United States of America, et al v. An easement and right-of-way over 3.86 acres of land, more or less, in Sumner County, Tennessee et al

Filing 28

ORDER denying 26 Motion to Exclude. Signed by Jack W. Derryberry, Jr., Chairman for the Commission, on 3/5/13. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(af)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
UNITED STATES OF AMERICA
Upon the relation and for the use of the
TENNESSEE VALLEY AUTHORITY
Plaintiff,
v.
AN EASEMENT AND RIGHT OF WAY
OVER 3.86 ACRES OF LAND MORE OR
LESS, IN SUMNER COUNTY, TENNESSEE
EZMA GRAY,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

NO. 3:11-cv-0320
Judge Wiseman

ORDER ON MOTION TO EXCLUDE
Plaintiff has filed a Motion to Exclude Expert Report and Testimony of Russell Parrish,
(Doc. No. 26). This Motion was filed February 26, 2013. The Defendant sent the report via UPS to
the Plaintiff and the Commission on February 28, 2013 and it was received March 4, 2013 because
of UPS’s delay. Plaintiff indicates it is harmed. Plaintiff cites two cases for the proposition that the
Commission may exclude reports under “its broad discretion” to order sanctions including
exclusion. See, Campos v. MTD Products, Inc., 2009 WL 2252257 at p. 9 (M.D. Tenn. No.
2:07-cv-0029) and Gentry v. Hershey Co. 687 F. Supp. 711, 725 (M.D. Tenn. 2010). In Gentry v.
Hershey there were two well represented clients with the ability to contest liability issues in state

and federal courts and hire experts over a period of four years. The Court there noted the Motion for
Summary Judgment would have been granted even if the expert’s late filed report had been
admitted, ergo, there was no harm to the Plaintiff from excluding the report. Here if we were to
exclude the report of Mr. Parrish there would either be a motion for continuance filed or the
Defendant’s case would largely disappear. Likewise in Campos v. MTD the reports at issue were
disclosed “months after the discovery deadline”. Here the delay is two weeks or only three days
after the deadline for supplemental disclosures. The Commission sees no prejudice to Plaintiff from
this delay. The Commission sees significant prejudice to the Defendant if this Motion to Exclude
were granted. It is clearly within the discretion of the Commission to deny the Motion.
IT IS THEREFORE ORDERED that the Motion to Exclude is DENIED. To avoid any
prejudice to the Government the deadline for supplemental disclosures by either party is extended
until March 15, 2013. The discovery deadline previously ordered is EXTENDED until the day
before the trial or March 20, 2013.

s/s Jack W. Derryberry, Jr.
Chairman, for the Commission