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Clark v. Lard Oil Company, Inc.

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

August 21, 2019

RAMSEY CLARK PLAINTIFF
v.
LARD OIL COMPANY, INC. and ACM TRANSPORTATION LLC DEFENDANTS

          ORDER

          MICHAEL T. PARKER UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Defendants' Motion to Strike Supplemental Expert Report [123]. Having considered the parties' submissions, the record, and the applicable law, the Court finds that the Motion should be granted in part and denied in part.

         BACKGROUND

         This action arises out of an automobile accident caused by Darrell Extine, an employee of Defendant ACM Transportation, LLC. Plaintiff alleges that Extine, a nonparty, was operating a tanker truck owned by Defendant Lard Oil Company, Inc, when he struck several vehicles, including one operated by Plaintiff.

         On September 12, 2018, the Court entered a Case Management Order [11], which set case deadlines. On January 16, 2019, the Court extended the expert designation deadlines. See Order [36]. On March 21, 2019, the Court again extended Defendants' expert designation deadline and extended the discovery and motions deadlines. See Order [46]. Pursuant to the Court's Orders [11] [36] [46], Plaintiff's expert designation deadline ran on March 1, 2019; Defendants' expert designation deadline ran on May 1, 2019; the discovery deadline ran on June 3, 2019; and the motions deadline ran on June 10, 2019.

         On March 1, 2019, Plaintiff designated Jason Walton as an expert witness. See Notice [40]. In his report, Walton concluded as follows:

[I]t is my opinion that the sole proximate cause of this chain reaction collision is due to the actions or inactions of the driver of the ACM Hino, Darrell Extine. Mr. Extine failed to maintain a proper lookout, failed to maintain proper control of his vehicle, and was following too close. Mr. Extine possessed the needed time and distance to avoid this collision but did not utilize this time and distance. This collision was avoidable had Mr. Extine allowed the appropriate distance from the vehicle ahead of him and maintained a proper lookout for traffic ahead.

See Walton Report [123-5] at 12.

         On April 2, 2019, Plaintiff noticed the 30(b)(6) depositions of ACM Transportation and Lard Oil for May 7, 2019. See Notices [57] [58]. Following discussions between the parties, these depositions were rescheduled for May 16, 2019. See Notices [66] [70]. On May 16, 2019, Plaintiff deposed the 30(b)(6) representatives, Johnny Milazzo and Brenda Adams. Just prior to the depositions, Defendants produced to Plaintiff documents, which included a statement written by Extine. Extine described the accident and stated the he “looked off to right [and] when [he] turned back around, traffic ahead had stopped.” See Extine Statement [132-3]. Extine also stated that he had no time to hit the brakes. Id.

         The discovery deadline ran on June 3, 2019. Nevertheless, on July 1, 2019, Plaintiff filed a supplemental expert report prepared by Jason Walton. See Notice [112]. In the supplemental report, Walton considered Extine's written statement and the depositions of Milazzo and Adams. Unlike the original report, the supplemental report contains Walton's opinions that (1) Extine acted recklessly by diverting his attention away from the roadway for an extended period of time and (2) proper training of Extine as to the operation of a vehicle could have helped prevent the collisions, and AMC Transportation failed to show it properly trained Extine. See Walton Supplemental Report [123-6]. On July 15, 2019, Defendants filed the instant Motion to Strike [123], arguing that the supplemental report should be stricken as untimely.[1]

         ANALYSIS

         “A party must make [expert] disclosures at the times and in the sequence that the court orders.” Fed.R.Civ.P. 26(a)(2)(D). Local Rule 26 provides that a “party must make full and complete disclosures 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). However, “[t]he parties must supplement these disclosures when required under Rule 26(e).” Fed.R.Civ.P. 26(a)(2)(E). Pursuant to the Local Rules, “[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).

         As previously mentioned, Plaintiff's expert designation deadline ran on March 1, 2019, and the discovery deadline ran on June 3, 2019. Thus, whether characterized as new report or as a supplement, Walton's supplemental report was untimely.

         Rule 37 provides that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). To determine whether to ...


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