United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS' MOTION  TO STRIKE
PLAINTIFF'S REBUTTAL EXPERT AND EXPERT'S SUPPLEMENTAL
SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE.
THE COURT is Defendants Thomas M. Matthews, III and Matthews
& Matthews, PLLC's (collectively,
“Matthews”) Motion  to Strike
Plaintiff's Rebuttal Expert and Expert's Supplemental
Report. The Motion has been fully briefed. For the reasons
that follow, the Motion will be granted in part as to
Plaintiff's expert John Corlew and as to the portion of
the Supplement to Report of Robert Williford that relates to
the reasonableness of attorneys' fees and denied in part
as to the portion of that report that relates to concealed
dispute is a legal malpractice action against Matthews
relating to the administration of the Estate of Jack
Dick, Deceased, Cause No. 2013-0065-PR-G, in the
Chancery Court of Pearl River County, Mississippi. Plaintiff
Aimee McReynolds (“McReynolds”) was the sole
beneficiary of Jack Dick's handwritten Will. Shortly
after Dick passed away, McReynolds retained Matthews in April
2013 to probate Dick's Will. McReynolds was initially
appointed by the Chancery Court to serve as Administratrix of
the Estate. McReynolds claims that Matthews failed to
administer the Estate in a timely and proper manner, causing
her to suffer monetary damages.
terminated Matthews in March 2015, and in May 2015, the
Chancery Court removed McReynolds as Administratrix.
McReynolds later retained the Law Office of B. Ruth Johnson -
which is also her counsel in this present litigation - to
represent her in Dick's Estate proceedings. McReynolds
signed a 1% contingency fee agreement on October 9, 2015. Two
of Dick's half-siblings filed a Will contest on October
13, 2015. McReynolds subsequently amended her contingency fee
agreement, increasing the fee three times: first, to 15% on
October 20, 2015; second, to 25% on March 28, 2016; and
finally, to 33 1/3% on May 31, 2016. McReynolds eventually
settled the challenges to the Will, and on July 19, 2016, the
Chancery Court entered a Decree closing the Estate.
The Parties' Expert Designations
April 8, 2016, McReynolds filed a Complaint against Matthews
in the Circuit Court of Pearl River County, Mississippi.
Compl. [1-1]. Matthews removed the case to this Court on the
basis of diversity jurisdiction on August 26, 2016.
Id. at 1-2. On January 9, 2017, McReynolds filed an
Amended Complaint. Am. Compl. . The Amended Complaint
alleges claims for breach of fiduciary duty and breach of the
duty of care. McReynolds contends that a litany of
Matthews' wrongful acts caused her to suffer damages
including that, but for Matthews' negligence in handling
the case, the contest of the Will would have been
time-barred, and McReynolds would not have incurred
attorneys' fees to represent her interest in the Estate.
Id. at 11-12.
Court entered its Case Management Order on December 8, 2016,
and ordered that McReynolds designate her experts by April 3,
2017. Case Management Order  at 4. Upon joint motion of
the parties, the Court extended McReynolds' expert
designation deadline to April 10, 2017. Matthews' expert
designation deadline was later reset to June 15, 2017. Order
. Matthews moved ore tenus to extend the
designation deadline for its expert attorney Lawrence Gunn
(“Gunn”). Order . The Court granted that
extension, and set Matthews' expert designation deadline
for Gunn to July 10, 2017. Id. The existing June 15,
2017, deadline for designation of all other defense experts
remained in place. Id.
April 10, 2017, McReynolds timely designated two experts,
Robert E. Williford, Esq. (“Williford”), and
Joseph E. Hines, and submitted their reports. Designation of
Expert Witnesses [126-5] at 1. Williford was designated as an
expert on “the legal, ethical and fiduciary duties of
an attorney in the administration of estates, ”
id. at 4, while Hines was tendered to offer expert
testimony in the field of accounting and financial analysis,
see Id. at 28, 59. Williford's timely April 10,
2017 report (“First Report”) opined as to
Matthews' duties and breaches, id. at 7-20, and
took the position that had the Estate been properly opened
and administered, the later challenges to the Will would have
been barred by the applicable two-year statute of
limitations, id. at 7.
15, 2017, Matthews identified Gunn as an expert. Suppl.
Answers to Pl.'s First Set of Interrogs. [117-2] at 2-3.
Matthews advised that “Gunn is expected to testify the
fees and expenses paid by McReynolds to the Law Office of B.
Ruth Johnson, PLLC were excessive and unreasonable.”
Id. at 6. Matthews also disclosed that Gunn was
expected to testify that the Will contests could have been
filed under a theory of concealed fraud, such that the
two-year statute of limitations did not apply. Id.
at 5. On June 30, 2017, McReynolds disclosed to Matthews a
Supplement to Report of Williford (“Second
Report”). Williford Suppl. to Rep. [117-3]. After
Williford's Second Report noted that Matthews expects
Gunn to testify that McReynolds' attorneys' fees were
unreasonable, it then offered a countering opinion, for the
first time, that McReynolds' attorneys' fees were
reasonable. Id. at 2. Williford's Second Report
dismissed the concealed fraud theory because the Will was
made public record and never concealed. Id.
10, 2017, Matthews formally designated Gunn and disclosed his
report, in which Gunn stated that “the amount of fees
Ms. McReynolds paid to the Law Office of Ruth B. Johnson was
unreasonable.” Gunn Report [117-2] at 6. On July 20,
2017, McReynolds designated John G. Corlew, Esq.
(“Corlew”) as a rebuttal expert and submitted his
“Rule 26(a)(2) Report.” Designation of Expert
Rebuttal Witness [126-9] at 1. McReynolds retained Corlew to
address Gunn's opinions regarding the reasonableness of
her attorneys' fees. Id. at 3. Corlew asserts in
his report that “those fees were reasonable.”