FC Meyer Packaging, LLC v. Converting Alternatives International
ORDER denying 56 Motion to Strike and directing both parties to supplement their expert designations on or before March 31, 2017. Signed by Magistrate Judge Michael T. Parker on March 21, 2017. (jg)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
FC MEYER PACKAGING, LLC,
a Connecticut Limited Liability Company
CIVIL ACTION NO. 2:16-CV80-KS-MTP
INTERNATIONAL, LLC, a Michigan
Limited Liability Company
THIS MATTER is before the Court on the Motion  to Strike the Notice of Service of
Designation of Experts filed by Plaintiff FC Meyer Packaging, LLC. The Court having carefully
considered the motion, the submissions of the parties, and the applicable law, finds that the Motion
 should be DENIED, but that both parties should supplement their expert designations.
Plaintiff, a Connecticut corporation, owns a carton printing and packaging plant in
Quitman, Mississippi. Defendant, a Michigan corporation, installs and services printer and cutter
equipment. Plaintiff claims that it hired Defendant to inspect an outdated printer/cutter machine
in Minnesota to determine whether it could be refurbished and modified for Plaintiff’s use at its
Mississippi plant. Relying on Defendant’s advice, Plaintiff purchased the machine and hired
Defendant to modify and install it. Defendant was purportedly unable to get the machine running
at the rate specified in Plaintiff’s initial inspection request.
Plaintiff claims to have paid Defendant approximately $600,000 throughout the course of
this transaction. Additionally, it believes that Defendant placed an electronic device on the
machine which renders it inoperable. Therefore, Plaintiff filed this lawsuit asserting the
following claims: breach of express warranty, breach of implied warranty of merchantability and
fitness for a particular purpose, negligence, gross negligence, and breach of contract. Plaintiff
seeks compensatory damages of approximately $750,000 and an injunction barring Defendant
from interfering with the operation of the machine.
In the instant motion, Plaintiff asks the Court to strike the Defendant’s expert designation
as it did not include “any written expert report which is required under Fed. R. Civ. P. 26” and
that “Defendant only list[ed]  designated individuals as experts, and [did] not provide
meaningful information whatsoever as to which of the designated persons will opine on which
subject matter or set of facts.” See Motion  at 2. As alternative relief, in its rebuttal, Plaintiff
requests that Defendant be required to supplement with more information. See  at 3. In
response Defendant argues that the experts Plaintiff wishes to strike are 26(a)(2)(C) witnesses,
and are not the type of experts that require a written expert report, just a disclosure.
Federal Rule of Civil Procedure 26(a)(2) (emphasis added) provides:
Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party
must disclose to the other parties the identity of any witness it may use at trial to present
evidence under Federal Rule of Evidence 702, 703, or 705.
(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated
or ordered by the court, this disclosure must be accompanied by a written report-prepared and signed by the witness--if the witness is one retained or specially employed
to provide expert testimony in the case or one whose duties as the party's employee
regularly involve giving expert testimony. . . .
(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise
stipulated or ordered by the court, if the witness is not required to provide a written
report, this disclosure must state:
(i) the subject matter on which the witness is expected to present
evidence under Federal Rule of Evidence 702, 703, or 705; and
(ii) a summary of the facts and opinions to which the witness is
expected to testify.1
The five expert witnesses disclosed by CAI (Tom Williams, Marshall Williams, David
Johnson, Tom Huggins and Jerry Surprise) are all individuals who worked on the project at issue
and whom CAI expects will be fact witnesses at trial.
The CAI disclosures states that:
Each of the above witnesses may be called upon to testify at trial and their
testimony may include opinions based upon specialized knowledge and opinions
arrived at as a result of inspection of and/or work on the Boelter machine at issue,
including the addition of certain hardware and software to machine associated
with the project. Their expertise lies in the following areas: refurbishment,
customization, relocation, installation and operation of industrial machines used
in the converting business, including the Boelter machine at issue. CAI expects
they will testify in accordance with their deposition testimony, if any. It is
anticipated that their testimony will be consistent with their records and
documentation evidence, if any.
Defendant submits that its disclosure of these types of experts was strikingly similar to
Plaintiff’s disclosure – as Defendant modeled its disclosure off Plaintiff’s disclosure. Despite the
similarities with its own expert disclosures Plaintiff still insists Defendant’s designation is
deficient. See Rebuttal  at 1. Plaintiff’s disclosure is as follows:
Other repair experts
Since the Boelter machine did not function as specified in the subject purchase
orders, FC Meyer used various experts to inspect and attempt to repair the
machine or cure the issues. Repair experts for FC Meyer, including Ken Deneka,
See also L.U.CIV.R. 26(a)(2)(D) which provides:
A party must designate physicians and other witnesses who are not
retained or specially employed to provide expert testimony but are
expected to be called to offer expert opinions at trial. No written
report is required from such witnesses, but the party must disclose
the subject matter on which the witness is expected to present
evidence under FED.R.EVID. 702, 703 or 705, and a summary of
the facts and opinions to which the witness is expected to testify.
The party must also supplement initial disclosures.
Herman Greenstreet, Charlie Mattson and Ricardo Cameron, among others, may
be called to present evidence which falls under Rules 702, 703 and 705 of the
Federal Rules of Evidence. FC Meyer expects the information the repair experts
may present at trial may include opinions based upon specialized knowledge and
opinions arrived at as a result of their inspection and work on the Boelter
machine. FC Meyer expects they will testify in accordance with their deposition
testimony, if any. It is anticipated that the testimony of these repair experts will be
consistent with their records and documentation evidence, if any.
See [69-2] at 4.
If Defendant’s disclosure was deficient, as Plaintiff argues, then by extension its own
disclosure is also deficient. The Court acknowledges that it was unclear initially from
Defendant’s disclosure that the experts were of the 26(a)(2)(C) variety. However, it appears this
problem might have been solved with professional communication among the attorneys in lieu of
filing a motion.
The Court's review of the both parties designations “leads to the  conclusion that the
expert disclosure requirements of Fed.R.Civ.P. 26(a)(2)(C) and Local Rule 26(a)(2)(D) apply” to
these witnesses. Gerald v. Univ. of S. Mississippi, No. 2:12CV147-KS-MTP, 2013 WL 5592454,
at *4 (S.D. Miss. Oct. 10, 2013) (deciding not to strike 26(a)(2)(C) expert witness). Both Parties
have designated 26(a)(2)(C) expert witnesses that are not “retained or specially employed to
provide expert testimony in the case or ... whose duties as the party's employee regularly involve
giving expert testimony.” See Downey v. Bob's Disc. Furniture Holdings, Inc., 633 F.3d 1, 6 (1st
Cir. 2011) (holding that a witness was properly designated as a 26(a)(2)(C) witness where “his
opinion testimony arises not from his enlistment as an expert but, rather, from his ground-level
involvement in the events giving rise to the litigation”); Goodman v. Staples The Office
Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011) (holding that a treating physician does not
have to produce an expert report “to the extent that his opinions were formed during the course
The Court finds both Plaintiff and Defendant’s expert disclosures to be deficient and that
both parties must supplement.2 Neither party was specific in delineating “the subject matter on
which on which [each witness] is expected to present evidence, and [both parties failed to]
provide a summary of the facts and opinions to which he is expected to testify in accordance
with Fed.R.Civ.P. 26(a)(2)(C) and Local Rule 26(a)(2)(D).” Gerald, 2013 WL 5592454, at *4
IT IS, THEREFORE, ORDERED THAT:
1. The Motion  Strike the Notice of Service of Designation of Experts is DENIED.
2. CAI shall supplement the designations for Tom Williams, Marshall Williams, David
Johnson, Tom Huggins and Jerry Surprise. CAI shall state separately and
specifically for each individual (i) the subject matter on which the witness is
expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and
(ii) a summary of the facts and opinions to which each witness is expected to testify.
3. FC Meyer Packaging, LLC shall supplement the designations for Ken Deneka,
Herman Greenstreet, Charlie Mattson and Ricardo Cameron. FC Meyer shall state
separately and specifically for each individual (i) the subject matter on which the
witness is expected to present evidence under Federal Rule of Evidence 702, 703, or
705; and (ii) a summary of the facts and opinions to which each witness is expected
4. The Deadline for supplementing the designations for the above listed individuals is
March 31, 2017.
SO ORDERED, THIS the 21st day of March, 2017.
s/ Michael T. Parker
United States Magistrate Judge
The Court considered (1) the importance of the witnesses’ testimony; (2) the prejudice to the
opposing party of allowing the witness to testify; (3) the possibility of curing such prejudice by a
continuance; and (4) the explanation, if any, for the party’s failure to comply with the discovery
order in determining that the witnesses should not be struck. See Sierra Club, Lone Star Chapter
v. Cedar Point Oil Co. Inc., 73 F.3d 546, 572 (5th Cir. 1996); see also Reliance Ins. Co. v.
Louisiana Land and Exploration Co., 110 F.3d 253, 257 (5th Cir. 1997) (citing Geiserman v.
MacDonald, 893 F.2d 787, 791 (5th Cir. 1990)). As both parties’ designations are deficient
neither is prejudiced by allowing the other to supplement.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?