United States District Court, M.D. Georgia, Macon Division
ALLEN LINDSEY, individually and as the Representative of the Estate of KARLA LINDSEY, Plaintiff,
REGENCY HOSPITAL COMPANY OF MACON LLC d/b/a/ REGENCY HOSPITAL, JOHN DOE CORPORATIONS A-Z, and JOHN DOES 1-10, Defendants.
ORDER DENYING PLAINTIFF'S MOTION TO STRIKE EXPERT
E. SELF, III, UNITED STATES DISTRICT COURT JUDGE.
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). [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
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].
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].
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its nursing expert had recently and unexpectedly withdrawn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.
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].
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.
Expert Disclosure Under Federal Rule of Civil Procedure
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.
Plaintiff's Motion to Strike Testimony of Lori Kelly,
RN, MSN, MBA, EdD
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
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 ...