United States District Court, N.D. Mississippi, Greenville Division
DANNY DYKES, Individually and on behalf of the Estate and Wrongful Death Beneficiaries of James A. Dykes, Deceased PLAINTIFF
CLEVELAND NURSING & REHABILITATION CENTER; and JOHN AND JANE DOES I-X DEFENDANTS
M. BROWN, UNITED STATES DISTRICT JUDGE.
negligence action is before the Court on Cleveland Nursing
& Rehabilitation Center's “Emergency Motion to
Exclude Testimony of Newly Identified Witnesses and for
Expedited Briefing Schedule and Hearing.” Doc. #119.
Relevant Procedural History
April 20, 2015, Danny Dykes filed a complaint in the Circuit
Court of Bolivar County, Mississippi, individually and on
behalf of the estate and wrongful death beneficiaries of
James A. Dykes, deceased, against Cleveland Nursing &
Rehabilitation Center and “John and Jane Does
I-X.” Doc. #2. In his complaint, Danny alleges that
James died as a result of negligence while a patient at the
defendant's nursing home facility. Id. at
¶¶ 7-8, 12. Cleveland Nursing subsequently removed
the state action to this Court on the ground of diversity
jurisdiction. Doc. #1 at ¶ 4.
Discovery and Initial Supplementation
of the discovery process, Cleveland Nursing, on June 26,
2015, and then again on February 22, 2016, produced to
Danny's counsel James' medical records. Included in
the medical records were staff reports for services provided
to James, such as feedings and baths, at “Facility: 55
- Cleveland Nursing and Rehab.” See, e.g.,
Doc. #122-1. Each entry on a staff report included a
“UserID, ” which is comprised of the number 55
followed by one or two letters and what appears to be a
surname. Id. Of relevance here, the staff reports
included the following UserIDs: (1) 55cpbrown; (2) 55bbass;
(3) 55smiller; (4) 55zrome; (5) 55kbuckner; (6) 55dwright;
and (7) 55rpippins. Id.
October 18, 2017, Danny responded to Cleveland Nursing's
Interrogatory No. 4, which requested a list of Danny's
“may call” witnesses and a summary of each
witness' proposed testimony. Doc. #121-1 at 5-7, 16.
Danny's response listed certain individuals and reserved
the right “to call to testify … any person
identified by Cleveland in its discovery responses.”
Id. at 7. Approximately a month later, on November
16, 2017, Cleveland Nursing responded to Danny's
Interrogatory No. 1, which requested identification of
“all individuals … employed at Cleveland from
approximately November 12, 2012 to September 3, 2014
….” Cleveland Nursing's response identified
133 individuals, including eight former employees: Betty
Bass, Chaquita Pomerlee, Dionne Wright, Christopher Brown,
Kourlencia Buckner, Rose Pippins, Starleana Miller, and
Zorana Rome (collectively, “Supplemental
February 8, 2018, the discovery deadline, the parties filed
supplemental responses to interrogatories. Doc. #87; Doc.
#89. In his supplemental response to Cleveland Nursing's
Interrogatory No. 4, Danny reserved the right to call
“any person identified by Cleveland in its discovery
responses ….” Doc. #121-1 at 23.
Pretrial Conference and Second Supplementation
21, 2018, counsel for the parties met to formulate a proposed
pretrial order for a May 29, 2018, pretrial conference before
United States Magistrate Judge Jane M. Virden. During this
meeting, Danny's counsel identified as potential
witnesses nineteen individuals, including the eight
Supplemental Witnesses, from the list of 133 past or current
employees provided by Cleveland Nursing in response to
Danny's Interrogatory No. 1.
pretrial conference, Cleveland Nursing's counsel objected
to inclusion of the nineteen witnesses on the grounds that
calling all nineteen witnesses would unnecessarily prolong
the trial. In response to this argument, Judge Virden
directed Danny to supplement his discovery response to
include the identified witnesses and their proposed
testimony. Judge Virden also directed the parties to submit a
proposed pretrial order on or before June 11, 2018.
11, 2018, Danny served on Cleveland Nursing a second
supplemental response to Cleveland Nursing's
Interrogatory No. 4. Doc. #119-1. The supplemental response
listed the Supplemental Witnesses as potential witnesses and
provided the following summary for their testimony:
These individuals, if called, will provide testimony related
to the care they provided or were unable to provide to Mr.
Dykes, including but not limited to turning and
repositioning, cleaning, and hygiene. They will also discuss
staffing issues within the facility and how it impacted their
ability to provide care to residents, including Mr. Dykes.
Id. at 5. The same day, the parties submitted to the
Court a proposed pretrial order which, in the section for
pending motions, included the statement, “Cleveland
will be filing a Motion to Strike Discovery
days later, on June 13, 2018, Cleveland Nursing filed an
“Emergency Motion to Exclude Testimony of Newly
Identified Witnesses and for Expedited Briefing Schedule and
Hearing.” Doc. #119. The motion
requests that this Court order that Plaintiff's late
supplementation of his responses to Cleveland's Second
Interrogatories be struck, and further order that those newly
identified witnesses be unable to testify at trial in this
matter. Cleveland further requests that this matter be
briefed and heard on an expedited basis.
Id. at 6.
accordance with the request for expedited hearing, this Court
entered an order directing expedited briefing on Cleveland
Nursing's motion. Doc. #120. Consistent with the
abbreviated schedule, Danny responded in opposition to the
motion on June 15, ...