Garon v. Illinois Central Railroad Company

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GAEL GARON,
Plaintiff
CIVIL ACTION
VERSUS 	NO. 24-2599
ILLINOIS CENTRAL
RAILROAD COMPANY,
Defendant
SECTION: “E” (4)
ORDER AND REASONS
Before the Court is a motion for summary judgment filed by Defendant Illinois
Central Railroad Company (“Defendant”). 1 Plaintiff Gael Garon filed an opposition. 2
Defendant filed a reply. 3
BACKGROUND
This case arises out of Plaintiff’s diagnosis of mesothelioma. Plaintiff alleges she
developed mesothelioma due to secondary exposure to asbestos through her father,
Robert Garon, who worked for Defendant from 1949 to the late 1990s. 4 Plaintiff filed suit
in the Civil District Court for Orleans Parish on May 9, 2024, asserting claims for products
liability, negligence, and premises liability. 5 Defendant removed this case to this Court on
November 4, 2024.6
On June 16, 2026, Defendant filed this motion for summary judgment7 with an
accompanying statement of undisputed material facts. 8 Although Plaintiff filed an
opposition to Defendant’s motion for 	summary judgment and included her own
1 R. Doc. 54.
2 R. Doc. 60.
3 R. Doc. 61.
4 R. Doc. 1-2 at p. 2.
5 R. Docs. 1-2, 1-3.
6 R. Doc. 1.
7 R. Doc. 54.
8 R. Doc. 54-2.
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statement of uncontested material facts, 9 Plaintiff did not specifically admit or deny any
of Defendant’s statements of fact, nor did Plaintiff address any of Defendant’s statements
in her own statement of uncontested facts. Local Rule 56.2 states that “[a]ll material facts
in the moving party’s statement will be deemed admitted, for purposes of the motion,
unless controverted in the opponent’s statement.” Only Defendant’s statements of fact
numbered 1 through 20 are factual statements; Defendant’s statement of fact number 21
is no longer true insofar as it states that the “present uncontroverted evidence is that
Plaintiff’s mesothelioma was not caused by exposure to asbestos” because the Court will
amend the scheduling order to allow the Plaintiff’s late production of the report; and the
remainder of the statements of fact are in reality statements of law.10 As Plaintiff fails to
controvert Defendant’s statements of fact numbered 1 through 20, the Court considers
these statements of fact as undisputed for purposes of this motion.
Accordingly, the following facts are undisputed. On April 10, 2025, this Court
entered a scheduling order setting this matter for a jury trial on February 2, 2026. 11 Under
this scheduling order, Plaintiff was required to provide her expert reports to Defendant
on or before October 3, 2025.12 Plaintiff did not produce any expert reports by this
deadline.13 On November 20, 2025, the Court continued the trial date in this matter and
entered a new scheduling order14 requiring Plaintiff to produce her expert reports to
Defendant on or before May 15, 2026 and Defendant to produce its expert reports to
Plaintiff on or before June 16, 2026. 15 Plaintiff did not produce any expert reports by the
May 15, 2026 deadline. 16 Defendant timely produced three expert reports before the
9 R. Doc. 60-1.
10 R. Doc. 54-2 at p. 4.
11 R. Doc. 54-2 at p. 1 ¶ 3.
12 Id. at p. 2 ¶ 8.
13 Id. at p. 2 ¶ 10.
14 Id. at p. 2 ¶ 13.
15 Id. at pp. 2-3 ¶ ¶ 14, 16.
16 Id. at p. 3 ¶ 15.
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deadline: a report from Dana M. Hollins dated November 4, 2025; a report from Leonel
M. van Zyl dated May 21, 2026; and a report from Victor L. Roggli dated May 26, 2026.17
Defendant argues Plaintiff has missed her deadline to produce her expert reports
and, as a result, cannot meet her burden of proving that exposure to asbestos caused her
mesothelioma. 18 Defendant argues that, because Plaintiff cannot establish this essential
element of her claim, Defendant is entitled to summary judgment on Plaintiff’s claim. 19
In opposition, Plaintiff argues Defendant did not timely provide her with results of
a Whole Genome Sequencing test that Plaintiff’s expert needed to complete his expert
opinion.20 As a result, Plaintiff argues the Court should deny Defendant’s motion for
summary judgment.
LEGAL STANDARD
Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.”21 “An issue is material if its resolution could affect the outcome of the action.”22
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrain[s] from making credibility determinations or weighing
the evidence.”23 “All reasonable inferences are drawn in favor of the nonmoving party.” 24
There is no genuine issue of material fact if, even viewing the evidence in the light most
17 Id. at p. 3 ¶ 17.
18 R. Doc. 54 at p. 1.
19 R. Doc. 54-1 at p. 10.
20 R. Doc. 60 at p. 2.
21 F ED . R. CIV . P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
22 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
23 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008); see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000).
24 Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994).
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favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving
party, thus entitling the moving party to judgment as a matter of law.25
If the dispositive issue is one for which the moving party will bear the burden of
persuasion at trial, the moving party “must come forward with evidence which would
‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’” 26 If the
moving party fails to carry this burden, the motion must be denied. If the moving party
successfully carries this burden, the burden of production then shifts to the nonmoving
party to direct the Court’s attention to something in the pleadings or other evidence in the
record setting forth specific facts sufficient to establish that a genuine issue of material
fact does indeed exist. 27
On the other hand, if the dispositive issue is one on which the nonmoving party
will bear the burden of persuasion at trial, the moving party may satisfy its burden of
production by either (1) submitting affirmative evidence that negates an essential element
of the nonmovant’s claim, or (2) demonstrating there is no evidence in the record to
establish an essential element of the nonmovant’s claim. 28 When proceeding under the
first option, if the nonmoving party cannot muster sufficient evidence to dispute the
movant’s contention that there are no disputed facts, a trial would be useless, and the
25 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
26 Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.
v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).
27 Celotex, 477 U.S. at 322-24.
28 Id. at 331-32 (Brennan, J., dissenting); see also St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987)
(citing Justice Brennan’s statement of the summary judgment standard in Celotex, 477 U.S. at 322-24, and
requiring the Movers to submit affirmative evidence to negate an essential element of the nonmovant’s
claim or, alternatively, demonstrate the nonmovant’s evidence is insufficient to establish an essential
element); Fano v. O’Neill, 806 F.2d 1262, 1266 (5th Cir. 1987) (citing Justice Brennan’s dissent in Celotex,
and requiring the movant to make an affirmative presentation to negate the nonmovant’s claims on
summary judgment); 10A C HARLES A LAN W RIGHT, ARTHUR R. M ILLER & M ARY K AY K ANE , FEDERAL P RACTICE
AND P ROCEDURE § 2727.1 (2016) (“Although the Court issued a five-to-four decision, the majority and
dissent both agreed as to how the summary-judgment burden of proof operates; they disagreed as to how
the standard was applied to the facts of the case.” (internal citations omitted)).
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moving party is entitled to summary judgment as a matter of law. 29 When, however, the
movant is proceeding under the second option and is seeking summary judgment on the
ground that the nonmovant has no evidence to establish an essential element of the claim,
the nonmoving party may defeat a motion for summary judgment by “calling the Court’s
attention to supporting evidence already in the record that was overlooked or ignored by
the moving party.” 30 Under either scenario, the burden then shifts back to the movant to
demonstrate the inadequacy of the evidence relied upon by the nonmovant. 31 If the
movant meets this burden, “the burden of production shifts [back again] to the
nonmoving party, who must either (1) rehabilitate the evidence attacked in the moving
party’s papers, (2) produce additional evidence showing the existence of a genuine issue
for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why further
discovery is necessary as provided in Rule 56(f).” 32 “Summary judgment should be
granted if the nonmoving party fails to respond in one or more of these ways, or if, after
the nonmoving party responds, the court determines that the moving party has met its
ultimate burden of persuading the court that there is no genuine issue of material fact for
trial.”33
Still, “unsubstantiated assertions are not competent summary judgment evidence.
The party opposing summary judgment is required to identify specific evidence in the
record and to articulate the precise manner in which that evidence supports the claim.
29 First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1980); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249-50 (1986).
30 Celotex, 477 U.S. at 332-33.
31 Id.
32 Id. at 332-33 n.3.
33 Id. at 332 n.3; see also First Nat’l Bank of Ariz., 391 U.S. at 289.
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‘Rule 56 does not impose upon the district court a duty to sift through the record in search
of evidence to support a party’s opposition to summary judgment.’” 34
LAW AND ANALYSIS
I. 	The Court will amend the Scheduling Order to allow Plaintiff to submit
her expert’s report.
The Court entered a Minute Entry, with an amended scheduling order, on
November 20, 2025. 35 The amended scheduling order required that the Plaintiff’s expert
reports be provided to defense counsel by May 15, 2026. At the status conference on July
7, 2026, the parties represented to the Court that Plaintiff submitted the expert report of
Dr. Brent C. Staggs to Defendant on June 16, 2026, after Defendant filed the present
motion for summary judgment. 36 Counsel for the Plaintiff requested that the Court
modify the amended scheduling order to allow Plaintiff to use the expert report of Dr.
Staggs.
Although Plaintiff provided her report to Defendant well after the May 15, 2026
deadline, the Court finds good cause exists to amend the amended scheduling order to
allow Plaintiff to submit Dr. Staggs’ report after the deadline. Federal Rule of Civil
Procedure 16(b)(4) allows scheduling orders to be modified to admit expert testimony for
good cause and with the judge’s consent.37 In determining whether good cause exists to
admit untimely expert testimony, district courts in the Fifth Circuit consider four factors:
“(1) the explanation for the failure to identify the witness; (2) the importance of the
testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a
34 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (first citing Celotex, 477 U.S. at 324;
then Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994); and then quoting Skotak v. Tenneco Resins, Inc.,
953 F.2d 909, 915-16 & n.7 (5th Cir. 1992)).
35 R. Doc. 37.
36 Dr. Staggs’ expert report is attached hereto as Attachment 1.
37 F ED . R. CIV . P. 16(b)(4); Conroe v. Ins. Co. of the W. (ICW), No. CV H-18-2855, 2019 WL 13090154, at *2
(S.D. Tex. Nov. 22, 2019).
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continuance to cure such prejudice.” 38 Trial courts have “broad discretion to preserve the
integrity and purpose” of a scheduling order.39 Courts in this circuit have allowed
plaintiff’s to designate experts after the court mandated deadline to do so had passed,
even when the Plaintiff failed to provide an adequate explanation for the untimely
designation, when the expert could provide essential testimony at trial. 40
Considering the Fifth Circuit factors, good cause exists to allow Plaintiff to submit
Dr. Staggs’ expert report past the May 15, 2026 deadline. Plaintiff’s counsel explained that
he believed Dr. Staggs could not complete his expert report until Plaintiff received from
Defendant the results from the Whole Genome Sequencing, and that he did not receive
these results until Defendant filed its motion for summary judgment. Defendant has
provided evidence showing that defense counsel reported to Plaintiff’s counsel that a
company called Breakthrough Genomics (“BTG”) would send the results to Plaintiff’s
counsel on March 18 or 19, 2026. 41 Defendant also provided the email that BTG sent to
Plaintiff’s counsel on March 19, which contained the link to the test results. 42 These emails
demonstrate that Plaintiff has had access to the results of the Whole Genome Sequencing
for months. At the July 7, 2026 status conference, Plaintiff’s counsel informed the Court
that, although BTG sent the results to his email address, he was not aware he had received
the results. Plaintiff’s counsel did not provide any justification for this inattentiveness.
The Court acknowledges that Plaintiff has provided, at best, a weak explanation for failing
to produce her expert’s report on or before the May 15, 2026 deadline. Accordingly, the
38 Izaguirre v. Ugland Marine Mgmt. AS, No. CIV.A. H-11-4195, 2012 WL 4104791, at *1 (S.D. Tex. Sept.
17, 2012)(quoting Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004).
39 Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990).
40 Conroe v. Ins. Co. of the W. (ICW), No. CV H-18-2855, 2019 WL 13090154, at *2 (S.D. Tex. Nov. 22,
2019)(allowing a plaintiff to designate an expert after the deadline, even though plaintiff did not provide an
adequate explanation for his untimeliness, because the expert’s testimony was “essential to the remaining
issue for trial.”); Izaguirre, 2012 WL 4104791, at *2 (allowing a plaintiff to designate an expert after the
deadline, even though their failure to abide by the court’s deadlines was not a result of excusable neglect,
because the expert’s testimony was “essential to plaintiff’s claims.”).
41 R. Doc. 61-5 at p. 1.
42 R. Doc. 61-1.
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first Fifth Circuit factor—the explanation for the failure to provide the expert report—
weighs against Plaintiff.
However, the second Fifth Circuit factor—the importance of Dr. Staggs’ expert
testimony—weighs heavily in favor of allowing Plaintiff to submit her expert report past
the deadline. In Conroe v. Insurance Company of the West, the United States District
Court for the Southern District of Texas found this factor supported allowing a plaintiff to
designate an expert after the deadline when the expert’s testimony was “essential to the
remaining issue for trial.”43 In this matter, Dr. Staggs opines in his report that “significant
exposures to asbestos from [Plaintiff’s] frequent and regular take-home exposure to
asbestos-containing 	products 	over 	her 	lifetime” 	caused 	her 	mesothelioma. 44 	Such
testimony is essential to proving the causation element of Plaintiff’s claims against
Defendant and, as a result, is important.
Moreover, the remaining considerations of potential prejudice to Defendant and
the availability of a continuance also weigh in favor of allowing Plaintiff to submit Dr.
Staggs’ expert report. In Conroe, the court found the defendant would suffer some
prejudice from plaintiff designating an expert after the deadline because the defendant
had not had the opportunity to depose the expert. 45 However, this prejudice would be
cured by a continuance of the discovery deadline.46 Similarly, in this case, while
Defendant has suffered prejudice due to Plaintiff’s repeated delays in providing Dr.
Staggs’ expert report, the Court has continued the discovery deadline until July 30, 2026,
allowing both parties an opportunity to depose each other’s experts, and continued the
deadline for filing non-evidentiary pre-trial motions and motions in limine until August
43 2019 WL 13090154, at *2.
44 Attachment 1 at p. 36.
45 2019 WL 13090154, at *2.
46 Id at *3.
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6, 2026.47 These continuances will allow Defendant to adequately examine Dr. Staggs and
his opinions and to obtain any information it deems necessary to respond to his opinions
and to file any appropriate motions. Accordingly, these continuances will cure any
prejudice Defendant faces from allowing Plaintiff to submit her expert report after the
deadline.
Because Dr. Staggs’ testimony is essential to Plaintiff’s case and the Court has
cured any prejudice to Defendant by continuing the discovery and dispositive motions
deadlines, the Fifth Circuit factors weigh in favor of allowing Plaintiff to submit her expert
report after the deadline. Accordingly, the Court will consider Dr. Staggs expert report in
ruling on Defendant’s motion for summary judgment.
II. 	Defendant is not entitled to judgment as a matter of law because
Plaintiff has produced an expert report that creates genuine disputes
of material fact.
Defendant is not entitled to judgment as a matter of law on Plaintiff’s claims
because Plaintiff has produced an expert report that disputes the expert reports provided
by Defendant. Considering Dr. Staggs’ expert report, disputed issues of material fact exist
as to whether Plaintiff can satisfy the causation element of her asbestos exposure claim.
To prevail in an asbestos exposure case, a plaintiff must prove that “(1) his
exposure to the defendant’s asbestos product was significant, and (2) that this exposure
caused or was a substantial factor in bringing about his mesothelioma.” 48 The Fifth Circuit
has noted that asbestos exposure cases are “toxic-tort cases. . .requir[ing] expert
testimony to prove causation.” 49 Defendant argues Plaintiff cannot establish that her
exposure 	to 	asbestos 	caused 	her 	mesothelioma 	and 	that 	entitles 	it 	to 	summary
47 R. Doc. 62. The Defendant did not request continuances of any other deadlines.
48 Robertson v. Doug Ashy Bldg. Materials, Inc., 168 So. 3d 556,565 (La. App. 1 Cir. 2014) (citing Rando v.
Anco Insulations, Inc., 16 So. 3d 1065, 1092 (La. 2009)).
49 Schindler v. Dravo Basic Materials Co., Inc., 790 F. App'x 621, 625 (5th Cir. 2019).
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judgment. 50 However, Defendant made this argument under the assumption that Plaintiff
did not have an expert’s opinion to support the causation element of her exposure claim.
Since Defendant filed the present motion, Plaintiff has provided Defendant and the
Court with the attached expert report of Dr. Staggs, in which he opines that Plaintiff had
significant exposures to asbestos over her lifetime from her frequent and regular take-
home exposure to asbestos-containing products, and that her mesothelioma was caused
by these identified and substantial exposures to asbestos. 51 In Defendant’s expert reports,
Ms. Hollins opines that Plaintiff’s alleged exposure to asbestos from her father’s work did
not increase Plaintiff’s risk of developing mesothelioma and that her mesothelioma may
have been spontaneous in origin. 52 In Dr. van Zyl’s report, he opines that an inherited
germline variant in Plaintiff’s DNA caused her mesothelioma, rather than exposure to
asbestos. 53 In Dr. Roggli’s report, he opines that Plaintiff’s germline mutations may have
caused her mesothelioma and that the alleged asbestos exposure did not cause or
contribute to her illness. 54 Dr. Staggs’ opinion that Plaintiff’s mesothelioma was caused
by identified and substantial exposures to asbestos directly contradicts the expert
opinions provided by Defendant’s experts, who opine that Plaintiff’s alleged exposure to
asbestos 	from 	her 	father’s 	work 	did 	not 	increase 	Plaintiff’s 	risk 	of 	developing
mesothelioma. 55 Dr. Staggs’ opinion, if believed, would permit a reasonable jury to find
that the Defendant caused Plaintiff’s injury.
Because both Plaintiff and Defendant designated experts to testify, and their
opinions differ, each party is free to question the opposing expert regarding methodology
and conclusions at trial. These conflicting opinions have created “a classic ‘battle of the
50 R. Doc. 54-1 at p. 10.
51 Attachment 1 at p. 36.
52 R. Doc. 54-6 at p. 36.
53 R. Doc. 54-8 at pp. 64-65.
54 R. Doc. 54-7 at pp. 1-2.
55 Id; R. Docs. 54-6 at p. 36, 54-8 at pp. 64-65.
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experts,’ the winner of which must be decided by a jury.” 56 In effect the Defendant is
asking the Court to credit its experts’ testimony over that of the Plaintiff’s expert, but the
Court cannot make credibility determinations or weigh evidence at this time. “In the
ultimate analysis, the trier of fact is the final arbiter as between experts whose opinions
may differ as to precise causes.”57 Even though Defendant’s statements of undisputed fact
numbered 1 through 20 are accepted as true for purposes of the motion, there still exist
genuine disputes of material fact as to whether Plaintiff’s alleged exposure to asbestos
caused her mesothelioma. The jury ultimately must decide, if the testimony ultimately is
admitted at trial, whether it believes Plaintiff’s expert or Defendant’s experts. For these
reasons, the Court will deny Defendant’s motion for summary judgment.
CONCLUSION
IT IS ORDERED that Defendant’s motion for summary judgment is DENIED.58
New Orleans, Louisiana, this day 13th day of July, 2026.
________ 	________________ ____________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
56 Cox v. Provident Life & Accident Ins. Co., 878 F.3d 504, 507 (5th Cir. 2017).
57 Pittman v. Gilmore, 556 F.2d 1259, 1261 (5th Cir. 1977).
58 R. Doc. 54.
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