Tyson v. Quality Homes of McComb, Inc. et al

Filing 70

ORDER denying 52 Motion to Exclude; denying 34 Motion to Strike. Signed by Honorable David C. Bramlette, III on October 28, 2014. (AA)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
SAMUEL TYSON

PLAINTIFF

VS.

CIVIL ACTION NO: 3:13-cv-887-DCB-MTP

QUALITY HOMES OF MCCOMB, INC.;
FRESH START TRANSPORT, INC.; and
CAPPAERT MANUFACTERED HOUSING, INC.

DEFENDANTS

ORDER DENYING MOTION TO STRIKE AND EXCLUDE EXPERT TESTIMONY AND
DENYING MOTION TO EXCLUDE EXPERT TESTIMONY AND REPORTS AT TRIAL
This matter is before the Court on Defendant’s, Cappaert
Manufactured Housing, Inc., Motion to Strike Two Notices of Service
of Designation of Experts and Exclude Expert Testimony [docket
entry no. 34] and Motion to Exclude Expert Opinion Testimony and
Expert Reports from Evidence at Trial [docket entry no. 52]. Having
considered the motions and responses, the applicable statutory and
case law, and being otherwise fully informed in the premises, the
Court finds as follows:
Although

the

motions

are

styled

differently,

the

relief

ultimately sought by defendant Cappaert Manufactured Housing, Inc.,
(“Cappaert”) is the same: the exclusion of plaintiff Samuel Tyson’s
experts. Therefore, the Court will dispose of both at once.
Cappaert

complains

that

Tyson

did

not

meet

the

expert

designation deadline and did not submit sufficient expert reports.
Tyson counters that any failure to meet the deadline was a result
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of

unforeseen

circumstances

and

the

experts

have

since

been

properly designated and their complete reports submitted. The
unforeseen circumstances cited by Tyson are that his original
expert is

no longer able to testify at trial and Tyson had

insufficient time to designate a replacement expert and submit his
report.
It is within a district court’s discretion to admit or exclude
experts not properly designated. Brumfield v. Hollins, 551 F.3d
322, 330 (5th Cir. 2008). The district court is guided by 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. Assuming arguendo the
experts were not properly designated, the factors weigh in favor of
admission regardless. As to the first factor, the Court accepts the
unforeseen circumstances described by Tyson. As to the second
factor, Tyson stated he “would suffer extreme prejudice if this
expert is excluded.” See Mem. Opp. p. 4, ECF No. 66. As to the
third factor, the Court cannot see any prejudice that would result
to Cappaert because the expert has now been properly designated and
the

report

submitted.

Moreover,

Cappaert

sought

and

received

permission to designate an expert out of time. As to the final
factor, the Court finds a continuance unnecessary. Therefore, the
Court will deny both of Cappaert’s motions designed to exclude

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Tyson’s experts.
IT IS HEREBY ORDERED that defendant’s Motion to Strike Notice
of Service of Designation of Experts and Exclude Expert Testimony
is DENIED.
FURTHER ORDERED that defendant’s Motion to Exclude Expert
Opinion Testimony and Expert Reports from Evidence at Trial is
DENIED.
SO ORDERED this the 28th day of October 2014.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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