EMORY GRANT, Plaintiff, v. CRST EXPEDITED, INC. and KARL O. BROOKS, Defendants CIVIL ACTION NO. 1:18-CV-433 United States District Court, E.D. Texas Filed February 09, 2021 Counsel Paul Franklin Ferguson, Jr., Cody Allen Dishon, Samantha Leigh Leifeste, The Ferguson Law Firm, LLP, Marianne E. Laine, Clark Hill Strasburger, Beaumont, TX, for Plaintiff. Juan Roberto Fuentes, David Patrick Helmey, Jon S. Diston, Nicholas Samuel Van Cleve, Stefan Nicholas Casso, The Fuentes Firm, PC, Spring, TX, Darrell Lee Barger, Hartline Barger LLP, Jessica Z. Barger, Rachel H. Stinson, Wright Close & Barger LLP, Houston, TX, for Defendant CRST Expedited, Inc. Juan Roberto Fuentes, The Fuentes Firm, PC, Spring, TX, for Defendant Karl O. Brooks. Crone, Marcia A., United States District Judge MEMORANDUM AND ORDER *1 Pending before the court is Defendant CRST Expedited, Inc.'s (“CRST”) Motion for Leave and Motion to Compel the Oral and Videotaped Deposition of Plaintiff Emory Grant (“Grant”) (#230), wherein CRST seeks leave to depose Grant for a second time regarding his loss of earning capacity claim. Grant filed a response in opposition (#232). Having considered the motion, the submissions of the parties, the record, and the applicable law, the court is of the opinion that the motion should be granted. This action arises from a vehicular collision involving Grant and Defendant Karl O. Brooks (“Brooks”). On October 19, 2017, Grant was driving on Highway 62 in Orange County, Texas. Brooks, operating an 18-wheeler truck, failed to yield the right of way and, as a result, collided with Grant's vehicle. CRST admits that Brooks was operating the truck in the course and scope of his employment with CRST. Furthermore, CRST stipulated that Brooks's negligence caused the accident and that CRST is vicariously liable for Brooks's injuries under the doctrine of respondeat superior. The remaining issue in this case is the amount of damages Grant is entitled to recover. Grant seeks damages, in relevant part, for his loss of earnings and earning capacity. Before the collision, Grant worked as a control specialist II for Arlanxeo Performance Elastomers (“Arlanxeo”). In November 2019, Grant underwent surgery for injuries he claims he sustained as a result of the collision. Thereafter, on April 2, 2019, Grant was deposed for the first time. In his deposition, he testified that he continued to work in the same position at Arlanxeo after his surgery. Grant timely designated Jeffrey Peterson (“Peterson”) as a vocational expert, testifying regarding Grant's loss of earnings and earning capacity. In his initial report, dated January 30, 2020, Peterson opined that “[s]hould [Grant's] overall medical condition deteriorate and/or he is unable to meet the expectations of his employer and is subsequently terminated from Arlanxeo, his vocational alternatives and employability will be severely limited, if not totally precluded.” Months later, Grant disclosed a supplemental report completed by Peterson, dated August 24, 2020. That report was based on an additional medical assessment conducted by Erwin Lo, M.D. (“Dr. Lo”), on August 13, 2020—over a year after Grant was first deposed (#136-6). In the assessment, Dr. Lo opined that Grant's job as a control specialist II was classified as a sedentary or light job and that Grant could not perform either sedentary or light work. As a result of that determination, Peterson's supplemental report advised Grant that, because he is “completely and totally disabled from the workforce,” he “should exit the workforce as soon as possible.” In accordance with that advice, Grant's employment was terminated shortly after Peterson's supplemental report was disclosed.[1] *2 Pursuant to the court's order, dated December 16, 2020, CRST was permitted to conduct additional discovery in response to the changes made in Peterson's supplemental report (#219). Specifically, in its December 14, 2020, status conference with the parties, the court “reopened discovery on the issue of Grant's loss of earning capacity, allowing CRST to provide a rebuttal expert report and permitting both CRST and Grant to depose the parties' vocational experts” (#218). The court also reopened discovery regarding “the scope and details of Grant's medical providers' factoring arrangement with Access Care” because, without that information, the court was unable to make certain evidentiary rulings. Further, “[d]ue to the reopening of discovery limited to these two issues, the court extended the final pretrial conference and trial dates and ordered the parties to revise their pretrial order.” CRST asks the court to permit it to re-depose Grant in light of the changes in Grant's loss of earnings and loss of earning capacity claims. In particular, CRST seeks to re-depose Grant so that he may update his testimony as necessitated by the disclosure of Peterson's supplemental report and the cessation of Grant's employment with Arlanxeo. Moreover, CRST asserts that a second deposition should make an interview between Grant and CRST's vocational expert, Irmo Marini, Ph.D. (“Dr. Marini”), unnecessary. Grant counters that a second deposition would be redundant and disproportionate. Grant maintains that a second deposition should be limited to newly produced information and that Grant has not produced any new information in six months. Similarly, Grant argues that CRST already has all of the relevant information it needs regarding Grant's loss of earning capacity claims, including his employment file, which is being supplemented, his job description and work demands, his medical records, a functional capacity assessment by Dr. Lo, and Peterson's vocational reports. As explained in its January 15, 2021, order, the court did not limit CRST's discovery on the issue of Grant's loss of earning capacity solely to the oral deposition of the vocational experts (#226). In this instance, the court finds that CRST's request for a second deposition of Grant is appropriate to obtain essential information in view of the changing nature of Grant's loss of earnings and loss of earning capacity claims. See Retif v. ASI Lloyds, No. CV 19-4899, 2020 WL 6204309, at *1 (E.D. La. Apr. 6, 2020) (“Courts have typically reopened a deposition ‘where a witness was inhibited from providing full information at the first deposition’ or ‘where new information comes to light triggering questions that the discovering party would not have thought to ask at the first deposition.’ ” (quoting Briggs v. Phebus, Civ. A. No. 12-2145, 2014 WL 1117888, at *3 (E.D. La. Mar. 19, 2014); Kleppinger v. Tex. Dep't of Transp., 283 F.R.D. 330, 333 (S.D. Tex. 2012); Keck v. Union Bank of Switz., No. 94 Civ. 4912(TPG), 1997 WL 411931, at *1 (S.D.N.Y. 1997))). Nevertheless, in the interest of avoiding duplicative discovery, limitations as to Grant's deposition are warranted. See Retif, 2020 WL 6204309, at *1 (stating that “[w]here the deposition is reopened because of newly discovered information, the questioning of the witness is limited to those questions relating to the newly produced information.” (quoting Ganci v. U.S. Limousine Serv., Ltd., No. CV 10-3027, 2011 WL 4407461, at *2 (E.D.N.Y. Sept. 21, 2011)); Kleppinger, 283 F.R.D. at 333. Specifically, the court finds that Grant need only be re-deposed or interviewed once. Grant may, therefore, be subjected either to a deposition or an interview with CRST's vocational expert, Dr. Marini. As CRST has already agreed, Grant's second deposition will be limited in scope: Grant may be questioned only about the circumstances underlying his revised claim for lost earnings and lost earning capacity, and the questions must be restricted to the time period after Grant's first deposition. Such limitations will ensure that Grant's testimony relates only to newly produced information and is not duplicative of the testimony from his first deposition, as the circumstances of his employment and claims for lost earnings and lost earning capacity have changed drastically from his first deposition, conducted nearly two years ago. *3 Based on the foregoing and subject to the limitations set forth therein, CRST's Motion for Leave and Motion to Compel the Oral and Videotaped Deposition of Grant (#230) is GRANTED. SIGNED at Beaumont, Texas, this 9th day of February, 2021. Footnotes [1] Grant's employment ended sometime between August 24, 2020, when the supplemental report was disclosed, and December 14, 2020, when Grant's counsel advised the court that Grant no longer worked at Arlanxeo.