is harmless.'" In re Complaint of C.F. Bean L.L.C., 841 F.3d 365, 372 (5th Cir. 2016) (quoting Fed. R. Civ. P. 37(c)(1)). In Geiserman v. MacDonald, the Fifth Circuit described four factors to determine whether "to exclude evidence that was not properly designated": (1) the explanation for the failure to adhere to the deadline; (2) the importance of the proposed modification of the scheduling order; (3) the potential prejudice that could result from allowing the modification; and (4) the availability of a continuance to cure that prejudice. 893 F.2d 787, 791 (5th Cir. 1990); see also Hooks, 2016 WL 3667134, at [*2]-5 (applying the Geiserman test to a motion in limine to exclude expert testimony at trial).

III. DISCUSSION

Defendants argue that the Court should exclude plaintiffs' experts Dr. Brody's and Dr. Castleman's testimony because plaintiffs failed to timely disclose their expert reports.[11] In response, plaintiffs have filed a motion to amend the Court's scheduling order.[12] They argue that because the Court's existing scheduling order does not list a deadline for their disclosures, they have no disclosure deadline for the reports of Dr. Brody and Dr. Castleman.[13]

Plaintiffs' contention that they did not have a deadline for disclosing these expert reports simply because no deadline was given in the Court's scheduling order is simply wrong. Discovery in this case was conducted largely in state court, and the parties' discovery deadline, including for disclosing expert reports, was March 30, 2018.[14] Plaintiffs failed to disclose these reports by that deadline. Then, once defendants removed the case to federal court, the Court held a status conference at which it asked the parties to notify it of any remaining discovery.[15] Plaintiffs did not mention that these reports had yet to be disclosed at that conference. The Court then issued a scheduling order that specifically listed the discovery in which the parties could engage; all other discovery, including disclosure of expert reports, remained closed.[16] Despite this, plaintiffs now seek to disclose these reports over eight months late, and only two months before trial.

Applying the Geiserman factors, plaintiffs' give no sound reason for their failure to disclose these reports earlier. Their proposed modification is not of great importance. Plaintiffs will not be prejudiced by the exclusion of these experts, because Dr. Brody and Dr. Castleman's testimony is not essential to plaintiffs' case. Dr. Brody would have testified as to how asbestos causes disease.[17] This testimony is cumulative of and less helpful than the testimony of Dr. Staggs and Dr.

Finkelman, who can both testify more specifically to the way that asbestos affected Michel — namely his mesothelioma diagnosis. Dr. Castleman would have testified to defendants' knowledge of the hazards of asbestos.[18] While plaintiffs do not have another expert who will give a similar opinion, plaintiffs can deal with this issue through examination of the defendants directly or through exhibits. But if the Court were to allow the experts' testimony, defendants would be prejudiced because their time to review these materials and prepare defenses would be drastically shorter than for the other experts. Finally, given that trial is less than two months away, a continuance would cause unnecessary expense and needless delay. Accordingly, defendants' motion to exclude Dr. Brody and Dr. Castleman's testimony is granted, and plaintiffs' motion to amend the scheduling order is denied.

IV. CONCLUSION

For the foregoing reasons, defendants' motion to exclude Dr. Brody and Dr. Castleman's expert testimony is GRANTED. Plaintiffs' motion to amend the Court's scheduling order is DENIED.

[1] R. Doc. 66.

[2] R. Doc. 82.

[3] R. Doc. 1 at 2. A more in-depth discussion of the facts underlying this dispute can be found in the Court's August 28, 2018 order. See R. Doc. 34.

[4] R. Doc. 1-2 at ¶ 6.

[5] Id.

[6] R. Doc. 1.

[7] R. Doc. 21.

[8] Id.

[9] R. Doc. 66.

[10] R. Doc. 76; R. Doc. 82.

[11] R. Doc. 66-1 at 4.

[12] R. Doc. 82.

[13] R. Doc. 82-1 at 2.

[14] R. Doc. 101 at 3 n.10.

[15] See R. Doc. 35.

[16] R. Doc. 53.

[17] R. Doc. 76 at 3.

[18] Id.

Sources

• The opinion on Google Scholar
• Louisiana asbestos laws
• Louisiana asbestos exposure sites