Global Oil Tools, Inc. v. Expeditors International of Washington, Inc. et al

REPLY to Response to Motion

E.D. La.February 27, 2019

- 1 - PD.25455801.2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA GLOBAL OIL TOOLS, INC. VERSUS EXPEDITORS INTERNATIONAL OF WASHINGTON, INC., ET AL. CIVIL ACTION NO. 16-cv-16372 SECTION “M” HONORABLE BARRY W. ASHE MAGISTRATE JUDGE (1) HONORABLE JANIS VAN MEERVELD MEMORANDUM OF HAPAG-LLOYD (AMERICA), LLC IN REPLY TO PLAINTIFF’S MEMORANDUM IN OPPOSITION TO MOTION TO STRIKE PLAINTIFF’S DESIGNATED EXPERT WITNESSES I. INTRODUCTION The crux of the dispute raised by Hapag-Lloyd’s motion to strike and plaintiff’s opposition is whether the putative experts are “retained” experts within the meaning of Rule 26 (a)(2)(B). Hapag-Lloyd contends they clearly are while plaintiff says they are not. Plaintiff does not dispute that a “retained” expert must produce a report beyond that which has been provided by plaintiff to this point, so if the Court agrees the putative experts are in fact “retained” within the meaning of the Rule, then the issue is resolved and the witnesses should be precluded from offering expert opinion testimony at trial. II. ANALYSIS A. Bari is a retained expert from whom an expert report is required Courts looks to two factors when distinguishing retained and non-retained experts. First, as pointed out by Hapag-Lloyd in its initial memorandum, retained experts are hired by a party after litigation is commenced.1 Second, retained experts are individuals hired to make an evaluation to testify at trial. 1Beane v. Util. Trailer Mfg. Co., 2013 U.S. Dist. LEXIS 187700, at *12 (W.D. La. Feb. 25, 2013). Case 2:16-cv-16372-BWA-JVM Document 189 Filed 02/27/19 Page 1 of 8 - 2 - PD.25455801.2 Plaintiff actually concedes both points in its opposition memorandum when it recites: “GOT readily acknowledges that it indeed hired Mr. Bari, a Romanian surveyor, to attend a joint survey that was conducted in Romania in April-May 2018, and that this occurred well after this lawsuit was filed, and after Hapag-Lloyd was added to this lawsuit."2 To be clear, Bari had nothing to do with this cargo or this case until he was hired by plaintiff. All of his knowledge and opinions were therefore necessarily developed long after the litigation was commenced. This is dispositive of the issue before the Court. Plaintiff attempts to avoid this result by convincing the Court the requirements of Rule 26 (a)(2)(B) do not apply to surveyors if they were involved in a joint survey with a representative of an adverse party. It will come as no surprise, however, that there is no authority whatsoever to support this contention. The reason for the absence of authority to support this novel argument is that it would run contrary to the express purpose of the Rule, which is to require clear and complete disclosure of expert opinion testimony expected from adverse parties so as to avoid any potential for undue surprise and prejudice. Plaintiff’s attempt to liken Bari to a treating physician who examines a plaintiff after suit is filed fails because it is so obviously inconsistent with the acknowledged facts. That is, unlike a treating physician in the example given by plaintiff, Bari had no involvement with this cargo until he was hired to be an expert witness on behalf of the plaintiff. It turns the Rule inside-out for plaintiff to assert, as it does, that, “…Bari performed his work in the ordinary course of his business as a surveyor, in a joint inspection.”3 2 Rec. Doc. 182 pp. 2-3 of 13. 3 Rec. Doc. 182, p. 4 of 13. Case 2:16-cv-16372-BWA-JVM Document 189 Filed 02/27/19 Page 2 of 8 - 3 - PD.25455801.2 The proper analogy for Bari’s role in this case is a physician retained to perform an independent medical examination of a personal injury litigant. Clearly, an examination by such an expert is not one done within the ordinary course of his work as a doctor even though, obviously, it is his expertise as a doctor that permits him to offer expert medical opinion testimony in the first place. No one could seriously argue that a physician retained to perform an IME is not a “retained” expert within the meaning of Rule 26, or that such an expert was not required to produce a report and other materials consistent the Rule’s clear requirements. Yet that is precisely what plaintiff argues. As the case now stands, Hapag-Lloyd has provided a detailed report from an expert surveyor to summarize his findings during the joint survey of the cargo and otherwise. Hapag- Lloyd was entitled to receive the same type of report from plaintiff and has not, to its prejudice. Plaintiff misses the point entirely when it contends that Hapag-Lloyd will not be prejudiced by plaintiff’s failure to produce a report because Hapag-Lloyd’s surveyor was present at the joint survey. To refer to the IME analogy again, that is tantamount to saying an IME physician need not produce a report of his findings since the treating physician has also examined the patient. The whole point of the Rule 26 obligation to produce expert reports is so that each party will know what is expected to be the substance of an adverse expert’s testimony. To deny this fundamental point is to deny the very foundation of Rule 26. In sum, by plaintiff’s own admission Elvir Bari is by definition a “retained” expert and as such plaintiff was required to provide from him, among other things, a written report which complied with the requirements of Rule 26. In light of plaintiff’s undisputed failure to satisfy this requirement, we respectfully submit the Court should preclude Bari from testifying at trial. Case 2:16-cv-16372-BWA-JVM Document 189 Filed 02/27/19 Page 3 of 8 - 4 - PD.25455801.2 B. Global also failed properly to designate Bari as a non-retained expert. Even if Bari were not required to have provided a written report, Rule 26(a)(2)(C) requires that plaintiff must disclose the subject matter on which the witness is expected to present evidence and a summary of the facts and opinions to which the witness is expected to testify. Plaintiff has failed to make even this minimal disclosure. The cases cited by plaintiff in support of its deficient designation are easily distinguishable because in each of those cases the designating party provided or referenced actual opinions for the expert. In GTG Holdings, Inc. v. Amvensys Capital Grp., LLC, 2015 U.S. Dist. LEXIS 179807, at *16 (N.D. Tex. Apr. 8, 2015) the court held the non-retained expert designation was sufficient, but in that case the designation incorporated by reference the expert’s deposition testimony and documents, which included the expert’s opinions. In this matter, no opinions have been listed and there has been no deposition testimony or documents provided by Global that contain any of Bari’s opinions. This is fatal to the designation even under the less demanding requirements of Rule 26(a)(2)(C). In Russ v. Safeco Ins. Co. of Am., U.S. Dist. LEXIS 42333, at *85-86 (S.D. Miss. Mar. 26, 2013), another case cited by Global, the court allowed the expert to testify but only because the expert’s deposition testimony provided adequate notice of the expert’s opinion. Again, in this matter there has been no deposition of Bari and his opinions are as yet unknown. Estate of Mont. v. Lewisville Indep. Sch. Dist., 2012 U.S. Dist. LEXIS 66190, at *8 (E.D. Tex. May 11, 2012) is also easily distinguishable because in the designation in that case the party offering the testimony listed the opinions to which the expert would testify at trial. Global has failed to make a similar disclosure. Hapag-Lloyd is therefore completely in the dark regarding what Bari will testify to at trial. Case 2:16-cv-16372-BWA-JVM Document 189 Filed 02/27/19 Page 4 of 8 - 5 - PD.25455801.2 Another case cited by Global is instructive. In Moore v. Lipscomb Oil Co., the court held that, “Even if a treating physician has not been designated as an expert but has been properly identified as a witness, he or she may testify as a fact witness but may not express opinions not contained in [plaintiff’s] medical records.” 2015 U.S. Dist. LEXIS 29026, at *4 (N.D. Miss. Mar. 10, 2015) (citing Duke v. Lowe’s Home Centers, 2007 U.S. Dist. LEXIS 80415 (N.D. Miss. Oct. 19, 2007) (without an expert report, the treating physician’s testimony was “limited to those facts and opinions contained in [the] medical records”). These cases exemplify the well- established rule that a treating physician who has not issued an expert report is limited to testifying about the opinions contained in his or her medical records. Here, of course, there is no written report and no medical or other records at all produced by Bari or Global that contain any opinions at all. Finally, plaintiff’s argument that Bari is a fact witness and can therefore testify about what he observed during the joint survey, regardless of whether he is allowed to testify as an expert, is spurious. A surveyor’s factual observations regarding the condition of cargo are inherently subjective and therefore invariably involve an element of expert opinion. Is there rust on the cargo, for example, that is sufficient to effect its use and value?4 These are questions that bear on what may be important, perhaps even dispositive, issues yet plaintiff has completely failed to provide even a clue about what its evidence at trial will be. 4 Not to mention whether Bari is qualified to express expert opinions on these subjects. Because plaintiff has provided no details about Bari’s qualifications or experience, there is no way for Hapag-Lloyd to know. Case 2:16-cv-16372-BWA-JVM Document 189 Filed 02/27/19 Page 5 of 8 - 6 - PD.25455801.2 C. Ghariani’s expert testimony should be limited to the single opinion in his designation. In its opposition, Global does not appear to dispute that Ghariani’s testimony will be limited to his factual observations, and, to the extent he is found qualified to give opinions at all, on the opinions expressed in the designation.5 D. Hapag-Lloyd will suffer prejudice and surprise if Bari is allowed to testify at all or if Ghariani is allowed to testify beyond his limited scope Plaintiff does not respond at all to Hapag-Lloyd’s arguments regarding the four factors courts evaluate to decide whether to strike testimony. This is an implicit acknowledgement that each of factors militates in favor of exclusion. Plaintiff’s only real response to the prejudice issue is to say that Hapag-Lloyd won’t be prejudiced by Bari’s or Ghariani’s testimony (whatever it may be – no one knows, of course) because Hapag-Lloyd was represented at the joint survey. The argument is a non-sequitur - simply because two surveyors jointly inspect cargo does not mean that one knows what is the other’s opinion about that cargo.6 That is the reason for the expert report requirement in the first place. As matters now stand, if Bari is allowed to provide opinion testimony at trial, that would be the first time that Hapag-Lloyd would learn of his opinions. This is the perfect example of the type of prejudice and surprise that Rule 26 is designed to avoid. In fact, Hapag-Lloyd has already been irreparably prejudiced by Global’s inadequate expert designation. Hapag-Lloyd, which remains in the case for now only as a crossclaim 5 That is, “…that the tools and parts in the Containers (sic) have no resale value, and only limited salvage value, considering the contamination and the distressed condition of the tools and parts, and their inability to be used in a downhole environment because of the contamination, and the distressed condition.” See Rec. Doc. 182, p. 10 of 13. 6 The IME analogy suggested by plaintiff is again apt. Plaintiff’s argument, if accepted by the Court, would allow a defendant to argue successfully that an IME physician doesn’t have to produce a report of this examination because the treating physician saw the same patient and therefore the plaintiff will not be surprised or prejudiced by anything the IME doctor has to say. Case 2:16-cv-16372-BWA-JVM Document 189 Filed 02/27/19 Page 6 of 8 - 7 - PD.25455801.2 defendant, was entitled under the Rules to have plaintiff’s expert designations before it had to provide its own. As matters stand, however, Hapag-Lloyd timely and properly submitted a detailed written report from its surveyor without the benefit of first receiving a proper designation from Global’s experts. This prejudice will be difficult if not impossible to cure. III. CONCLUSION Bari is a retained expert from whom a written expert report is required. A report was not provided, so he must be precluded from testifying in order to avoid prejudice and surprise to Hapag-Lloyd. Even if Bari is considered a non-retained expert, which he clearly is not, he should still be precluded from testifying at trial because of the complete lack of disclosure of any opinions whatsoever as required by Rule 26. Ghariani’s expert opinion testimony should be restricted to his factual observations and, to the extent he is found qualified to give it, to the single opinion mentioned in his designation. Respectfully submitted, this the 26th day of February, 2019. PHELPS DUNBAR LLP BY: s/ Michael Held Gary A. Hemphill, LA Bar #6768 Michael Held, LA Bar #37466 365 Canal Street • Suite 2000 New Orleans, Louisiana 70130-6534 Telephone: (504) 566-1311 Telecopier: (504) 568-9130 Email: gary.hemphill@phelps.com michael.held@phelps.com ATTORNEYS FOR DEFENDANT, HAPAG-LLOYD (AMERICA), LLC Case 2:16-cv-16372-BWA-JVM Document 189 Filed 02/27/19 Page 7 of 8 - 8 - PD.25455801.2 CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing was filed on this 26th day of February, 2019, with the Clerk of Court by using the ECF system, which will send notice of electronic filing to all participating counsel of record; and I hereby certify that I have sent via UPS and transmitted electronically the document to the following non-ECF participants: Andrea Merzario, S.A. Via Livioi 24 CH 6830 Chiasso SWITZERLAND Attn: Mr. Davide Borella Operational Department 0041 91 696 1001 dborella@andreamerzario.com s/ Michael Held MICHAEL HELD Case 2:16-cv-16372-BWA-JVM Document 189 Filed 02/27/19 Page 8 of 8