United States District Court, N.D. Mississippi, Oxford Division
ORDER ON MOTION TO STRIKE DEFENDANTS'
SUPPLEMENTAL AND SECOND SUPPLEMENTAL DESGINATION OF EXPERT
M. VIRDEN UNITED STATES MAGISTRATE JUDGE.
matter is before the court on Plaintiffs' Motion to
Strike Defendants' Supplemental and Second Supplemental
Designation of Expert Witnesses . For the reasons that
follow, the motion is GRANTED.
management order in this case was entered on April 12, 2017,
setting, inter alia, Defendants' expert
designation deadline as July 28, 2017. On that date, however,
no reports were provided to Plaintiffs as required by
Fed.R.Civ.P. 26(a)(2)(B). Instead, on their expert
designation deadline, defendants merely disclosed, in
relevant part as follows:
Defendants designate the following witnesses to testify as
experts on their behalf at the trial of the above captioned
(A) Nathaniel Fentress, MS, CRC, CCM Rehabilitation Counselor
1190 North State Street, Suite 202 Jackson, Mississippi 39202
Telephone: 601-355-7550 Cell Phone: 601-832-7100 Fax:
Mr. Fentress is an expert in vocational rehabilitation and
life care planning. Mr. Fentress is expected to testify
concerning to what extent Plaintiff's physical and mental
condition following the accident in question will affect her
ability to obtain employment. Mr. Fentress is further
expected to opine concerning the extent to which
Plaintiff's current physical and mental status will
affect her ability to earn a wages comparable to that which
she was earning at the time of the accident. In so doing, Mr.
Fentress is expected to testify concerning, but not limited
to, types of jobs/employments Plaintiff may be able to
perform as a result of her alleged injuries and/or medical
conditions. In addition, Mr. Fentress may offer opinions as
to the future employment possibilities for Plaintiff, along
with addressing any loss of income/lost wage claims asserted
by the Plaintiff. Mr. Fentress will also offer opinions
concerning the costs associated with providing medical care
for the Plaintiff in the future via a Life Care Plan.
Mr. Fentress's opinions are based upon his specialized
knowledge, training, and skills as a vocational
rehabilitation counselor and life care planner and his review
of Plaintiff's medical records, deposition testimony, and
discovery responses, along with other materials reasonably
relied upon by experts in his field. Mr. Fentress may review
other depositions, medical records and/or other reports to
finalize his opinion. A copy of Mr. Fentress's curriculum
vitae is attached hereto as Exhibit "A" and
incorporated by reference as fully set out therein. A copy of
Mr. Fentress's fee schedule and recent trial testimony is
also attached hereto as Exhibit “B” and
“C”, respectively. A more detailed summary of Mr.
Fentress's specific opinions and the grounds for the same
is contained in his Life Care Plan for the Plaintiff, which
will be supplemented and attached hereto as Exhibit
"D" and is incorporated by reference as fully set
out therein. Mr. Fentress is completing a vocational
rehabilitation report for the Plaintiff, which will be
supplemented upon receipt of the same and is incorporated as
fully set forth therein. Any deposition testimony given by
Mr. Fentress in this case is also incorporated by reference
as fully set forth therein.
(B) Dr. Moses C. Jones, Jr. 973 Golf View Lane, #2 Lapeer,
Michigan 48446 Cell: (601) 506-7080 Email:
Dr. Jones is an expert in the field of neurogsurgery and
physical medicine. A copy of Dr. Jones' curriculum vitae
is attached hereto as Exhibit “E.” Dr. Jones is a
medical physician who is expected to testify based upon his
education, experience, training and his review of the
information provided to him in this litigation. Dr. Jones is
expected to testify regarding the extent and duration of
Plaintiff's injuries including the affects, if any, of
Plaintiff's pre-existing conditions. Dr. Jones will also
testify regarding the Plaintiff's medical conditions
allegedly suffered in the current lawsuit, including the
effects this incident allegedly had on Plaintiff's
functional capacity. Dr. Jones is further expected to testify
as to Plaintiff's impairment rating assigned by Dr. Katz
and/or Dr. Brophy. Further, Dr. Jones will testify about the
effects and injuries Plaintiff suffered during the surgery
performed by Dr. Brophy including the risks/benefits of the
type surgery performed. Dr. Jones will offer testimony
regarding Dr. Brophy's performance of said surgery
including the resulting consequences of said surgery. Dr.
Jones will also offer testimony about the need, or not, of
any future medical treatment and/or care reasonably expected
to be incurred by the Plaintiff resulting from her alleged
slip and fall. Finally, Dr. Jones will offer rebuttal
testimony to the opinions and conclusions reached by Dr.
Brophy and/or Dr. Katz as detailed in the medical records and
any reports authored by either or both.
(C) Jim Koerber, CPA/ABV, CVA, CFE, CFF The Koerber Company
103 Madison Plaza Hattiesburg, Mississippi 39402
Mr. Koerber is an expert in the field of economics,
accounting and valuation. He is expected to testify as to the
valuation of Plaintiff's alleged economic losses due to
her injuries sustained as a result of the incident in
question. In so doing, Mr. Koerber may testify concerning,
but not limited to, Plaintiff's life expectancy, lost
wages, future lost wages, past, present and future medical
expenses, loss of income, future loss of income, present
value calculations, economic values and any areas in his
field of expertise addressed by the Plaintiffs= expert
Mr. Koerber's opinions are based upon: 1) his specialized
knowledge, training, and skills as an economist and
accountant, 2) documents produced to him in the pending
litigation along with other materials reasonably relied upon
by experts in the field of economics and accounting; and 3)
his review of report(s) generated by Plaintiff's experts.
Mr. Koerber may review other depositions, medical records
and/or other reports to finalize his opinion. A copy of Mr.
Koerber's curriculum vitae and fee schedule is attached
hereto as Exhibit "F" and incorporated by reference
as fully set out therein. A more detailed summary of Mr.
Koerber's specific opinions and the grounds for the same
is contained in his report, which will be supplemented upon
receipt of the same, and is incorporated by reference as
fully set out therein. Any deposition testimony given by Mr.
Koerber in this case is also incorporated by reference as
fully set forth therein.
Doc. #34 at 1-4.
September 25, 2017, Plaintiffs' counsel notified counsel
for Defendants of the death of one of Defendants'
designated experts-Mr. Nathaniel Fentress. Doc. #60 at
¶2. Thereafter, the discovery deadline was extended
twice, with December 14, 2017 being the final deadline. As of
December 14, 2017, no reports for Defendants' experts had
been produced, despite the expiration of both the
defendants' expert designation deadline and the discovery
deadline on December 14, 2017. On December 21, 2017,
Plaintiffs filed their first Motion to Strike Defendants'
Experts [Doc. 60] as well as a Memorandum in Support [Doc.
that motion was pending, on January 4, 2018, Defendants filed
a Notice of Service [Doc. 67] indicating Plaintiffs were
being served with Defendants' Supplemental
Designation of Expert Witnesses (Exhibit
“A”). Defendants' Supplemental Designation
replaced Mr. Nathaniel Fentress with Ms. Kathy Jackson-Smith,
but this “supplemental” designation still failed
to provide any reports-and, hence, any opinions to be
testified to at trial or facts and data in support thereof.
after filing the Notice of Service [Doc. 67], Defendants
filed their Response to Plaintiffs' Motion to Strike
[Doc. 68], attaching Defendants' initial and supplemental
expert designation as exhibits [Doc. 68-1, 68-2]. Defendants
assert therein they withheld preparation of expert reports in
anticipation of a Rule 35 Independent Medical Examination.
According to the Plaintiffs, the first time a Rule 35
Examination was mentioned was at the case management
conference-where Plaintiffs' counsel made clear
Plaintiffs would not voluntarily agree to such an exam.
Plaintiffs' counsel also asserts-and defendants'
counsel offer no evidentiary proof to the contrary-that
Defendants' counsel made no mention of their desire to
move forward with a Rule 35 Exam, again, until December 14,
2017-almost five (5) months after their designation deadline,
and on the date the extended discovery deadline expired.
January 26, 2018, this Court entered an order [Doc. 74]
finding that the plaintiffs' motion to strike the
purported expert designations, filed on July 27, 2017, was
untimely and would be denied for that reason. Plaintiffs were
directed to “separately file, within (5) five business
days hereof, any motion and memorandum in support that it may
wish to have the court take up on the issue of whether the
‘supplemental' report of January 4, 2018, should be
stricken for untimeliness.” Doc. #74. Thereafter,
Defendants filed a Notice of Service [Doc. 75] of
Defendants' Second Supplemental Designation
of Experts (Exhibit “B”). Accompanying this
designation were, according to counsel, formal reports of Dr.
Moses Jones and Kathy Jackson-Smith.
January 29, 2018, Plaintiffs filed the instant motion to
strike the purported January 4, 2018 supplemental and
subsequently filed second supplemental designations.