Buxton et al v. Ormseth et al

Filing 147

ORDER denying 117 Motion to Strike. Signed by Jane M Virden on 10/14/2011. (sef)

IN THE UNITED STATES DISTRICT COURT OF THE
NORTHERN DISTRICT OF MISSISSIPPI
DELTA DIVISION
CHRISTINE R. BUXTON and
GLEN BUXTON
VS.

PLAINTIFFS
CIVIL ACTION NO.: 2:09CV99-MPM-JMV

ERIC ORMSETH, M.D. and
GASTROENTEROLOGY CENTER OF THE MIDSOUTH, P.C.

DEFENDANTS

ORDER
This matter came before the court on the motion of the defendants to strike opinion
testimony of plaintiffs’ treating pathologist, Dr. Luan D. Troung, M.D. (#117). The motion will
be denied:
Local Rule 26(a)(3) states that:
If a party fails to make a disclosure required by this section, any other party
must move to compel disclosure and for appropriate sanctions under
FED.R.CIV.P. 37(a). The failure to take immediate action and seek court
intervention when a known fact disclosure violation other than as to expert
witnesses occurs will be considered by the court in determining the
appropriate sanctions to be imposed regarding a subsequent motion filed
under FED.R.CIV.P.37©. Challenges as to inadequate disclosure of expert
witness(es) must be made no later than thirty days before the discovery
deadline or will be deemed waived.[emphasis added]
The rules are clear that where a party believes a designation to be insufficient, that party
must challenge the designation no later than thirty (30) days before the discovery deadline, which
in this case expired on September 6, 2011.
The defendant in this matter did not challenge Dr. Truang’s designation until after
discovery in this case was already closed. The court recognizes Defendant’s argument that it was
not able to comply with Local Rule 26 because it was not until it took the deposition of Dr.

1

Truong on August 5, 2011, and August 15, 2011, that it had reason to know that Plaintiff
intended to offer Dr. Truong on causation. In fact, the defendant repeatedly represents to the
court that it did not know of Dr. Truong’s intent to testify as to causation until his deposition.
However, the court’s review of the docket indicates that on May 27, 2011, the plaintiff
designated Dr. Truong as a non-retained expert on, inter alia, the subject of causation, reciting, in
particular, that he “will testify regarding his findings in the pathology report for Mrs Buxton, and
that her ingestion of oral sodium phosphate caused or contributed to her renal failure.”
The court is at a loss for a legitimate explanation of how, in the face of such designation,
the defendant can assert that it was “surprised” to learn, and did not learn, until Dr. Truong’s
deposition that he so intended to testify.1
The defendant’s further assertion that the disclosure as made on May 27, 2011, is
inadequate because it lacks specificity, fails for the same reason . It is untimely. The plaintiff
waited four months and until after the discovery deadline to bring this challenge before the
Court.
IT IS, THEREFORE, ORDERED that the defendants’ motion to strike is hereby
DENIED.
SO ORDERED, this the 14th day of October 2011.
/s/Jane M. Virden
UNITED STATES MAGISTRATE JUDGE

1

The court notes that, in any event, Dr. Truong’s deposition was initiated on August 5, 2011
and reconvened on August 15, 2011, and it was not until almost four weeks later that the current
motion was filed.
2