Davidson v. AT&T Inc et al
Filing
68
MEMORANDUM OPINION AND ORDER granting in part, denying in part 63 Joint MOTION to Strike 60 Designation of Experts filed by AT&T Mobility LLC, Alan Jarvis, City of Dallas Texas. (Ordered by Judge Sidney A Fitzwater on 4/3/2018) (Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
THOMAS LANDELL DAVIDSON,
Plaintiff,
VS.
AT&T MOBILITY, LLC;
CITY OF DALLAS, TEXAS; and
ALAN JARVIS, Individually,
Defendants.
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Civil Action No. 3:17-CV-0006-D
MEMORANDUM OPINION
AND ORDER
Defendants AT&T Mobility, LLC, the City of Dallas, Texas, and Alan Jarvis move
pursuant to Fed. R. Civ. P. 37(c)(1) to strike the late designation of expert witnesses by
plaintiff Thomas Landell Davidson (“Davidson”) and to prevent these witnesses from
testifying in any hearing or at trial. Davidson has not responded to the motion. For the
reasons that follow, the court grants the motion in part and denies it in part.1
I
The scheduling order in this case required that the parties designate expert witnesses
and otherwise comply with Rule 26(a)(2) by October 10, 2017. On December 19, 2017, two
months after the deadline, Davidson filed his designation of expert witnesses and designation
1
Under § 205(a)(5) of the E-Government Act of 2002 and the definition of “written
opinion” adopted by the Judicial Conference of the United States, this is a “written opinion[]
issued by the court” because it “sets forth a reasoned explanation for [the] court’s decision.”
It has been written, however, primarily for the parties, to decide issues presented in this case,
and not for publication in an official reporter, and should be understood accordingly.
of potential witnesses. On January 1, 2018 Davidson filed his first amended designation of
potential witnesses.2 Among these three documents, Davidson designates as experts eleven
medical professionals and two employees of the law firm that represents him. According to
the designations, these experts will testify “regarding the medical treatment of the Plaintiff”
and “the reasonable and necessary attorneys’ fees incurred by the Plaintiff,” respectively.
P. Desig. of Expert Witnesses 1. Davidson did not move for leave or seek to modify the
scheduling order before belatedly filing these expert designations.
II
Under Rule 37(c)(1),
[i]f a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), 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 justified
or is harmless.
Rule 37(c)(1).3 In evaluating whether a violation of Rule 26 is substantially justified or
harmless, the court examines 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. Hoffman v. L & M Arts, 2013 WL 81578, at *1-2 (N.D. Tex. Jan. 8, 2013)
2
Although January 1, 2018 was a federal holiday, electronic filing enables such a
filing to be made.
3
Rule 26(a)(2)(D) requires that parties make expert disclosures “at the times and in
the sequence that the court orders.”
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(Fitzwater, J.). “Implicit in Rule 37(c)(1) is that the burden is on the party facing sanctions
to prove harmlessness.” Current v. Atochem N. Am., Inc., 2001 WL 36101282, at *2 (W.D.
Tex. Sept. 18, 2001); see also Companion Prop. & Cas. Ins. Co. v. Opheim, 92 F.Supp.3d
539, 544 (N.D. Tex. 2015) (Fish, J.) (“Because [the party facing sanctions] failed to
demonstrate that its failure to designate Bourneuf as an expert witness was either
‘substantially justified or . . . harmless,’ . . . the court must exclude the relevant paragraphs
of the declaration from evidence.”); Red Dot Bldgs. v. Jacobs Tech., Inc., 2012 WL 2061904,
at *3 (E.D. La. June 7, 2012) (“Exclusion of the evidence is mandatory and automatic unless
the party demonstrates substantial justification or harmlessness.”).
Defendants maintain that they will be prejudiced by the delay required to prepare for
the late-designated expert witnesses, in addition to the increased legal costs. Because
Davidson has not responded to the motion to strike, he has not demonstrated that his failure
to comply with Rule 26(a) was substantially justified or harmless. Moreover, Davidson has
made no other attempt to explain his late expert designations, either through seeking leave
of court or otherwise. The court therefore grants the motion to strike as to all experts except
the law firm witnesses who will testify concerning attorney’s fees and nontaxable expenses.
III
Although Davidson has not responded to defendants’ motion, the court declines to
exclude his witnesses on attorney’s fees and related nontaxable expenses, despite the failure
to timely designate them.
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This court has typically treated the designation of attorney’s fee
experts differently from other experts. In most instances, as in
the present case, Rule 54(d) provides that attorney’s fees are
decided by the court on motion filed after the entry of judgment.
Attorneys who represent parties against whom such fees are
sought are not surprised by expert testimony because they can
usually expect that opposing counsel will attempt to prove his
attorney’s fees and because they are themselves experts on the
subject. Because the matter is handled by motion and usually
decided on affidavits, the court can cure any prejudice that a
party may face from a tardy designation by continuing
submission of the attorney’s fee issue if the party needs
additional time to obtain its own expert.
Wright v. Blythe-Nelson, 2001 WL 804529, at *6 (N.D. Tex. July 10, 2001) (Fitzwater, J.)
(footnote omitted).
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Accordingly, defendants’ motion to strike is granted to the extent that—other than
expert witnesses designated to testify concerning attorney’s fees and related nontaxable
expenses—the expert witnesses designated in Davidson’s December 19, 2017 designation
of expert witnesses, December 19, 2017 designation of potential witnesses, and January 1,
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2018 first amended designation of potential witnesses are stricken and prohibited from
testifying in any hearing or at trial.4 The motion is otherwise denied.
SO ORDERED.
April 3, 2018.
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SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE
4
This memorandum opinion and order does not apply to non-expert witnesses included
in these filings.
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