Dallas v. Premier Vehicle Transport, Inc. et al

Filing 82

ORDER granting in part and denying in part 74 Motion to Strike and, Alternatively, in Limine. Signed by Chief District Judge Louis Guirola, Jr on 10/23/17. (Whitsitt, K)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
KAREN DALLAS, as Personal Representative
of the Estate of Melvin Dallas, III, deceased
v.

PLAINTIFF

CAUSE NO. 1:16CV358-LG-RHW

PREMIER VEHICLE TRANSPORT, INC.,
and CHRISTOPHER BROUS

DEFENDANTS

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S AMENDMENTS/
SUPPLEMENTS TO DEFENDANTS’ INTERROGATORIES AND,
ALTERNATIVELY, IN LIMINE MOTION TO EXCLUDE NEW WITNESSES
AND INFORMATION PRODUCED BY PLAINTIFF
BEFORE THE COURT is the [74] Motion to Strike or In Limine filed by the
defendants seeking exclusion of certain evidence and testimony not timely or fully
disclosed in this wrongful death case. The plaintiff has responded, and the
defendants have replied. After due consideration of the submissions, the Court finds
that the Motion should be granted in part and denied in part.
DISCUSSION
The defendants’ filed this Motion contending that Plaintiff Karen Dallas
failed to disclose a number of fact witnesses, timely provide certain documents in
discovery, and make full expert disclosures for three expert witnesses. The
subsequent briefing has narrowed the items of disagreement to whether J. Brent
Davis, M.D., Jason Moody, and Jason Burke were properly disclosed as expert
witnesses, and whether Dr. Davis’s autopsy report should be excluded because it
was only recently disclosed.

1. Expert Witnesses
Rule 26 requires parties to disclose the identity of any person who will
provide expert testimony at trial. Fed. R. Civ. P. 26(a)(2)(A). All disclosures must
be made and supplemented in the time and sequence ordered by the Court. Fed. R.
Civ. P. 26(a)(2)(D)-(E). A party’s failure to properly disclose an expected expert’s
testimony is “grounds for prohibiting introduction of that evidence at trial.” L. U.
Civ. R. 26(a)(2). Additionally, Rule 37 provides: “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 trial, unless the failure was substantially justified or is harmless.”
Fed. R. Civ. P. 37(c)(1). However, the Local Rules also place responsibility on a
litigant to bring an inadequacy in the other party’s disclosures to the Court’s
attention while there is time to remedy it. “Challenges as to inadequate disclosure
of expert witness(es) must be made no later than thirty days before the discovery
deadline or will be deemed waived.” L.U. Civ. R. 26(a)(3).
In her answers in the defendants’ interrogatories, Dallas identified the
following as her expert witnesses:
Medical Examiner (Cause of death)
Jason J. Moody, Deputy Coroner
Jason Burke, Acadian Ambulance
(Def. Mot. Ex. 2, at 2, ECF No. 74-2).

Dallas states that it was in September 2017

that she learned that the Medical Examiner was Dr. Davis and received the report
of autopsy and photographs from the Mississippi State Medical Examiner’s Office.
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(Def. Mot. Ex. 5, ECF No. 74-5).
a. J. Brent Davis, M.D.
Dallas’ identification of Dr. Davis only as “Medical Examiner” is wholly
inadequate to disclose any type of witness. See Fed. R. Civ. P. 26(a)(1)(A)(I)
(requiring “the name” of witness). Accordingly, the Court does not consider that Dr.
Davis was disclosed as an expert witness until September 27, 2017, well beyond the
plaintiff’s deadline for doing so. Even when she identified Dr. Davis by name,
Dallas did not provide the subject matter of his testimony and a summary of the
facts and opinions to which he was expected to testify. Fed. R. Civ. P. 26(a)(2)(C).
Thus, Dallas’ designation of Dr. Davis was both late and inadequate. Without
giving any explanation for the tardy and insufficient designation, Dallas argues that
the testimony of Dr. Davis will not prejudice the defendants because he will testify
as to cause of death, which is not at issue in this case. She states she will call Dr.
Davis only if cause of death becomes an issue.
In considering whether to exclude an expert not properly designated, the
Court considers four factors: (1) the explanation for failing 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)
(citing Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990)). Dr. Davis will
not be allowed to testify as an expert witness because the factors the Court is to
consider do not weigh in favor of disregarding the expert witness deadlines imposed
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in this case. Dallas does not explain why she failed to identify Dr. Davis by name
until shortly before trial; his testimony goes to a non-material issue in the case; and
a continuance is not warranted to cure any prejudice given the unimportance of the
issue and the imminent trial date. This holding does not preclude Dallas from
calling Dr. Davis as a fact witness.
b. Jason J. Moody and Jason Burke
Dallas’ answers to interrogatories in January 2017 also identified Jason
Moody, the Jackson County deputy coroner, and Jason Burke, an Acadian
Ambulance employee, as people she intended to call as expert witnesses. (Def. Mot.
Ex. 2, at 2, ECF No. 74-2). There was no further information provided.1 Defendants’
challenge to the insufficiency of these designations should have been filed by April 2,
2017, thirty days before the discovery deadline, to avoid waiver under the Local
Rules. As the defendants’ challenge is untimely, it has been waived. Moody and
Burke will not be excluded as expert witnesses on the inadequate designation
grounds asserted by the defendants.
2. Documentary Evidence
The autopsy report Dallas produced to the defendants on September 27, 2017,
is dated March 5, 2015. (Def. Mot. Ex. 5, at 2-5, ECF No. 74-5). Dallas does not
explain why she was unable to obtain and produce the autopsy report prior to the

1

At the least, Dallas should have provided the subject matter of each expert’s
testimony, and a summary of the facts and opinions to which he is expected to
testify. Fed. R. Civ. P. 26(a)(2)(C).
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March 2017 discovery deadline, or at least significantly earlier than late September
2017. Rule 37’s “sanction of exclusion is automatic and mandatory unless the
sanctioned party can show that its violation of Rule 26(a) was either justified or
harmless.” Hill v. Koppers Indus., No. CIV.A. 3:03CV60-P-D, 2009 WL 3246630, at
*2 (N.D. Miss. Sept. 30, 2009) (citing Salgado by Salgado v. Gen. Motors Corp., 150
F.3d 735, 742 (7th Cir. 1998)).
Dallas argues that her violation of Rule 37 in this instance is harmless,
because the autopsy report concerns an issue she does not believe will come up
during trial, and so she does not intend to actually introduce the document. The
Court agrees with Dallas’ assessment of the autopsy report as an unimportant piece
of evidence. Regardless of the decedent’s medical cause of death revealed by the
autopsy report, there is no question that the vehicle collision caused the fatal
injuries. It is the cause of the vehicle collision that is at issue. Nonetheless,
defendants do not identify any prejudice that would result from allowing the
autopsy report into evidence, and the Court does not see that any additional
discovery will be necessary as a result. Because Dallas has shown that her violation
of Rule 37 is harmless, the Court will allow introduction of the autopsy report.
CONCLUSION
The defendants have conceded that witnesses Semon Cull, Willie Mae Lane,
Carlene Washington, and Sheila Brouse/Dehn were properly designated.
Accordingly, the defendants’ request to strike these witnesses is denied.
The plaintiff has conceded that witnesses Philip Bridges, Lahana Porter,
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Thelmecia Carson, Dorothy Butler, Christopher Lee, Sr., Angie Browning, Dennis
Sanders, T.J. Graham, and Maury Phillips were untimely designated. Accordingly,
the defendants’ request to strike these witnesses is granted.
The plaintiff raised no objection to the defendants’ argument that four
photographs taken at the scene of the accident and Jason Moody’s LinkedIn
webpage were untimely produced. Accordingly, the defendants’ request to exclude
the photographs and Jason Moody’s LinkedIn webpage is granted.
The Court will allow Dr. Davis to testify as a fact witness, but he is prohibited
from providing expert opinion testimony in this case. The defendants’ request to
exclude expert witness testimony of Dr. J. Brent Davis is granted.
The defendants’ objection to expert witness testimony by Jason Moody and
Jason Burke is overruled.
IT IS THEREFORE ORDERED AND ADJUDGED that the [74] Motion to
Strike or In Limine filed by the defendants is GRANTED IN PART AND DENIED
IN PART as set out above.
SO ORDERED AND ADJUDGED this the 23rd day of October, 2017.
s\

Louis Guirola, Jr.

Louis Guirola, Jr.
Chief U.S. District Judge

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