Perry et al v. Hardeman County Goverment et al

Filing 410

ORDER DENYING PLAINTIFFS' MOTION TO EXCLUDE (ECF NO. 371) 371 . Signed by Judge S. Thomas Anderson on 6/5/24. (skc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
______________________________________________________________________________
PATRICK D. PERRY et al.,

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Plaintiffs,
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v.
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No. 1:19-cv-1106-STA-cgc
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HARDEMAN COUNTY GOVERNMENT,
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HARDEMAN COUNTY COMMISSION,
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HARDEMAN COUNTY SHERIFF’S OFFICE, )
JIMMY SAIN in his individual and official
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Capacities, AND JOHN DOOLEN in his
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Official and individual capacities,
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Defendants.
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______________________________________________________________________________
ORDER DENYING PLAINTIFFS’ MOTION TO EXCLUDE (ECF NO. 371)
______________________________________________________________________________
Before the Court is Plaintiffs Patrick Perry et al.’s Motion to Exclude or in the alternative
Limit the Testimony of Defendants’ Expert Dawn Farias (ECF No. 371) filed April 22, 2024.
Defendants Hardeman County Government, the Hardeman County Commission, the Hardeman
County Sheriff’s Office, Mayor Jimmy Sain, and Sheriff Jimmy Doolen have responded in
opposition. Plaintiffs have filed a reply. For the reasons set forth below, the Motion is DENIED.
Plaintiffs seek the exclusion of any proof Defendants would introduce through opinion
witness Dawn Farias. For cause, Plaintiffs argue that Defendants have failed to make a timely
supplement of Farias’ opinions. In light of the upcoming jury trial, the Court should exclude
Farias’ testimony as a sanction for Defendants’ failure to supplement in a timely way. By way of
background, Plaintiffs state that after a number of extensions and delays, the parties took Farias’
deposition in September 2023. At her deposition, Farias testified that the report disclosed by

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Defendants on August 14, 2023, did not reflect her final report and that she was still performing
calculations. Plaintiffs have made repeated requests to receive an updated version of Farias’
calculations. With trial only a few weeks away, Farias has still not produced a final report of her
calculations for the case. Plaintiffs argue that the delay in receiving Farias’ report in a timely
manner violates Rule 26 disclosure requirements and has caused them prejudice. Plaintiffs
therefore ask the Court to exclude Farias’ testimony outright or limit her testimony to the opinion
disclosed in August 2023 and her trial testimony to the deposition testimony she gave in September
2023.
Defendants have responded in opposition. According to Defendants, the Hardeman County
Sheriff’s Office has continued to discover certain time records and other documents related to the
employment of several Plaintiffs in this case. For their part Plaintiffs recently supplemented their
disclosures to include new claims for damages that were not previously raised in discovery.
Defendants argue that based on the newly discovered information and Plaintiffs’ supplement,
Farias needs more time to complete her damages calculations. In their reply brief, Plaintiffs
counter that Defendants continue to produce new records which prove even more FLSA violations
than previously discovered. Plaintiffs also argue that Hardeman County continues to violate the
FLSA’s overtime provisions, resulting in additional damages. Putting aside the newly produced
information, Defendants have not shown why Farias has yet to complete the supplemental report
promised in September 2023. Plaintiffs maintain then that exclusion is mandatory or at the very
least a limitation on Defendants’ use of Farias testimony at trial is warranted.
Federal Rule of Civil Procedure 26(e) governs supplementation. Rule 26(e)(2) states that
the duty of supplementation for expert reports “extends both to information included in the report
and to information given during the expert’s deposition” and requires the disclosure of “[a]ny
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additions or changes” to the information “by the time the party’s pretrial disclosures under Rule
26(a)(3) are due.” Fed. R. Civ. P. 26(e)(2). Rule 26(a)(3) makes pretrial disclosures, including
supplements to an expert’s report, due at least 30 days before trial. Fed. R. Civ. P. 26(a)(3)(B).
Rule 37(c)(1) prohibits a party who “fails to provide information . . . as required by Rule 26(a) or
(e)” from using the witness to supply evidence at trial “unless the failure was substantially justified
or is harmless.” Fed. R. Civ. P. 37(c)(1). “The exclusion of such evidence is automatic and
mandatory unless the offending party can show that its nondisclosure was substantially justified
or harmless.” RJ Control Consultants, Inc. v. Multiject, LLC, 100 F.4th 659, 668 (6th Cir. 2024)
(citations and internal quotation marks omitted).
The Court finds that exclusion of Farias’ opinion testimony is not required in this case.
First and as a procedural matter, Plaintiffs argue that Defendants missed their deadline to disclose
Farias’ report, which was 90 days before trial pursuant to Rule 26(a)(2). Rule 26(a)(2)(D) requires
a party to disclose an expert “at the times and in the sequence that the court orders,” or in the
absence of a court order, “at least 90 days before the date set for trial or for the case to be ready
for trial.” Fed. R. Civ. P. 26(a)(2)(D)(i). But in this case Defendants did disclose Farias’ report
and within the deadline adopted by the Court. In fact, the Court granted a consent motion for an
extension of the deadline for supplementation of the report (ECF No. 305) on July 14, 2023. This
is simply not an instance where a party has failed to make any disclosure at all but rather to make
a required supplement to its previously disclosed expert report.
The gist of Plaintiffs’ Motion is that Defendants have never supplemented the report to
include information referenced in Farias’ deposition or information produced at any time since her
deposition. Under Rule 26(a)(3), Defendants’ supplement to Farias’ report was due at least 30
days before trial. Fed. R. Civ. P. 26(a)(3)(B). The trial is set to begin June 24, 2024, meaning
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Defendants’ final supplement to Farias’s report was due no later than May 24, 2024. Plaintiffs’
argument that Defendants missed a 90-day deadline for supplementation is without merit. Because
Plaintiffs have not shown that Defendants missed their final deadline for supplementation, the
Court need not decide whether any failure to make a timely supplement was substantially justified
or harmless.
The Court would make two additional points. First, even though the deadlines related to
discovery expired months ago, the parties continue to exchange new documents containing
discoverable information but without requesting a reopening of the discovery period. 1 Defendants
have argued that Plaintiffs’ ongoing disclosure of new damages calculations has delayed Farias’
work. Second, the June 24, 2024 trial will be limited to the collective action claims alleged by a
subclass of dispatchers. According to an undated spreadsheet attached to Defendants’ brief (ECF
No. 385-24), Farias has completed her work for each claimant in the dispatcher subclass. Nothing
in Plaintiffs’ Motion to Exclude suggests that Defendants’ delay in supplementing Farias’ report
will impact the trial of the dispatcher subclass. For all of these reasons, Plaintiff’s Motion is
DENIED without prejudice.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: June 5, 2024.

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In fact, the United States Magistrate Judge recently denied two motions to compel filed
by Plaintiffs, noting the requests came far outside of the discovery deadlines established by the
Court. See Order Denying Mots. to Compel, May 20, 2024 (ECF No. 388). One of the items
sought by Plaintiffs’ motions to compel were documents reviewed by Farias as part of the
preparation of her report.
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