Thomas et al v. Firerock Products,LLC et al

Filing 133

ORDER denying 104 Motion to Strike and AMENDING CASE MANAGEMENT DEADLINES. Plaintiffs shall be allowed until 5pm on June 27, 2014, to provide the Rule 26 required information. Defendants Designation of Experts is now due July 28, 2014; Discovery is now due September 22, 2014; Motions are now due October 9, 2014. Signed by Magistrate Judge Jane M. Virden on 06/25/2014. (lec)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
AMY THOMAS, et al.

PLAINTIFFS

VS.

CIVIL ACTION NO. 3:13-cv-109-MPM-JMV

FIREROCK PRODUCTS, LLC, et al.

DEFENDANTS
ORDER

This matter is before the court on Defendants’ Motion to Strike Plaintiffs’ Expert, Prof.
Kirk Rosenhan [104]. Upon due consideration of the motion and the applicable law, the motion
will be denied for the reasons discussed below.
This action was filed in this court on April 25, 2013, and was thereafter placed on a
typical procedural track: the Plaintiffs’ expert designations were due on March 24, 2014;
Defendants’ expert designations were due on April 25, 2014; and the discovery deadline was set
for June 25, 2014. The trial was to follow on January 12, 2015. At the case management
conference, the undersigned magistrate judge specifically informed counsel for Plaintiffs and
Defendants she has no discretion to move a dispositive motions (“motions”) deadline within four
months of an assigned trial date. Moreover, the local rules expressly prohibit the parties from
informally extending discovery deadlines – consent of the court must be obtained. See L. U. CIV.
R. 26(b)(3) (2013). On March 21, 2014, Plaintiffs filed an unopposed motion to extend the case
management deadlines but in a fashion that would offend the four month rule. To accommodate
the parties to the extent it could and refrain from violating the four month rule, the court entered
the following new deadlines: the Plaintiffs’ expert designations were due on May 22, 2014;
Defendants’ expert designations were due on June 23, 2014; and the discovery deadline was set
for August 22, 2014. Thereafter, District Judge Michael Mills recused himself from the case,

the court reassigned the case to District Judge Debra Brown, and the trial was reset for February
9, 2015.
Without consent of the court, the parties agreed to two additional extensions of time for
the Plaintiffs to first file and then supplement their Designation of Experts. The first
unauthorized extension of time occurred on May 21, 2014, when counsel agreed Plaintiffs would
file their expert report on May 30, 2014. In return, Defendants procured an agreement to defer
its date to file its expert report to June 30, 2014. The second unauthorized extension occurred on
June 2, 2014. On that date, Defendants itemized various deficiencies with the May 30 Plaintiffs’
expert report and allowed Plaintiffs to supplement their May 30, 2014, report by June 5, 2014.
On June 5, 2014, Plaintiffs asked for another extension, until June 10, to supplement the report.
Defendants declined to allow this third “informal” extension and filed the instant Motion to
Strike on the same day. By June 19, 2014, Plaintiffs had, by way of supplementation to the May
30, 2014, report, provided a list of articles authored by Prof. Rosenhan, the cases he has worked
on as an expert, and his fee schedule.
The Fifth Circuit holds, “The district court’s decision ‘to exclude evidence as a means of
enforcing a pretrial order ‘must not be disturbed’ absent a clear abuse of discretion.” Versai
Mgmt. Corp. v. Clarendon Am. Ins. Co., 597 F.3d 729, 740 (5th Cir. 2010) (internal citation
omitted). It reviews exclusions of untimely designated experts for abuse of discretion and
considers four factors when reviewing the trial court’s decision. Id. They are: (1) the
explanation for the failure to [to submit the expert report]; (2) the importance of [the report]; (3)
potential prejudice in allowing [the report]; and (4) the availability of a continuance to cure such
prejudice. Id.; see also Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990) (internal
citation omitted).

The court will address each factor set forth by the Fifth Circuit in turn. First, Plaintiffs’
excuse for failing to submit a timely, Rule 26 abiding expert report is weak. From what the court
deciphers in counsels’ emails, Plaintiffs blame their tardiness on Prof. Rosenhan’s commitments
in teaching a “May-mester” class at Mississippi State University. However, because Defendants
agreed to the May 30 filing of the report and further arranged their own report to be late as well,
the court is not persuaded this factor necessitates striking the May 30 report for tardiness.
Regarding the second factor, experience dictates that expert testimony regarding the
existence of a product defect, its nature, and its cause would be useful, if not necessary, in this
type of case. However, the court is cautious to add whether Prof. Rosenhan’s particular expert
opinions will be admissible in this case is a different matter altogether and an issue for the
district judge to resolve.
In regard to the fourth factor, a motion to continue trial has not been filed by any party at
this point in the litigation.1
The third factor appears to be the most significant and helpful in resolving the instant
matter. Defendants assert they will be unfairly prejudiced if Prof. Rosenhan’s report is not
stricken because his May 30 designation does not contain the asserted basis and reasons, or facts
and data, on which each opinion he offers are based. Until recently, his report did not contain his
publications and cases and fee schedule. Without the timely disclosure of this information,
Defendants contend they cannot responsibly retain their own expert(s) in defense and designate
them by the June 30 agreed deadline. Plaintiffs’ counsel counters that the May 30 report
contains all of Prof. Rosenhan’s opinions (“…the report is substantively complete…”) and, by
way of supplementation on June 19, now contains the required publications, cases and fee
information. See Pl.’s Resp. to Def.’s Mot. to Strike at 4. Based on Plaintiffs’ counsel’s
1

In view of the extensions of the deadlines described infra, the availability of a trial continuance at this juncture is moot.

representation that the May 30 report is substantively complete, the undersigned – without
commenting on the admissibility of the proposed opinions – will accept and hold Plaintiffs to
that representation. Prof. Rosenhan will not be permitted, by way of designation, to offer any
substantively new or different opinions. Even still, the report does not delineate each such
opinion’s basis and reasons upon which the expert relies in formulating it or the facts and data
the expert relied upon in forming it pursuant to Rule 26. Nevertheless, the court is able to
fashion a means for allowing this supplementation without undue prejudice to the Defendants.
Any potential prejudice to Defendants by Plaintiffs’ failure to timely provide the reasons and
basis and facts and data for Prof. Rosenhan’s opinions can be cured by putting Defendants in the
same place they would have been had Plaintiffs timely made a Rule 26 designation on May 30.
Prof. Rosenhan will be required to provide this information as a supplement to the May 30 report
no later than 5pm on June 27, 2014.2 Defendants will then have until July 28, 2014, to designate
their experts. Further, considering the new trial date assigned by Judge Brown, the court extends
the remaining deadlines as follows and in compliance with the four-month rule: Discovery is
now due September 22, 2014; and Motions are now due October 9, 2014.
For the reasons stated above, the court finds Plaintiffs’ Motion to Strike not well taken
and should not be granted. This Order is entered without prejudice to any parties’ right to file,
after June 27, 2014, a further timely motion to strike for continued non-compliance with Rule 26.
The court’s instant ruling only addresses the issue of the Motion to Strike based on the untimely
filing of the expert report – not the admissibility of the opinions contained therein. That issue, if
any, would need to be addressed by the district judge in a Daubert-type motion.
IT IS, THEREFORE, ORDERED that the Defendants’ Motion to Strike is hereby
DENIED. Plaintiffs shall be allowed until 5pm on June 27, 2014, to provide the Rule 26
2

Presumably, Prof. Rosenhan has this information readily available since he has already formulated his opinions.

required information. Defendants’ Designation of Experts is now due July 28, 2014; Discovery
is now due September 22, 2014; Motions are now due October 9, 2014.
SO ORDERED, this the 25th day of June, 2014.

/s/ Jane M. Virden
UNITED STATES MAGISTRATE JUDGE