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Equal Employment Opportunity Commission v. Wesley Health System, LLC

United States District Court, S.D. Mississippi, Eastern Division

December 12, 2018

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF
v.
WESLEY HEALTH SYSTEM, LLC DEFENDANT

          ORDER

          KEITH STARRETT UNITED STATES DISTRICT JUDGE

         Defendant filed a Motion in Limine [101] 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 during discovery

         Rule 26 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 them;
(iii) any exhibits that will be used to summarize or support them;
(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 deposition; and
(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).

         “The 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).

         Plaintiff's 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.

         A. Standard Business Practices

         First, 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.

         Next, 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.

         Therefore, 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 ...


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