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Dallas v. Premier Vehicle Transport, Inc.

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

October 23, 2017

KAREN DALLAS, as Personal Representative of the Estate of Melvin Dallas, III, deceased PLAINTIFF


          Louis Guirola, Jr., Chief U.S. District Judge

         BEFORE THE COURT is the [74] Motion to Strike or In Limine filed by the defendants seeking exclusion of certain evidence and testimony not timely or fully disclosed in this wrongful death case. The plaintiff has responded, and the defendants have replied. After due consideration of the submissions, the Court finds that the Motion should be granted in part and denied in part.


         The defendants' filed this Motion contending that Plaintiff Karen Dallas failed to disclose a number of fact witnesses, timely provide certain documents in discovery, and make full expert disclosures for three expert witnesses. The subsequent briefing has narrowed the items of disagreement to whether J. Brent Davis, M.D., Jason Moody, and Jason Burke were properly disclosed as expert witnesses, and whether Dr. Davis's autopsy report should be excluded because it was only recently disclosed.

         1. Expert Witnesses

         Rule 26 requires parties to disclose the identity of any person who will provide expert testimony at trial. Fed.R.Civ.P. 26(a)(2)(A). All disclosures must be made and supplemented in the time and sequence ordered by the Court. Fed.R.Civ.P. 26(a)(2)(D)-(E). A party's failure to properly disclose an expected expert's testimony is “grounds for prohibiting introduction of that evidence at trial.” L. U. Civ. R. 26(a)(2). Additionally, Rule 37 provides: “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 trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). However, the Local Rules also place responsibility on a litigant to bring an inadequacy in the other party's disclosures to the Court's attention while there is time to remedy it. “Challenges as to inadequate disclosure of expert witness(es) must be made no later than thirty days before the discovery deadline or will be deemed waived.” L.U. Civ. R. 26(a)(3).

         In her answers in the defendants' interrogatories, Dallas identified the following as her expert witnesses:

Medical Examiner (Cause of death) Jason J. Moody, Deputy Coroner Jason Burke, Acadian Ambulance

(Def. Mot. Ex. 2, at 2, ECF No. 74-2). Dallas states that it was in September 2017 that she learned that the Medical Examiner was Dr. Davis and received the report of autopsy and photographs from the Mississippi State Medical Examiner's Office. (Def. Mot. Ex. 5, ECF No. 74-5).

         a. J. Brent Davis, M.D.

         Dallas' identification of Dr. Davis only as “Medical Examiner” is wholly inadequate to disclose any type of witness. See Fed. R. Civ. P. 26(a)(1)(A)(I) (requiring “the name” of witness). Accordingly, the Court does not consider that Dr. Davis was disclosed as an expert witness until September 27, 2017, well beyond the plaintiff's deadline for doing so. Even when she identified Dr. Davis by name, Dallas did not provide the subject matter of his testimony and a summary of the facts and opinions to which he was expected to testify. Fed.R.Civ.P. 26(a)(2)(C). Thus, Dallas' designation of Dr. Davis was both late and inadequate. Without giving any explanation for the tardy and insufficient designation, Dallas argues that the testimony of Dr. Davis will not prejudice the defendants because he will testify as to cause of death, which is not at issue in this case. She states she will call Dr. Davis only if cause of death becomes an issue.

         In considering whether to exclude an expert not properly designated, the Court considers four factors: (1) the explanation for failing to identify the witness; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice. Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004) (citing Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990)). Dr. Davis will not be allowed to testify as an expert witness because the factors the Court is to consider do not weigh in favor of disregarding the expert witness deadlines imposed in this case. Dallas does not explain why she failed to identify Dr. Davis by name until shortly before trial; his testimony goes to a non-material issue ...

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