JCKP, LLC v. Berkley Regional Specialty Insurance Company et al

Filing 99

ORDER denying 58 Motion to Strike; denying 78 Motion to Strike; granting 86 Motion to Continue. Signed by Magistrate Judge Michael T. Parker on October 2, 2015. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
JCKP, LLC

PLAINTIFF

v.

CIVIL ACTION NO. 2:14-cv-117-KS-MTP

BERKLEY REGIONAL
SPECIALTY INSURANCE COMPANY

DEFENDANT
ORDER

THIS MATTER is before the Court on Defendant’s Motion and Supplemental Motion to
Strike Plaintiff’s Experts [58] [78] and the parties’ joint Motion for a Continuance [86]. Having
considered the Motions, that Court finds that Defendant’s Motion and Supplemental Motion to
Strike Plaintiff’s Experts [58] [78] should be denied and the parties’ joint Motion for a
Continuance [86] should be granted.
In this action, Plaintiff alleges that on April 4, 2011, a storm caused wind and water
damage to its building located in Hattiesburg, Mississippi. Allegedly, the building was insured
by the Defendant, but the Defendant wrongfully denied Plaintiff’s damage claim, asserting that
the damage to the building resulted from construction/design defects, not the April 4, 2011,
storm.
Plaintiff’s expert designation deadline ran on July 1, 2015; Defendant’s expert
designation deadline ran on September 2, 2015; the discovery deadline is November 2, 2015; the
motions deadline is November 16, 2015; and the trial is set for a two-week term beginning on
March 7, 2016. See Case Management Order [23]; Amended Case Management Order [57].
On July 1, 2015, Plaintiff designated two experts: Gregory Becker, a structural engineer,
and Mark Silvestain, an expert in the field of restoration, service, and remodeling. See Notice
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[55]. On July 27, 2015, Defendant filed the instant Motion to Strike Plaintiff’s Experts [58].
According to Defendant, Plaintiff provided Becker’s report but failed to provide the required
“back up documentation and other data relied upon by Mr. Becker in forming the opinions
expressed in his report.” See Brief [59] at 3. Defendant also asserts that the expert report did not
contain Becker’s qualifications or a list of other cases in which Becker testified as an expert as
required by Fed. R. Civ. P.26(a)(2)(B). Id. at 4.1
On August 31, 2015, Plaintiff provided supplemental responses to Defendant’s discovery
requests. See Notices [73] [74] [75].2 According to Plaintiff, it has provided “all required
documentation” pertaining to expert witness Becker. See Response [95] at 1. Defendant
concedes that “the current report is far more substantial than what was provided by the expert
deadline.” See Supplemental Motion [78] at 2. Defendant, however, notes that “all of these
documents were produced over two months after the deadline for Plaintiff to designate experts
and on or after Defendant’s designation deadline.” Id.
Defendant is correct that Plaintiff failed to comply with the rules of this Court when it
served a deficient expert report on the expert designation deadline. Pursuant to the the Local
Rules, “[a] party must make full and complete disclosure as required by Fed. R. Civ. P. 26(a)(2)
and L.U. Civ. R. 26(a)(2)(D) no later than the time specified in the case management order.
Absent a finding of just cause, failure to make full expert disclosures by the expert designation

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Defendant also argues that Silvestain’s expert report is deficient. On September 25,
2015, however, Plaintiff withdrew its designation of Mark Silvestain as an expert witness in this
case. See Notice [97]. Thus, as it relates to Silvestain’s expert report, Defendant’s Motion to
Strike [58] is moot.
2

Plaintiff provided its supplemental discovery responses following this Court’s Order
[64] granting Defendant’s Motion to Compel [60].
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deadline is grounds for prohibiting introduction of that evidence at trial.” L.U. Civ. R. 26(a)(2).
The trial court is afforded broad discretion to preserve the integrity and purpose of the
pretrial order. Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990). Courts determine
whether to “exclude evidence that was not properly designated by considering the following four
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.” Id. at 791.
Plaintiff addresses why it failed to provide a full and complete disclosure prior to the
expert designation deadline. According to Plaintiff, it “encountered delay in obtaining necessary
information due to a disagreement or misunderstanding between subcontractors and engineers
who are not parties to this action and under whom the Plaintiff does not have control.” See Brief
[95] at 3. While the Court is mindful that difficulties can arise in securing documents from nonparties, Plaintiff had a duty to comply with the scheduling order and timely designate its expert
witnesses or seek appropriate relief from the Court. The record reflects that Plaintiff had a great
deal of time to confront the difficulties associated with obtaining necessary information.3 The
Court gives little weight to Plaintiff’s explanation for it failure to properly designate its expert
witness prior to the deadline. Thus, this factor weighs in favor of excluding the expert’s opinion.
Expert testimony regarding the cause and extent of damage to Plaintiff’s building is
central to Plaintiff’s case. Thus, the importance of the requested relief weighs in favor of
Plaintiff.

3

On November 12, 2014, Defendant sent Plaintiff a letter discussing the lack of
documentation supporting Becker’s expert report.
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As to the third factor, Defendant notes that its experts did not have an opportunity to fully
review the supplemental documentation prior to making their reports. The Court agrees that
Plaintiff’s failure to properly designate its expert witness has caused Defendant some prejudice.
Defendant, however, did not proceed in this litigation under the assumption that Plaintiff would
not call an expert witness. Plaintiff provided Defendant a copy of Becker’s expert report in
2014.
While Defendant would be prejudiced if Plaintiff’s expert designation is not stricken, that
prejudice could be cured with a continuance. The parties agree that if Plaintiff’s expert report is
not stricken, additional time will be needed to complete discovery. See Joint Motion for a
Continuance [86]. The Court, however, notes when other factors militate against extending the
deadlines, the Court is not obligated to continue the trial setting. “Otherwise, the failure to
satisfy the rules would never result in exclusion, but only in a continuance.” Hamburger v. State
Farm Mut. Auto. Ins. Co., 361 F.3d 875, 883-84 (5th Cir. 2004). In this case, however, the other
factors, on balance, weigh slightly in favor of granting a continuance, and the interests of justice
are better served by deciding cases on their merits. The Fifth Circuit has “repeatedly emphasized
that a continuance is the preferred means of dealing with a party’s attempt to designate a witness
out of time.” Betzel v. State Farm Lloyds, 480 F.3d 704, 708 (5th Cir. 2007) (citation and
internal quotation omitted). Any potential prejudice to Defendant can be cured by allowing
Defendant sufficient time to address the new evidence.
IT IS, THEREFORE, ORDERED that:
1.

Defendant’s Motion and Supplemental Motion to Strike Plaintiff’s Experts [58]
[78] are DENIED.

2.

The parties’ joint Motion for a Continuance [86] is GRANTED.
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3.

Plaintiff is granted until October 22, 2015, to supplement its disclosures/expert
report from Gregory Becker to comply with the rules of court, it if has not done so
already.

4.

Defendant’s expert designation deadline is extended to December 1, 2015.

5.

The discovery deadline is extended to January 6, 2016.

6.

The deadline for motions (other than motions in limine) is extended to January 20,
2016.

7.

The pretrial conference is reset for May 26, 2016, before District Judge Keith
Starrett in Hattiesburg, Mississippi.

8.

The trial of this matter is reset for June 6-17, 2016, before District Judge Keith
Starrett in Hattiesburg, Mississippi.

9.

Private mediation or a settlement conference with the Court is required in this
matter. The parties are required to schedule and complete same by the discovery
deadline. On or before seven days before the pretrial conference, the parties must
report to the undersigned all ADR efforts they have undertaken to comply with
the Local Rules or provide sufficient facts to support a finding of just cause for
failure to comply. See L.U. Civ. R. 83.7(f)(3).

9.

Any conflicts with the trial date must be submitted in writing to the trial judge by
October 31, 2015.

10.

Except as set forth herein, all other provisions and deadlines in the previous case
management orders remain in place.

SO ORDERED this the 2nd day of October, 2015.
s/ Michael T. Parker
United States Magistrate Judge

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