United States District Court, S.D. Mississippi, Southern Division
DUSTIN RIGGIO, individually, and in his representative capacity as Administrator of the Estate of Kim Mills, deceased, and on behalf of all wrongful death beneficiaries of Kim Mills, deceased PLAINTIFF
ISREAL PRUNEDA; SMC TRANSPORT LLC; WERNER ENTERPRISES, INC.; and JOHN DOES 1-5 DEFENDANTS
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO STRIKE PLAINTIFFS' UNTIMELY
GUIROLA, JR. UNITED STATES DISTRICT JUDGE.
THE COURT is the  Motion to Strike Plaintiffs'
Untimely Expert Disclosures, filed by Defendants Israel
Pruneda and SMC Transport, LLC. Defendants contend that
supplemental disclosures submitted by experts Fred Hanscom,
Robert Kelly, and Dr. Jerry Householder were untimely and
should be stricken. The Motion has been fully briefed, and
after due consideration, the Court finds that it should be
granted as to Robert Kelly's supplemental report and
denied in all other respects.
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).
The Federal Rules also provide for rebuttal reports:
“if the evidence is intended solely to contradict or
rebut evidence on the same subject matter identified by
another party under Rule 26(a)(2)(B) or (C)” then the
rebuttal report is due “within 30 days after the other
party's disclosure.” Fed.R.Civ.P. 26(a)(2)(D).
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
witness to testify;
(3) the possibility of curing such prejudice by a
continuance; and (4) the explanation, if any, for the
party's failure to comply with the discovery order.
Sierra Club, Lone Star Chapter v. Cedar Point Oil Co.
Inc., 73 F.3d 546, 572 (5th Cir. 1996); see also
Reliance Ins. Co. v. Louisiana Land and Exploration Co.,
110 F.3d 253, 257 (5th Cir. 1997) (citing Geiserman v.
MacDonald, 893 F.2d 787, 791 (5th Cir. 1990)).
Defendants object to untimeliness of reports provided by two
otherwise properly designated experts: 1) Hanscom's May
6, 2019 supplemental report, and 2) Kelly's May 29, 2019
supplemental report. The Case Management Order in this case
established a discovery deadline of June 18, 2019. (ECF No.
26.) Since both Hanscom's and Kelly's supplemental
reports were provided prior to expiration of the discovery
deadline, they were not untimely if truly supplemental.
See L.U. Civ. R. 26(a)(5). However, Defendants
contend that both Hanscom and Kelly offered new, previously
undisclosed opinions in their supplemental reports, making
them simply untimely opinions that should be stricken.
26(e)(1)(A) allows a party to supplement when it
“learns that in some material respect the disclosure or
response is incomplete or incorrect.” “As a
general rule, ‘[a] supplemental disclosure under Rule
26(e)(1)(A) is timely if it is made as soon as possible'
after the party learns of the deficiency.” Dykes v.
Cleveland Nursing & Rehab. Ctr., No.
4:15-CV-76-DMB-JMV, 2018 WL 3058870, at *4 (N.D. Miss. June
20, 2018) (citations omitted). Nevertheless, “the rule
is not a basis to make material additions to an initial
report.” Thang Quoc Pham v. Tyson Farms, Inc.,
No. 3:17-CV-125-DPJ-FKB, 2018 WL 4178029, at *9 (S.D.Miss.
Aug. 30, 2018).
Hanscom's Supplemental Report
argues that Hanscom's report “primarily addresses
the second report issued by [Defendants' expert] and
addresses criticisms contained in their supplemental
report.” (Pl. Resp. Werner Mot. 6, ECF No. 204.)
Additionally, Hanscom incorporated deposition testimony from
eyewitnesses, “which Hanscom represented in his first
report that he would be receiving and reviewing.”
(Id.). Plaintiff describes a hybrid
rebuttal/supplemental report. If classified as a rebuttal,
the report is timely, since it was provided within thirty
days of the Defendants' expert's
report. It also appears to be timely if considered
a supplemental report, given that Hanscom's original
report was made in January 2019, the eyewitness depositions
were taken in March, and Hanscom's supplemental report
incorporating that testimony was provided prior to expiration
of the June 18, 2019 discovery deadline. Therefore, the
opinions expressed in Hanscom's supplemental report are
not subject to exclusion on timeliness grounds.
Robert Kelly's ...