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Barnett v. City of Laurel

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

November 6, 2019

JAMES DEMETRIUS BARNETT PLAINTIFF
v.
CITY OF LAUREL, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          KEITH STARRETT UNITED STATES DISTRICT JUDGE.

         For the reasons below, the Court grants in part and denies in part the City of Laurel's Motion to Disallow [193] Plaintiff's experts and denies Plaintiff's Motion in Limine [210].

         I. Background

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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 [77], 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.

         The parties have completed discovery, and they filed several evidentiary and dispositive motions. The Court now addresses the parties' evidentiary motions.

         II. Motion to Disallow Plaintiff's Experts [193]

         The City filed a Motion to Disallow [193] 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.

         This is 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 part.

         A. Retained Experts without Reports

         First, 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.

         Rule 26 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).

         The 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.

         “If 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).

         The 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 initial motion.

         For 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 trial.

         B. Roy Taylor

         Next, 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.

         1. Rule 702 Standard ...


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