Nelson v. Sparks et al

Filing 81

ORDER granting 71 Motion to Strike. Signed by Magistrate Judge David A. Sanders on 1/8/2016. (rrz)

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

BENJAMIN NELSON

PLAINTIFF

VS.

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

REED SPARKS, ET AL.

DEFENDANTS
ORDER

This matter is before the court on plaintiff’s motion to strike (#71) and seeks to strike
defendant Reed Sparks’ designation of experts. Having considered the motion, the court finds
that it should be granted for the reasons that follow.
BACKGROUND
Reed Sparks timely served his designation of experts on December 17th, 2015. In his
designation, Sparks 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 his expert designation, Sparks’ response explains
that their testimony would be limited to the care and treatment they provided plaintiff after the
April 17th, 2014 incident in controversy. Plaintiff argues that Sparks’ designation should be
stricken because it does not comply with the Federal Rules of Civil Procedure or the Local
Uniform Civil Rules. Specifically, plaintiff submits that Sparks’ 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, Sparks’ 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. Moreover, this is not a case where a party is seeking to remedy a defective designation
outside of the case management order deadlines. 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 8th day of January, 2016.
/s/ David A. Sanders
UNITED STATES MAGISTRATE JUDGE