Brown v. Safeco Insurance Company of Illinois et al

Filing 37

ORDER granting 25 Defendant's Motion to Strike/Exclude Plaintiff's Supplemental Designation of Expert Witnesses and denying 26 Plaintiff's MOTION to Extend CMO Deadlines. Signed by Magistrate Judge Jane M. Virden on 11/13/2023. (bbf)

______________________________________________________________________________
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
______________________________________________________________________________
DEIDRA BROWN

PLAINTIFF

VERSUS

CIVIL ACTION NO. 4:23-cv-16-DMB-JMV

SAFECO INSURANCE COMPANY OF
ILLINOIS, ET AL.
DEFENDANTS
______________________________________________________________________________
ORDER GRANTING DEFENDANT’S MOTION TO EXCLUDE PLAINTIFF’S
SUPPLEMENTAL DESIGNATION OF EXPERT WITNESS AND DENYING
PLAINTIFF’S MOTION TO EXTEND CMO DEADLINES
______________________________________________________________________________
BEFORE THE COURT are the Defendant’s Motion to Exclude Plaintiff’s
Supplemental Designation of Expert Witnesses [25] and the Plaintiff’s Motion to Extend CMO
Deadlines [26]. For the reasons detailed below, the Court finds that the Defendant’s Motion to
Exclude Plaintiff’s Supplemental Designation of Expert Witnesses [25] shall be GRANTED and
the Plaintiff’s Motion to Extend CMO Deadlines [26] shall be DENIED.
Procedural History
The case management order [8] was entered in this matter on February 21, 2023. On that
same date, the trial was noticed for March 4, 2024. A motion to extend expert designation
deadlines [15] was filed by the Plaintiff on May 22, 2023, and an order [16] was entered
extending Plaintiff’s expert designation to July 6, 2023, and Defendant’s expert designation
deadline to August 7, 2023.
According to the Defendant, Plaintiff served her Designation of Expert Witnesses on July
6, 2023. No notice was filed with this Court. Defendant served its Designation of Expert

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Witnesses [23] on August 7, 2023. The discovery deadline then passed on August 21, 2023.
On October 20, 2023, over three months after Plaintiff’s expert designation deadline
passed and sixty days after the discovery deadline, Plaintiff served a Supplemental Designation
of Expert Witnesses, naming an additional expert, Kathy Smith. See Ex. A to [33]. A notice of
service was not filed with this Court. Thereafter, Defendant filed the instant motion to exclude
Plaintiff’s supplemental designation [25]. While said motion was pending, Plaintiff filed a
motion to extend the case management order deadlines [26]. Both motions are now fully briefed,
and the Court is prepared to rule.
Law and Analysis
The Fifth Circuit considers the following factors when deciding whether to exclude
untimely expert designations: (1) the explanation for the failure to identify the witness; (2) the
importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the
availability of a continuance to cure such prejudice. Hamburger v. State Farm Mut. Auto. Ins.
Co., 361 F.3d 875, 883 (5th Cir. 2004) (holding the district court did not abuse its discretion by
excluding experts that were designated three months after expert designation deadline). Unless
Plaintiff shows her untimely designation was “substantially justified or harmless,” her new
expert should not be permitted to testify. Cooper v. Meritor, Inc., No. 4:16-CV-52-DMB-JMV,
2020 U.S. Dist. LEXIS 177297 at *9 (N.D. Miss. Sept. 28, 2020) (citing Heidtman v. Cnty. of El
Paso, 171 F. 3d 1038, 1040 (5th Cir. 1999)).
As for the first factor, Plaintiff argues that her treatment has been and continues to be
progressive and ongoing, and that the fullness of expert testimony could not have been known by
the previous expert deadline. However, Defendant points out the Smith’s report was completed
on October 6, 2023, and supplemented on November 3, 2023, but is based solely upon medical

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records through March 14, 2023, which is prior to Plaintiff’s July 6, 2023, expert designation
deadline. While Plaintiff argues that she needed additional guidance from her physician to
determine future care needs, the additional guidance does not appear to have been requested until
September 12, 2023. Thus, this factor is neutral, at best.
In support of the second factor, Plaintiff argues that Dr. Torrey’s opinion of the Plaintiff’s
future care, and the cost of that care, is a substantial part of the damages she has incurred because
of her injuries and would be prejudicial if excluded. Plaintiff further argues that once additional
information was provided from Dr. Torrey regarding the need for future care, the need to retain a
cost projection from occupational consultant, Kathy Smith, arose. Thus, this factor would weigh
in favor of allowing the supplemental designation.
As for the third factor, it weighs heavily in favor of granting the motion to exclude. Due
to the late timing of Plaintiff’s supplemental designation, Defendant is left with no opportunity to
depose Smith or Dr. Torrey and no opportunity to retain experts to rebut these new expert
opinions. The prejudice here is simply insurmountable. As for the fourth factor, there is no
availability of a continuance to cure the prejudice at this late date unless a trial continuance is
obtained from the District Judge. The trial date is already less than four months away; thus, the
undersigned has no discretion in extending the CMO deadlines for a March 4, 2024, trial date at
this late juncture. Therefore, this factor also weighs in favor of granting the motion to exclude.
Having weighed the factors, the Court finds that the supplemental designation, and new
witnesses/opinions identified therein, should be and are hereby excluded. Plaintiff’s late
supplementation, naming a new expert, Kathy Smith, violates Rules 26 and 37 of the Federal
Rules of Civil Procedure, as well as this court’s case management order. Plaintiff has failed to
show that her untimely designation was substantially justified or harmless.

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Furthermore, the Plaintiff’s motion to extend the case management order deadlines [26]
to allow for the supplemental designation must be denied. As provided above, the undersigned
has no discretion to extend the case management order deadlines unless and until a trial
continuance is moved for and successfully obtained.
Conclusion
IT IS, THEREFORE, ORDERED that the Defendant’s Motion to Exclude Plaintiff’s
Supplemental Designation of Expert Witnesses [25] is hereby GRANTED and the Plaintiff’s
Motion to Extend CMO Deadlines [26] is hereby DENIED. Plaintiff may reurge her motion to
extend the CMO deadlines in the event that she files a motion to continue the trial date, and does,
in fact, obtain a new trial date from the District Judge.
SO ORDERED, this the 13th day of November, 2023.
/s/ Jane M. Virden
UNITED STATES MAGISTRATE JUDGE

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