Anders v. Hercules Offshore Services LLC

311 F.R.D. 161, 93 Fed. R. Serv. 3d 33, 2015 U.S. Dist. LEXIS 153167, 2015 WL 7018451
CourtDistrict Court, E.D. Louisiana
DecidedNovember 12, 2015
DocketCivil Action No. 15-393
StatusPublished
Cited by11 cases

This text of 311 F.R.D. 161 (Anders v. Hercules Offshore Services LLC) is published on Counsel Stack Legal Research, covering District Court, E.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anders v. Hercules Offshore Services LLC, 311 F.R.D. 161, 93 Fed. R. Serv. 3d 33, 2015 U.S. Dist. LEXIS 153167, 2015 WL 7018451 (E.D. La. 2015).

Opinion

ORDER AND REASONS

LANCE M. AFRICK, District Judge.

Defendant, Hercules Offshore Services, LLC (“Hercules”), has filed a motion1 in limine to limit or exclude the testimony of plaintiffs experts, Dr. David Lee, Nancy Favaloro, and Dr. John Gardner. According to Hercules, Dr. Lee’s testimony, except for his recommendation for steroid injections, should be excluded because plaintiffs disclosure of Dr. Lee does not comply with the requirements of Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure; Ms. Favaloro’s testimony concerning plaintiffs future medical costs should be excluded as speculative and based on hearsay; and Dr. Gardner’s testimony concerning plaintiffs future medical costs and Life-Care Plan should be excluded on the basis that his calculations are derived from the speculative projections within Ms. Favaloro’s report. Plaintiff opposes the motion.2 For the following reasons, Hercules’s motion is denied without prejudice as set forth herein.

BACKGROUND

This lawsuit arises out of an injury allegedly suffered by plaintiff, Cedric Anders, while he was employed by Hercules. Dr. David Lee is plaintiffs treating physician. Plaintiff retained Nancy Favaloro as a vocational rehabilitation expert and Dr. John Gardner as an expert economist. Both parties agree that as a treating physician, Dr. Lee is not required to provide a written expert report pursuant to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure3 to the extent that his opinions derive from information learned during actual treatment of the patient. See Knorr v. Dillard’s Store Servs., Inc., No. 04-3208, 2005 WL 2060905 (E.D.La. Aug. 22, 2005) (Vanee, J.). However, “Rule 26(a)(2)(C) creates a separate requirement [for] expert witnesses who do not provide a written report, such as treating physicians.” Rea v. Wisconsin Coach Lines, Inc., No. 12-1252, 2014 WL 4981803, at *5 (E.D.La. Oct. 3, 2014) (Duval, J.) (citations omitted).4

[163]*163Rule 26(a)(2)(C) requires the plaintiff to submit a disclosure of Dr. Lee’s expert testimony stating “(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.” Plaintiffs disclosure of Dr. Lee’s testimony pursuant to Rule 26(a)(2)(C) reads as follows:

Dr. David Lee: Dr. Lee will testify consistent with his reports which are attached. He will give opinions on the cause of the injuries suffered [sic] by Mr. Anders was the accident on the Hecules [sic] 202 on December 12, 2012, the diagnosis, treats ment and prognosis of these injuries. He will also testify that Mr. Anders can only return to a light duty level of employment. These opinions were formed during the treatment of Mr. Anders and are based on the doctor’s examination of Mr. Anders, the history of how the injuries occurred, and all other facts contained in his treatment, progress notes and medical records. Dr. Lee will testify that Mr. Anders is in need of an epidural steroid injection and that he will need future medical care as stated in the expert report of Nancy Favalora [sic]. He will also rely on the medical reports and notes of the other treating physicians. (Exhibit 3)5

Because Ms. Favaloro is a retained expert, plaintiffs disclosure of Ms. Favaloro was accompanied by a written report containing the information required by Rule 26(a)(2)(B).6 One of the purposes of Ms. Favaloro’s report is “to provide cost projections for medical treatment as recommended by Mr. Anders’ physicians.”7 Her report includes the following passage with respect to the medical treatment recommended by Dr. Lee:

David Lee, MD completed a neurosurgical evaluation on a referral from Gary Carr, MD on July 16, 2015. Dr. Lee prescribed medications and recommended a lumbar epidural steroid injection.
During a conference with Dr. Lee, he further stated the MRI showed arthritic changes and recommended a series of two lumbar epidural steroid injections. He states that if the first two do not provide enough relief he does not always continue with the third. He also recommends EMG studies once a year and recommended a wellness program.
He does not believe Cedric Anders is a good candidate for a fusion and that his option is pain management. If his pain is not improved, he recommended a trial dorsal column stimulator. If that is successful, he would recommend the permanent stimulator. He continues to recommend Norco, Naproxen and Neurontin as lifetime medications. He recommends an FOE [Functional Capacity Evaluation] and perhaps a discogram and MRI on an annual basis for surveillance purposes.8

Plaintiff also provided an expert report as part of his disclosure with respect to Dr. John Gardner. Dr. Gardner was hired by plaintiff to calculate “the present value of the cost of the Life Care Plan for the remaining lifetime of Mr. Cedric Anders.”9 Dr. Gardner’s report “uses Ms. Favaloro’s annual costs to project the total cost of the Life Care Plan.”10

LAW AND ANALYSIS

Hercules argues that the testimony of all three witnesses should be excluded for essentially two reasons: (1) plaintiffs disclosure of Dr. Lee does not comply with Rule 26(a)(2)(C) and (2) even if plaintiffs disclo[164]*164sure does comply with that rule, Dr. Lee’s testimony regarding treatments he may recommend — on which Ms. Favaloro and Dr. Gardner rely — is unduly speculative and unreliable.

The crux of Hercules’s first argument is that plaintiffs Rule 26(a)(2)(C) disclosure did not adequately provide Hercules ■with “a summary of the facts and opinions to which [Dr. Lee] is expected to testify” because the disclosure did not contain all of Dr. Lee’s opinions on its face, but rather incorporated by reference facts and opinions that Dr. Lee offered to Ms. Favaloro that were only stated in Ms. Favaloro’s report.11 Hercules does not, however, cite any case law supporting its argument that such incorporation is impermissible.

While there is little case law addressing the requirements of Rule 26(a)(2)(C)— which was only added to Rule 26 in 2010— Judge Duval of this Court has explained that “courts ‘must take care against requiring undue detail’ in Rule 26(a)(2)(C) disclosures.” Rea, 2014 WL 4981803, at *5 (citations omitted). The summary should simply contain an “‘abstract, abridgement, or compendium’ of the opinion and facts supporting the opinion.” Id. at *5. The Fifth Circuit has further acknowledged that “[t]he basic purpose of Rule 26 is to prevent prejudice and surprise.” Joe Hand Promotions, Inc. v. Chios, Inc., 544 Fed.Appx. 444, 446 (5th Cir.2013) (internal quotations and citations omitted).

The Court finds that while the manner in which plaintiff disclosed “a summary of the facts and opinions to which [Dr.

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311 F.R.D. 161, 93 Fed. R. Serv. 3d 33, 2015 U.S. Dist. LEXIS 153167, 2015 WL 7018451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anders-v-hercules-offshore-services-llc-laed-2015.