Case 4:15-cv-00809-ALM Document 114 Filed 01/18/17 Page 1 of 8 PageID #: 1948
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`United States District Court
`EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`Civil Action No. 4:15-CV-00809
`Judge Mazzant
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`RICHARD C. PAYNE,
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`v.
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`BRETT C. BRAYTON and WARREN
`TRANSPORT, INC.
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`MEMORANDUM OPINION AND ORDER
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`Pending before the Court is Defendants’ Motion to Strike and Exclude Testimony and
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`Opinions of Plaintiff’s Expert John M. Trapani (Dkt. #64). After reviewing the motion and
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`relevant pleadings, the Court finds the motion should be denied in part.
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`BACKGROUND
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`This case arises from a collision where the tractor-trailer driven by Brett Brayton
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`(“Brayton”), a truck driver for Warren Transport, Inc. (collectively “Defendants”), collided into
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`Richard Payne’s (“Payne”) pickup. The impact caused Payne to careen into the vehicle in front
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`of him.
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`Payne’s claim against Defendants was originally filed in Texas state court on August 13,
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`2015 (Dkt. #24).1 On August 20, 2015, the case was removed to the Northern District of Texas,
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`Dallas Division (Dkt. #1). On November 11, 2015, the case was transferred to this Court
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`(Dkt. #18; Dkt. #19).
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`On February 8, 2016, the Court issued a Scheduling Order setting the deadline for
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`Plaintiff’s disclosure of expert testimony as April 18, 2016; for Defendants’ disclosure of expert
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`1 Payne’s claim began as a cross-claim against Defendants, but after the original plaintiffs voluntarily dismissed
`their claim against Payne and Defendants, Payne’s current claim became the only remaining affirmative claim and
`the parties were realigned (Dkt. #60).
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`Case 4:15-cv-00809-ALM Document 114 Filed 01/18/17 Page 2 of 8 PageID #: 1949
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`testimony as May 16, 2016; and for the completion of discovery by July 25, 2016 (Dkt. #32). On
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`July 7, 2016, the Court extended the discovery deadline to September 26, 2016 (Dkt. #62).
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`On April 18, 2016, Payne served a Rule 26(a)(2)(C) disclosure identifying Dr. John
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`Trapani (“Trapani”) as an expert witness (Dkt. #64, Exhibit 6). The report produced on April 18,
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`2016, was dated February 13, 2015 (the “original report”). In the original report, Trapani based
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`his opinions on Bureau of Labor Statistics (“BLS”) national averages.
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`On May 11, 2016, Defendants sent a notice of Trapani’s deposition. The notice indicated
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`a May 18, 2016 deposition. Trapani did not appear, and Defendants took a certificate of non-
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`appearance.
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`On July 13, 2016, Defendants took Trapani’s deposition. At the deposition, Defendants
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`learned that Trapani specifically requested Payne’s medical and payroll records in order to fully
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`form his opinions, but that Trapani did not receive either until a week before his deposition. Even
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`then, what he received were not complete records. As a result of not receiving this data, Trapani
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`admitted the assumptions stated in his report were inaccurate and caused him to rely on the
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`wrong BLS information. After learning Trapani had not fully formed his opinions, Defendants
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`ended the deposition.
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`On July 27, 2016, Defendants filed this motion (Dkt. #64). On August 12, 2016, Payne
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`filed a response (Dkt. #65). While this motion was pending, Payne deposed his treating
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`physicians Dr. Martin and Dr. Jones, and the Independent Medical Examiner, Dr. MacMaster.
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`Based on information gleaned from these depositions, Trapani updated his report regarding
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`Payne’s economic loss and Payne disclosed the revised report on September 26, 2016 (Dkt. #72,
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`Exhibit 2).
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`Case 4:15-cv-00809-ALM Document 114 Filed 01/18/17 Page 3 of 8 PageID #: 1950
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`Trapani’s revised calculations decrease Payne’s total loss estimates more than $400,000.
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`Pre-trial losses decreased from $44,527.61 in the original report to $3,978.95 in the revised
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`report. Further, the revised report does not claim any loss of earnings, compared to $348,883.02
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`in the original report. Trapani explains in his revised report that this difference is due to the fact
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`that since the accident, Plaintiff has been earning an amount equal to, or greater than, his pre-
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`accident earnings (See Dkt. #72, Exhibit 2 at p. 2).
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`On September 30, 2016, following Trapani’s revised report, Payne filed a supplemental
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`response (Dkt. #67). On October 11, 2016, Defendants filed a reply to Payne’s supplemental
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`response (Dkt. #72).
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`LEGAL STANDARD
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`Federal Rule of Evidence 702 provides for the admission of expert testimony that assists
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`the trier of fact to understand the evidence or to determine a fact in issue. Fed. R. Evid. 702. A
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`district court must make a preliminary determination, when requested, as to whether the
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`requirements of Rule 702 are satisfied with regard to a particular expert's proposed testimony.
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`See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592–93 (1993). Courts act as
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`gatekeepers of expert testimony “to make certain that an expert, whether basing testimony upon
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`professional studies or personal experience, employs in the courtroom the same level of
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`intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire
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`Co. v. Carmichael, 526 U.S. 137, 152 (1999). The party offering the expert's testimony has the
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`burden to prove by a preponderance of the evidence: (1) the expert is qualified; (2) the testimony
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`is relevant to an issue in the case; and (3) the testimony is reliable. Daubert, 509 U.S. at 590–91.
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`Case 4:15-cv-00809-ALM Document 114 Filed 01/18/17 Page 4 of 8 PageID #: 1951
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`ANALYSIS
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`Defendants argue the Court should exclude Trapani’s opinions because his original report
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`was insufficient to satisfy Rule 26(a)(2) and therefore Trapani was not timely designated.
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`Defendants argue the report was insufficient because Trapani admitted that his original report
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`was a “work in progress” and that his opinions have drastically changed based on data obtained
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`after the report. Payne argues the delay in giving a full report was substantially justified because
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`Trapani is not a medical expert and therefore is not qualified to render an opinion based on his
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`own medical conclusions. Payne argues that as a result, Trapani must be allowed time to revise
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`his opinions once he has had an opportunity to review testimony from medical professionals.
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`Expert reports must contain “(i) a complete statement of all opinions the witness will
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`express and the basis and reasons for them; [and] (ii) the facts or data considered by the witness
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`in forming them.” Fed. R. Civ. P. 26(a)(2)(B). An expert may update his report if he “learns that
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`in some material respect the information disclosed is incomplete or incorrect and if the additional
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`or corrective information has not been made known to the other parties during the discovery
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`process or in writing.” Id. 26(e)(1). These supplementations must be disclosed by the time the
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`party’s pretrial disclosures under Rule 26(a)(3) are due. Id. 26(e)(2).
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`The purpose of Rule 26 is to prevent unfair surprise at trial and to permit the opposing
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`party to prepare for rebuttal reports, to depose the expert in advance of trial, and to prepare for
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`cross-examination. See Coles v. Perry, 217 F.R.D. 1, 4 (D.D.C. 2003). “[A]n expert opinion
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`must ‘set forth facts’ and, in doing so, outline a line of reasoning arising from a logical
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`foundation.” R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262, 271 (6th Cir. 2010)
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`(quoting Brainard v. Am. Skandia Life Assur. Corp., 432 F.3d 655, 657 (6th Cir. 2005)). If a
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`party does not provide sufficient information under Rule 26, then that party is not allowed to use
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`Case 4:15-cv-00809-ALM Document 114 Filed 01/18/17 Page 5 of 8 PageID #: 1952
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`that witness to supply evidence on a motion, at a hearing, or at trial, unless the failure is
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`substantially justified or harmless. Fed. R. Civ. P. 37(c)(1). However, the district court may order
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`alternative sanctions in addition to or instead of exclusion, such as awarding costs and attorney’s
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`fees. Id.
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`The Court has broad discretion in choosing the appropriate sanction. In re Complaint of
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`C.F. Bean L.L.C., 841 F.3d 365, 372 (5th Cir. 2016). The Court considers four factors to
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`determine whether to exclude testimony as a sanction for violation of a discovery order: “(1) the
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`explanation for the failure to identify the witness; (2) the importance of the testimony; (3) the
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`potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure
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`such prejudice.” C.F. Bean, 841 F.3d at 372 (quoting Geiserman v. MacDonald, 893 F.2d 787,
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`791 (5th Cir. 1990)).
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`Defendants ask the Court to exclude both of Trapani’s reports because the original report
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`was insufficient and therefore inadmissible, and the revised report was untimely and unreliable.
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`The Court will address each report in turn.
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`The first question for the Court is whether Trapani’s original report is sufficiently
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`complete under Rule 26(a)(2). Defendants argue the original report is insufficient because
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`Trapani did not rely on any case specific facts in forming his opinions and changed his opinions
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`after receiving medical and economic data, making his opinions in the original report conclusory
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`and unreliable. Payne argues Trapani is not a medical expert and thus cannot render essential
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`medical opinions. Payne further argues Trapani must be given time to supplement his report once
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`he has an opportunity to review medical testimony.
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`Trapani’s original report should be excluded as insufficient under Rule 26(a)(2).
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`Notwithstanding the need to supplement when better medical opinions become available, initial
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`Case 4:15-cv-00809-ALM Document 114 Filed 01/18/17 Page 6 of 8 PageID #: 1953
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`disclosures must still be complete and detailed when disclosed. Supplemental disclosures “are
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`not intended to provide an extension of the deadline by which a party must deliver the lion’s
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`share of its expert information.” Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d
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`546, 571 (5th Cir. 1996). Here, Trapani provides conclusory opinions based on nothing but
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`national averages for middle-aged salesmen. He then relies on his revised report to provide the
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`lion’s share of data and analysis at a later date. At best, the original report connects Payne’s
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`claim to national data only by the ipse dixit of the expert. Gen. Elec. Co. v. Joiner, 522 U.S. 136,
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`146 (1997). Therefore, the original report is excluded.
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`The next question for the Court is whether the revised report was timely. If it was not
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`timely, the Court must determine whether exclusion is appropriate. The Court finds Trapani’s
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`revised report was not timely because it relied on large amounts of data not in the original report.
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`C.F. Bean, 841 F.3d at 372 (affirming district court finding revised report was untimely where
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`the revised expert report contained “largely new rather than supplementary” information).
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`However, after analyzing each factor, the Court finds exclusion of Trapani’s revised expert
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`report is inappropriate.
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`Under
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`the first factor, Payne provides a reasonable explanation for his
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`late
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`supplementation. Trapani is not a medical expert and therefore cannot render his own medical
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`opinions. Payne’s medical condition is constantly changing as he heals after the accident. While
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`injuries occurring from the date of the accident until the date of trial are important, the largest
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`need for Trapani’s testimony is for post-trial loss. Therefore, Trapani’s utility requires medical
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`facts obtained as close to trial as possible. Payne attempted to balance the interest of timely
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`discovery with accurate medical data. Payne requested an extended discovery deadline and
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`disclosed Trapani’s revised report by that new deadline.
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`Case 4:15-cv-00809-ALM Document 114 Filed 01/18/17 Page 7 of 8 PageID #: 1954
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`Defendants speculate that allowing Trapani to revise his report as new information
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`becomes available is a never-ending cycle of amendment and rebuttal. Trapani has not abused
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`the process by constantly revising his report after the first revision, and the Court does not read
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`boilerplate language in the revised report that “calculations presented here are subject to change”
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`as suggesting Trapani will abuse the process in the future. On balance, based on all the facts and
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`circumstances, the Court cannot say Payne’s reason for not providing the revised report any
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`sooner is unreasonable. This factor favors admission of the revised report.
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`Under the second factor, Trapani’s revised report is important to Payne’s case. Trapani’s
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`opinions are critical to Payne’s claim for post-trial loss of earning capacity. The Fifth Circuit has
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`reversed district courts where the excluded testimony is essential to the plaintiff’s damages. See,
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`e.g., Betzel v. State Farm Lloyds, 480 F.3d 704, 707–08 (5th Cir. 2007). Therefore, this factor
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`favors admission.
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`Under the third factor, admitting Trapani’s revised report only slightly prejudices
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`Defendants. Payne submitted the revised report after the expert deadline. At his deposition,
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`Trapani did not have adequate information to answer questions and called his original report a
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`“work in progress.” To properly rebut and re-depose Trapani would cost Defendants time and
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`expense. On the other hand, Payne disclosed the revised report several months before trial and by
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`the discovery deadline, and Defendants ended Trapani’s deposition on their own accord. The
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`subject matter of Trapani’s opinions is a relatively manageable topic to prepare for without
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`abundant discovery. This is not a case of one party ambushing the other with undisclosed expert
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`opinions at trial. Therefore, this factor weighs only slightly in favor of exclusion.
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`Finally, a continuance would have sufficed to the cure prejudice to Defendants. The Fifth
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`Circuit has repeatedly stated that “a continuance is the ‘preferred means of dealing with a party’s
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`Case 4:15-cv-00809-ALM Document 114 Filed 01/18/17 Page 8 of 8 PageID #: 1955
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`attempt to designate a witness out of time.’” Campbell v. Keystone Aerial Surveys, Inc., 138 F.3d
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`996, 1001 (5th Cir. 1998) (quoting Bradley v. United States, 866 F.2d 120, 127 n.11 (5th Cir.
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`1989)). Payne disclosed Trapani’s revised report five months before trial. Several months have
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`passed and Defendants have not asked for additional discovery. The suitability of a continuance
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`to cure prejudice to Defendants weighs in favor of admission.
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`On balance, the factors favor admission of the revised report. Therefore, the revised
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`report will be admitted.
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`Defendants also raise a litany of expert objections including helpfulness, reliability,
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`relevance, prejudice, and analytical gap (Dkt. #64 at p. 5). Each of these arguments relate to the
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`original report. Defendants do not reassert these grounds regarding the revised report, and the
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`Court is not required to raise them sua sponte. Kumho, 526 U.S. at 149.
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`CONCLUSION
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`It is therefore ORDERED that Defendants’ Motion to Strike and Exclude Testimony and
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`Opinions of Plaintiff’s Expert John M. Trapani (Dkt. #64) is hereby DENIED in part.
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`The Court excludes the opinions in Trapani’s original report dated February 13, 2015,
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`and denies the motion regarding the opinions in the revised report dated September 26, 2016.
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