Wilson et al v. The Service Companies et al

Filing 74

ORDER denying 60 Motion to Strike Defendants' Experts. As concerns the imbedded motion to strike the recent purported supplementations that motion is not properly before the court. Accordingly plaintiffs counsel is directed to separately file , within (5) five business days hereof, any motion and memorandum in support that it may wish to have the court take up on the issue of whether the supplemental reports should be stricken for untimeliness. Signed by Magistrate Judge Jane M. Virden on 1/26/18. (bfg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DIVISION OF MISSISSIPPI
OXFORD DIVISION
ALMA DENISE WILSON; and
LAWRENCE WILSON

PLAINTIFFS

VS.

CIVIL ACTION NO.: 3:16-CV-271-DMB-JMV

THE SERVICE COMPANIES;
FULL SERVICE SYSTEMS CORPORATION
and JOHN AND JANE DOES 1-10

DEFENDANTS

ROBINSON PROPERTY GROUP CORP.
D/B/A HORSESHOE TUNICA

INTERVENOR

ORDER DENYING PLAINTIFFS’
MOTION TO STRIKE DEFENDANTS’ EXPERTS

THIS MATTER COMES BEFORE THE COURT on Plaintiffs’ Motion to Strike the
Defendants’ Experts [60]. For the reason explained below, the motion is DENIED.
Factual Background
The court entered a case management order [18] in this case on April 12, 2017 setting forth
the following deadlines: “Discovery due by 9/28/2017. Amendments/Joinder of Parties due by
5/25/2017. Plaintiffs Designation of Experts due by 6/28/2017. Defendants Designation of Experts
due by 7/28/2017. Motions due by 10/12/2017.” Doc. #18. Although defendants designated experts
on July 28, 2017, within the designation deadline, the required, corresponding expert reports were
not provided. The discovery deadline was twice extended, finally expiring on December 14, 2017.
On December 21, 2017, after the close of discovery, Plaintiffs filed a Motion to Strike
Defendants’ Experts [60], citing Defendants’ failure to provide the requisite expert reports at the

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time of expert designation. Thereafter, on January 4, 2018, Defendants filed a Notice of Service
[67] of Defendants’ Supplemental Designation of Expert Witnesses in an effort to supplement their
expert designations with what were purported to be the required reports, and to designate a new
expert in lieu of a previously designated expert who, according to plaintiff’s counsel, defense
counsel had long since been aware, had passed away sometime before September 25, 2017. The
so called “supplements” to the expert designations were without leave of court and outside the
clearly established deadlines.
In its response to the Motion to Strike Defendants’ Experts, counsel for the Defense
asserts—as the reason why the defense elected not to timely provide the required expert reports—
that they had hoped for a Rule 35 Independent Medical Examination of the Plaintiff.
In their reply, Plaintiffs, contend that the reason given by the defense for its failure to timely
provide the required reports is specious, particularly since the subject of an independent medical
exam was objected-to by plaintiff’s counsel when it was raised informally by the defense at the
initial case management conference and was never even raised with plaintiff’s counsel again until
the date discovery expired. As for the purported supplemental reports themselves, in its reply the
plaintiff incorporated a Motion to Strike them as well.
Law and Analysis
In so far as concerns the pending motion to strike, the designations made by the defense on
July 28, 2017, for insufficiency (lack of accompanying report), the motion is denied as untimely.
Specifically, L. U. Civ. R. 26(a)(3) requires challenges as to inadequate disclosure of expert
witnesses be made no later than (30) thirty days before the discovery deadline—or it will be
waived.

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As concerns the imbedded motion to strike the recent purported supplementations
(themselves made well after the close of the discovery deadline, so not feasibly addressed prior to
its expiration), that motion is not properly before the court. Pursuant to Local Rule 7, “A response
to a motion may not include a counter-motion in the same document. Any motion must be an item
docketed separately from a response.” L. U. Civ. R. 7(b)(3)(C). Accordingly plaintiff’s counsel is
directed to separately file, within (5) five business days hereof, any motion and memorandum in
support that it may wish to have the court take up on the issue of whether the “supplemental”
reports should be stricken for untimeliness.

SO ORDERED this, January 26, 2018.

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/s/ Jane M. Virden
U.S. MAGISTRATE JUDGE