Kirby et al v. Bank of America, NA et al

Filing 91

ORDER denying 49 Motion to Strike. Plaintiffs have 60 days to correct their deficient expert designation. Defendants then have 30 days to designate a new expert, if any, to rebut Plaintiffs' expert. Discovery is reopened for this limited purpose only. Signed by Honorable David C. Bramlette, III on 7/27/2011 (nr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
CLINTON E. KIRBY AND MARTHA B. KIRBY
VERSUS

PLAINTIFFS

CIVIL ACTION NO: 2:09-cv-182-DCB-JMR

BANK OF AMERICA, N.A. ET AL.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Currently before this Court is the Defendants’ Motion to
Strike the Plaintiffs’ Designation of Expert Witness.

Having

reviewed the Motion, Responses thereto, and relevant statutory and
case law, this Court finds and Orders as follows.
Defendants Bank of America, N.A. et al. move to strike the
Plaintiffs’, Clinton and Martha Kirby, Designation of Neil Franklin
Garfield

as

a

Plaintiffs’

expert.

Defendants

argue

that

Plaintiffs’ expert designation is deficient under Fed. R. Civ. P.
26(a)(2)(B).

That rule requires an expert designation to include

a report “prepared and signed by the witness” that contains:
(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.
The expert reports attached to the Plaintiffs’ designation of
Garfield meet none of the requirements of the Rule. They appear to
be form reports generated by Garfield with respect to the title to
the Plaintiffs’ property which is the subject of this litigation.
But these reports were clearly prepared for Plaintiffs without any
expectation that they would be used as expert reports and without
offering any summary of the opinions intended to be offered by
Garfield at a trial on this matter.

Indeed, each report contains

a disclaimer that “This is not ... an expert designation.” Neither
contains a statement of opinions that Garfield would offer at
trial, the facts or data used to summarize or support them, or any
of the other items listed in the Rule.

This Court has no

difficulty in finding the reports deficient.
The

Plaintiffs

do

not

argue

that

the

reports

meet

the

requirements of Rule 26(a)(2)(B) but instead argue, in essence,
that any deficiencies are harmless to Defendants because they can
glean the nature of Garfield’s anticipated testimony from the
propose reports. This Court disagrees. In order for Defendants to
obtain their own experts to rebut Garfield’s anticipated testimony,
Plaintiffs must clearly state what Garfield’s opinion will be and
the

basis

for

his

testimony

in

a

document

that

is

created

specifically for the purposes of this litigation.
Nevertheless, given that the trial of this matter has recently

been postponed, this Court will give the Plaintiffs an opportunity
to correct their deficient expert designation and to provide the
Court with an expert report that meets the criteria outlined in
Rule 26(a)(2)(B).

Plaintiffs have 60 days from the date of this

Order to file an expert designation and report that conforms with
Rule 26.

Defendants will then have 30 days to designate a new

expert, if any, to rebut Plaintiffs’ expert.

Discovery will be

reopened for this limited purpose only and not for any other
purpose.
Accordingly,
Defendants’ Motion to Strike the Plaintiffs’ Designation of
Expert Witness [docket entry no. 49] is DENIED.
SO ORDERED, this the 27th day of July, 2011.

s/ David Bramlette
UNITED STATES DISTRICT JUDGE