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

                                                                            FILED
                                                                         October 28, 2008

                                     No. 07-51239                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


DINA A. NUNEZ

                                                  Plaintiff- Appellant
v.

UNITED STATES POSTAL SERVICE

                                                  Defendant- Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 1:06-CV-245


Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Dina A. Nunez (“Nunez”) appeals from the district
court’s final judgment awarding her $9,853.78 in damages stemming from
injuries she sustained in a collision with an on-duty United States Postal Service
(“USPS”) worker.        The sole issue on appeal is whether the district court
erroneously prohibited Nunez’s treating physician and physical therapist
assistant from testifying at trial. For the following reasons, we affirm.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                   No. 07-51239

I.     Factual and Procedural Background
       On April 29, 2004, Nunez was injured after her vehicle collided with the
vehicle driven by James Lawson, a rural mail carrier with the USPS acting
within the course and scope of his employment. On April 4, 2006, Nunez,
proceeding pro se, filed a complaint; she filed an amended complaint on August
23, 2006. Nunez brought a personal injury action against the USPS under the
Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. Nunez’s complaint also
included a state law claim against State Farm Mutual Automobile Insurance
Company (“State Farm”). In her complaint, Nunez sought relief for pain and
suffering, permanent disability, unexpected medical expenses, emotional
distress, earning capacity impairment, loss profits, interest due from money
withheld, and punitive damages. The district court dismissed State Farm prior
to trial.1
       At the initial pretrial conference, the district court advised Nunez to retain
counsel because of the complexities of litigating in federal court, provided her
with contact information for attorney referral services, and informed her that as
a pro se plaintiff, she would be held to the same standard as attorneys on
matters relating to federal procedure. The district court then approved a
scheduling order setting the dates for the parties’ respective discovery and other
filings, and instructed the parties as to the importance of following the
scheduling order. Per the scheduling order, Nunez’s designations of witnesses,
testifying experts and exhibits under Federal Rule of Civil Procedure 26, were
due by January 11, 2007. However, Nunez did not file her Rule 26 designations
until February 28, 2007. In her filing, she listed only potential trial exhibits; she
did not designate any potential witnesses for trial, expert or otherwise.
Subsequently, at her deposition on March 8, 2007, when asked if she intended

       1
         Nunez does not raise the dismissal as an issue on appeal. Therefore, we
will not consider that issue.

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to call any witnesses to testify on her behalf at trial, Nunez indicated that she
would call only her husband and teenage daughter. Additionally, in response to
a specific question about whether she intended to call her treating physician, Dr.
David Schickner, to testify at trial, Nunez replied “No. He is not going to come.
I haven’t asked him.” Nunez later corrected her deposition testimony to reflect
that she meant to say “no he is not going to come. I have to ask him if he could
come.” Discovery closed on March 15, 2007 and the trial was scheduled for the
August 2007 term.
      At the final pretrial conference, on July 25, 2007, the district court
admonished Nunez for her failure to comply with the scheduling order deadlines
and local rules of court. In addition to late discovery submissions, Nunez had
failed to comply with the requirements of Federal Rule of Civil Procedure 16 and
Local Rule CV-16, both of which required her to designate her final witnesses
and exhibits for trial prior to the final pretrial conference.      Both parties
ultimately consented to proceed with the action before the magistrate judge, and
the district court referred and assigned the case to the magistrate judge on July
25, 2007.
      On August 15, 2007, the magistrate judge held a status conference. USPS
informed the court that Nunez still had not made the Rule 16 disclosures
regarding who she was going to call to testify and the exhibits she intended to
use. The court continued the trial to the September trial, gave Nunez an
opportunity to file the required reports, and informed USPS that it would have
an opportunity to object. The court then set the trial for September 17, 2007.
      On August 24, 2007, Nunez requested until September 14, 2007, to file her
list of witnesses. On August 28, 2007, the court granted the request in part,
permitting Nunez to file her supplemental list of witnesses on or before
September 7, 2007. On August 28, 2007, Nunez filed her exhibit list and
identified Dr. Schickner as a potential expert witness. Nunez stated that Dr.


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Schickner could explain her condition because he had the experience and
capacity to do so as a neurosurgeon. Nunez also stated that Dr. Schickner had
seen her for nineteen (19) appointments from May 2004 to June 2007. Nunez
concluded, therefore, that Dr. Schickner was an expert witness qualified to
testify in this case. The only other information Nunez provided regarding Dr.
Schickner at this time was his address and phone number. On September 7,
2007, Nunez filed another witness list that included Dr. Schickner; Richard
Anderson, a Physical Therapist Assistant; and Jennifer Baskerville, a highway
patrol officer.   On September 13, 2007, USPS filed numerous objections,
including objections to Nunez’s designation of Dr. Schickner and Mr. Anderson.
      Prior to the commencement of trial on September 17, 2007, the court heard
arguments on the objections to the designation of witnesses.                  After
consideration, the court ruled that Dr. Schickner and Mr. Anderson would not
be permitted to testify. After a bench trial, the court entered its findings of fact
and conclusion of law. The court awarded Nunez $5,000 for physical pain and
suffering and $4,583.78 for past medical expenses. Nunez appealed, assigning
as error the trial court’s exclusion of the expert witnesses.

II.   Discussion
      This Court applies an abuse of discretion standard when reviewing a trial
court’s exclusion of expert witnesses not properly designated. Metro Ford Truck
Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 324 (5th Cir. 1998). We consider the
following factors in reviewing whether the trial court abused its discretion: (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 continuance to cure such prejudice. Id. (citation omitted).
      On appeal, Nunez identifies these factors, but she does not clearly address
each one. Nunez argues that she was proceeding pro se in the trial court, and


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she was granted an extension to designate her witnesses. It is undisputed,
however, that Nunez did not timely designate the excluded witnesses pursuant
to the court’s scheduling order. Even assuming arguendo that Nunez’s ultimate
designation of the expert witnesses was timely pursuant to the trial court’s
subsequent extension, the trial court clearly informed Nunez that it would
nonetheless consider USPS’s objections to the designations. Nunez did not
disclose all the experts she intended to call until ten (10) days prior to the trial.
       Neither party disputes that the testimony was important to prove
components of Nunez’s damages, and the trial court had previously moved the
trial from the August to September trial term. Notably, Dr. Schickner was not
physically present at trial, but Nunez indicated that she intended to call him to
present testimony by phone. The trial court was well within its discretion to
consider USPS’s objections to the designations before trial commenced, and the
trial court did not abuse its discretion to exclude those witnesses.

III.   Conclusion
       In light of the foregoing, we find that the district court did not abuse its
discretion to exclude the testimony of Dr. Schickner and Mr. Anderson.
AFFIRMED.




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