United States District Court, S.D. Mississippi, Northern Division
CARLTON W. REEVES, District Judge.
Before the Court are motions by the United States to strike an untimely expert designation and for summary judgment. The motions are fully briefed. Having considered the evidence, arguments, and applicable law, the Court will grant the motion to strike and defer ruling on the motion for summary judgment pending receipt of further documentation.
I. Factual and Procedural History
On September 23, 2007, Martin Roberson, a federal inmate, injured his left knee during a recreational activity. Docket No. 1, at 2. He was treated that day and afterward, but was not seen by a specialist until December 6, 2007, and did not receive reconstructive surgery until February 13, 2008. Id. Roberson claims that the government's delay in providing specialist care and surgery was negligent, causing permanently compromised knee function. Id. ; see also Docket No. 36, at 2-3 (First Amended Complaint).
Roberson designated Dr. Theodore Okechuku as an expert witness on December 4, 2013. Docket No. 16. That was timely. Roberson made another timely expert designation on July 9, 2014, to name Dr. Daniel Dare. Docket No. 39. Both are treating physicians. In response to those designations, the government timely designated its expert. Docket No. 49.
The United States complains about Roberson's third and final expert designation, that of treating physician Dr. Michael Winkelmann. Docket No. 58. That designation was stamp-filed on October 28, 2014, five days after the close of discovery.
II. Present Arguments
The government contends that the third expert designation is untimely, prejudicial, and "only made" because Dr. Dare's October 15 deposition testimony, taken one week before the close of discovery, did not support Roberson's claim. Docket No. 61, at 5. (Dr. Dare testified that one of Roberson's injuries was "synovial thickening and scar" - also known as plica - which could have occurred as a result of the recreational injury alone, not necessarily because of a delay in treatment. Docket No. 63-2, at 7.) The government then argues that there is no expert testimony that Roberson's injuries were caused by the government's negligence. Docket No. 61, at 6-7.
Roberson acknowledges that the third expert designation was "prompted by" Dr. Dare's somewhat unfavorable deposition testimony, but says the designation is important, occurred before the discovery deadline, and has not prejudiced the government. Docket No. 63, at 2. As for summary judgment, Roberson argues that the government failed to provide for his "postoperative physical therapy rehabilitation" needs after the February 2008 surgery. Id. at 4. Dr. Winkelmann would testify to Roberson's ongoing physical therapy needs, Roberson says, including the standard of care and causation. Id. at 5-6.
III. Legal Standard
Motions to strike untimely expert designations are governed by a four-factor test. The Court is to evaluate: "(1) the explanation for the failure to identify the witness; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice." Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004) (citation omitted) (affirming trial court's decision to exclude late expert testimony).
The late designation of Dr. Winkelmann is plainly tied to Dr. Dare's deposition testimony. But there is no reason why Dr. Dare's unfavorable testimony could not have been discovered earlier. A complete understanding of Dr. Dare's testimony would have enabled Roberson to designate someone who could better support his claims. In other words, the explanation for the failure to designate Dr. Winkelmann in a timely fashion is Roberson's failure to develop his case during discovery. That weighs in favor of excluding the late designation.
On the second factor, Dr. Winkelmann's testimony may be important to Roberson's case, as he may be the sole remaining expert who could support Roberson's theory of liability. It is also possible, though, that Dr. Winkelmann's testimony could be unimportant: at a deposition he could, like Dr. Dare, testify that the government's negligence did not cause Roberson's injuries owing to Roberson's excellent self-care. As in other cases, "[t]he claimed importance of expert testimony underscores the need for [the plaintiff] to have timely designated his expert witness so that [the defendant] could prepare ...