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Stroud v. Walmart, Inc.

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

April 15, 2019

CHARLES STROUD, SR., Individually and as wrongful death representative of Charles Stroud, Jr. PLAINTIFF


          Louis Guirola, JR. United States District Judge.

         BEFORE THE COURT is the [69] Motion to Strike Plaintiff's Expert Designations filed by Defendant Walmart, Inc.[1] Plaintiff did not file a response. For the reasons below, the Court grants in part and denies in part the Motion to Strike Plaintiff's Expert Designations.

         I. DISCUSSION

         In this products liability case, Plaintiff alleges that his fifteen-year-old son died after intentionally inhaling a keyboard cleaning product called Ultra Duster, which another adult in the family purchased from Wal-Mart. Plaintiff alleges that Wal-Mart “is the manufacturer/designer/seller” of Ultra Duster. (Am. Compl. 1, 10, ECF No. 44.) He alleges that Wal-Mart knows that young people “huff” the product, but has attempted to reduce this misuse only by the inadequate measure of adding a bitterant.

The defendants have chosen profit over safety and chosen keyboard cleaning over young human life. In so doing the defendants have manufactured and sold a product that is defective in design, is inherently dangerous and have violated their obligation to adequately warn of the dangers of the Ultra Duster product, have failed to take measures to keep it out of the hands of children, and have taken safety steps that are designed to provide a defense to liability claims rather than recognize the reality that the product is not worth the harm that it causes, can never be made safe, and is a sham of a product that exists without adequate or legitimate reason save for the profit it brings to the defendants.

(Am. Compl. 4, ECF No. 44.) Plaintiff's claims against Wal-Mart are for defective design and failure to warn under the Mississippi Products Liability Act, and negligence in designing, testing, manufacturing, marketing, and selling the Ultra Duster product.

         The Motion to Strike Plaintiff's Expert Designations

         Wal-Mart has renewed its objections to Plaintiff's expert designations. The Magistrate Judge earlier denied Wal-Mart's motion to strike expert designations without prejudice, in part because Wal-Mart had not attached the designation itself. (Order, ECF No. 59.) The Magistrate Judge noted the history leading up to Wal-Mart's motion.

Plaintiff's original expert designation deadline was August 27, 2018 (ECF No. 23). On that date, he filed an Unopposed Motion for Extension of Time to Designate Experts (ECF No. 33). The Court granted the Motion, extending his deadline to September 10, 2018. On September 10, he filed a second Motion for Extension of Time to Designate Experts (ECF No. 34), seeking to extend his deadline to September 18, 2018. Because this second Motion failed to inform the Court whether it was opposed, as required by Local Uniform Civil Rule 7(b)(10), the Court denied the Motion without prejudice. Plaintiff did not file another motion, but he did not serve his designation of experts until September 21, 2018 (ECF No. 35). Thereafter, on October 8, 2018, Defendant Walmart filed its Motion to Strike Plaintiff's Expert Designations, asserting that the designation was late and did not comply with the Federal Rules of Civil Procedure or the Local Uniform Civil Rules.

(Id. at 1-2.) The Magistrate Judge 1) declined to strike the designation on untimeliness grounds and 2) denied without prejudice the request to strike for failure to comply with the Rules __ because Wal-Mart had not attached the designation, the Magistrate Judge could not determine its sufficiency. (Id. at 2.)

         Wal-Mart has now provided Plaintiff's designation of experts with its renewed motion to strike, which it filed on January 17, 2019. Plaintiff did not file a response, and the time for doing so has long expired. See L. U. Civ. R. 7(b)(4). Although the motion may be granted as unopposed, the Court nevertheless considers it on the merits.

         Local Rule 26 mandates that “[a] party must make full and complete disclosure [regarding expert witnesses] 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.” L.U. Civ. R. 26(a)(2). Under Federal Rule 26, the disclosure of experts must be accompanied by a written report containing a complete statement of the witness's opinions and the basis for them, the facts or data considered, any exhibits that will be used, the witness's qualifications, and other information. Fed.R.Civ.P. 26(a)(2)(A)-(B). Local Rule 26 further states that “[a]n attempt to designate an expert without providing full disclosure information as required by this rule will not be considered a timely expert designation and may be stricken . . . .” L.U. Civ. R. 26(a)(2).

         Plaintiff has designated two experts, one of whom is Jim Faulk, Hancock County Coroner, “expected to testify as to medical causation” and the other is Jesse Hines, a scientist “expected to testify to the toxicology of the substance ingested” and related matters. (Def. Renewed Mot. to Strike Ex. A, ECF No. 70-1.) There is no further information provided.

         Assuming the Coroner should be considered similarly to a treating physician, Plaintiff's failure to provide a written report does not preclude the Coroner's testimony, but his testimony “must remain confined to facts disclosed during care and treatment of the patient, including his diagnosis, [and] the causation of a plaintiff's injuries . . . as long as the doctor formed those opinions based on his personal knowledge and observations obtained during the course of care and treatment.” Walker v. Target Corp., No. 2:16-CV-42-KS-MTP, 2017 WL 2903253, at *1 ...

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