United States District Court, N.D. Mississippi, Greenville Division
ORDER GRANTING IN PART DEFENDANT'S MOTION TO
PERCY UNITED STATES MAGISTRATE JUDGE.
has moved to strike plaintiff Patrick Grace's expert
witness designation of Drs. Dewey Garner and Reginald Rodges.
Docket 58. Grace has not responded to the motion, and the
time for a response has expired. The court has reviewed the
Motion to Strike and Memorandum of Authorities (Docket 59)
and Plaintiffs' Answers to Interrogatories (Docket 58,
Exhibit 1), and concludes that the Motion to Strike the
designation of Drs. Garner and Rodges should be GRANTED IN
is concerned with the labeling of the two treating physicians
as experts because Grace failed to comply with the rules for
the disclosure of witnesses and the designation of experts in
accordance with Federal Rule of Civil Procedure 26 and Local
Uniform Civil Rule 26. Fed.R.Civ.P. 26(a)(1)(A) dictates
a party must, without awaiting a discovery request, provide
to the other parties:
(i) the name, and if known, the address and telephone number
of each individual likely to have discoverable information -
along with the subjects of that information - that the
disclosing party may use to support its claims or defenses .
(ii) a copy - or a description by category and location - of
all documents, electronically stored information, and
tangible things that the disclosing party has in its
possession, custody, or control and may use to support is
claims or defenses . . . .
disclosures must be made within 14 days after the
parties' Rule 26(f) conference pursuant to Fed.R.Civ.P.
26(a)(1)(C) and the party must supplement its disclosure
“in a timely manner if the party learns that in some
material respect the disclosure or response is incomplete or
incorrect . . .” as required by Fed.R.Civ.P. 26(e).
“If a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to supply evidence
on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless.”
Fed.R.Civ.P. 37(c). The purpose of these disclosure
requirements is to “eliminate unfair surprise to the
opposing party.” Hill v. Koppers Indus., 2009
U.S. Dist. LEXIS 98798, at *38 (N.D.Miss. Sept. 30, 2009);
citing Muldrow ex rel. Estate of Muldrow v.
Re-Direct, Inc., 493 F.3d 160, 167 (D.C. Cir. 2007).
addition to initial disclosures, Fed.R.Civ.P. 26(a)(2)
requires a party to disclose the identity of any expert
witness it may use at trial and provide a written, signed
report. 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 alter 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. . . .
(D) A party must designate physicians and other witnesses who
are not retained or specially employed to provide expert
testimony but who are expected to be called to offer expert
opinions at trial. No written report is required from such
witnesses, but the party must disclose the subject matter on
which the witness is expected to present evidence under
Fed.R.Evid. 207, 203 or 205, and a summary of the facts and
opinions to which the witness is expected to testify. The
party must also supplement initial disclosures.
treating physician not designated as an expert, but properly
identified as a witness, may testify as a treating physician,
but his/her testimony is limited to those facts and opinions
contained in the plaintiff's medical records. Doss v.
NPC Int'l, 2010 U.S. Dist. LEXIS 85583 (N.D.Miss.
July 20, 2010)(limiting testimony of treating physician
because designation of physician as expert failed to comply
with requirements of L.U.Civ.R. 26); citing Duke v.
Lowe's Home Centers, 2007 U.S. Dist. LEXIS 80415
(N.D. Miss. Oct. 19, 2007)(“concluding that without
expert report, treating physician's testimony was
‘limited to those facts and opinions contained in [the]
instant case, defendant does not dispute that is aware of the
treatment received by Grace from the two physicians at issue:
Dr. Dewey Garner and Dr. Reginald Rodges. In his responses to
Interrogatories Grace identified these physicians and the
facility where they treated him. It is unclear from
defendant's motion whether Grace has produced the
treatment records from these physicians. Assuming that Grace
either produced the treatment records from Dr. Garner and Dr.
Rodges or defendant obtained them on its own, the undersigned
concludes that Grace has properly identified these physicians
as treating physicians with knowledge of his condition, but
he has not complied with the rules for disclosure of these