Healthone, Inc. et al v. Forrest General Hospital

Filing 57

ORDER denying 51 Motion to Strike ; granting 51 Motion to Extend Deadlines. Signed by Magistrate Judge Michael T. Parker on March 18, 2019. (MMc)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
HEALTHONE, INC. and BURNS MCFARLAND
VERSUS

PLAINTIFFS

CIVIL ACTION NO. 2:18-cv-145-KS-MTP

FORREST GENERAL HOSPITAL

DEFENDANT

ORDER DENYING MOTION TO STRIKE PLAINTIFFS’ EXPERTS AND GRANTING
ADDITIONAL TIME TO DESIGNATE EXPERTS
THIS MATTER is before the Court on Defendant’s Motion [51] to Strike Plaintiffs’
Expert Designation or Alternatively for Additional Time to Designate Experts. Having carefully
considered the parties’ submissions and the applicable law, the Court finds that the Motion [51]
should be granted in part and denied in part.
Plaintiffs filed this matter on January 31, 2018 alleging copyright infringement, breach of
contract, unfair competition, unjust enrichment, and misappropriate of trade secrets. Comp. [1].
A Case Management Order was entered on May 21, 2018 setting case deadlines. Order [15]. On
November 1, 2018, the Court entered an Amended Case Management Order setting the trial date
for October 7, 2019 and extending the following deadlines: (1) Plaintiffs’ expert designation
deadline to February 1, 2019; (2) Defendant’s expert designation deadline to March 1, 2019; and
(3) discovery deadline to May 1, 2019; and (4) the motions deadline to May 15, 2019. Order
[39].
On January 28, 2019, Plaintiffs served their expert designations. Notice [43]. Plaintiffs
identified Joseph E. Hines, a CPA, and Alina Ng, professor of law at Mississippi College School
of Law, as experts to support their case. Defendant now moves to strike these expert
designations because they were not accompanied by a report or documentation upon which the

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experts’ opinions were based. Alternatively, if the expert designations are not stricken,
Defendant requests an extension of its deadline to designate experts.
Plaintiffs oppose the Motion [51] in so far as it seeks to strike Plaintiffs’ expert
designations. However, Plaintiffs do not oppose an extension of the deadlines. Plaintiffs assert
that any shortcoming in their designation is the fault of Defendant because Defendant has
allegedly not been forthcoming with discovery. It is Plaintiffs’ position that Defendant is
withholding documents necessary for Plaintiffs’ experts to review before the experts can create
their reports.
Defendant is correct that Plaintiffs’ expert designations are deficient. An expert witness
report must contain a statement of all opinions the witness will express and the basis for those
opinions along with facts or data considered by the witness. Fed. R. Civ. P. 26(a)(2)(B)(i)-(ii).
Pursuant to the Local Rules, “[a] party must make full and complete disclosures 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 deadline is grounds for prohibiting introduction of that evidence at trial.”
L.U. Civ. R. 26(a)(2).
The trial court is provided broad discretion to preserve the 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.

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As to the first factor, Plaintiffs argue they could not properly designate their experts
because Defendant did not produce requested documents in discovery. The Court is cognizant
that disputes occur during the discovery process, but it is incumbent upon the party seeking
discovery to avail themselves of the discovery rules to obtain the information they need.
Obviously, problems can arise and the Court should be reasonable in working
with the attorneys when necessary. However, if the conduct of a respondent to
discovery necessitates a motion to compel, the requester of the discovery must
protect himself by timely proceeding with the motion to compel. If he fails to
do so, he acts at his own peril. He must not expect the Court to extend discovery
and/or the trial date because of the failures of the other party to respond, even if
that failure is in bad faith.
Wells v. Sears Roebuck and Co., 203 F.R.D. 240, 241 (S.D. Miss. 2001). The Court gives little
weight to Plaintiffs’ explanation for failing to properly designate their experts, because it was
Plaintiffs’ responsibility to file any motion to compel for discovery they deemed necessary. This
factor weighs in favor of striking the expert reports.
The second factor, the importance of the expert testimony, likely favors Plaintiffs, though
it is not entirely clear. Plaintiffs asserts that the expert testimony will help establish liability and
determine damages. However, it is unclear at this time what the experts would testify to or how
that testimony would support Plaintiffs’ claims because there is currently no report authored by
the experts.
The third factor, prejudice to the opposing party if the testimony is allowed, favors
Defendant. The deadline for Defendant to designate experts has run and it could not
appropriately respond to Plaintiffs’ deficient expert designations.
The fourth factor, the availability of a continuance to cure any prejudice, weighs in favor
of Plaintiffs. A short continuance of the case management deadlines will remove any prejudice
against Defendant. While the factors, analyzed above, do not overwhelmingly favor a

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continuance to allow Plaintiffs to cure the deficiencies in their expert designations, the interest of
justice are better served by determining a case on its 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)
(citations and internal quotation omitted). Any potential prejudice to Defendant can be cured by
allowing a continuance of the case management deadlines.
IT IS, THEREFORE, ORDERED that:
1. Defendant’s Motion [51] is DENIED IN PART as to the request to strike
Plaintiffs’ expert designations.
2. Defendant’s Motion [51] is GRANTED IN PART as to the request for the
extension of deadlines.
3. Plaintiffs are granted leave to amend their expert designations by March 29, 2019.
4. Defendant’s expert designation deadline is extended to April 29, 2019.
5. The discovery deadline is extended to May 10, 2019.
6. The motions deadline is extended May 24, 2019.
7. All other deadlines will remain in place.
SO ORDERED, this the 18th day of March, 2019.
s/Michael T. Parker
United States Magistrate Judge

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