United States District Court, S.D. Mississippi, Southern Division
KAREN DALLAS, as Personal Representative of the Estate of Melvin Dallas, III, deceased PLAINTIFF
PREMIER VEHICLE TRANSPORT, INC., and CHRISTOPHER BROUS DEFENDANTS
GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION
TO STRIKE PLAINTIFF'S AMENDMENTS/ SUPPLEMENTS TO
DEFENDANTS' INTERROGATORIES AND, ALTERNATIVELY, IN LIMINE
MOTION TO EXCLUDE NEW WITNESSES AND INFORMATION PRODUCED BY
Guirola, Jr., Chief U.S. District Judge
THE COURT is the  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.
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
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).
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).
Brent Davis, M.D.
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.
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