United States District Court, S.D. Mississippi, Eastern Division
STARRETT UNITED STATES DISTRICT JUDGE
filed a Motion in Limine  to exclude all opinions and
testimony of Plaintiff's expert, Trey Moseley, that were
not disclosed during discovery. Defendant anticipates that
Plaintiff will attempt to elicit testimony from Moseley on
several topics that were not disclosed in Moseley's
designation, expert report, or deposition, because they were
mentioned in Plaintiff's brief in response to
Defendant's Daubert motion. In response,
Plaintiff contends that the disputed testimony was disclosed
provides that “a party must disclose to the other
parties the identity of any witness it may use at trial to
present” expert testimony. Fed.R.Civ.P. 26(a)(2)(A).
“Unless otherwise stipulated or ordered by the court,
this disclosure must be accompanied by a written report -
prepared and signed by the witness - if the witness is one
retained or specially employed to provide expert testimony in
the case . . . .” Fed.R. Civ. P. 26(a)(2)(B). The
report must contain:
(i) a complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming
(iii) any exhibits that will be used to summarize or support
(iv) the witness's qualifications, including a list of
all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by
(vi) a statement of the compensation to be paid for the study
and testimony in the case.
Fed. R. Civ. P. 26(a)(2)(B). “A party must make these
disclosures at the times and in the sequence that the court
orders.” Fed.R.Civ.P. 26(a)(2)(D). This Court's
local rules provide that a “party must make full and
complete disclosure as required by Fed.R.Civ.P. 26(a) and
L.U.Civ.R.26(a)(2)(D) no later than the time specified in the
case management order.” L.U.Civ.R. 26(a)(2).
parties must supplement these disclosures when required under
Rule 26(e).” Fed.R.Civ.P. 26(a)(2)(E). “[A] party
is required to supplement its expert disclosures if the court
so orders or if ‘the party learns that in some material
respect the information disclosed is incomplete or incorrect
and if the additional and corrective information has not
otherwise been made known to the other parties during the
discovery process or in writing.” Sierra Club, Lone
Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 570 n.
42 (5th Cir. 1996) (quoting Fed.R.Civ.P. 26(e)(1)).
“[T]he party's duty to supplement extends both to
information included in the report and to information given
during the expert's deposition. Any additions or changes
to this information must be disclosed by the time the
party's pretrial disclosures under Rule 26(a)(3) are
due.” Fed.R.Civ.P. 26(e)(2). While Rule 26(a)(3)
provides that pretrial disclosures must be made at least
thirty days before trial, it adds the following caveat:
“[u]nless the court orders otherwise . . . .”
Fed.R.Civ.P. 26(a)(3). Local Rule 26 provides that a
“party is under a duty to supplement disclosures at
appropriate intervals under Fed.R.Civ.P. 26(e) and in no
event later than the discovery deadline established by the
case management order.” L.U.Civ.R. 26(a)(5).
deadline to designate experts was April 2, 2018. If Plaintiff
intended to supplement its experts' reports, the
supplements were due by the discovery deadline of August 16,
2018. However, Plaintiff had no duty to supplement if the
opinions or information were otherwise made known to
Defendant during the discovery process. Fed.R.Civ.P. 26(e).
Therefore, the Court must examine each disputed area of
testimony and determine whether it was disclosed in
Plaintiff's designation, Moseley's expert report, or
during his deposition.
Standard Business Practices
Defendant argues that Plaintiff did not disclose that Moseley
would provide testimony regarding “the standard
business practices typically implemented to facilitate the
interactive process through which employees can make ADA
requests.” In response, Plaintiff argues that this area
was covered in Moseley's supplemental expert report.
See Exhibit C to Response, EEOC v. Wesley Health
Sys., LLC, No. 2:17-CV-126-KS-MTP (S.D.Miss. Sept. 28,
2018), ECF No. 84-3. According to Plaintiff, Moseley
addressed this issue by reciting the Department of
Labor's definition of a reasonable accommodation. But the
paragraph in question does not address the interactive
process, standard business practices, or ADA requests.
Plaintiff argues that Moseley provided his opinions on these
matters during his deposition, but the testimony highlighted
by Plaintiff concerns training Moseley has received.
See Exhibit B to Response at 29-30, EEOC v.
Wesley Health Sys., LLC, No. 2:17-CV-126-KS-MTP
(S.D.Miss. Sept. 28, 2018), ECF No. 84-2. He did not mention
the interactive process, ADA requests, or the standard
business practices concerning such.
Plaintiff has not shown that it disclosed Moseley's
opinions on such matters to Defendant. Accordingly, the Court
finds that Plaintiff did not comply with its disclosure
requirements with regard to Moseley's opinions regarding
“the standard business practices typically implemented