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Lindsey v. Regency Hospital Company of Macon LLC

United States District Court, M.D. Georgia, Macon Division

January 23, 2019

ALLEN LINDSEY, individually and as the Representative of the Estate of KARLA LINDSEY, Plaintiff,



         Before the Court is Plaintiff Allen Lindsey's Motion to Strike [Doc. 48] one of Defendant Regency Hospital's expert witness as untimely disclosed and as an improper and unacceptable way to extend the discovery deadlines, pursuant to Federal Rule of Civil Procedure 12(f).[1] [Doc. 48 at p. 1]. Plaintiff requests that the Court completely strike the testimony of Lori Kelly, RN, MSN, MBA, EdD from the record and “have the parties adhere to their current discovery schedule.” [Id. at p. 3]. For the reasons set forth below, the Court DENIES Plaintiff's motion.


         Plaintiff filed his Complaint on October 17, 2016. [Doc. 1]. After an order dismissing all corporate defendants except for Regency Hospital Company of Macon LLC, Defendant filed its Answer on February 7, 2017. [Docs. 16, 20]. On May 15, 2017, the Court signed the parties' proposed discovery order, agreeing with the parties that discovery would be completed by January 8, 2018. [Doc. 28 at p. 2]. However, the parties needed more time and they asked for their first extension. [Doc. 29].

         The Court agreed to extend discovery and signed an Amended Discovery and Scheduling Order, extending the time to complete all discovery for an additional 90 days. [Doc. 30 at p. 1]. In March of 2018, Karla Lindsey died and the Court added Allen Lindsey, who was named as the Administrator of her Estate, to the suit. [Doc. 40]. On July 9, 2018, the Court held a telephone conference to discuss the possibility of a second extension. [Doc. 41]. During the telephone conference the parties explained why they needed more time, namely their explanations surrounded Ms. Lindsey's passing and Plaintiff's need for time to consult with his experts to determine if he would amend his complaint to add a wrongful death claim. [Id. at p. 2].

         On July 11, 2018, the Court again amended its discovery order and set September 14, 2018, as the date by which Defendants had to disclose its experts. [Doc. 42 at p. 2]. Defendants named two MD experts and timely submitted its respective Rule 26 expert reports. [Doc. 49-1]. Additionally, Defendants explained that its nursing expert had recently and unexpectedly withdrawn from the case and noted that it was still in the process of retaining a suitable nursing expert. [Id. at pp. 2-3].

         On October 2, 2018, the parties filed a Consent Motion to Amend Discovery once again. [Doc. 44]. On October 9, 2018, the Court held another telephone conference to confer with the parties about yet another discovery extension and expressed its concerns regarding the pace of discovery. [Doc. 45 at p. 1]. Importantly, Plaintiff never mentioned any concern he may have had over the Defendants' revelation that it had lost its nursing expert and was in the process of naming a new one. Nonetheless, the Court extended discovery again, this time up to and including March 31, 2019. [Doc. 46 at p. 2].

         On December 12, 2018, Defendant disclosed Lori Kelly, RN, MSN, MBA, EdD as its nursing expert and produced her expert report. [Doc. 49-2]. With her report, Defendants identified ten dates during the remaining discovery period that Ms. Kelly was prepared to sit for a deposition. [Id. at p. 2]. It also offered to consent to another extension if the Plaintiff wanted to identify a rebuttal expert. [Id. at pp. 2-3]. On January 3, 2019, Plaintiff filed this Motion to Strike Ms. Kelly as Defendants' expert.


         A. Expert Disclosure Under Federal Rule of Civil Procedure 26

         The Federal Rules of Civil Procedure require the parties to disclose all expert witnesses, accompanied with a written report, “at the times and in the sequence that the court orders.” Fed.R.Civ.P. 26(a)(2)(A)-(D). The Court's Rules 16 and 26 Order in this case requires expert disclosures to be filed “early enough in the discovery period to give the opposing party the opportunity to depose the expert.” [Doc. 26 at p. 3]. However, “[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 a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1); see also OFC Fitel, LLC v. Epstein, Baker, & Green, P.C., 549 F.3d 1344, 1363 (11th Cir. 2018), infra. “The burden of establishing that a failure to disclose was substantially justified or harmless rests on the nondisclosing party.” Mitchell v. Ford Motor Co., 381 Fed.Appx. 821, 824 (11th Cir. 2009) (citation omitted). Finally, in ruling on motions like the one before it, the Court, under Federal Rule of Civil Procedure 37, has “broad, although not unbridled, discretion in imposing sanctions.” Pesaplastic, C.A. v. Cincinnati Milacron Co., 799 F.2d 1510, 1519 (11th Cir. 1986) (internal citations omitted). With this standard in mind, the Court rules on Plaintiff's motion below.

         B. Plaintiff's Motion to Strike Testimony of Lori Kelly, RN, MSN, MBA, EdD

         In response to Plaintiff's motion, Defendants first contend that its late disclosure is substantially justified because its previous expert unexpectedly withdrew from the case after working on the case for “more than a year.” [Doc. 49-1 at p. 1]. Although Defendants' counsel immediately began the search for a replacement expert, he explained in his brief that he could not find one before the conclusion of the September 14, 2018 disclosure deadline. [Doc. 49 at p. 4]. However, he did disclose that fact to Plaintiff and made him aware that he was continuing to search for a replacement. See [Doc. 49-a at p. 2]. Further, the record contains no evidence that the Plaintiff objected in the slightest bit. Second, Defendants argue the delay was harmless, given that the Court has not set a trial date for this case and Plaintiff's opportunity to depose the retained experts is well within the prescribed discovery time period.

         In support of its argument, Defendants point to Fitel where the Eleventh Circuit reversed the district court's order excluding an expert report for untimely production. 549 F.3d at 1363. The Eleventh Circuit found the late disclosure was not a willful delay or stonewalling, but rather, it was due to a good-faith attempt to accommodate the opposing counsel's schedule, and a good-faith belief that expert disclosures should not be made until the relevant fact discovery was complete. Id. at 1365. Though the facts of Fitel are not identical to those surrounding this case, the Court agrees that the same reasoning applies. Defendants' untimely disclosure was clearly due to its original expert's sudden ...

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