Nelson v. Sparks et al

Filing 77

ORDER granting 70 Motion to Strike. Signed by Magistrate Judge David A. Sanders on 1/6/2016. (rrz)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION

BENJAMIN NELSON
VS.

PLAINTIFF
CIVIL ACTION NO: 1:15CV26-SA-DAS

REED SPARKS, ET AL.

DEFENDANTS

ORDER
This matter is before the court on plaintiff’s motion (#70) and seeks to strike defendant
Prentiss County, Mississippi’s designation of experts. Having considered the motion, the court
finds that it should be granted for the reasons that follow.
Background
Prentiss County timely served its designation of experts on December 17th, 2015. In its
designation, Prentiss County designated four treating medical providers as expert witnesses:
Gloria Gomez, M.D.; Roshundia McKenzie, FNMHNP-BC; Darryl Hampton, ADC; and Kiley
P. Shafer, M.D. Though not explicitly stated in its expert designation, Prentiss County’s
response explains that their testimony would be limited to the care and treatment they provided
plaintiff prior to, and after, the April 17th, 2014 incident in controversy. Plaintiff argues that
Prentiss, County’s expert designation should be stricken because its designation is noncompliant
with the Federal Rules of Civil Procedure. Specifically, plaintiff submits that Prentiss, County’s
designation fails to disclose the subject matter on which the witnesses are expected to testify, as
well as summaries of the facts and opinions of the witnesses.
Discussion
With respect to treating physicians, the local rules of this court provide:

A party must designate physicians and other witnesses who are not retained or
specially employed to provide expert testimony but are expected to be called to
offer expert opinions at trial. No written report is required from such witnesses,
but the party must disclose the subject matter on which the witness is expected to
present evidence under Fed. R. Evid. 702, 703 or 705, and a summary of facts and
opinions to which the witness is expected to testify. The party must also
supplement initial disclosures.
L.U. Civ. R. 26(a)(2)(D). Unlike the previous version of this rule, the present version no longer
requires that all treating physicians be designated as experts. Estate of Clarence Sims v. City of
Aberdeen, 2011 WL 132362, at *5 (N.D. Miss. Jan. 14, 2011). Rather, the current rule provides
that physicians must be designated when they are “expected to be called to offer expert
opinions.” Id.
Here, the four treating medical providers may testify as fact witnesses regarding their
care and treatment of plaintiff. They may also offer testimony concerning anything that is
contained in the previously produced medical records. However, Prentiss County’s expert
designation is clearly deficient, as it merely lists the names of the four medical providers. The
designation does not disclose the subject matter on which any of the medical providers are
expected to present evidence, nor does it provide summaries of facts and opinions to which they
are expected to testify. Therefore, the court finds that plaintiff’s motion to strike should be
granted.
IT IS, THEREFORE, ORDERED that plaintiff’s motion to strike is granted and Gloria
Gomez, Roshundia McKenzie, Darryl Hampton, and Kiley P. Shafer shall be prohibited from
offering expert testimony at trial. However, IT IS FURTHER ORDERED that the four treating
medical providers may testify as fact witnesses.
SO ORDERED this, the 6th day of January, 2016.
/s/ David A. Sanders
UNITED STATES MAGISTRATE JUDGE