United States District Court, S.D. Mississippi, Eastern Division
HEALTHONE, INC. and BURNS MCFARLAND PLAINTIFFS
FORREST GENERAL HOSPITAL DEFENDANT
ORDER DENYING MOTION TO STRIKE PLAINTIFFS'
EXPERTS AND GRANTING ADDITIONAL TIME TO DESIGNATE
Michael T. Parker, United States Magistrate Judge
MATTER is before the Court on Defendant's Motion  to
Strike Plaintiffs' Expert Designation or Alternatively
for Additional Time to Designate Experts. Having carefully
considered the parties' submissions and the applicable
law, the Court finds that the Motion  should be granted
in part and denied in part.
filed this matter on January 31, 2018 alleging copyright
infringement, breach of contract, unfair competition, unjust
enrichment, and misappropriate of trade secrets. Comp. . A
Case Management Order was entered on May 21, 2018 setting
case deadlines. Order . On November 1, 2018, the Court
entered an Amended Case Management Order setting the trial
date for October 7, 2019 and extending the following
deadlines: (1) Plaintiffs' expert designation deadline to
February 1, 2019; (2) Defendant's expert designation
deadline to March 1, 2019; and (3) discovery deadline to May
1, 2019; and (4) the motions deadline to May 15, 2019. Order
January 28, 2019, Plaintiffs served their expert
designations. Notice . Plaintiffs identified Joseph E.
Hines, a CPA, and Alina Ng, professor of law at Mississippi
College School of Law, as experts to support their case.
Defendant now moves to strike these expert designations
because they were not accompanied by a report or
documentation upon which the experts' opinions were
based. Alternatively, if the expert designations are not
stricken, Defendant requests an extension of its deadline to
oppose the Motion  in so far as it seeks to strike
Plaintiffs' expert designations. However, Plaintiffs do
not oppose an extension of the deadlines. Plaintiffs assert
that any shortcoming in their designation is the fault of
Defendant because Defendant has allegedly not been
forthcoming with discovery. It is Plaintiffs' position
that Defendant is withholding documents necessary for
Plaintiffs' experts to review before the experts can
create their reports.
is correct that Plaintiffs' expert designations are
deficient. An expert witness report must contain a statement
of all opinions the witness will express and the basis for
those opinions along with facts or data considered by the
witness. Fed.R.Civ.P. 26(a)(2)(B)(i)-(ii). Pursuant to the
Local Rules, “[a] party must make full and complete
disclosures as required by Fed.R.Civ.P. 26(a)(2) and L.U.
Civ. R. 26(a)(2)(D) no later than the time specified in the
case management order… Absent a finding of just cause,
failure to make full expert disclosures by the expert
designation deadline is grounds for prohibiting introduction
of that evidence at trial.” L.U. Civ. R. 26(a)(2).
trial court is provided broad discretion to preserve the
purpose of the pretrial order. Geiserman v.
MacDonald, 893 F.2d 787, 790 (5th Cir. 1990). Courts
determine whether to “exclude evidence that was not
properly designated by considering the following four
factors: (1) the explanation for the failure to identify the
witness; (2) the importance of the testimony; (3) potential
prejudice in allowing the testimony; and (4) the availability
of a continuance to cure such prejudice.” Id.
the first factor, Plaintiffs argue they could not properly
designate their experts because Defendant did not produce
requested documents in discovery. The Court is cognizant that
disputes occur during the discovery process, but it is
incumbent upon the party seeking discovery to avail
themselves of the discovery rules to obtain the information
Obviously, problems can arise and the Court should be
reasonable in working with the attorneys when necessary.
However, if the conduct of a respondent to discovery
necessitates a motion to compel, the requester of the
discovery must protect himself by timely proceeding with the
motion to compel. If he fails to do so, he acts at his own
peril. He must not expect the Court to extend discovery
and/or the trial date because of the failures of the other
party to respond, even if that failure is in bad faith.
Wells v. Sears Roebuck and Co., 203 F.R.D. 240, 241
(S.D.Miss. 2001). The Court gives little weight to
Plaintiffs' explanation for failing to properly designate
their experts, because it was Plaintiffs' responsibility
to file any motion to compel for discovery they deemed
necessary. This factor weighs in favor of striking the expert
second factor, the importance of the expert testimony, likely
favors Plaintiffs, though it is not entirely clear.
Plaintiffs asserts that the expert testimony will help
establish liability and determine damages. However, it is
unclear at this time what the experts would testify to or how
that testimony would support Plaintiffs' claims because
there is currently no report authored by the experts.
third factor, prejudice to the opposing party if the
testimony is allowed, favors Defendant. The deadline for
Defendant to designate experts has run and it could not
appropriately respond to Plaintiffs' deficient expert
fourth factor, the availability of a continuance to cure any
prejudice, weighs in favor of Plaintiffs. A short continuance
of the case management deadlines will remove any prejudice
against Defendant. While the factors, analyzed above, do not
overwhelmingly favor a continuance to allow Plaintiffs to
cure the deficiencies in their expert designations, the
interest of justice are better served by determining a case
on its merits. The Fifth Circuit has “repeatedly
emphasized that a continuance is the preferred means of
dealing with a party's attempt to designate a witness out
of time.” Betzel v. State Farm Lloyds, 480
F.3d 704, ...