United States District Court, S.D. Mississippi, Eastern Division
MICHAEL T. PARKER UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Defendants' Motion to
Strike Supplemental Expert Report . 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.
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
September 12, 2018, the Court entered a Case Management Order
, which set case deadlines. On January 16, 2019, the
Court extended the expert designation deadlines. See
Order . On March 21, 2019, the Court again extended
Defendants' expert designation deadline and extended the
discovery and motions deadlines. See Order .
Pursuant to the Court's Orders   ,
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.
March 1, 2019, Plaintiff designated Jason Walton as an expert
witness. See Notice . 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.
April 2, 2019, Plaintiff noticed the 30(b)(6) depositions of
ACM Transportation and Lard Oil for May 7, 2019. See
Notices  . Following discussions between the parties,
these depositions were rescheduled for May 16, 2019.
See Notices  . 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.
discovery deadline ran on June 3, 2019. Nevertheless, on July
1, 2019, Plaintiff filed a supplemental expert report
prepared by Jason Walton. See Notice . 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 , arguing that the supplemental report
should be stricken as untimely.
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).
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
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