Sheppard v. Liberty Mutual Insurance Company (E.D. La., Feb. 2, 2017, order 2)

Our plain-English summary of Sheppard v. Liberty Mutual Insurance Company (U.S. District Court, Eastern District of Louisiana, February 2, 2017).

Jesse Frank Sheppard sued in Louisiana state court, and the case was removed to federal court in New Orleans. He alleged daily asbestos exposure while working for Freeport Sulphur Company, a predecessor of defendant Mosaic. He also sued makers and sellers of asbestos products and insurers. He said the exposure caused asbestos-related cancer, lung cancer, or mesothelioma, first diagnosed in October 2015. The complaint gave inconsistent dates for his employment, which ended in the early to mid-1990s. The defendants moved to exclude opinion testimony from his treating physicians because he had not served the expert disclosures that Federal Rule of Civil Procedure 26(a)(2)(C) requires. He did not dispute this. He had handed over only medical records, which the court said are not enough. He did not show that the omission was justified or harmless. The court granted the motion and excluded the physicians' expert opinions. It reasoned that diagnosing asbestosis or lung cancer and assessing their cause require specialized knowledge. The physicians could give only lay testimony. The court did not decide whether they were qualified.

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: February 2, 2017
• Docket: Civil Action No. 16-2401
• Stage: Discovery or evidence ruling
• State: Louisiana

Outcome. The court granted the defendants' motion and excluded plaintiff Sheppard's treating physicians from giving expert opinion testimony, because he did not make the required Rule 26(a)(2)(C) disclosures; the physicians may offer only lay testimony.

What the court held. Treating physicians who gave neither an expert report nor a Rule 26(a)(2)(C) disclosure are automatically excluded under Rule 37(c)(1) from giving expert opinions, and testimony on diagnosis or cause of asbestos-related disease is expert opinion. Medical records alone do not satisfy the disclosure requirement.

Issues decided: Expert Testimony, Trial Procedure and Discovery.

The people and their exposure

• Jesse Frank Sheppard: mesothelioma, lung cancer

Who	Work	Where	When	Products
Jesse Frank Sheppard	employee of Freeport Sulphur Company	Freeport Sulphur Company	1967-1992

The defendants

• Mosaic Global Holdings Inc. (employer)
• Liberty Mutual Insurance Company (insurer)
• Louisiana Insurance Guaranty Association (insurer)
• Reilly-Benton Company, Inc.
• Taylor-Seidenbach, Inc.
• Bayer CropScience, Inc.
• Union Carbide Corporation
• Montello, Inc.
• Riley Power, Inc.
• General Electric Company
• Uniroyal Holding, Inc.
• Chevron Phillips Chemical Company, LP

Other decisions in this case

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

• Sheppard v. Liberty Mutual Insurance Company (October 26, 2016). The district court denied Sheppard's appeal and let stand the magistrate judge's order refusing him leave to amend his complaint to drop the Caminada facility allegations, finding the amendment futile and made in bad faith.
• Sheppard v. Liberty Mutual Insurance Company (November 17, 2016). The court denied plaintiff Jesse Frank Sheppard's motion to remand, holding that federal jurisdiction under the Outer Continental Shelf Lands Act was proper, so defendants including Mosaic kept the case in federal court.
• Sheppard v. Liberty Mutual Insurance Company (November 17, 2016). The court granted Mosaic Global Holdings' motion to dismiss Sheppard's fraud claim against it under Rule 9(b), without prejudice and with leave to amend within twenty-one days.
• Sheppard v. Liberty Mutual Insurance Company (January 24, 2017). The court denied Jesse Frank Sheppard's second motion to remand to Louisiana state court and struck his amendments deleting the Caminada allegations, so Mosaic and the other defendants kept the case in federal court.
• Sheppard v. Liberty Mutual Insurance Company (January 24, 2017). The court granted Mosaic Global Holdings' motion to dismiss Sheppard's amended fraud claim with prejudice for failure to plead fraud with particularity, and denied Mosaic's motion to strike as moot.
• Sheppard v. Liberty Mutual Insurance Company (January 30, 2017). The court granted Liberty Mutual Insurance Company's motion for summary judgment, dismissing plaintiff Sheppard's claims against it in its individual capacity because it owed him no duty.
• Sheppard v. Liberty Mutual Insurance Company (February 2, 2017). The court denied Sheppard's motions to exclude settlement and collateral-source evidence, for in limine relief on undeposed experts, for judicial admission on asbestosis, and to exclude the Dr. Smith consultation note, and denied as moot his motion to strike a witness and the defendants' motion for partial summary judgment on asbestosis.

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.

JESSE FRANK SHEPPARD,

v.

LIBERTY MUTUAL INSURANCE COMPANY, ET AL., SECTION "R" (3).

Civil Action No. 16-2401.

February 2, 2017.

United States District Court, E.D. Louisiana.

Jesse Frank Sheppard, Plaintiff, represented by Gerolyn Petit Roussel, Roussel & Clement.

Jesse Frank Sheppard, Plaintiff, represented by Benjamin Peter Dinehart, Roussel & Clement, Jonathan Brett Clement, Roussel & Clement, Lauren Roussel Clement, Roussel & Clement & Perry Joseph Roussel, Jr., Roussel & Clement. Liberty Mutual Insurance Company, Defendant, represented by Leigh Ann Tschirn Schell, Kuchler Polk Schell Weiner & Richeson, LLC, Joseph Henry Hart, IV, Kuchler Polk Schell Weiner & Richeson, LLC, Lori Allen Waters, Irpino, Avin & Hawkins, Magali Ann Puente-Martin, Frilot L.L.C., Skylar B. Rudin, Kuchler Polk Schell Weiner & Richeson, LLC & Thomas A. Porteous, Kuchler Polk Schell Weiner & Richeson, LLC.

Louisiana Insurance Guaranty Association, Defendant, represented by Edwin Scott Hackenberg, Henchy, Verbois & Hackenberg LLC.

Reilly-Benton Company, Inc., Defendant, represented by Thomas L. Cougill, Willingham Fultz & Cougill, Jamie M. Zanovec, Willingham Fultz & Cougill, Jeanette Seraile-Riggins, Manion Gaynor Manning LLP, Jennifer H. McLaughlin, Willingham Fultz & Cougill & Jennifer D. Zajac, Willingham Fultz & Cougill.

Taylor-Seidenbach, Inc., Defendant, represented by Christopher Kelly Lightfoot, Hailey, McNamara, Hall, Larmann & Papale, Edward J. Lassus, Jr., Hailey, McNamara, Hall, Larmann & Papale & Richard J. Garvey, Jr., Hailey, McNamara, Hall, Larmann & Papale.

Bayer CropScience, Inc., Defendant, represented by Deborah DeRoche Kuchler, Kuchler Polk Schell Weiner & Richeson, LLC, McGready Lewis Richeson, Kuchler Polk Schell Weiner & Richeson, LLC, Ernest G. Foundas, Kuchler Polk Schell Weiner & Richeson, LLC, Francis Xavier deBlanc, III, Kuchler Polk Schell Weiner & Richeson, LLC, Kevin M. Jordan, Baker Botts, LLP, Melissa M. Desormeaux, Kuchler Polk Schell Weiner & Richeson, LLC, Michael H. Abraham, Kuchler Polk Schell Weiner & Richeson, LLC, Milele N. St. Julien, Kuchler Polk Schell Weiner & Richeson, LLC & Perrey S. Lee, Kuchler Polk Schell Weiner & Richeson, LLC.

Union Carbide Corporation, Defendant, represented by Deborah DeRoche Kuchler, Kuchler Polk Schell Weiner & Richeson, LLC, McGready Lewis Richeson, Kuchler Polk Schell Weiner & Richeson, LLC, Ernest G. Foundas, Kuchler Polk Schell Weiner & Richeson, LLC, Francis Xavier deBlanc, III, Kuchler Polk Schell Weiner & Richeson, LLC, Kevin M. Jordan, Baker Botts, LLP, Melissa M. Desormeaux, Kuchler Polk Schell Weiner & Richeson, LLC, Michael H. Abraham, Kuchler Polk Schell Weiner & Richeson, LLC, Milele N. St. Julien, Kuchler Polk Schell Weiner & Richeson, LLC, Perrey S. Lee, Kuchler Polk Schell Weiner & Richeson, LLC, Samuel L. Burk, Kuchler Polk Schell Weiner & Richeson, LLC, pro hac vice & Trevor Matthew Cutaiar, Mouledoux, Bland, Legrand & Brackett, LLC.

Montello, Inc., Defendant, represented by McGready Lewis Richeson, Kuchler Polk Schell Weiner & Richeson, LLC, Ernest G. Foundas, Kuchler Polk Schell Weiner & Richeson, LLC, Francis Xavier deBlanc, III, Kuchler Polk Schell Weiner & Richeson, LLC, Kevin M. Jordan, Baker Botts, LLP, Milele N. St. Julien, Kuchler Polk Schell Weiner & Richeson, LLC, Perrey S. Lee, Kuchler Polk Schell Weiner & Richeson, LLC & Samuel L. Burk, Kuchler Polk Schell Weiner & Richeson, LLC, pro hac vice.

Riley Power, Inc., Defendant, represented by Jennifer E. Adams, Deutsch Kerrigan LLP, Arthur Wendel Stout, III, Deutsch Kerrigan LLP, Barbara Bourgeois Ormsby, Deutsch Kerrigan LLP, Marc John Bitner, Deutsch Kerrigan LLP & William Claudy Harrison, Jr., Deutsch Kerrigan LLP.

General Electric Company, Defendant, represented by John Joseph Hainkel, III, Frilot L.L.C., Thomas A. Bickers, Paine Bickers LLP, pro hac vice, Angela M. Bowlin, Frilot L.L.C., James H. Brown, Jr., Frilot L.L.C., John Willard Elder, Paine Bickers LLP, pro hac vice, John A. Heller, Sidley Austin, LLP, Kelsey A. Eagan, Frilot L.L.C., Meredith K. Keenan, Frilot L.L.C. & Peter R. Tafaro, Frilot L.L.C..

Uniroyal Holding, Inc., Defendant, represented by Mary Reeves Arthur, Forman, Watkins, & Krutz, LLP, Jason K. Elam, Forman, Watkins & Kurtz LLP & Katherine Weatherly Emma Trotter, Forman, Watkins & Krutz LLP.

Chevron Phillips Chemical Company, LP, Defendant, represented by Diana Cole Surprenant, Adams & Reese, LLP, Kathleen F. Drew, Adams & Reese, LLP, Alex E. Cosculluela, Adams & Reese, LLP & David M. Stein, Adams & Reese, LLP. ORDER AND REASONS

SARAH S. VANCE, District Judge.

Defendants move to exclude expert opinion testimony of plaintiff Jesse Frank Sheppard's treating physicians on the grounds that Sheppard failed to comply with expert disclosure requirements. In the alternative, defendants argue that the physicians are not qualified to give opinions as to the cause of Sheppard's illness. Because the Court finds that Sheppard has failed to meet the applicable disclosure requirements, defendants' motion is granted and the Court does not address the treating physicians' qualifications.

I. BACKGROUND

This suit was originally filed in the Civil District Court for the Parish of Orleans.[1] Defendant Mosaic Global Holdings Inc. removed the action to this Court on March 22, 2016.[2] In his complaint, Sheppard alleges that he was exposed to asbestos "[o]n a daily basis" as an employee of Mosaic's predecessor company, Freeport Sulphur Company.[3] This exposure allegedly caused Sheppard to develop asbestos-related cancer, lung cancer, and/or mesothelioma.[4] Although Sheppard stopped working for Freeport in the early- to mid-1990s,[5] Sheppard's asbestos-related ailments were first diagnosed in October 2015.[6]

In addition to Freeport/Mosaic, Sheppard sues several defendants involved in the manufacture, distribution, and sale of asbestos-containing products that Sheppard allegedly encountered in the course of his work.[7] Sheppard also brings claims against insurance companies that allegedly provided coverage to defendants for asbestos-related claims and withheld information from Sheppard about the danger of asbestos.[8]

Sheppard brings claims for "negligence, intentional tort, fraud, and strict liability," and alleges that all defendants are "jointly, severally, and in solidio liable."[9] He seeks damages for, among other things, physical and mental pain, loss of life, loss of income, and medical expenses.[10]

II. DISCUSSION

The Federal Rules of Civil Procedure impose disclosure requirements upon proponents of expert testimony. Fed. R. Civ. P. 26. Experts retained by a party must provide an expert report pursuant to Rule 26(a)(2)(B). Hooks v. Nationwide Hous. Sys., LLC, No. 15-729, 2016 WL 3667134, at [*3] (E.D. La. July 11, 2016). Before 2010, non-retained experts, such as treating physicians, were exempt from disclosure requirements under certain circumstances. Id. (citing Perdomo v. United States, No. 11-2374, 2012 WL 2138106 at [*1] (E.D. La. 2012)). Following Congress' 2010 amendments to Rule 26, non-retained experts are subject to a separate, less stringent disclosure regime than their retained counterparts. Id. Under Rule 26(a)(2) (C), the propounding party must prepare a "disclosure" regarding any expert witness who does not provide a written report. " [T]his disclosure must state: (i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify." Fed. R. Civ. P. 26(a)(2)(C). The 2010 Advisory Committee Notes pertaining to Rule 26(a)(2)(C) make clear that treating physicians fall under the Rule's limited disclosure requirement.

Here, defendants assert that Sheppard produced no Rule 26(a)(2)(C) disclosures regarding the treating physicians. Sheppard does not dispute this. Sheppard did turn over medical records produced by the treating physicians, but "disclosures consisting of medical records alone are insufficient to satisfy the disclosure standard of Rule 26(a)(2)(C)." Hooks, 2016 WL 3667134, at [*5] (citing Williams v. State, No. 14-00154, 2015 WL 5438596, at [*4] (M.D. La. Sept. 14, 2015)); see also Knighton v. Lawrence, No. 14-718, 2016 WL 4250484, at [*2] (W.D. Tex. Aug. 9, 2016) ("[Under Rule 26(a)(2)(C),] it does not suffice to reference large bodies of material sources of facts without stating a brief account of the main points from those large bodies on which the expert relies.").

"Failure to comply with the deadline for disclosure requirements results in `mandatory and automatic' exclusion under Federal Rule of Civil Procedure 37(c)(1)." Hooks, 2016 WL 3667134, at [*3]. Excluded witnesses or information may not be used "to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless." Red Dot Bldgs. v. Jacob Tech., Inc., 2012 WL 2061904, at [*3] (E.D. La. 2012) (quoting Fed. R. Civ. P. 37). Here, Sheppard has made no showing that his omission was either justified or harmless. Accordingly, the treating physicians are excluded from offering any expert opinion testimony.

In the context of this case, any testimony regarding Sheppard's diagnosis or the cause of his illness is an expert opinion under Rule 702. Although lay witnesses may offer opinions, they may not testify regarding any opinions "based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Fed. R. Evid. 701. A leading treatise provides a concrete illustration of the distinction between a physician's lay and expert opinions:

When the physician testifies that the plaintiff was coughing and running a fever, this is lay witness testimony governed by Rule 701. However, if the physician also testifies that he diagnosed the patient as having Reactive Airways Dysfunction Syndrome caused by exposure to a toxic chemical, then this is testimony

based on scientific, technical, or other specialized knowledge and must be qualified under Rule 702.4. S. Saltzburg, M. Martin, D. Capra, Federal Rules of Evidence Manual § 701.02[7], at 701-17 (9th ed.2006). Asbestosis and lung cancer are complex diseases. Diagnosing these illnesses or assessing their cause requires scientific, technical, and specialized knowledge far beyond the ordinary experience of lay persons. Accordingly, treating physicians who did not provide either a report or disclosure under Rule 26 are limited to lay testimony, and may not testify regarding the diagnosis or causation of Sheppard's alleged illnesses. See Daniels v. D.C., 15 F. Supp. 3d 62, 70 (D.D.C. 2014) (treating physician testifying as a lay witness could not testify to any opinions regarding diagnosis or causation of illness); Montoya v. Sheldon, 286 F.R.D. 602, 614 (D.N.M. 2012) (same).

The Court is cognizant that this analysis may be inconsistent with its discussion of this issue at the pretrial conference. But upon reflection, the Court is confident that this order accurately applies the post-2010 expert disclosure regime. III. CONCLUSION

For the forgoing reasons, defendants' motion is GRANTED. Sheppard's treating physicians may offer only lay testimony at trial.

[1] R. Doc. 1 at 1.

[2] Id.

[3] R. Doc. 1-1 at 5.

[4] Id. at 6.

[5] Sheppard's complaint is inconsistent on this point. Sheppard alleges variously that his tenure at Freeport, and exposure to asbestos, ran from "approximately 1967 through 1992," from "approximately 1967 through 1994," and "from 1967 through 1976." R. Doc. 1-1 at 5, 6. [6] R. Doc. 1-1 at 6.

[7] Id. at 6, 7.

[8] Id. at 3, 4, 8.

[9] Id. at 29.

[10] Id.

Sources

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