Walker et al v. Benton County, Mississippi et al

Filing 98

ORDER granting 95 Motion to Strike Plaintiff's Exhibits from Pretrial Order. Signed by Magistrate Judge Roy Percy on 7/8/2022. (yf)

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

PLAINTIFF

v.

No. 3:20-CV-163-MPM-RP

BENTON COUNTY, MISSISSIPPI, et al.

DEFENDANT

ORDER GRANTING MOTION TO STRIKE
Before the court is Defendants’ Motion to Strike certain exhibits and expert witnesses from
the pretrial order. ECF #95. Defendants claim that on the eve of the pretrial conference in this case,
Plaintiff served 2,444 pages of medical records, the majority of which had not been previously
disclosed. As such, Defendants request that the exhibits be excluded from the pretrial order. In
connection to this request, Defendants also ask the court to strike one of Plaintiff’s experts and to limit
the testimony of another. The court finds the motion is well taken and should be granted.
Federal Rule of Civil Procedure 26 governs parties’ obligations to disclose the
documents, ESI and tangible things they may use to support their claims and defenses, as well as
the parties’ obligations to supplement their disclosures and responses to discovery requests. Rule
26(a)(1)(A) requires that a party must, without awaiting a discovery request, provide to the other
parties:
(ii) a copy – or a description by category and location – of all documents,
electronically stored information, and tangible things that the disclosing party has
in its possession, custody, or control and may use to support is claims or defenses,
unless the use would be solely for impeachment….
Rule 26(e)(1)(A) requires the party to supplement its disclosures “in a timely manner if the party
learns that in some material respect the disclosure or response is incomplete or incorrect, and if
the additional or corrective information has not otherwise been made known to the other parties

during the discovery process or in writing.” Moreover, “[t]he discovery deadline is that date by
which all responses to written discovery, including supplementation of responses, required by the
Federal Rules of Civil Procedure must be made[].” L.U.Civ.R. 26(b)(1).
“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.” Fed.R.Civ.P.
37(c). According to the Advisory Committee Note to Rule 37, this sanction provides “a strong
inducement for disclosure of material that the disclosing party would expect to use as evidence,
whether at a trial, at a hearing, or on a motion,” by the deadline. The purpose of these disclosure
requirements is to “eliminate unfair surprise to the opposing party.” Hill v. Koppers Indus., No.
3:03-cv-60-P-D, 2009 WL 3246630, at *2, (N.D. Miss. Sept. 30, 2009) (quoting Muldrow ex rel.
Estate of Muldrow v. Re-Direct, Inc., 493 F.3d 160, 167 (D.C. Cir. 2007)).
Plaintiff served the disputed medical records on the Defendants on June 20, 2022, over
three months after the close of discovery in this case. Plaintiff argues that the supplementation is
merely more detailed documentation of records already produced. Nonetheless, the
supplementation was well outside the discovery period and therefore untimely.
When the court finds a violation of Rule 26, it looks to four factors to determine if the
violation is harmless: (1) the importance of the evidence; (2) the prejudice to the opposing party
of including the evidence; (3) the possibility of curing such prejudice by granting a continuance;
and (4) the explanation for the party’s failure to disclose. Texas A&M Research Found. v. Magna
Transp., Inc., 338 F.3d 394, 402 (5th Cir. 2003).
Plaintiff offers little argument as to the importance of the evidence. Instead, Plaintiff states that
the documents are merely more detailed documentation of treatments already disclosed. On the other

hand, the prejudice to the Defendants is readily apparent. Plaintiff states that the sheer volume of
documents is inconsequential given that the Defendants already knew of all the dates and nature of the
treatment given to the Plaintiff. The court disagrees. The volume of documents produced strikes at the
heart of the prejudice Defendants will suffer if these documents are allowed to be included in the
pretrial order. If the untimely disclosure is allowed, Defendants would be forced to review over 2,000
pages of new documents in the short amount of time left before trial, without the opportunity to
conduct any follow-up discovery of their own. This is precisely the type of “unfair surprise” that the
discovery rules and deadlines seek to avoid.
As to the possibility of a continuance, none has been requested, nor does the court think one
would be appropriate given the timing of the supplementation. As to Plaintiff’s explanation for the
untimely disclosure, Plaintiff claims that it is not at fault for the delay in production of the records.
While the court appreciates that this may be the case, it does little to outweigh the prejudice that will
be suffered by the Defendants if the records are allowed. After a balancing of the relevant factors, the
court concludes that the untimely production of these documents is not harmless or substantially
justified.
Therefore, the motion to strike exhibits will be GRANTED. The following exhibits, by Bates
Number, are STRICKEN from the pretrial order: 96-154, 155-264, 265-353, 907-909, 913-1077,
1080-1938, 1938-1942, 1946-2001, 2002-2003, 2006-2064, 2065-2145, 2146-2207, 2208-2226,
2232-2267, 2268-2281, 2284-2317, 2318-2328, 2339-2382, 2440.
Defendants also request that Dr. Velamuri be stricken as an expert witness for Plaintiff due to
Plaintiff’s failure to designate him as an expert witness during discovery, and Defendants request that
Dr. Hickerson, who was timely designated as an expert, be prohibited from testifying about matters
contained in the late-disclosed medical records. Plaintiff consents to striking Dr. Velamuri, and the

court hereby does so. As to Dr. Hickerson, the court orders that his testimony will be limited to the
facts and opinions provided in Plaintiff’s formal designation of him as an expert and/or contained in
the produced treatment records, excluding those records stricken by this order. See Benton v. WalMart Stores East, LP, No. 3:11cv313-TSL-MTP, 2012 WL 1657134, *1-2 (S.D. Miss. May 10,
2012) (holding where no formal expert designation was provided, testimony of treating
physicians listed in interrogatory response was limited to scope and content of provided medical
records); Bunch v. Metropolitan Cas. Ins. Co., No. 5:10-cv-104-DCB-JMR, 2011 WL 1304459,
*2 (S.D. Miss. April 6, 2011) (holding plaintiffs were allowed to rely on medical records as
descriptions of opinions about which treating physicians would testify); Duke v. Lowe’s Homes
Centers, Inc., No. 1:06CV207-P-D, 2007 WL 3094894, *1 (N.D. Miss. Oct. 19, 2007) (holding
that in absence of written report and other information required by Rule 26(a)(2)(B), testimony
of identified treating physicians was limited to facts and opinions contained in medical records).
SO ORDERED, this the 8th day of July, 2022.
/s/ Roy Percy
UNITED STATES MAGISTRATE JUDGE