Dwiggins v. Claiborne County Medical Center et al

Filing 50

ORDER denying 32 Motion to Dismiss; granting 34 Motion for Extension of Time to File Response/Reply re 34 Unopposed MOTION for Extension of Time to File Response as to 29 Amended Complaint - the Responses is due by 11/6/2017); denying [ 36] Motion to Strike - the plaintiff shall furnish her expert disclosure, accompanied by the expert's written report, within 20 days from the date of entry of this Order; granting 38 Motion to Extend Expert Designation Deadline - the defenda nts' expert disclosure shall be due within 30 days after the plaintiff's expert disclosure; granting retroactively 41 the plaintiff's Motion to Extend Time to file Amended Complaint, and the Amended Complaint filed 9/7/2017 is deemed timely. Signed by Honorable David C. Bramlette, III on 10/23/2017 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
JANET DWIGGINS

PLAINTIFF

VS.

CIVIL ACTION NO.: 5:16-cv-100(DCB)(MTP)

CLAIBORNE COUNTY MEDICAL
CENTER, in its official capacity;
CLAIBORNE COUNTY, MISSISSIPPI, by
and through its BOARD OF
SUPERVISORS, CLAIBORNE COUNTY
MEDICAL CENTER BOARD OF
TRUSTEES; DR. LINDA DUNIGAN,
individually and in her official capacity as
CEO; John or Jane Does 1-10

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the Court on the defendants’ Motion to
Dismiss

Plaintiff’s

Amended

Complaint

(docket

entry

32);

the

defendants’ Unopposed Motion for Additional Time to Respond to
Plaintiff’s Amended Complaint (docket entry 34); the defendants’
Motion to Strike Plaintiff’s Expert Designation (docket entry 36);
and the defendants’ Unopposed Motion to Stay Defendants’ Expert
Designation Deadline (docket entry 38).

Also before the Court is

the plaintiff’s Motion to Extend Time for Filing Amended Complaint
(docket entry 41).
On July 5, 2017, Magistrate Judge Michael T. Parker granted
the plaintiff leave to amend her Complaint and ordered her to file
the Amended Complaint by July 12, 2017.

On September 7, 2017,

almost two months after the deadline ordered by the Magistrate

Judge, the plaintiff filed her Amended Complaint.

The defendants

complain that the plaintiff should have requested an extension of
time to file her Amended Complaint.
Federal Rule of Civil Procedure 6(b) provides that a party
must show “excusable neglect” when filing a motion for additional
time after a deadline has expired.

The Court notes, however, that

the plaintiff’s Amended Complaint was attached to her Motion for
Leave to File Amended Complaint of June 16, 2017.

Thus, the

defendants had the Amended Complaint well before the July 12, 2017
deadline.

The Court finds excusable neglect on the part of the

plaintiff,

and

shall

deny

the

defendants’

Motion

Plaintiff’s Amended Complaint (docket entry 32).

to

Dismiss

Accordingly, the

plaintiff’s Motion to Extend Time for Filing Amended Complaint
(docket entry 41) shall be granted retroactively, and the Amended
Complaint filed September 7, 2017, is deemed timely.
Next, the defendants request (in docket entry 34) that if the
Court denies their Motion to Dismiss Plaintiff’s Amended Complaint,
then they should be allowed fourteen days from the date of the
Court’s ruling to respond to the plaintiff’s Amended Complaint.
Since the plaintiff has no objection, the defendants’ motion shall
be granted as unopposed.
The defendants also move to strike the plaintiff’s expert
designation (docket entry 36).

The original expert designation

deadline was September 1, 2017.

The plaintiff requested and was

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granted an extension to September 8, 2017.

On September 8, the

plaintiff filed her expert designation naming David C. Wilson as
her expert.

However, the designation did not reveal any opinions

of the expert.

Instead, the plaintiff advised that Wilson’s

investigation was not complete, and that he would provide a written
report detailing his conclusions in five to six weeks.
Where a party fails to provide information 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

Fed.R.Civ.P.

37(c)(1).

substantially

justified

For
or

executing” and “automatic.”
Note (1993).

justified
those

harmless,

or

failures
this

is

harmless.”

that

sanction

are
is

not

“self-

Fed.R.Civ.P. 37(c)(1), Advisory Comm.

To determine whether a failure to comply with Rule

26(a) is substantially justified or harmless, a court considers
four

factors:

“(1)

the

importance

of

the

evidence;

(2)

the

prejudice to the opposing party of including the evidence; (3) the
possibility of curing such prejudice by granting a continuance; and
(4) the explanation for the party’s failure to disclose.” Primrose
Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 563-64 (5th Cir.
2004)(citations and internal quotation marks omitted).
Apparently Mr. Wilson is essential to the plaintiff’s proof of
damages; thus, his evidence is important to the plaintiff’s case.
This factor weighs in favor of including his expert report. On the

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other hand, the defendants argue that they have been prejudiced by
the plaintiff’s failure to provide an expert report from Mr.
Wilson. A party’s delay in filing an expert report “disrupt[s] the
court’s

discovery

Geiserman

v.

schedule

MacDonald,

and

893

the

F.2d

opponent’s

787,

preparation.”

(5th

792

Cir.

1990).

Therefore, significant delay may be prejudicial to the opposing
party.

Courts often find late expert designations prejudicial

where the delay interferes with the opposing party’s opportunity to
depose the expert.
court’s

decision

See, e.g., id. at 791-92 (affirming district
to

strike

untimely

expert

designation

where

opposing party complained that he would be unable to prepare for
and take the expert’s deposition before the discovery deadline);
Bradley

v.

United

States,

866

F.2d

120,

125

(5th

Cir.

1989)(reversing district court’s decision not to strike untimely
expert designations where opposing party was forced to depose the
experts a few days before trial).
In this case, the discovery deadline is January 5, 2018.

The

defendants are not learning of the plaintiff’s expert on the eve of
trial,

since

trial

is

tentatively

set

for

June

4,

2018.

Furthermore, the plaintiff’s conduct has not caused the defendants
any significant prejudice. There is still time for the plaintiff’s
expert to file his report and for the defendants to conduct
discovery regarding the expert.

The Court shall therefore require

the plaintiff to furnish her expert disclosure, accompanied by the

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expert’s written report, within twenty (20) days from the date of
entry of this Order.
Finally, the Court shall grant the defendants’ Unopposed
Motion to Stay Defendants’ Expert Designation Deadline (docket
entry 38), and the defendants’ expert disclosure shall be due
within thirty (30) days after the plaintiff’s expert disclosure).
Accordingly,
IT IS HEREBY ORDERED that the defendants’ Motion to Dismiss
Plaintiff’s Amended Complaint (docket entry 32) is DENIED;
FURTHER ORDERED that the plaintiff’s Motion to Extend Time for
Filing

Amended

Complaint

(docket

entry

41)

is

GRANTED

retroactively, and the Amended Complaint filed September 7, 2017,
is deemed timely;
FURTHER ORDERED that the defendants’ Unopposed Motion for
Additional Time to Respond to Plaintiff’s Amended Complaint (docket
entry 34) is GRANTED, and the defendants shall file their response
to the amended complaint within fourteen (14) days from the date of
entry of this Order;
FURTHER

ORDERED

that

the

defendants’

Motion

to

Strike

Plaintiff’s Expert Designation (docket entry 36) is DENIED, and the
plaintiff shall furnish her expert disclosure, accompanied by the
expert’s written report,

within twenty (20) days from the date of

entry of this Order;
FURTHER ORDERED that the defendants’ Unopposed Motion to Stay
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Defendants’

Expert

Designation

Deadline

(docket

entry

38)

is

GRANTED, and the defendants’ expert disclosure shall be due within
thirty (30) days after the plaintiff’s expert disclosure.
SO ORDERED, this the 23rd day of October, 2017.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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