Midwest Feeders, Inc. v. The Bank of Franklin
ORDER denying 311 Motion to Strike. Signed by Magistrate Judge Michael T. Parker on October 18, 2016. (jg)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
MIDWEST FEEDERS, INC.,
CIVIL ACTION NO. 5:14cv78-DCB-MTP
THE BANK OF FRANKLIN
THIS MATTER is before the Court on the Motion to Strike  the Supplemental
Report of Craig Landrum filed by Plaintiff Midwest Feeders (“Midwest”). The motion results
from the supplementation of an expert report by Defendant Bank of Franklin after the close of
discovery. In the motion, Midwest Feeders asserts that Bank of Franklin supplemented the expert
report of Craig Landrum1 after the discovery deadline and beyond the scope of this Court’s
Order  which allowed Bank of Franklin until August 12, 2016, to “designate a surrebuttal
expert for the sole purpose of contradicting or rebutting the expert opinions of John Barthel.”
Midwest requests that the Court strike this supplemental report or strike the portions which do
not rebut the expert opinions of John Barthel. Having considered the submissions of the parties,
the record in this matter and applicable law, the Court finds that the motion should be denied.
Facts & Procedural History
Pursuant to the Case Management Order , Midwest’s expert designation deadline ran
on April 1, 2016, and Bank of Franklin’s expert designation deadline ran on May 16, 2016. On
April 1, 2016, Midwest designated two experts, Cathy C. Glassman and Edward B. Cordes. See
In the parties’ various filings on the matter, the report at issue is referred to as a surrebuttal report and as a
supplemental report. The Court will refer to the report as a supplemental report.
Exhibit [220-1]. On May 16, 2016, Bank of Franklin designated five experts, Paul Carrubba,
Craig Landrum, Annette Herrin, Odean Busby, and Rollie Rexroth. See Exhibit [253-3].
Subsequently, on June 16, 2016, Midwest designated John Barthel as a rebuttal expert.
See Exhibit [220-2]. On that same day, along with Barthel’s report, Midwest served the rebuttal
reports of Cathy C. Glassman and Edward B. Cordes. Bank of Franklin moved to strike Barthel
as an expert as he was designated after the expert designation deadline. The Court denied that
motion, but granted Bank of Franklin leave until August 12, 2016, to “designate a surrebuttal
expert for the sole purpose of contradicting or rebutting the expert opinions of John Barthel.” See
Order . The Court did not extend any other deadlines.
On August 12, 2016, Bank of Franklin served on Midwest Feeders not one, but three
supplemental expert reports by previously disclosed experts Rollie Rexroth, Odean Busby, and
Craig Landrum. See . Landrum’s supplemental report rebutted not only the opinions of
John Barthel, but also addressed the rebuttal reports of Cathy C. Glassman and Edward B.
Cordes that were served on Bank of Franklin the same day as the Barthel report. Midwest then
filed the current motion to strike  the supplemental expert report of Landrum as untimely
and beyond the scope of Order . See also Rebuttal . Bank of Franklin argues that
under Rule 26(e) they are allowed – and indeed mandated – to supplement Landrum’s report
based on the new information in Glassman’s Rebuttal Report.
Supplemental Report's Timeliness
The Court must determine whether Landrum’s supplemental report was timely. Rule 26
provides that “a party must disclose to the other parties the identity of any witness it may use at
trial to present” expert testimony. Fed. R. Civ. P. 26(a)(2)(A). “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. . . .” Fed. R. Civ. P. 26(a)(2)(B). The report must contain the following:
(i) a complete statement of all opinions the witness will express and the basis and reasons
(ii) the facts or date considered by the witness in forming them;
(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 deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the
Fed. R. Civ. P. 26(a)(2)(B)(i)-(vi). “A party must make these disclosures at the times and in the
sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D). Local Rule 26 provides that a “party
must make full and complete disclosure as required by Fed. R. Civ. P. 26(a) and L.U.Civ.R.
26(a)(2)(D) no later than the time specified in the case management order.” L.U.Civ.R. 26(a)(2).
Additionally, “[t]he parties must supplement these disclosures when required under Rule
26(e).” Fed. R. Civ. P. 26(a)(2)(E). “[A] party is required to supplement its expert disclosures if
the court so orders or if ‘the party learns that in some material respect the information disclosed
is incomplete or incorrect and if the additional or corrective information has not otherwise been
made known to the other parties during the discovery process or in writing.” Sierra Club, Lone
Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546, 570 n. 42 (5th Cir. 1996) (quoting Fed. R.
Civ. P. 26(e)(1)). “[T]he party’s duty to supplement extends both to information included in the
report and to information given during the expert’s deposition. Any additions or changes to this
information must be disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are
due.” Fed. R. Civ. P. 26(e)(2). While Rule 26(a)(3) provides that pretrial disclosures must be
made at least thirty days before trial, it adds the following caveat: “[u]nless the court orders
otherwise . . . .” Fed. R.Civ. P. 26(a)(3). Local Rule 26 provides that a “party is under a duty to
supplement disclosures at appropriate intervals under Fed. R.Civ. P. 26(e) and in no event later
than the discovery deadline established by the case management order.” L.U.Civ.R. 26(a)(5)
The discovery deadline in this case ran on July 15, 2016. See Order . The scope of
Order  only allowed Bank of Franklin to designate an expert to rebut John Barthel, not to
supplement expert reports for other reasons. If Bank of Franklin wished to supplement
Landrum’s report to reflect any information in Cathy C. Glassman and Edward B. Cordes’s new
reports served on June 16, 2016, it should have done so before the end of discovery. See
L.U.Civ.R. 26(a)(5);see also Previto v. Ryobi N. Am., Inc., No. 1:08–CV–177–HSO–JMR, 2010
WL 5185070, at *2, 2010 U.S. Dist. LEXIS 133421, at *4 (S.D.Miss. Dec. 16, 2010); Cooper
Tire & Rubber Co. v. Farese, No. 3:02–CV–SA–JAD, 2008 WL 5104745, at *3–4, 2008 U.S.
Dist. LEXIS 96729, at *10–*11 (N.D.Miss. Nov. 26, 2008). \
Authority to Strike
Midwest requests the Court strike the new information contained within the supplemental
report as not timely and not within scope of Order . Rule 37 provides: “If a party fails to
provide information or identify a witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to supply evidence on a motion, at a hearing, or at
trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). When
determining whether to strike expert testimony because of a party's failure to properly and timely
disclose required information, the Court considers the following factors:
(1) the importance of the witnesses’ testimony;
(2) the prejudice to the opposing party of allowing the witnesses 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.
Sierra Club, 73 F.3d at 572 (citing Bradley v. United States, 866 F.2d 120, 125 (5th Cir.1989));
see also Reliance Ins. Co., 110 F.3d at 257 (citing Geiserman v. MacDonald, 893 F.2d 787, 791
The first factor weighs slightly in favor of the Bank of Franklin. The scope of expert
testimony in a case is important and can often affect the outcome of a case. While the
information in Landrum’s supplemental report seems to contain very little new information
related to the Glassman and Cordes reports, at the very least, the parties apparently believe the
new information is important based on the current motion and the energy the parties have
devoted to the issue. The factor of importance weights slightly in in favor of the Bank of
The second factor also weighs in the favor of the Bank of Franklin; Midwest has not
pointed to any specific prejudice that it will suffer as a result of the supplementation. After a
comparison of the primary report and the supplemental report, the supplemental report seems to
contain very little new information pertaining to the Glassman and Cordes reports that could
somehow prejudice Midwest. Midwest does point out that there is some inherent prejudice in
being force to make adjustments because of the new information in the report, but Midwest does
not raise any specific prejudice that it will suffer. Furthermore, a continuance is not necessary to
cure any inherit prejudice Midwest could suffer, as the pre-trial conference is approximately
three months away.
The last factor weighs against the Bank of Franklin. Bank of Franklin has offered no
legitimate reason for its delay. Its only explanation is that Glassman’s Rebuttal report was
submitted “on the same day [Midwest] served Barthel’s report.” See Response  at 8. Bank
of Franklin also suggests that it was mandated by the rules to supplement after the close of
discovery. Id. at 5. The Court does not find these reasons compelling. However, the other factors
favor weigh against striking the report.
The balance of the factors slightly favors not striking Landrum’s supplemental report,
and the portions of the report addressing John Barthel’s opinions were within the scope of Order
IT IS, THEREFORE, ORDERED and ADJUDGED that the Motion to Strike  the
Supplemental Report of Craig N. Landrum filed by Plaintiff Midwest Feeders is DENIED.
SO ORDERED this the 18th day of October, 2016.
s/ Michael T. Parker
United States Magistrate Judge
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