Jurisdiction: United States District Court for the Eastern District of Louisiana
Plaintiffs Erica Dandry Constanza and Monica Dandry Hallner allege decedent Michael P. Dandry Jr., while an employee for Avondale, was exposed to asbestos and asbestos-containing products manufactured, distributed, sold, and/or handled by Avondale and other parties.
Plaintiffs allege this exposure caused and/or contributed to decedent’s development of mesothelioma and, ultimately, his death. Discovery was conducted.
Avondale moves the court to issue an order excluding testimony from plaintiffs’ witnesses who were not offered for deposition prior to the close of discovery. Plaintiff opposed this motion. Trial in this matter is set to begin on March 9, 2026.
On November 19, 2025, Avondale filed the instant Motion in Limine to Exclude Testimony from plaintiffs’ witnesses not offered for deposition within the discovery deadline. On November 24, plaintiffs opposed the motion. On December 1, Avondale filed a reply brief in further support of the motion.
Avondale asserts it had been unable to depose some of decedent’s physicians and therefore were unable to effectively prepare their defense and cross-examination at trial of those witnesses. In opposition, plaintiffs contend they provided deposition dates for all witnesses over whom they had control and advised Avondale regarding those witnesses over whom plaintiffs had no control. Plaintiffs suggest that it was Avondale’s duty to schedule the depositions of the witnesses it wanted to depose.
The Fifth Circuit instructs that “[t]he exclusion of evidence under Rule 403 should occur only sparingly[.] Relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under Rule 403. Avondale moves the Court to issue an Order excluding testimony from Plaintiffs’ witnesses who were not offered for deposition prior to the close of discovery. Avondale has not demonstrated that exclusion of these witnesses is warranted.”
The court adjourned the trial date in this matter from December 1, 2025, to March 9, 2026 to allow additional time for the parties and the court to prepare for trial. The court did not reset any other deadlines. Nevertheless, Avondale did not raise the need to reopen discovery to conduct additional depositions. There would have been sufficient time to conduct additional depositions, if needed, before the trial date. There is no requirement that a witness must be deposed before being called to testify at trial.
Therefore, the court denied Avondale’s Motion in Limine to exclude testimony from plaintiffs’ witnesses not offered for deposition within the discovery deadline.
