296 F.R.D. 475
E.D. La.2013Background
- HBI contracted at LaShip's shipyard site and adjacent Terrebonne Port Commission land; plaintiffs allege defective soil improvement and foundation work.
- Terracon's Joseph Waxse testified as a Rule 26(a)(2)(C) expert, based on his own testing and knowledge; CPT data informed Phase II repair concepts.
- Court previously ruled Waxse properly designated as 26(a)(2)(C) and required supplement to disclosures.
- Waxse testified Phase II would replace soil-mixed columns with a continuous grout wall; he relied on CPT results and LaShip employee Derek Básele’s assertion of 20% defect rate, without having seen core test results.
- Plaintiffs disclosed Waxse would discuss CPT procedures and the proposed geotechnical plan, but did not clearly disclose reliance on outside information; Waxse’s Phase II opinions were not part of a design and were prepared for litigation.
- Court granted Defendant’s motion to exclude Waxse’s Phase II testimony, finding Rule 26(a)(2)(B) should have applied for Phase II; sanctions under Rule 37 were imposed, resulting in dismissal of certain claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of 26(a)(2)(C) testimony for Waxse | Waxse testifies as 26(a)(2)(C) based on first-hand knowledge | Testimony exceeded disclosed scope and relied on non-disclosed outside info | Phase II testimony excluded; scope limited by Rule 26(a)(2)(C) |
| Reliance on outside information by 26(a)(2)(C) witness | Witness may rely on information provided by others under Rule 703 | Reliance on Básele was undisclosed and prejudicial | Reliance on Básele not properly disclosed; sanctions warranted |
| Whether Waxse was properly designated as 26(a)(2)(B) or (C) for Phase II | waxse was 26(a)(2)(C) witness for personal knowledge | Phase II opinions constituted post-treatment, akin to retained expert | Phase II opinions treated as 26(a)(2)(B) disclosures; exclude Phase II testimony |
| Sanctions under Rule 37 for late-disclosed Phase II testimony | Disclosures were sufficient and testimony within scope | Prejudicial due to lack of report and late revelation | Rule 37 exclusion of Phase II testimony affirmed; related claims affected |
| Court’s reconsideration of interlocutory rulings | Court reaffirmed duty to reconsider in light of new information |
Key Cases Cited
- Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817 (9th Cir. 2011) (treating physicians may not always need expert reports for post-treatment opinions)
- Guillory v. Domtar Industries, Inc., 95 F.3d 1320 (5th Cir. 1996) (court may reconsider interlocutory motions when erroneous)
- Xerox Corp. v. Genmoora Corp., 888 F.2d 345 (5th Cir. 1989) (duty to reconsider rulings on motions in limine when appropriate)
- Downey v. Bob’s Discount Furniture Holdings, Inc., 633 F.3d 1 (1st Cir. 2011) (26(a)(2)(C) witnesses may bases opinions on personal knowledge and observed data)
- Fielden v. CSX Transportation, Inc., 619 F.3d 729 (6th Cir. 2010) (treating physician opinions formed during treatment need not be reports; after-treatment opinions may)