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Walker v. Target Corp.

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

July 7, 2017

DR. DEBRA L. WALKER, PLAINTIFFS
v.
TARGET CORPORATION DEFENDANT

          MEMORANDUM OPINION AND ORDER

          KEITH STARRETT UNITED STATES DISTRICT JUDGE.

         For the reasons provided below, the Court grants in part, denies in part, and defers ruling in part on Defendant's Motion to Strike [81] certain opinions of Plaintiffs' proposed experts, Lacy Sapp and George Carter. Specifically:

• The Court grants the motion as to Sapp's untimely affidavit [108-5] for the same reasons provided in a previous opinion. The affidavit is excluded from both trial and the Court's consideration when addressing the parties' dispositive motions. Any fact or opinion testimony contained therein is excluded from trial, unless it was previously disclosed in Sapp's reports or deposition.
• The Court grants the motion as to any opinions from Sapp regarding Plaintiff's wage-earning or vocational capacity.
• The Court grants the motion as to any opinions from Sapp regarding the cost to replace a spinal cord stimulator.
• The Court grants the motion as to any entries in Sapp's life care plan related to a spinal cord stimulator or radiofrequency ablation. To the extent Defendant seeks exclusion of any other entries in the life care plan, the Court defers ruling until trial when the parties can address the issue with greater specificity.
• The Court denies the motion as to the testimony of George Carter.

         A. Sapp's Affidavit [108-5]

         Defendant argues that the Court should exclude the affidavit[1] of Lacy Sapp, Plaintiffs' life care expert, because it was not timely disclosed. The Court already addressed this issue in a previous order. See Memorandum Opinion and Order at 7-11, Walker v. Target Corp., No. 2:16-CV-42-KS-MTP (S.D.Miss. July 7, 2017), ECF No. 154. Sapp's affidavit is excluded from both trial and the Court's consideration when addressing the parties' motions. Sapp may not provide any testimony - whether fact or opinion - contained in the affidavit at trial, unless it was previously disclosed in her reports[2] or deposition.[3]

         B. Wage-Earning Capacity / Vocational Assessment

         Next, Defendant argues that the Court should exclude any opinions from Sapp regarding Mrs. Walker's wage-earning capacity and/or vocational assessment. Among other things, Defendant argued that Plaintiffs failed to properly disclose Sapp's opinions on these topics. The Court agrees.

         Plaintiffs' initial designation[4] and supplemental designation[5] only provided that Stokes and Associates - the firm which employs Sapp - had “been retained to provide a life care plan.” Sapp's initial life care plan includes the following paragraph:

Dr. Walker reported that in June and July of 2014, she took off work under the Family Medical Leave Act due to her mother having health issues. Dr. Walker indicated that she intended to return to work following her family medical leave, but was unable to do so due to her injuries. Her position was eventually terminated in December of 2014, as she was not able to return to work post injury. She has not returned to work in any capacity since her injury and is experiencing a complete loss of expected earnings and earning capacity as a result.

         Exhibit 1 [108-1], at 5. It also includes a brief section addressing ...


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