Lopez et al v. Tyson Foods

Filing 324

ORDER denying 318 motion to strike Dr. Liesl Fox as an expert witness. Ordered by Senior Judge Lyle E. Strom. (JDR)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
DIMAS LOPEZ, et al.,
individually and on behalf of
a class of others similarly
situated,

)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
TYSON FOODS, INC.,
)
)
Defendant.
)
______________________________)

8:06CV459

MEMORANDUM AND ORDER

This matter is before the Court upon defendant’s motion
to strike Dr. Liesl Fox as a previously undisclosed expert
witness (Filing No. 318).1

This is the defendant’s second motion

to exclude Dr. Liesl Fox as a witness in this case.
Nos. 223, 224, 254, 283, and 292).

(See Filing

The Court denied the previous

motion, holding that “[t]he witnesses and plaintiffs that
defendant was able to take the depositions of after the filing of
this motion will be allowed to testify.”
13).

(Filing No. 307, p.

The Court’s previous ruling will stand.
Plaintiffs never disclosed Dr. Fox during discovery.

They first listed her as a fact witness on March 31, 2011.

They

did not produce her report until after the close of business on
Friday, May 6, 2011.

1

Defendant received her data this past

The current motion is untimely. Such motions were
required to be filed on or before April 4, 2011 (Filing No. 215).
The Court, however, will rule on this matter on its merits.

Tuesday, May 10, 2011, and she was made available for deposition
the next day, May 11, 2011.

Defendant does not fault plaintiffs

for the timing of the production of plaintiffs’ new back-wage
calculation and the timing of Dr. Fox’s deposition, because it
was caused in part by the timing of defendant’s final production
of payroll data.
Dr. Nickerson is defendant’s rebuttal witness to Dr.
Fox.

Neither party has provided an expert report for Dr.

Nickerson or Dr. Fox because both sides listed them as non-expert
summarizing witnesses under Rule 1006.
9).

(See Filing No. 321, p.

In disclosing Dr. Fox as a summarizing witness, plaintiffs

relied upon the parties’ understanding in this case and a prior
parallel case at one of defendant’s other plants in which the
same attorneys agreed that expert reports are not required for
Dr. Fox and Dr. Nickerson’s exhibits, so long as they are allowed
to be deposed before trial.

(See Id. at p. 9-10).

Thus, as

defendant deposed Dr. Fox prior to the date of trial, Dr. Fox
will be allowed to testify, as Dr. Nickerson will be allowed to
testify.

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IT IS ORDERED that defendant’s motion to strike Dr.
Liesl Fox as a previously undisclosed expert witness (Filing No.
318) is denied.
DATED this 17th day of May, 2011.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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