Taylor v. Nabors Drilling USA, LP
ORDER denying Defendant's 52 Motion for Reconsideration. Signed by District Judge Keith Starrett on October 4, 2012 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 2:11-CV-234-KS-MTP
NABORS DRILLING USA, LP
The Court overrules Defendant’s objection  to the Magistrate Judge’s order
 denying its motion to strike  Plaintiff’s expert designations.
The Court may only modify or set aside a Magistrate Judge’s discovery order if
it s “clearly erroneous or contrary to law.” FED. R. CIV. P. 72(a); see also Castillo v.
Frank, 70 F.3d 382, 385 (5th Cir. 1995) (citing 28 U.S.C. § 636(b)(1)(A)). When
determining whether to strike an expert’s testimony for a party’s failure to timely
disclose it, the Court considers the following factors: “(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.
Plaintiff provided no legitimate explanation for his failure to timely designate
expert witnesses. Plaintiff’s counsel argues that Defendant’s counsel agreed to an
extension of Plaintiff’s expert designation deadline. However – as the Court is too often
forced to remind attorneys – parties can not simply agree to extend deadlines
established by the Court. They must seek the Court’s consent. FED. R. CIV. P. 16(b)(4).
Therefore, the Magistrate Judge rightly concluded that this factor weighs in favor of
striking Plaintiff’s designations.
As for the second factor, the Court finds that the testimony is important to
Plaintiff’s case. The proposed expert testimony pertains to the calculation of Plaintiff’s
past and future damages. Defendant argues that the importance of the testimony
merely underscores the importance of Plaintiff’s timely designation, citing Barrett v.
Atlantic Richfield Co., 95 F.3d 375, 381 (5th Cir. 1996). The Fifth Circuit has rejected
Defendant’s interpretation of the second factor, though, noting that it is contrary to the
factor’s intended purpose. Betzel v. State Farm Lloyds, 480 F.3d 704, 707-08 (5th Cir.
2007). Although “the importance of such proposed testimony cannot singularly override
the enforcement of local rules and scheduling orders,” if the party’s case depends on the
disputed testimony, the second factor weighs against striking the designation. Id. at
708 (emphasis original). Here, Plaintiff’s ability to prove his damages depends on the
admission of the disputed expert testimony. Therefore, the Magistrate Judge’s
conclusion that this factor weighs against striking the designations was not clearly
erroneous or contrary to law.
As for the potential prejudice to Defendant, the Court finds no error in the
Magistrate Judge’s analysis. The discovery deadline is November 15, 2012. There is
plenty of time for Defendant to prepare itself for trial by deposing Plaintiff’s designated
experts, and the Magistrate Judge permitted Defendant to reconvene Plaintiff’s
deposition, with all reasonable costs to be borne by Plaintiff. Further, the Magistrate
Judge allowed Defendant to designate additional rebuttal experts if it desires to do so.
The only “prejudice” to Defendant is that it is now required to defend the case in the
manner it would have if Plaintiff had timely designated his experts. Therefore, the
Magistrate Judge correctly concluded that this factor weighs against striking the
Finally, there is plenty of time to rectify whatever damage Plaintiff’s lack of
diligence has caused. Indeed, the Magistrate Judge has already modified the case
deadlines  – and Defendant has not objected to that order. Defendant argues that
Plaintiff has been rewarded for his failure to comply with the Court’s deadlines. The
Court disagrees. The parties are merely being required to work the case as they would
have if Plaintiff had timely complied with his discovery obligations. Therefore, the
Magistrate Judge’s conclusion that this factor is neutral was not clearly erroneous or
contrary to law.
The Court concludes that the Magistrate Judge’s ruling that the Geiserman
factors balance in favor of Plaintiff was not clearly erroneous or contrary to law. At
best, Defendant has shown that there is room for debate with regard to the issue.
However, in the undersigned judge’s opinion, the Magistrate Judge correctly found that
a continuance and some minor cost-shifting could rectify whatever prejudice accrued
to Defendant as a result of Plaintiff’s failure to timely designate his expert witnesses.
SO ORDERED AND ADJUDGED this 4th day of October, 2012.
UNITED STATES DISTRICT JUDGE
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