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 Designation . Having
considered the parties' submissions, the record, and the
applicable law, the Court finds that the Motion should be
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.
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.
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  at 4-5.
on February 28, 2019,  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.
March 1, 2019, Plaintiff designated Brister as an expert
witness and disclosed the 2019 report. See Notice
. 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 ,
arguing that Plaintiff's supplemental designation 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).
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