Gilmore v. Roane County et al

Filing 229

ORDER granting in part and denying in part 220 Motion to Strike. Paragraphs 7 through 11 of Dr. Perklays Affidavit [Doc. 218-2] are STRICKEN. Signed by Magistrate Judge H Bruce Guyton on 4/5/16. (JBR)

UNITED STATE DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
ESTATE OF DUSTIN BARNWELL,
by next of kin, S.C.B. a minor, b/n/f,
SHASTA LASHAY GILMORE,

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Plaintiff,

v.
ROANE COUNTY, TENN., et al.,
Defendants.

No. 3:13-CV-124-PLR-HBG

ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02.
Now before the Court is the Defendants’ Motion to Strike the Affidavit of Steven
Perlaky, M.D. [Doc. 220], filed on March 28, 2016. The Plaintiff filed a Response [Doc. 226]
objecting to the Defendants’ Motion.1 The parties appeared before the Court telephonically on
April 4, 2016. Attorney John Wolfe was present on behalf of the Plaintiff, and Attorneys Gina
Sarli and Jeffrey Thompson were present on behalf of the Defendants. For the reasons explained
below, the Court GRANTS IN PART AND DENIES IN PART the Motion to Strike the
Affidavit of Steven Perlaky, M.D. [Doc. 220].
The Defendants’ Motion [Doc. 220] requests that the Court strike Dr. Perlaky’s Affidavit
because it is untimely and impermissible. In addition, the Defendants argue that the Affidavit
will prejudice them because they will be forced to confront an array of new expert opinions that

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The Plaintiff filed its Response on April 3, 2016, but the deadline to file was April 1, 2016. The Plaintiff has
repeatedly been admonished for its untimely filings. Although the Court has considered the Plaintiff’s Response, the
Court will not continue to review untimely filings absent extraordinary circumstances.

are used to bolster Plaintiff’s opposition to Defendants’ Daubert motion. The Defendants submit
that Federal Rule of Civil Procedure 26(a)(2)(B)(i) requires parties to disclose a complete
statement of all the opinions the expert witness will express and the basis and reasons for them.
The Defendants argue that Dr. Perlaky’s Affidavit is untimely and an improper rebuttal because
it sets forth new opinions after the close of expert discovery, on or about December 18, 2015.
The Plaintiff’s Response [Doc. 226] argues that the Defendants do not dispute the truth or
relevancy of the Affidavit and that the Defendants’ single objection is to Dr. Perlaky’s opinion
regarding the Defendants’ state of mind. In addition, the Plaintiff submits that Dr. Perlaky has
reviewed a “big stack of material” and that Dr. Cogswell only talked to one person before
making the autopsy report. Finally, the Plaintiff submits that bias should not be a disqualifying
factor with respect to Dr. Perlaky’s opinions.
The Court has reviewed the Affidavit of Dr. Perlaky [Doc. 218-2] that was filed on
March 22, 2016. The Court finds that it will not strike paragraphs 1 through 6 from Dr. Perlaky’s
Affidavit because they involve factual issues that are directly related to Dr. Perlaky’s
creditability—an issue raised in the Defendants’ Daubert challenge. However, the Court finds
that paragraphs 7 through 11 represent an effort to expand on Dr. Perlaky’s previously disclosed
opinions. Pursuant to the Scheduling Order [Doc. 170], expert disclosures were due in December
2015. Dr. Perlaky’s Affidavit was filed on March 22, 2016, approximately three months later.
Thus, the information provided in paragraphs 7 through 11 of Dr. Perlaky’s deposition were
disclosed too late. Such untimely disclosures are unfairly prejudicial to the Defendants, and
therefore, Dr. Perlaky is limited to his opinions as stated in his initial disclosures and during his
deposition. Accordingly, the Court finds that the Motion to Strike the Affidavit of Steven

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Perlaky, M.D. [Doc. 220] is GRANTED IN PART AND DENIED IN PART. Paragraphs 7
through 11 of Dr. Perklay’s Affidavit [Doc. 218-2] are STRICKEN.
IT IS SO ORDERED.
ENTER:

United States Magistrate Judge

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