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Johnson v. Quality Restaurant Concepts, LLC

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

June 26, 2019

ROBBIE JOHNSON PLAINTIFF
v.
QUALITY RESTAURANT CONCEPTS, LLC d/b/a Applebee's Neighborhood Grill and Bar, et al. DEFENDANTS

          ORDER STRIKING AFFIDAVIT

          DEBRA M. BROWN UNITED STATES DISTRICT JUDGE

         Before the Court is Quality Restaurant Concepts, LLC's motion to strike the affidavit of Dr. Hubert E. Spears, which was filed by Robbie Johnson in opposition to Quality Restaurant's motion for summary judgment. Doc. #50.

         I Procedural History

         On January 29, 2018, Robbie Johnson filed a complaint in the Circuit Court of Grenada County, Mississippi, against Quality Restaurant Concepts, LLC d/b/a Applebee's Neighborhood Grill and Bar; Jane Doe; and Kathy Seznack. Doc. #9-2. The complaint alleges Johnson was injured after consuming a salad that contained a toothpick at Applebee's. Id. at 3. On March 14, 2018, Quality Restaurant removed the state court action to the United States District Court for the Northern District of Mississippi, based on diversity jurisdiction.[1] Doc. #1.

         On April 27, 2018, a case management order was issued which, among other things, set July 26, 2018, as Johnson's deadline to designate expert witnesses and October 26, 2018, as the discovery deadline. Doc. #13 at 4. On July 25, 2018, Johnson filed a notice certifying that she served on the defendants “Plaintiff's Designation of Experts.” Doc. #21. On August 7, 2018, the discovery deadline was extended to December 7, 2018. Doc. #24.

         On December 21, 2018, Quality Restaurant moved for summary judgment. Doc. #44. In its accompanying memorandum, Quality Restaurant argues Johnson “has presented no evidence that the … salad … contained a toothpick or that she swallowed a toothpick at Applebee's.” Doc. #45 at 7. On January 8, 2019, [2] Johnson filed a response in opposition to the motion for summary judgment. Doc. #47. Two days later, on January 10, 2019, Johnson filed an “Affidavit [of Dr. Hubert E. Spears] in Opposition to Motion for Summary Judgment” (“Spears Affidavit”). Doc. #49. In the affidavit, Spears avers “that [it] is more likely than not that Mrs. Johnson ingested the subject toothpick within 24 hours before she began having symptoms of abdominal pain and nausea.” Id. at 1.

         On January 15, 2019, Quality Restaurant moved to strike the Spears Affidavit, arguing that Johnson “seeks to add an additional opinion of Dr. Spears, many months past the time for designating expert opinions and … after the close of discovery.” Doc. #50 at 1-2. The same day, Quality Restaurant replied in support of its summary judgment motion. Doc. #52. Johnson filed a response opposing the motion to strike on January 23, 2018. Doc. #53. Quality Restaurant replied five days later. Doc. #55.

         II Discussion

         Quality Restaurant asks the Court to strike the Spears Affidavit as an untimely new expert opinion and as noncompliant with “the standards set forth in Federal Rules of Evidence 702 and by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals ….” Doc. #50 at 2. Johnson argues the Spears Affidavit contains no new opinions, “supplements the opinions … in her Expert Designation, ” and “was timely, as no Daubert hearing has been set, [and] no new opinions were submitted ….” Doc. #53 at 3, 5.

         A. Timeliness of Spears Affidavit

         Federal Rule of Civil Procedure 26(a)(2)(A) requires that “a party … disclose … the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” If such witness is not required to provide a written report pursuant to Rule 26(a)(2)(B), Rule 26(a)(2)(C) requires that the disclosure state the subject matter and a summary of the facts and opinions on which the witness is expected to present evidence.[3] Rule 26(e)(1) requires a party who has made a disclosure under Rule 26(a) to supplement or correct its disclosure “if the party learns that in some material respect the disclosure … is incomplete or incorrect ….” Additionally, and of particular relevance here, Local Uniform Civil Rule 26(a)(5) requires that disclosures be supplemented under Rule 26(e) “no … later than the discovery deadline established by the case management order.”

         The Spears Affidavit, which opines on the timing of ingestion, is outside the scope of Spears' expert designation, which was indisputably limited to opinions related to the injuries caused by the toothpick.[4] Furthermore, Johnson filed the Spears Affidavit on January 10, 2019- approximately six months after her July 26, 2018, deadline to designate expert witnesses, and approximately five weeks after the December 7, 2018, discovery deadline. To the extent the affidavit was intended to supplement Johnson's initial designation, it is untimely. In short, the affidavit is either an undisclosed opinion or an untimely supplement.[5] Accordingly, the Spears Affidavit will be stricken.[6]

         B. Admissibility Pursuant to Daubert

         Having determined the Spears Affidavit will be stricken as an undisclosed opinion or untimely supplement, the Court will not reach Quality Restaurant's additional ground for striking the affidavit-that the affidavit “does not meet the standards set forth in Federal Rules of Evidence 702 and by the Supreme ...


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