Wilson et al v. The Service Companies et al

Filing 83

ORDER granting 76 Motion to Strike Defendants' Supplemental and Second Supplemental Designation of Expert Witnesses, including Expert Reports, re 75 Notice of Service, 67 Notice of Service. Signed by Magistrate Judge Jane M. Virden on 2/16/18. (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 ON MOTION TO STRIKE DEFENDANTS’ SUPPLEMENTAL AND SECOND
SUPPLEMENTAL DESGINATION OF EXPERT WITNESSES
_____________________________________________________________________________

This matter is before the court on Plaintiffs’ Motion to Strike Defendants’ Supplemental
and Second Supplemental Designation of Expert Witnesses [76]. For the reasons that follow, the
motion is GRANTED.
Factual Background
A case management order in this case was entered on April 12, 2017, setting, inter alia,
Defendants’ expert designation deadline as July 28, 2017. On that date, however, no reports were
provided to Plaintiffs as required by Fed. R. Civ. P. 26(a)(2)(B). Instead, on their expert
designation deadline, defendants merely disclosed, in relevant part as follows:
These Defendants designate the following witnesses to testify as experts on their behalf at
the trial of the above captioned civil action:
(A)

Nathaniel Fentress, MS, CRC, CCM Rehabilitation Counselor
1190 North State Street, Suite 202
Jackson, Mississippi 39202

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Telephone: [phone]
Cell Phone: [phone]
Fax: [phone]
Mr. Fentress is an expert in vocational rehabilitation and life care planning. Mr.
Fentress is expected to testify concerning to what extent Plaintiff's physical and mental
condition following the accident in question will affect her ability to obtain
employment. Mr. Fentress is further expected to opine concerning the extent to which
Plaintiff's current physical and mental status will affect her ability to earn a wages
comparable to that which she was earning at the time of the accident. In so doing, Mr.
Fentress is expected to testify concerning, but not limited to, types of
jobs/employments Plaintiff may be able to perform as a result of her alleged injuries
and/or medical conditions. In addition, Mr. Fentress may offer opinions as to the future
employment possibilities for Plaintiff, along with addressing any loss of income/lost
wage claims asserted by the Plaintiff. Mr. Fentress will also offer opinions concerning
the costs associated with providing medical care for the Plaintiff in the future via a Life
Care Plan.
Mr. Fentress's opinions are based upon his specialized knowledge, training, and
skills as a vocational rehabilitation counselor and life care planner and his review of
Plaintiff=s medical records, deposition testimony, and discovery responses, along with
other materials reasonably relied upon by experts in his field. Mr. Fentress may review
other depositions, medical records and/or other reports to finalize his opinion. A copy
of Mr. Fentress's curriculum vitae is attached hereto as Exhibit "A" and incorporated
by reference as fully set out therein. A copy of Mr. Fentress’s fee schedule and recent
trial testimony is also attached hereto as Exhibit “B” and “C”, respectively. A more
detailed summary of Mr. Fentress's specific opinions and the grounds for the same is
contained in his Life Care Plan for the Plaintiff, which will be supplemented and
attached hereto as Exhibit AD@ and is incorporated by reference as fully set out therein.
Mr. Fentress is completing a vocational rehabilitation report for the Plaintiff, which
will be supplemented upon receipt of the same and is incorporated as fully set forth
therein. Any deposition testimony given by Mr. Fentress in this case is also
incorporated by reference as fully set forth therein.
(B)

Dr. Moses C. Jones, Jr.
973 Golf View Lane, #2
Lapeer, Michigan 48446
Cell: [phone]
Email: [e-mail]

Dr. Jones is an expert in the field of neurogsurgery and physical medicine. A copy of
Dr. Jones’ curriculum vitae is attached hereto as Exhibit “E.” Dr. Jones is a medical
physician who is expected to testify based upon his education, experience, training and
his review of the information provided to him in this litigation. Dr. Jones is expected
to testify regarding the extent and duration of Plaintiff’s injuries including the affects,
if any, of Plaintiff’s pre-existing conditions. Dr. Jones will also testify regarding the
Plaintiff’s medical conditions allegedly suffered in the current lawsuit, including the
effects this incident allegedly had on Plaintiff’s functional capacity. Dr. Jones is further
expected to testify as to Plaintiff’s impairment rating assigned by Dr. Katz and/or Dr.

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Brophy. Further, Dr. Jones will testify about the effects and injuries Plaintiff suffered
during the surgery performed by Dr. Brophy including the risks/benefits of the type
surgery performed. Dr. Jones will offer testimony regarding Dr. Brophy’s performance
of said surgery including the resulting consequences of said surgery. Dr. Jones will also
offer testimony about the need, or not, of any future medical treatment and/or care
reasonably expected to be incurred by the Plaintiff resulting from her alleged slip and
fall. Finally, Dr. Jones will offer rebuttal testimony to the opinions and conclusions
reached by Dr. Brophy and/or Dr. Katz as detailed in the medical records and any
reports authored by either or both.

(C)
Jim Koerber, CPA/ABV, CVA, CFE, CFF
The Koerber Company
103 Madison Plaza
Hattiesburg, Mississippi 39402
Mr. Koerber is an expert in the field of economics, accounting and valuation.
He is expected to testify as to the valuation of Plaintiff’s alleged economic losses due
to her injuries sustained as a result of the incident in question. In so doing, Mr. Koerber
may testify concerning, but not limited to, Plaintiff's life expectancy, lost wages, future
lost wages, past, present and future medical expenses, loss of income, future loss of
income, present value calculations, economic values and any areas in his field of
expertise addressed by the Plaintiffs= expert witnesses.
Mr. Koerber=s opinions are based upon: 1) his specialized knowledge, training,
and skills as an economist and accountant, 2) documents produced to him in the
pending litigation along with other materials reasonably relied upon by experts in the
field of economics and accounting; and 3) his review of report(s) generated by
Plaintiff's experts. Mr. Koerber may review other depositions, medical records and/or
other reports to finalize his opinion. A copy of Mr. Koerber=s curriculum vitae and fee
schedule is attached hereto as Exhibit "F" and incorporated by reference as fully set
out therein. A more detailed summary of Mr. Koerber’s specific opinions and the
grounds for the same is contained in his report, which will be supplemented upon
receipt of the same, and is incorporated by reference as fully set out therein. Any
deposition testimony given by Mr. Koerber in this case is also incorporated by
reference as fully set forth therein.
Doc. #34 at 1-4.

On September 25, 2017, Plaintiffs’ counsel notified counsel for Defendants of the death of
one of Defendants’ designated experts—Mr. Nathaniel Fentress. Doc. #60 at ¶2. Thereafter, the
discovery deadline was extended twice, with December 14, 2017 being the final deadline. As of
December 14, 2017, no reports for Defendants’ experts had been produced, despite the expiration
of both the defendants’ expert designation deadline and the discovery deadline on December 14,

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2017. On December 21, 2017, Plaintiffs filed their first Motion to Strike Defendants’ Experts [Doc.
60] as well as a Memorandum in Support [Doc. 61].
While that motion was pending, on January 4, 2018, Defendants filed a Notice of Service
[Doc. 67] indicating Plaintiffs were being served with Defendants’ Supplemental Designation of
Expert Witnesses (Exhibit “A”). Defendants’ Supplemental Designation replaced Mr. Nathaniel
Fentress with Ms. Kathy Jackson-Smith, but this “supplemental” designation still failed to provide
any reports—and, hence, any opinions to be testified to at trial or facts and data in support thereof.
Shortly after filing the Notice of Service [Doc. 67], Defendants filed their Response to
Plaintiffs’ Motion to Strike [Doc. 68], attaching Defendants’ initial and supplemental expert
designation as exhibits [Doc. 68-1, 68-2]. Defendants assert therein they withheld preparation of
expert reports in anticipation of a Rule 35 Independent Medical Examination. According to the
Plaintiffs, the first time a Rule 35 Examination was mentioned was at the case management
conference—where Plaintiffs’ counsel made clear Plaintiffs would not voluntarily agree to such
an exam. Plaintiffs’ counsel also asserts—and defendants’ counsel offer no evidentiary proof to
the contrary—that Defendants’ counsel made no mention of their desire to move forward with a
Rule 35 Exam, again, until December 14, 2017—almost five (5) months after their designation
deadline, and on the date the extended discovery deadline expired.
On January 26, 2018, this Court entered an order [Doc. 74] finding that the plaintiffs’
motion to strike the purported expert designations, filed on July 27, 2017, was untimely and would
be denied for that reason. Plaintiffs were 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’ report of January 4,2018, should be stricken for untimeliness.”
Doc. #74. Thereafter, Defendants filed a Notice of Service [Doc. 75] of Defendants’ Second

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Supplemental Designation of Experts (Exhibit “B”). Accompanying this designation were,
according to counsel, formal reports of Dr. Moses Jones and Kathy Jackson-Smith.
On January 29, 2018, Plaintiffs filed the instant motion to strike the purported January 4,
2018 supplemental and subsequently filed second supplemental designations.
Law and Analysis
The court agrees with the Plaintiffs’ recitation of the standard, specifically:
In accordance with the Federal Rules of Civil Procedure 26(a)(2)(B), parties
are required to produce written reports of experts “retained or specially employed
to provide expert testimony.” Specifically, Rule 26(a)(2)(B) states as follows:
(2) Disclosure of Expert Testimony.
(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or
ordered by the court, this disclosure must be accompanied by a written report—
prepared and signed by the witness—if the witness is one retained or specially
employed to provide expert testimony in the case or one whose duties as the party's
employee regularly involve giving expert testimony.
The report must contain:
(i) a complete statement of all opinions the witness will express and the basis
and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in
the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness
testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in
the case.
Failure to provide reports in accordance with Rule 26(a)(2)(B) leaves a
party in violation of this rule. Although the Court allows for rebuttal and
supplementary disclosures, “[t]he purpose of rebuttal and supplementary
disclosures is just that – to rebut and to supplement. These disclosures are not
intended to provide an extension of the deadline by which a party must deliver the
lion’s share of its expert information.” Sierra Club, Lone Star Chapter v. Cedar
Point Oil Co., 73 F.3d 546, 571 (5th Cir. [1996]). Failure to comply with Rule
26(a)(2)(B), when brought to the attention of the Court, requires a balancing test
under Fed. R. Civ. P. 37(c).
Rule 37(c) states, “[i]f a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at a trial,
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unless the failure was substantially justified or harmless.” Fed. R. Civ. P. 37(c).
[Paragraph (2)(B)] of The Advisory Committee’s Note (1993) under Fed. R. Civ.
P. 26 details the underlying reasoning for requiring full disclosure, stating
“[r]evised Rule 37(c)(1) provides an incentive for full disclosure; namely that a
party will not ordinarily be permitted to use on direct examination any expert
testimony not so disclosed.” In reviewing the application of Rule 37(c), the Fifth
Circuit found no error where the district court excluded expert testimony as
insufficient where no reasonable justification was provided stating, “under Rule
37(c), the presumptive sanction for failing to disclose a testifying expert or supply
a required expert report or summary disclosures is to exclude or limit the expert’s
testimony unless the failure was substantially justified or harmless.” Honey-Love
v. United States, 664 Fed.Appx. 358, 362 (5th Cir. 2016).
Doc. #77.
I.

The Supplemental Designation and Second Supplemental Designation are
Inexcusably Untimely.
Plaintiffs seek to have Defendants’ Supplemental Designation of Experts as well as

Defendants’ Second Supplemental Designation of Experts stricken. Defendants filed their
Supplemental Designation of Experts on January 4, 2018. That designation merely replaced
Nathaniel Fentress, deceased, with Kathy Jackson-Smith. This supplementation was inexcusably
late as Defendants were aware on September 25, 2017, at the latest, that Nathaniel Fentress had
passed away. Defendants took no action to replace Mr. Fentress as an expert for over three (3)
months, and only did so well after the close of discovery.
Making matters worse, even when the purported supplementation of experts was made on
Jan 4, 2018, it still contained none of the actual opinions to be testified to, nor the facts and data in
support thereof—much less a signed report by the retained experts. In fact, it wasn’t until January
26, 2018, that Defendants purported to “supplement” their designations with actual opinions facts
and data. Doc. #76-2. Even then, reports for only two of the three retained experts were provided.

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II.

Defendants Failure to Timely Provide Their Expert Information is Not “Substantially
Justified or Harmless.”
Defendants have failed to provide the disclosures required under Fed. R. Civ. P.

26(a)(2)(B), and are therefore in violation of the Rule. Fed. R. Civ. P. 37(c) states, “[i]f a party
fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified or harmless.”
Allowing Defendants to rely on their purported “supplemental” designations would
unquestionably represent unfair prejudice to Plaintiffs, as it would deprive them of the opportunity
to explore, during discovery, the nondisclosed opinions, facts and data to be offered by Defendants’
experts. Further, it deprives the Plaintiff the opportunity to, itself, timely file rebuttal opinions,
facts and data.
Defendants’ argument that their failure to provide written reports was somehow justified
by their desire to have an independent medical exam of plaintiff is simply not colorable. If such an
exam was desired, defense counsel certainly had an obligation to timely bring on a motion to
conduct the same and to request an extension of the expert designation deadline to accommodate
the need for such an exam. No such motion for an independent medical exam or an extension of
the expert designation deadline was ever filed.
It simply is without justification to have waited until months after the designation deadline,
and even well past the discovery deadline, to provide the opinions, facts, and data to be offered by
the named experts.
In short, the so-called justification for the wholesale failure to timely provide the requisite
experts’ reports does not approach what could be considered substantial justification. On its face,
the failure to provide any opinions, facts, or data proposed to be testified to by retained experts
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until well after even the discovery deadline is prejudicial. Further, Defendants’ repeated failure to
comply with mandated deadlines demonstrates a pattern of noncompliance with the rules of this
Court.
III.

Sanctions.
Rule 37(c) gives the court discretion to decide appropriate sanctions for such violations of

the Rule. The Rule’s guidance reads as follows:
(c) Failure to Disclose, to Supplement an Earlier Response, or to Admit.
(1) Failure to Disclose or Supplement. If a party fails to provide information
or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use
that information or witness to supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified or is harmless. In addition to or
instead of this sanction, the court, on motion and after giving an opportunity to be
heard:
(A) may order payment of the reasonable expenses, including attorney's
fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of the orders
listed in Rule 37(b)(2)(A)(i)—(vi).
Fed. R. Civ. P. 37(c)(1). The options given in Fed. R. Civ. P. 37(c)(2) are as follows:
(2) Sanctions Sought in the District Where the Action Is Pending.
…
(i) directing that the matters embraced in the order or other designated facts
be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an
order to submit to a physical or mental examination.
Fed. R. Civ. P. 37(b)(2)(A)(i)—(vi)(emphasis added).
When deciding which sanction to employ when there has been an improper expert
designation, the court weighs the following factors:
(1) the importance of the witnesses' testimony;
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(2) the prejudice to the opposing party of allowing the witnesses to testify;
(3) the possibility of curing such prejudice by granting a continuance; and
(4) the explanation, if any, for the party's failure to comply with the discovery order.
Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546, 572 (5th Cir.
1996) (citation omitted).
Here, the Plaintiff has moved the court to employ the sanction described in Fed. R. Civ. P.
37(b)(2)(A)(iii)—striking pleadings in whole or in part. 1 The Court agrees that this is the
appropriate sanction.
With respect to the importance of Defendants’ expert witnesses, it is likely the case that
they are pivotal to Defendants’ defenses, but on the other hand, the cavalier approach Defendants
have taken to their designation and the failure to argue such prejudice suggests otherwise.
The undeniable prejudice to the Plaintiffs that would result from allowing Defendants’
witnesses to testify to opinions, facts, and data not disclosed until well after the close of discovery
was addressed above.
The Defendants have filed a motion to continue [53], which is a matter to be taken up by
the district judge. However, until such time as the district judge has granted the motion and reset
the trial, the prospect of a continuance is speculative. Nevertheless, in the event of a continuance,
the Defendants may move to reopen discovery, and assuming time permits and the motion is
otherwise well taken, they may then properly designate their experts.
Finally, as discussed above, Defendants’ excuse for not properly and timely designating
their experts—because they hoped to obtain an independent medical exam of plaintiff first—is
simply not colorable.

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The Plaintiff has specifically requested that the pleadings be stricken in whole.

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Conclusion
Accordingly, it is ordered that the Defendants’ Supplemental Designation of Experts and
Defendants’ Second Supplemental Designation of Experts, including reports, be STRICKEN.

SO ORDERED, this February 16, 2018.
/s/ Jane M. Virden
UNITED STATES MAGISTRATE JUDGE

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