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Dykes v. Cleveland Nursing & Rehabilitation Center

United States District Court, N.D. Mississippi, Greenville Division

June 20, 2018

DANNY DYKES, Individually and on behalf of the Estate and Wrongful Death Beneficiaries of James A. Dykes, Deceased PLAINTIFF
v.
CLEVELAND NURSING & REHABILITATION CENTER; and JOHN AND JANE DOES I-X DEFENDANTS

          ORDER

          DEBRA M. BROWN, UNITED STATES DISTRICT JUDGE.

         This 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.

         I Relevant Procedural History[1]

         On 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.

         A. Discovery and Initial Supplementation

         As part 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.[2]

         On 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 Witnesses”).

         On 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.

         B. Pretrial Conference and Second Supplementation

         On May 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.

         At the 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.

         On June 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 Supplementation.”

         Two 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.

         In 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, ...


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