Wilson et al v. The Service Companies et al
Filing
88
ORDER granting 81 MOTION to Strike 78 Notice of Service, of Defendants Third Supplemental Designation of Experts, and Expert Reports. Signed by Magistrate Judge Jane M. Virden on 3/14/18. (bfg)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DIVISION OF MISSISSIPPI
OXFORD DIVISION
ALMA DENISE WILSON; and
LAWRENCE WILSON
VS.
PLAINTIFFS
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’ THIRD SUPPLEMENTAL
DESGINATION OF EXPERT WITNESSES
_____________________________________________________________________________
This matter is before the Court on Plaintiffs’ Motion to Strike Defendants’ Third
Supplemental Designation of Expert Witnesses [81]. For the reasons that follow, the motion is
GRANTED.
Factual Background
A case management order 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, what follows:
1.
(A)
These Defendants designate the following witnesses to testify as experts on
their behalf at the trial of the above captioned civil action:
Nathaniel Fentress, MS, CRC, CCM Rehabilitation Counselor
1190 North State Street, Suite 202
Jackson, Mississippi 39202
Telephone: 601-355-7550
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Cell Phone: 601-832-7100
Fax: 888-539-6734
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: (601) 506-7080
Email: mosesjones@msn.com
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.
Brophy. Further, Dr. Jones will testify about the effects and injuries Plaintiff suffered
2
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, failed to provide 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
designations as exhibits [Doc. 68-1, 68-2].
Defendants assert therein that 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
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untimeliness.” [Doc. 74]. Thereafter, Defendants filed a Notice of Service of Defendants’ Second
Supplemental Designation of Experts. [Doc. 75]. Accompanying this designation were, according
to counsel, formal reports of Dr. Moses Jones and Kathy Jackson-Smith.
On January 29, 2018, Plaintiffs filed a Motion to Strike the Supplemental, and subsequently
filed, Second Supplemental Designations. On February 16, 2018, the Court entered an Order
granting the motion for the reasons set forth in detail therein. [Doc. 83].
In the interim, on February 7, 2018, Defendants filed, yet another, late supplement”—[78]
Notice of Service of Defendant’s Third Supplemental Designation of Expert Witnesses—“to
include the formal report of Mr. Jim Koerber. [Doc. 81-4 at 2]. Plaintiffs filed the instant Motion
to Strike said supplement on February 9, 2018.
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.
5
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,
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 Third Supplemental Designation is Unquestionably Untimely.
Plaintiffs seek to have Defendants’ Third Supplemental Designation of Experts stricken.
The purported original designation of Mr. Koerber 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
expert. In fact, it wasn’t until February 7, 2018, two months after the discovery deadline and
dispositive motions deadlines had run, that Defendants purported to “supplement” their
designation of Koerber with actual opinions, facts, and data. [Doc. 78]. This supplement is
woefully late.
II.
Defendants Failure to Timely Provide Their Expert Report is Not “Substantially
Justified or Harmless.”
6
Defendants’ offer no justification for their wholesale failure to timely provide Koerber’s
report other than a representation to the court that, “Plaintiff knew the substance of all Defendants’
experts’ opinions at the time of the Defendants’ original designation [on July 28, 2017]… Plaintiffs
never requested… to take any expert depositions… the opinions of Mr. Koerber were not relevant
to any dispositive motions filed by the parties… [and] the opinions of Mr. Koerber are beneficial
to Plaintiff.” [Doc. 84 at 2-3].
Concerning the representation of defense counsel, that Plaintiffs knew the substance of all
of Defendants’ experts’ opinions at the time of the Defendants’ original designation, the Plaintiffs
have explicitly denied having such information until well after the close of discovery when, in the
case of Koerber, his Rule 26 report was provided. [Doc. 85 at ¶3].
Defendants have offered nothing to support their assertion, nor is any support for this
representation ascertainable by the Court from the docket. Representations to the court that are
knowingly inaccurate are inexcusable. Nevertheless, the willingness to make such an unsupported
representation as fact, does serve to illustrate the cavalier approach to litigation in this Court that
has been adopted by defense counsel.
In short, the so-called justification for the wholesale failure to timely provide the requisite
expert’s report and the suggestion that the failure is harmless—in each instance because “plaintiff
knew the substance of all of defendants’ experts’ opinions at the time of the defendants’ original
designation”—appears from the record to be false. Accordingly, as aforesaid, while it might
establish some things concerning defense counsel’s approach to the litigation in this Court, it
decidedly does not establish substantial justification for the late report or lack of prejudice to the
Plaintiffs on account thereof.
7
Defense counsel’s further assertion that Koerber’s untimely designation is justified or
harmless because Plaintiffs never asked, during discovery, to depose Koerber is senseless. Why
would a plaintiff ask to depose any expert on opinions, facts, and data on which the expert had not
been designated to testify?
Similarly meaningless is the suggestion that the very late revelation of the opinions, facts,
and data about which Koerber would be offered to testify is excusable or harmless because those
matters do not concern any issues raised by the parties in dispositive motions.
Finally, the argument that Koerber’s late designation is excusable or harmless because “the
opinions of Mr. Koerber are beneficial to Plaintiff in that he valued Mrs. Wilson’s economic
damages at $289,000” is ridiculous as Plaintiffs’ expert calculates Plaintiff’s damages to be
approximately $400,000 more than Koerber calculates. [Doc. 84 at 3]. The assertion that
Defendant offers Koerber to “benefit the Plaintiffs” is again illustrative of the cavalier approach
of defense counsel to compliance with the obligation of candor to the Court.
III.
Sanctions.
For the reasons delineated in the prior [83] order on substantially similar issues the instant
supplement [78] should be stricken. Specifically, addressing the factors delineated in Sierra Club,
Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 571 (5th Cir. [1996]):
The Court finds “the importance of the witnesses’ testimony”, has not been demonstrated.
In fact, as noted, Defendants even assert the proposed opinions of Koerber benefit the Plaintiff.
Second, Plaintiffs would clearly be subject to unfair prejudice should Defendants be
permitted to rely on the “supplemental” designations, as it would deprive Plaintiffs of the
opportunity to explore, during discovery, the opinions, facts, and data to be offered by Defendants’
expert. Further, it deprives the Plaintiffs the opportunity to, itself, timely file rebuttal opinions,
facts, and data.
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Third, the potential for a continuance at this point is only speculative making this factor
also weigh in favor of the Plaintiffs.
Finally, as noted above, nothing defense counsel has offered by way of explanation for its
failure to timely comply with its expert reporting obligations is even colorable.
Conclusion
Accordingly, it is THEREFORE ORDERED that the Defendants’ Third Supplemental
Designation of Expert Witnesses [78], including expert report, is hereby STRICKEN.
SO ORDERED, this March 14, 2018.
/s/ Jane M. Virden
UNITED STATES MAGISTRATE JUDGE
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