Person et al v. Ford Motor Company et al

Filing 255

ORDER granting in part and denying in part 225 Motion to Strike. Signed by Jane M Virden on 9/23/2011. (sef)

IN THE UNITED STATES DISTRICT COURT OF THE
NORTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
VIRGINIA PERSON, ET AL.

PLAINTIFFS

VS.

CIVIL ACTION NO.: 3:09cv133-M-A

FORD MOTOR COMPANY, ET AL.

DEFENDANTS
ORDER

This matter came before the court on the motion of the defendant Ford Motor Company
to strike, as untimely, the revised expert report of Barbara Holmes, a life care planner retained by
Plaintiff (#255). In support of the Motion, Defendant asserts that the revised report was not
propounded until August 17, 2011, twelve days after the close of discovery. In response to the
motion, Plaintiff asserts that the revised report merely corrects typographical errors addressed at
the deposition of Ms. Holmes on August 2, 2011. In fact, defendant Ford points out these
mistakes in a separate motion to exclude certain opinions of Mrs. Holmes currently pending
before the District Judge, asking the court, by way of alternate relief, to require Ms. Holmes to
correct the discrepancies between her report and her deposition testimony.
Having considered the matter and having reviewed both the original and revised reports
of Ms. Holmes, the court finds that the revised report, to the extent that it merely reflects specific
undisputed revisions/corrections acknowledged by Ms. Holmes in her deposition taken prior to
the conclusion of discovery, will not be stricken as untimely. The specific revisions/corrections
which Ms. Holmes addressed at her deposition were, as defendants in their motion to exclude
point out, as follows:
(1) $1,000,000.00 of the $1,350,000.00 estimate for Living Environment - New

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Construction should be corrected to $350,000.
(2) The $105,840.08 amount for Physical Surgery or Follow-up - Spinal Cord
Specialist should be corrected to $35,280.02.
(3) The $39, 816.00 estimate for Recreational Therapy should be corrected to
$6,636.00.
In so far as the court is aware these are the only corrections acknowledged by Ms. Holmes
at her deposition which have now been included in the revised report. The court notes, however,
that based on its own review of the revised report, it contains a number of changes that do not
appear to be typos or calculation errors, and to the court’s knowledge, were not identified by Ms.
Holmes at her deposition as changes that needed to be made. These include:
(1) On page one of Ms. Holmes initial report, in the section titled Educational
Background, she indicates that the plaintiff has recently enrolled with Virginia
College. On page two of the revised draft, in the same titled section, Ms. Holmes
states that the plaintiff plans to re-enroll at Virginia College during the summer of
2011.
(2) On page two of the initial report, in the section titled Medical Record
Analysis, Ms. Holmes lists the Independent Medical Evaluation of Dr. Howard
Katz among documents she reviewed. This document is omitted on page three of
the revised report.
(3) On page two of the initial report in the Medical Record Analysis section, there
are some narrative changes, the most significant of which occur on page three of
the revised report. In the revised report there is no mention of the plaintiff being
ejected from the vehicle, but the length of her hospital stay is included although it
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was not included in the initial report.
(4) On page six of the initial report, in the section titled Earnings Analysis PostIncident, Ms. Holmes states that the plaintiff was able to work briefly. This is
omitted in the same section on page seven of the revised report. Also, in this
section of the revised report, Ms. Holmes references Dr. Katz’s medical
assessment and a specific life expectancy of 39.2 years. This was not included in
the initial report.
In as much as these changes do not appear to the court to be mere typos corrected by Ms.
Holmes at her deposition, they are untimely.
In conclusion, the Defendant’s motion to strike the revised report of Dr. Holmes is
GRANTED IN PART AND DENIED IN PART. Specifically, the typographical changes
referenced above will be permitted. However, the plaintiff will not be permitted to offer by way
of a revised report any other changes including, but not limited to, the narrative changes
addressed above in this Order.
SO ORDERED, this the 23rd day of September 2011.
/s/Jane M. Virden
UNITED STATES MAGISTRATE JUDGE

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