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Riggio v. Pruneda

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

December 12, 2019

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



         BEFORE THE COURT is the [173] 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[1] 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.


         “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). 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).

         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 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)).

         The 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.

         Rule 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).

         1. Hanscom's Supplemental Report

         Plaintiff 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.[2] 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.

         2. Robert Kelly's ...

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