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Clark v. Lard Oil Co., Inc.

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

August 27, 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 Designation [115]. Having considered the parties' submissions, the record, and the applicable law, the Court finds that the Motion should be granted.

         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 October 4, 2017, before this action was filed, Dr. Bill Brister, an economist, created a report for Plaintiff. See 2017 Brister Report [90-2]. Plaintiff provided this report to Defendants before this action was filed. In this report, Brister calculated Plaintiff's lost earnings after assuming that (1) Plaintiff “suffered a significant reduction in earning capacity as the result of injuries incurred on June 6, 2016” and (2) “this reduction in earning capacity will continue throughout the remainder of his work life expectancy.” Id.

         After reviewing Plaintiff's 2018 earnings data, Plaintiff determined that the 2017 report was inaccurate, as it appeared that the reduction in earnings assumed in the report did not manifest in 2018. Instead, it appeared that Plaintiff's earnings had increased. Plaintiff explains that the report “appeared inaccurate because the wage losses assumed in the 2017 model did not appear to manifest themselves in 2018[, and] [i]t was no longer accurate because new types of past and future economic losses had either arisen or been described in the interim.” See Response [127] at 4-5.

         Thus, on February 28, 2019, [1] Brister created another report for Plaintiff. See 2019 Brister Report [90-1]. According to Brister, the new report served as “a revision of the lost earnings estimates given in [the] previous report.” [90-1] at 1. In the 2019 report, Brister calculated Plaintiff's lost earnings based on a 15% reduction in earning capacity. According to Brister, the 15% loss of earning capacity was based on the fact that Plaintiff's employer hired an assistant to aid Plaintiff and paid the assistant 15% of Plaintiff's commissions. [90-1] at 3.

         On March 1, 2019, Plaintiff designated Brister as an expert witness and disclosed the 2019 report. See Notice [40]. The discovery deadline ran on June 3, 2019. Nevertheless, on July 1, 2019, Plaintiff filed a supplemental designation stating that Brister will testify to the opinions expressed in both his 2017 report and his 2019 report. See Supplemental Designation [112-1]. On July 5, 2019, Defendants filed the instant Motion to Strike [115], arguing that Plaintiff's supplemental designation should be stricken as untimely.

         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).

         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 exclude an expert that was not properly and timely designated, the Court considers the following factors:

(1) the importance of the witnesses' testimony;
(2) the prejudice to the opposing party of allowing the ...

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