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Neel v. Mae

United States District Court, S.D. Mississippi, Southern Division

April 2, 2014

CHARLES NEEL and BONNIE NEEL Plaintiffs,
v.
FANNIE MAE; RESIDENTIAL CREDIT SOLUTIONS, INC.; SAXON MORTGAGE SERVICES, INC.; CAPITAL LENDING, LLC; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; and JOHN DOES 1-10 Defendants,

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT SAXON MORTGAGE SERVICES, INC.'S MOTION TO STRIKE

HALIL SULEYMAN OZERDEN, District Judge.

BEFORE THE COURT is the Motion to Strike [154] filed by Defendant Saxon Mortgage Services, Inc. Plaintiffs Charles and Bonnie Neel have filed a Response in Opposition [174], and Saxon has filed its Rebuttal [201]. Having considered the parties' submissions, the record, and relevant legal authority, the Court is of the opinion that Saxon's Motion to Strike should be granted in part with respect to (1) each of the witnesses disclosed by Plaintiffs on October 12, 2013, four days before the discovery deadline; (2) Plaintiff Bonnie Neel's medical records from Dr. Alfred McNair Jr., Dr. Karin Levesque, and Nurse Lisa Netton; and (3) Plaintiffs' disclosure of Derek Inkol. The Court further finds that Saxon's Motion to Strike should be denied in part with respect to Plaintiffs' disclosure of Dr. Michael Christie and the medical records reflecting his treatment of Bonnie Neel.

I. FACTUAL BACKGROUND

Saxon's Motion to Strike focuses on three separate instances in which Plaintiffs purported to supplement their discovery responses and production. On October 16, 2013, sixteen days prior to the November 1, 2013, discovery deadline, Plaintiffs for the first time in this litigation produced medical records for Bonnie Neel. Mem. Br. in Supp. of Mot. to Strike 3 [154]. On October 28, 2013, Plaintiffs also identified the following seven witnesses:

[1] Derek Inkol, [2] Representative(s) of Assurant Payment Services, Inc., [3] Representatives of any forced placed carrier identified by any servicer, [4] Treating physicians of Bonnie Neel including but not limited to those listed in medical records previously produced and further records and bills attached, [5] Individual healthcare providers who have treated and may be treating Bonnie Neel, [6] Any and all witnesses that wrote letters on behalf of any of the defendants, [and] [7] Any and all witnesses identified in the communication logs produced by defendants.

Id. at 4. On October 31, 2013, one day before the discovery deadline, Plaintiffs produced to Saxon an unsigned affidavit executed by Derek Inkol, who opined that Plaintiffs' credit had been negatively affected some "100 to 200 points" due to Saxon's alleged mishandling of Plaintiffs' loan. Id. at 5-6.

Saxon seeks exclusion of Bonnie Neel's medical records provided sixteen days prior to the discovery deadline arguing that the production was untimely and that the records are irrelevant.[1] Id. at 3. Saxon claims that Plaintiffs' identification of fact witnesses four days before the discovery deadline was untimely and insufficient, thus justifying their exclusion. Id. at 5. Saxon further contends that Plaintiffs' disclosure of Inkol amounted to an attempt to disclose a purported credit reporting expert which was untimely and insufficient. Id. at 6.

II. DISCUSSION

A. Legal Standard

"[A] party must, without awaiting a discovery request, provide to the other parties... the name and, if known, the address and telephone number of each individual likely to have discoverable information... that the disclosing party may use to support its claims...." Fed.R.Civ.P. 26(a)(1)(A)(i). "[A] Party must [also], without awaiting a discovery request, provide to the other parties... a copy... of all documents... that the disclosing party has in its possession, care, custody, or control and may use to support its claims...." Fed.R.Civ.P. 26(a)(1)(A)(ii). Parties are under an ongoing duty to timely supplement these required initial disclosures. Fed.R.Civ.P. 26(e)(1)(A). "If 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." Fed.R.Civ.P. 37(c)(1).

If a party intends to present a witness who has been "retained or specially employed to provide expert testimony in the case, " that party must disclose the identity of the witness who will provide expert testimony and the disclosure must be accompanied by a written report. Fed.R.Civ.P. 26(a)(2)(A). The written report must include

(i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case.

Fed. R. Civ. P. 26(a)(2)(B)(i)-(vi). This disclosure of expert testimony must be made "at the times... that the court orders." Fed.R.Civ.P. 26(a)(2)(D). Expert testimony which is not timely or properly disclosed is subject to being excluded as provided for under Rule 37, unless the failure to properly disclose is substantially justified or harmless. Fed.R.Civ.P. 37(c)(1). In this case, the Case Management Order [10] imposed a deadline of April 1, 2013, for Plaintiffs to designate ...


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