Hughes v. Uber Technologies, Inc. et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SHARON HUGHES 	CIVIL ACTION
VERSUS 	NO. 23-1775
UBER TECHNOLOGIES, INC. ET AL. 	SECTION “R” (4)
ORDER AND REASONS
Before 	the 	Court 	is 	plaintiff 	Sharon 	Hughes’s 	motion 	for
reconsideration. 1 	Defendants 	oppose 	the 	motion. 2 	For 	the 	following
reasons, the Court grants the motion subject to the conditions imposed
below.
I. 	BACKGROUND
Plaintiff Sharon Hughes brought this suit against defendants for
injuries she allegedly sustained while attempting to enter a vehicle operated
by defendant Briana Gordon. 3
Following a preliminary conference, this Court entered a scheduling
order for this matter. 4 	The deadline for plaintiff’s expert disclosures was
1 	R. Doc. 132.
2 	R. Doc. 134.
3 	R. Doc. 1-1.
4 	R. Doc. 81.
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January 3, 2025. 5 The scheduling order stated that the deadline “applies to
all experts . . . who may be witnesses for [p]laintiff.” 6 	On April 1, 2025,
defendants filed a motion in limine to limit the testimony of Dr. Gabriel
Tender. 7 On April 2, 2025, the Court informed the parties that the trial would
be continued. 8 On April 3, 2025, the Court modified its April 2, 2025 order.9
The Court later granted defendants’ motion in limine and limited the
testimony of Dr. Tender to that of a fact witness. 10 	Plaintiff now seeks
reconsideration of that decision. 11 Defendants oppose plaintiff’s motion. 12
The Court considers the motion.
II. 	LAW AND ANALYSIS
Rule 54(b) provides that an order that adjudicates fewer than all the
claims among all the parties “may be revised at any time” before the entry of
a final judgment. 	As Rule 54 recognizes, a district court “possesses the
inherent procedural power to reconsider, rescind, or modify an interlocutory
5 	Id.
6 	Id.
7 	R. Doc. 102.
8 	R. Doc. 104.
9 	R. Doc. 106.
10 	R. Doc. 127.
11 	R. Doc. 132.
12 	R. Doc. 134.
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order for cause seen by it to be sufficient.” 	Melancon v. Texaco, Inc., 659
F.2d 551, 553 (5th Cir. 1981). 	Under Rule 54(b), “the trial court is free to
reconsider and reverse its decision for any reason it deems sufficient, even in
the absence of new evidence or an intervening change in or clarification of
the substantive law.” Austin v. Kroger Tex., L.P., 864 F.3d 326, 336 (5th Cir.
2017).
Here, plaintiff urges the Court to reconsider its order limiting the
testimony of Dr. Gabriel Tender to that of a fact witness. Plaintiff argues that
she did not have the opportunity to respond to defendants’ motion in limine
seeking to limit the testimony of Dr. Tender. This is incorrect. Nevertheless,
given 	the 	potential 	importance 	of 	Dr. 	Tender’s 	testimony, 	the 	Court
reconsiders its earlier order.
This Court’s earlier order was based on plaintiff’s failure to comply
with Rule 26(a)(2)(C), which governs the required disclosures for non-
retained experts. The “basic purpose” of Rule 26 is “to prevent prejudice and
surprise.” 	Joe Hand Promotions v. Chios, Inc., 544 F. App’x 444, 446 (5th
Cir. 2013) (citing Reed v. Iowa Marine & Repair Corp., 16 F.3d 82, 85 (5th
Cir. 1994)). 	These disclosure requirements operate “to accelerate the
exchange of basic information about the case and to eliminate the paperwork
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involved in requesting such information.” 	Fed. R. Civ. P. 26(a) advisory
committee’s note (1993 amendment).
While non-retained experts are not required to provide a written
report, the party providing the non-retained expert must disclose “the
subject matter on which the witness is expected to present evidence” as an
expert witness, and “a summary of the facts and opinions to which the
witness is expected to testify.” 	Fed. R. Civ. P. 26(a)(2)(C); see also Fed. R.
Civ. P. 26, Advisory Committee Notes to 2010 Amendments (stating Rule
26(a)(2)(C) applies to witnesses who are “not required to provide a report
under Rule 26(a)(2)(B) [but] may both testify as a fact witness and also
provide expert testimony”). Plaintiff has not satisfied this requirement as to
Dr. Tender.
Failure to comply with Rule 26(a) results in mandatory and automatic
exclusion under Rule 37(c)(1) unless the failure was substantially justified or
is harmless. 	Fed. R. Civ. P. 37(c)(1). 	To assess the nature of the omission
and determine whether to strike the testimony, Courts consider: (1) the
explanation 	for 	the 	failure 	to 	timely 	provide 	the 	disclosure; 	(2) 	the
importance of the proposed testimony; (3) potential prejudice in allowing
the testimony; and (4) the availability of a continuance to cure such
prejudice. Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990).
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Here, plaintiff provides no explanation for the failure to timely provide
the disclosure. However, the importance of Dr. Tender’s testimony is likely
to be high given the relevance of plaintiff’s medical condition to this case. Dr.
Tender was plaintiff’s initial treating physician and is likely to possess
important information regarding plaintiff’s medical condition immediately
following the incident. 	Prejudice to the opposing party is high as plaintiff
still has not provided defendants with information regarding Dr. Tender’s
proposed testimony. 	But this prejudice can be reduced by plaintiff quickly
providing a Rule 26(a)(2)(C) disclosure for Dr. Tender and by allowing
defendants to conduct a deposition if defendants so desire. The Court orders
plaintiff to provide a Rule 26(a)(2)(C) disclosure for Dr. Tender no later than
January 16, 2026. 	To prevent prejudice to defendants, defendants will be
allowed to depose Dr. Tender if they choose to do so, and discovery will be
reopened for this limited purpose. 	All other pretrial deadlines remain in
place. The Court will not extend the January 16, 2026 deadline for the Rule
26(a)(2)(C) disclosure. 	Plaintiff shall bear all costs associated with any
deposition of Dr. Tender.
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III. 	CONCLUSION
For the foregoing reasons, the Court GRANTS plaintiff’s motion
subject to the following conditions: (1) no later than January 16, 2026
plaintiff must provide defendants a Rule 26(a)(2)(C) expert disclosure
statement containing “(i) the subject matter on which the witness is expected
to present evidence . . . and (ii) a summary of the facts and opinions to which
the witness is expected to testify” for Dr. Tender; and (2) defendants are
allowed to depose Dr. Tender if they choose and discovery will be reopened
for this limited purpose. 	Plaintiff shall bear all costs associated with such
deposition. The trial date and all other deadlines remain as scheduled.
New Orleans, Louisiana, this _____ day of December, 2025.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
31st
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