     Case: 11-30561     Document: 00511913746         Page: 1     Date Filed: 07/09/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                            July 9, 2012

                                       No. 11-30561                        Lyle W. Cayce
                                                                                Clerk

BRAYLON JAMES GUIDRY; RICKY L. HARMON; SANDRA HARMON;
MARVA HARMON ARVIE, individually and, also known as Marva Harmon
Guidry, on behalf of Jasmine T. Harmon,

                                                  Plaintiffs - Appellants
v.

GEORGIA GULF LAKE CHARLES L.L.C.; CHARTIS SPECIALTY
INSURANCE COMPANY,

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:08-CV-3000


Before KING, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        Braylon James Guidry, Ricky L. Harmon, Sandra Harmon, and Marva
Harmon Arvie, individually and on behalf of Jasmine T. Harmon (collectively,
“Appellants”), appeal the district court’s orders excluding several of Appellants’
expert witnesses, denying their motion to supplement their expert reports, and
granting summary judgment to Georgia Gulf Lake Charles L.L.C. (“Georgia

        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                       No. 11-30561

Gulf”) and Chartis Specialty Insurance Company (“Chartis”), which resulted in
the dismissal of their case. We recently decided a very similar dispute over the
exclusion of the same experts between virtually identical parties for very similar
reasons.1 See Harmon v. Ga. Gulf Lake Charles L.L.C., No. 11-30383, 2012 U.S.
App. LEXIS 9468 (5th Cir. May 9, 2012) (per curiam) (unpublished).2 The only
substantive difference between the two cases is that Harmon related to a fire
that occurred at a Georgia Gulf facility in 2006, and this case relates to a fire
that occurred at the same facility in 2007. In response to our request for
supplemental briefing as to what issues remain in this case after Harmon,
Appellants essentially conceded that we could not reach a different result in this
case without explicitly or implicitly overruling Harmon, which we decline to do.
       Because we follow Harmon, we need not address Appellants’ issues at
length. The challenge to two of the five disputed experts—Dr. Gary Miller and
Dr. Cary Rostow—is identical to that of Harmon, and we affirm the decision to
exclude Dr. Miller’s and Dr. Rostow’s testimony for the same reasons given in
Harmon. See 2012 U.S. App. LEXIS 9468, at *8-18. Additionally, Appellants’
challenge to the exclusion of Dr. John Black’s testimony is similar to their
challenge raised in Harmon, see id at *14-18, although here they did not even
provide a report by the deadline, claiming the need for additional discovery. As
we noted in Harmon, Appellants are not “free to engage in ‘self-help[]’ by
unilaterally altering expert deadlines in light of perceived failures by the
opposing party in the discovery process.” Id. at *18 n.4. Thus, for the same
reasons given in Harmon, we conclude that the district court did not err by

       1
         Chartis was not a party in Harmon. American International Specialty Lines
Insurance Company was the defendant-insurer in that case.
       2
          Although Harmon was unpublished, we follow it because the parties are almost
identical, the claims are similar, the experts that were excluded by the district court are the
same, and the same magistrate judge and district judge presided over both cases. Appellants’
attorney was also the same.

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                                      No. 11-30561

excluding Dr. Black’s testimony as a sanction for Appellants’ failure to comply
with the scheduling order.
       Next, Appellants contest the exclusion of Dr. Vincent Wilson. The district
court excluded Dr. Wilson’s testimony for a different reason in this case than in
Harmon, but it was nonetheless a reason addressed in Harmon as to other
experts. Here, the district court granted Georgia Gulf and Chartis’s motion to
exclude Dr. Wilson’s testimony because Appellants filed an incomplete expert
report and later sought to “supplement” the report (i.e., materially change it)
after the expert report deadline. We rejected Appellants’ arguments of this
nature in Harmon—albeit with respect to different experts—and we reject them
here. See 2012 U.S. App. LEXIS 9468, at *10 (noting that “[t]he purpose of
supplementary disclosures is just that—to supplement. Such disclosures are not
intended to provide an extension of the expert designation and report production
deadlines” (internal citation and quotation marks omitted)).3
       Further, Appellants contend that the exclusion of Dr. Harold Brandt was
an abuse of discretion. The district court excluded Dr. Brandt’s testimony
because his expert report was identical to that submitted in Harmon, and it
addressed only the 2006 fire; it did not discuss the 2007 fire, which was the
central issue in this case. Appellants admitted that Dr. Brandt’s expert report
did not discuss the 2007 fire in any material way. It is clear from the record that
the district court did not err in excluding Dr. Brandt’s expert report, as it failed
to provide any information about the issue in the case.
       Appellants further argue that the district court erred by denying their
motion pursuant to Federal Rule of Civil Procedure 56(d) to allow additional
discovery before ruling on Georgia Gulf and Chartis’s motion for summary


       3
        Appellants also make a “global” objection that the district court erred by preventing
them from “supplementing” their expert reports. For the same reason set out above, this
argument is without merit.

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                                      No. 11-30561

judgment. In order to obtain additional discovery under this Rule, litigants
“must show (1) why [they] need[] additional discovery and (2) how that discovery
will create a genuine issue of material fact.” Beattie v. Madison County Sch.
Dist., 254 F.3d 595, 606 (5th Cir. 2001). Additionally, if the litigants have “not
diligently pursued discovery, . . . [they are] not entitled to relief” under Rule
56(d).4 Id. Here, Appellants cannot show how additional discovery would have
been helpful to their case, as their experts had already been excluded and the
expert deadline had passed. Further, the record shows that Appellants had “not
diligently pursued discovery,” id.; therefore, we cannot conclude that the district
court erred in denying their Rule 56(d) motion.
       Finally, Appellants contend that the district court’s decision granting
summary judgment to Georgia Gulf and Chartis was error. In support of this
argument, Appellants reiterate the arguments that we have already rejected
above. Because we affirm the exclusion of Appellants’ experts without which
Appellants concede they cannot prove their case, we are unable to conclude that
the district court erred in granting summary judgment to Georgia Gulf and
Chartis.
       AFFIRMED.




       4
         Although Beattie addresses Rule 56(f), that subsection of the rule has been moved to
subsection (d). See FED. R. CIV. P. 56 advisory committee’s notes (“Subdivision (d) carries
forward without substantial change the provisions of former subdivision (f).”).

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