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Alexander v. McAdams

United States District Court, N.D. Mississippi, Oxford Division

March 1, 2017

EFFORT ALEXANDER PLAINTIFF
v.
JERRY MCADAMS and GRANDVIEW LAKES ASSOCIATION, INC. DEFENDANTS

          ORDER DENYING DEFENDANTS' MOTION TO STRIKE EXPERTS AND GRANTING MOTION FOR EXTENSION OF EXPERT DESIGNATION DEADLINE

          ROY PERCY UNITED STATES MAGISTRATE JUDGE.

         Defendants seek to strike the designation of experts by plaintiff and to exclude opinion testimony of plaintiff's experts pursuant to Federal Rule of Civil Procedure 37(c)(1). Docket 66. In response, plaintiff seeks an extension of his expert designation deadline. Docket 70.

         Plaintiff has not formally designated experts, but he did respond to discovery and identified three individuals by name and two unnamed individuals. Docket 66-1. However, plaintiff did not provide the information required by Federal Rule of Civil Procedure 26 for each of the identified experts.

         For instance, plaintiff identified Mr. McKinley Alexander and stated that he is a retired economics professor and department head at Jackson State University. Id. He also noted the general types of information that Mr. Alexander's testimony would concern, but he did not provide (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 the opinions; (iii) any exhibits the witness will use to support his opinions; (iv) the witnesses qualifications other than being a retired professor and department head; (v) a list of other cases in which the witness has testified; or a statement of the compensation the witness will be paid for the study and testimony in the case. Additionally, plaintiff did not provide a written report prepared by Mr. Alexander or any of the other experts identified.

         The purpose of the mandatory disclosure requirement of Rule 26 is to ensure that the parties are not surprised by new witnesses, exhibits or other evidence on the eve of trial. Specifically, “[t]he purpose of Rule 26(a) is to provide opposing parties reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses.” Guthrie v. Quitman County Hosp., LLC, 2014 WL 8276240, *2 (N.D. Miss. Oct. 27, 2014); citing Reese v. Herbert, 527 F.3d 1253, 1265 (11th Cir. 2008). Rule 26(a)(2) requires a party to disclose very particular information including, among other things, the identity of any expert witness it may use at trial and a written, signed report from the expert. In addition, Local Uniform Civil Rule 26(a)(2) requires that:

[a] party must make full and complete [expert] disclosure as required by Fed.R.Civ.P. 26(a)(2) and L.U.Civ.R. 26(a)(2)(D) no later than the time specified in the case management order . . . . Absent a finding of just cause, failure to make full expert disclosures by the expert designation deadline is grounds for prohibiting introduction of that evidence at trial. . . .
(B) An attempt to designate an expert without providing full disclosure information as required by this rule will not be considered a timely expert designation and may be stricken upon proper motion or sua sponte by the court.

         The Fifth Circuit, in Barrett v. Atlantic Richfield Co., set out the following four factors that a district court must consider when determining whether to strike a witness:

(1) the explanation, if any, for the party's failure to comply with the . . . order;
(2) the prejudice to the opposing party of allowing the witnesses to testify;
(3) the possibility of curing such prejudice by granting a continuance; and
(4) the importance of the witnesses' testimony.

Barrett v. Atlantic Richfield Co., 95 F.3d 375, 380 (5th Cir. 1996).

         Plaintiff clearly has not complied with Fed.R.Civ.P. 26(a)(2) in that he has not provided a report written and signed by any of his experts, nor has he provided the majority of the remaining Rule 26 information. Considering the first Barrett factor, plaintiff has provided very little explanation for his failure to properly designate his experts. He did state that he wishes to not be required to identify and properly designate the “[t]wo adult persons who will be unnamed at this point” as he asserts that “the Defendants, evidentially supported by historic encounters with the Defendants and revolving legal pursuits necessary to stop said problems and offenses incurred from these Defendants.” Docket 68, p. 2. In other words, plaintiff does not want to have to identify these individuals “until an appearance and/or affidavit from them is presented during trial.” Id. Further, plaintiff states that he “will inform Defendant the additional witnesses before the deadline of Disclosure fixed by the court of May 01, 2017.” Id. It is clear that plaintiff does not understand the required standards for designating experts and identifying witnesses. Any witness, expert or not, must be properly identified during discovery. Plaintiff may not withhold the identity of any witness, expert or otherwise, until the time of trial. If any issues arise concerning harassment of witnesses by defendants, the court will address those issues if and when they occur. However, the plaintiff must still identify and provide to defendants all of the Rule 26(a)(1)(A) information for witnesses and the Rule 26(a)(2) information for experts. Additionally, plaintiff may not wait until the discovery deadline of May 1, 2017, to provide all of the Rule 26 ...


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