United States District Court, N.D. Mississippi, Oxford Division
ORDER DENYING DEFENDANTS' MOTION TO STRIKE
EXPERTS AND GRANTING MOTION FOR EXTENSION OF EXPERT
PERCY UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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)
[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.
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
(4) the importance of the witnesses' testimony.
Barrett v. Atlantic Richfield Co., 95 F.3d 375, 380
(5th Cir. 1996).
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 ...