United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE.
reasons below, the Court grants in part and denies in
part the City of Laurel's Motion to Disallow
 Plaintiff's experts and denies
Plaintiff's Motion in Limine .
alleges that Defendants Bryce Gilbert and Wade Robertson,
officers of Laurel, Mississippi's police department,
pursued him and pulled him over after he altered his route to
avoid a roadblock. Plaintiff claims that he never resisted
arrest, but that Gilbert and Robertson forced him to lie
face-down on the ground and repeatedly kicked him in the head
with steel-toed boots. Plaintiff claims that he suffered
“permanent traumatic brain injury” and traumatic
injury to his face, eyes, and nervous system.
also alleges that Gilbert and Robertson prevented paramedics
from treating him or transporting him to the nearest
hospital. Rather, Gilbert transported Plaintiff to a
hospital. While Plaintiff was hospitalized, Defendants and
other Laurel police officers allegedly threatened him.
alleges that Laurel law enforcement officers threatened to
frame him for possession of a controlled substance if he told
anyone about the beating Defendants gave him. Officers also
allegedly told him that he would not be released from jail
unless he admitted certain misdemeanor traffic violations.
Therefore, Plaintiff pleaded guilty to various traffic
offenses under coercion and without legal representation.
believes that he was targeted by Defendants because he is
African-American. He filed this lawsuit, naming the City of
Laurel, Bryce Gilbert, and Wade Robertson as Defendants. Both
individual Defendants are named in their individual and
official capacities. Plaintiff asserted numerous claims under
42 U.S.C. § 1983, alleging violations of constitutional
rights. In the Court's previous Memorandum Opinion and
Order , it dismissed Plaintiff's claim for punitive
damages as to the City and the individual Defendants in their
official capacities, and Plaintiff's claims under 42
U.S.C. §§ 1985 and 1986. Memorandum Opinion and
Order at 4, 6, Barnett v. City of Laurel, No.
2:18-CV-92-KS-MTP (S.D.Miss. Sept. 5, 2018), ECF No. 77.
parties have completed discovery, and they filed several
evidentiary and dispositive motions. The Court now addresses
the parties' evidentiary motions.
Motion to Disallow Plaintiff's Experts
City filed a Motion to Disallow  Plaintiff's experts
from providing testimony. The City argues that Plaintiff
failed to comply with his disclosure obligations under the
Rules, and that some of Plaintiff's proposed expert
testimony should be excluded under Rule 702.
the second motion the City has filed seeking the exclusion of
Plaintiff's experts for Plaintiff's failure to comply
with the discovery rules. See Motion to Disallow
Plaintiff's Experts, Barnett v. City of Laurel,
No. 2:18-CV-92-KS-MTP (S.D.Miss. May 23, 2019), ECF No. 120.
The Court denied the first motion without prejudice because
there was still time left in the discovery period for
Plaintiff to comply with the rules and cure the prejudice.
Id. at 2. Defendant contends that Plaintiff failed
to correct the deficiencies in his disclosures after the
Court gave him a second chance. For the reasons provided
below, the Court grants the motion in part and denies it in
Retained Experts without Reports
the City argues that the Court should exclude the expert
testimony of Bill Brister, Kathy Smith, and Robert Davis
because Plaintiff did not provide expert reports as required
by Rule 26. In response, Plaintiff did not address this
aspect of the City's motion.
requires parties to disclose the identity of any person who
will provide expert testimony at trial. Fed.R.Civ.P.
26(a)(2)(A). “[I]f the witness is one retained or
specially employed to provide expert testimony in the case or
one whose duties as the party's employee regularly
involve giving expert testimony, ” the proponent of the
expert testimony must provide a written report prepared and
signed by the witness. Fed.R.Civ.P. 26(a)(2)(B). Moreover,
the report must contain specific information listed in the
Rules. Fed.R.Civ.P. (a)(2)(B)(i)-(vi).
Court examined Plaintiff's disclosures attached to the
City's motion, and they do not include expert reports
from Brister, Smith, or Davis. Coupled with Plaintiff's
conspicuous avoidance of the topic in briefing, this leads
the Court to conclude that Plaintiff did not produce reports
from these experts.
a party fails to provide information or identify a witness as
required by Rule 26(a) or (3), the party is not allowed to
use that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.” Fed.R.Civ.P.
37(c)(1). When determining whether to strike an expert's
testimony for a party's failure to properly and timely
disclose required information, the Court considers the
following factors: (1) the importance of the testimony, (2)
the prejudice to the opposing party if the Court allows the
testimony, (3) the possibility of curing the prejudice with a
continuance, and (4) the explanation for the failure to
comply with the discovery rules. Sierra Club, Lone Star
Chapter v. Cedar Point Oil Co., Inc., 73 F.3d 546, 572
(5th Cir. 1996).
Court will assume that the testimony of these experts is
important, but Plaintiff has not provided any explanation for
his failure to provide Defendants with expert reports.
Defendants would be severely prejudiced if the Court
permitted Brister, Smith, or Davis to testify because
Defendants don't know their opinions or the basis of
those opinions, among other things. There is no time to cure
the prejudice because the pretrial conference is scheduled
for November 14, 2019. In fact, Plaintiff has had ample time
to cure the prejudice insofar as he was put on notice of the
deficiencies in the disclosures when Defendants filed their
these reasons, the Court grants Defendant's motion with
respect to Bill Brister, Kathy Smith, and Robert Davis. The
Court excludes their testimony. Plaintiff is not allowed to
use it to supply evidence on a motion, at a hearing, or at
the City argues that the Court should exclude the testimony
of Roy Taylor. Defendant argues that Taylor's proposed
testimony includes legal opinions outside the scope of
appropriate expert testimony. Defendant also argues that a
substantial portion of Taylor's testimony is merely
recitation of facts gleaned from other evidence.
Rule 702 Standard ...