Kasper v. Board of Supervisors of Lauderdale County, MS et al

Filing 110

ORDER granting 95 Motion to Exclude Plaintiff's Expert. Signed by District Judge William H. Barbour, Jr., on 10/18/2017. (SC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
GLENN KASPER

PLAINTIFF

VS.

CIVIL ACTION NO. 3:15-cv-613-WHB-JCG

THE BOARD OF SUPERVISORS OF
LAUDERDALE COUNTY, MS, ET AL.

DEFENDANTS

OPINION AND ORDER
This cause is before the Court on the Motion of Defendants to
Exclude the Expert Testimony of Andrew J. Scott. Having considered
the pleadings, the attachments thereto, as well as supporting and
opposing authorities, the Court finds the Motion is well taken and
should be granted.

I.

Factual Background and Procedural History

In May of 2014, Glenn Kasper (“Kasper”) was driving his
vehicle in Lauderdale County, Mississippi.

Kasper alleges that

after he briefly stopped at the Allen Swamp Road and Pine Springs
Road intersection, the driver’s side window of his vehicle was
“smashed” by a Lauderdale County deputy.

Kasper further alleges

that during this incident he was: (1) never asked for his license,
registration, or proof of insurance; (2) yelled at; (3) grabbed and
pulled

head-first

from

his

vehicle

by

several

deputies;

(4)

assaulted, i.e. had his head smashed into the pavement; and (5)
tazed.

See Am. Compl. ¶ 6.

A deputy then allegedly made a charge

against Kasper of driving under the influence - third offense or
greater to the dispatch officer.

Id. at ¶ 6(e). According to

Kasper, the charge was based on the mistaken belief that he was his
brother, Christopher Kasper.
After being transported to the Lauderdale County Detention
Center, Kasper alleges he was strip searched and his requests for
a breathalyzer test were denied.

Id. at ¶ 6(h), (i).

Kasper was

later charged with driving under the influence of other substances
first offense, resisting arrest, disregard of a traffic device, and
three counts of disorderly conduct/failure to obey. Id. at ¶ 6(j).
All charges, with the exception of two counts of disorderly
conduct/failure to obey, were later dismissed.

Thereafter, Kasper

filed suit against the Board of Supervisors of Lauderdale County
(“Board”), the Mississippi Highway Patrol (“MHP”), and various
employees of those entities1 alleging, inter alia, that they had
violated his constitutional rights based on the manner in which he
was arrested and detained. During the course of litigation, Kasper
designated Andrew J. Scott (“Scott”) as an expert in the field of
police practice and procedure.

Defendants have now moved to

exclude Scott from testifying as an expert in this case.

1

Kasper’s claims against the MHP; MHP Trooper Jerome Moore
in his official and individual capacities; Lauderdale County
Deputy Justin Pugh; and Jacob Mathis, Andy Matuszewski, Ruston
Russell, Sheriff William Sollie, Wesley Stephens, and Dylan
Anderson in their individual capacities have been dismissed. See
Opinions and Orders [Docket No. 26, 27, 30, and 37].
2

II.

Discussion

On January 13, 2017, Kasper designated Scott as an expert in
the field of police practice and procedure. See Designation [Docket
No. 40].

In his designation, Kasper includes the following:

Scott will provide testimony regarding the police
practice and procedure, including but not limited to
excessive use [of] force, including but not limited to
use of a taser, improper police practices and procedures,
wrongful [] arrest, roadblocks, and police training.
No formal reports have been prepared at this time.
However, we expect that Mr. Scott’s opinion and bases
thereof will be supported by the pleadings in this
action, [a]nswers to discovery request[s], deposition
testimony, and any information revealed through the
discovery process.
Id. at ¶ 1(a) and (b).

Defendants have now moved to exclude Scott

from testifying on the grounds that he was not properly designated
as an expert.
As regards expert witnesses, the Federal Rules of Civil
Procedure require the following:
(A) [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) 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. The
report must contain:
(i) a complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii) the facts or data considered by the witness in
forming them;
3

(iii) any exhibits that will be used to summarize or
support them;
(iv) the witness’s qualifications, including a list of
all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the
previous 4 years, the witness testified as an expert at
trial or by deposition; and
(vi) a statement of the compensation to be paid for the
study and testimony in the case.
FED. R. CIV. P. 26(a)(2)(A) and (B).

The failure to comply with the

dictates of Rule 26(a) can result in an expert’s being excluded
from testifying.

See FED. R. CIV. P. 37(c)(providing: “If a party

fails to provide information or identify a witness as required by
Rule 26(a) ..., the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a
trial,

unless

the

failure

was

substantially

justified

or

is

harmless...”).
There is no dispute that Scott was not properly designated as
an expert in this case because, inter alia, his designation was not
accompanied by an expert report as required by Rule 26(a).

To

determine whether to exclude Scott based on his having been
improperly designated, the Court considers four factors: (1) the
explanation for the failure to properly designate the expert, (2)
the

importance

of

the

expert’s

testimony,

(3)

the

potential

prejudice to the other party in allowing the testimony, and (4) the
availability of a continuance to cure the potential prejudice, if
any.

See Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d
4

875, 883 (5th Cir. 2004) (citing Geiserman v. MacDonald, 893 F.2d
787, 791 (5th Cir. 1990)).
As regards the first factor, the Court finds Kasper has failed
to offer a legitimate explanation for his failure to timely produce
Scott’s

expert

report.

Even

if

the

Court

credits

Kasper’s

explanation that Scott needed the materials produced in discovery
to complete his expert report, the Docket shows that discovery in
this case, with the exception of the deposition of Wesley Stephens,
had been completed by June 2, 2017.

See Mot. [Docket No. 89]

(indicating that “the parties collectively have served supplemental
discovery disclosures and responses, and have completed all desired
depositions, with the exception of Wesley Stephens who is one of
the officers involved in the incident with Plaintiff and who was
named as a defendant in this case.”). Stephens was deposed on June
28, 2017.

Kasper, however, did not produced any expert report for

Scott until August 22, 2017, the date on which he responded to the
Motions of Defendants for Summary Judgment and/or to Exclude.
Kasper has offered no explanation for the nearly two-month delay
between the close of discovery and the production of Scott’s expert
report.

Accordingly, the Court finds this factor weighs in favor

of granting the Motion to Exclude.
As regards the second factor, the Court was not provided a
copy of Scott’s export report and, therefore, it is difficult to

5

assess the importance of his opinions in this case.2

The Court

finds, however, that because Scott is the only expert designated by
Kasper, and it appears that his expert opinions/testimony would be
material to Kasper’s claims, that Scott’s opinions would, at a
minimum, be important in this case.

Accordingly, the Court finds

this factor weighs against the granting of the Motion to Exclude.
As regards the third factor, the Court finds Defendants have
shown they would be severely prejudiced in the event Scott was
permitted to offer his expert opinions/testimony in this case.
Although Defendants were aware of Scott’s having been designated as
an expert, they were not apprised of any of his opinions until (1)
the discovery period had closed, (2) they had moved for summary
judgment based on the evidence then in the record, and (3) they had
moved to exclude Scott on the grounds he had been improperly
designated.

Indeed it appears that it was not until Kasper

responded to the Motions for Summary Judgment and/or to Exclude
that any of Scott’s expert opinions were made known to Defendants,
or that Kasper made any attempt to comply with requirements of Rule
26(a).

Based on the last-minute disclosure of Scott’s expert

opinions, which were completely unknown to Defendants either during
the period for discovery or before Kasper responded to their

2

Although the pleadings suggest that a copy of Scott’s
Supplemental Report would be attached as an exhibit to Kasper’s
Response to the Motion to Exclude, no exhibits were filed with
the Court.
6

Motions for Summary Judgment and/or to Exclude, the Court finds the
potential prejudice to Defendants by allowing Scott’s opinions
weighs in favor of granting the Motion to Exclude.
Finally, as regards the fourth factor, the Court finds that
while a continuance would likely cure any potential prejudice to
Defendants, such relief has not been shown justified in this case.
As discussed above, discovery in this case was concluded on June
28, 2017. Despite that fact, Kasper made no attempt to produce the
expert report required by Rule 26(a) until August 22, 2017, when he
was required to respond to the dispositive motions filed by
Defendants.

Additionally, Kasper has not provided any explanation

for that delay.

Under these circumstances, the Court finds no

basis for granting a continuance in this case. See e.g. Geiserman,
893 F.2d at 792 (finding a continuance was not justified in a case
in which it would have “resulted in additional delay”, “increased
the expense of defending the lawsuit”, and “would [neither] deter
future dilatory behavior, nor serve to enforce local rules or court
imposed scheduling orders.”).

Accordingly, the Court finds this

factor also weighs in favor of granting of the Motion to Exclude.
In sum, based on its review of the Hamburger factors, the
Court finds Scott should be excluded as an expert under Rule 37(c)
of the Federal Rules of Civil Procedure based on his having been
improperly designated under Rule 26(a) of those Rules.
of Defendants to Exclude will, therefore, be granted.

7

The Motion

II.

Conclusion

For the foregoing reasons:
IT IS THEREFORE ORDERED that the Motion of Defendants to
Exclude Plaintiff’s Expert [Docket No. 95] is hereby granted.
SO ORDERED this the 18th day of October, 2017.

s/ William H. Barbour, Jr.
UNITED STATES DISTRICT JUDGE

8