United States District Court, S.D. Mississippi, Eastern Division
LEE B. DRAKE PLAINTIFF
THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA DEFENDANT
Michael T. Parker United States Magistrate Judge
matter is before the court on the Motion  for
Reconsideration of Order  denying Plaintiff's Motion
to Strike the Expert Report of the Defendant, Guardian Life
Insurance Company of America. For the reasons which follow,
the Court denies the Motion  for Reconsideration.
initially claimed that Defendant's expert report was
insufficient because it did not adequately include the
expert's compensation information or provide a sufficient
listing of cases for which he testified as an expert at trial
or by deposition within the preceding four
years.See Motion. Defendant's
expert report was initially deficient under Federal Rule of
Civil Procedure 26(a)(2)(B), however, it supplemented the
report to include the information which Plaintiff claimed was
insufficient. See . Defendant supplemented
the report to include the expert's billings through
August 29, 2017. See [44-1] at 68-69. Defendant also
supplemented the list of cases in which the expert has
provided trial or deposition testimony. Id. at 70.
supplemented designation was late, the Court considered the
Geiserman factors to determine whether to exclude
(1) the importance of the witnesses' testimony;
(2) the prejudice to the opposing party of allowing the
witness to testify;
(3) the possibility of curing such prejudice by a
(4) the explanation, if any, for the party's failure to
comply with the discovery order.
Sierra Club, Lone Star Chapter v. Cedar Point Oil Co.
Inc., 73 F.3d 546, 572 (5th Cir. 1996); see also
Reliance Ins. Co. v. Louisiana Land and Exploration Co.,
110 F.3d 253, 257 (5th Cir. 1997) (citing Geiserman v.
MacDonald, 893 F.2d 787, 791 (5th Cir. 1990)).
balancing the factors, the Court found that the expert should
not be struck. Plaintiff did not point to any specific
prejudice he has suffered or will suffer. Further, the most
critical portion of an expert's report is the statement
of the expert's opinion and the basis for the opinion,
which was provided prior to the designation deadline. The
Court also noted that a continuance was not necessary to cure
any potential prejudice Plaintiff might suffer.
now moves for reconsideration arguing that the list of cases
in the new report is still deficient because the first
designation had seventy-two (72) cases that the expert had
worked on and the supplemental designation includes only
fifteen (15) cases. Plaintiff contends that this is not a
supplementation at all, but a carefully culled list of
fifteen (15) cases out of seventy-two (72) that the expert
has now chosen to disclose. According to Plaintiff,
Defendant's expert is “pretending to 
supplement his report but otherwise excluding, without
explanation, information on approximately fifty-four (54)
other cases.” Defendant filed a response which included
a declaration from the expert that explained that the initial
Expert Report included a list of cases that contained
duplicate entries and was based on his records that included
all cases in which he had consulted over the past four years,
whether or not he had given deposition or trial testimony.
See Frances Decl [49-1] at ¶ 3. Put
differently, the list of cases from the initial report
referenced cases that were not required to be identified
under Rule 26. Plaintiff did not file a rebuttal to refute
this explanation provided by Defendant.
a motion for reconsideration is “an extraordinary
remedy, ” and thus should be “used
sparingly.” In re Pequeno, 240 Fed.App'x
634, 636 (5th Cir.2007). Motions to reconsider are not
intended to “re-debate” the merits of a
particular motion. W.C. Bulley v. Fidelity Financial
Servs. Of Miss., Inc., No. 3:00cv522-BN, 2000 WL
1349184, at *3 (S.D.Miss. Sept. 8, 2000). There are only
three grounds for which this court may grant a motion for
reconsideration: “(1) an intervening change in
controlling law, (2) the availability of new evidence not
previously available, and (3) the need to correct a clear
error of law or prevent manifest injustice.” W.C.
Bulley, 2000 WL 1349184, at *2 (citations omitted). If
one of these three grounds is not present, the court must
deny the motion.
has not alleged an intervening change in controlling law, the
availability of new evidence not previously available, or the
need to correct a clear error of law or to prevent injustice,
nor has he rebutted Defendant's explanation for the
difference between the reports. The Court could deny the
motion for these reason alone. Additionally, under the
Geiserman factors, Plaintiff has still not pointed
to any specific prejudice he has suffered from the revised
designation, making only the blanket allegation that the