Benton v. Wal-Mart Stores, Inc. et al

Filing 63

ORDER granting in part and denying in part 54 Motion to Strike Plaintiff's Expert Witness Designation. Signed by Magistrate Judge Michael T. Parker on May 10, 2012. (KM)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
WINFRED BENTON
VERSUS

PLAINTIFF
CIVIL ACTION NO. 3:11cv313-TSL-MTP

WAL-MART STORES EAST, LP, et al.

DEFENDANTS
ORDER

THIS MATTER is before court on the Motion to Strike Plaintiff’s Expert Witness
Designation and/or Limit Testimony of Plaintiff’s Experts [54] filed by Defendant Wal-Mart
Stores East, LP. Having considered the motion, the court finds that it should be GRANTED in
part and DENIED in part.
In its Motion [54], Defendant claims that Plaintiff’s purported expert designation of Dr.
William Lawrence should be stricken because it was untimely and because it fails to properly
comply with Federal Rule of Civil Procedure 26 and Local Uniform Civil Rule 26(a)(2)(D).1
Defendant claims that Dr. Lawrence (as well as any of Plaintiff’s other treating physicians)
should be precluded from offering any testimony or opinions about causation, future medical
care

1

Local Rule 26(a)(2)(D 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.

and/or impairment ratings as well as any other opinions which are not specifically contained
within the medical records produced during discovery.
Plaintiff’s expert designation deadline was January 2, 2012;2 Plaintiff did not file a
formal expert designation. However, in response to Defendant’s Interrogatory No. 6 (regarding
experts), Plaintiff listed the names and addresses of nine of his treating physicians, including Dr.
Lawrence, and reserved the right to call any and all treating physicians. See Plaintiff’s Response
to Interrogatory No. 6, Ex. A to Motion [54]. On February 29, 2012, Plaintiff took the
deposition of Dr. Lawrence in Athens, Alabama. See Ex. C to Motion [54]. On March 30, 2012,
the discovery deadline, Plaintiff supplemented his responses to Defendant’s requests for
production of documents by stating that he anticipated using the deposition transcript of Dr.
Lawrence as an exhibit at the trial of this matter. See Ex. B to Motion [54].
At the outset, the court notes that Plaintiff failed to respond to the instant motion. For
this reason alone, the motion could be granted as unopposed pursuant to L.U.Civ.R. 7(b)(3)(E).
In considering a motion to strike an improper expert designation, the court balances the
four factors outlined in Geiserman v. MacDonald, 893 F.2d 787 (5th Cir. 1990): “(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.” Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990); see also
Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004). These four
factors are analyzed below.
The first factor favors Defendant, as Plaintiff failed to offer any explanation for his

2

See Amended Case Management Order [22].
2

failure to properly and timely identify the witness. There has been no showing of good cause for
Plaintiff’s delay. Indeed, Plaintiff failed to even respond to the motion.
The second factor also favors Defendant. The court cannot determine the importance of
the testimony. Plaintiff failed to provide a summary of the substance of his Dr. Lawrence’s
proposed testimony and failed to respond to the motion. However, the court can surmise that Dr.
Lawrence’s testimony is important to the Plaintiff’s case or his deposition would not have been
taken and Plaintiff would not be seeking to use his deposition transcript at trial.
The third factor favors Plaintiff, at least with respect to Dr. Lawrence. Defendant fails
to allege or demonstrate how it would be prejudiced by the proposed testimony of Dr.
Lawrence. Although Plaintiff failed to properly designate Dr. Lawrence, or any other treating
physician he expects to call at trial, he disclosed his treating physicians as early as October 3,
2011. Moreover, Defendant was present at Dr. Lawrence’s deposition and thus will not be
surprised by this testimony. As set forth below, the court will allow Defendant an opportunity
to designate a rebuttal expert if necessary.
The third factor favors Defendant with respect to all of Plaintiff’s other treating
physicians. There is no evidence before the court that any other physician’s depositions were
taken.
The fourth factor favors Plaintiff, at least with respect to Dr. Lawrence. Any prejudice
the untimely and improper purported expert designation of Dr. Lawrence may cause Defendant
can be cured by an extension of the Defendant’s expert designation deadline for the purpose of
allowing Defendant to designate a rebuttal expert. See Betzel v. State Farm Lloyds, 480 F.3d
704, 708 (5th Cir. 2007) ("[W]e have repeatedly emphasized that a continuance is the preferred

3

means of dealing with a party's attempt to designate a witness out of time. . . . A continuance
would have given State Farm an opportunity to depose [the] expert witnesses, to file Daubert
challenges, and to designate experts for rebuttal.”). Accordingly,
IT IS, THEREFORE, ORDERED:
1.

Defendant’s Motion to Strike Plaintiff’s Expert Witness Designation and/or

Limit Testimony of Plaintiff’s Experts [54] is GRANTED in part and DENIED in part.
2.

Defendant’s Motion [54] is granted with respect to the eight treating physicians

other than Dr. Lawrence. Plaintiff’s purported designation, if any, of the other eight treating
physicians should be limited to the scope and content of Plaintiff’s medical records.
3.

Defendant’s Motion [54] is denied with respect to Dr. Lawrence. Plaintiff’s

purported expert designation of Dr. Lawrence will be allowed only to the extent of his
deposition testimony and Plaintiff’s medical records.3 Any opinions or information offered by
Dr. Lawrence outside of the medical records or deposition testimony will not be allowed.
4.

Defendant may designate a rebuttal expert on or before June 1, 2012.

SO ORDERED this the 10th day of May, 2012.
s/ Michael T. Parker
United States Magistrate Judge

3

The undersigned offers no opinion on the ultimate admissibility of Dr. Lawrence’s
testimony. Such determination is reserved for the district court judge.
4