Gerald v. Univ. of S. Miss., CIVIL ACTION NO. 2:12cv147-KS-MTP

• Decision Date: 10 October 2013
• Docket Number: CIVIL ACTION NO. 2:12cv147-KS-MTP
• Parties: DR. BONNIE GERALD PLAINTIFF v. UNIVERSITY OF SOUTHERN MISSISSIPPI (USM); DR. MARTHA SAUNDERS, INDIVIDUALLY AND OFFICIALLY; DR. ROBERT LYMAN, INDIVIDUALLY AND OFFICIALLY; DR. KATHY YADRICK, INDIVIDUALLY AND OFFICIALLY; DR. MIKE FORSTER, INDIVIDUALLY AND OFFICIALLY DEFENDANTS
• Court: U.S. District Court — Southern District of Mississippi

DR. BONNIE GERALD PLAINTIFF v. UNIVERSITY OF SOUTHERN MISSISSIPPI (USM);

DR. MARTHA SAUNDERS, INDIVIDUALLY AND OFFICIALLY;

DR. ROBERT LYMAN, INDIVIDUALLY AND OFFICIALLY;

DR. KATHY YADRICK, INDIVIDUALLY AND OFFICIALLY;

DR. MIKE FORSTER, INDIVIDUALLY AND OFFICIALLY DEFENDANTS

CIVIL ACTION NO. 2:12cv147-KS-MTP

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI HATTIESBURG DIVISION

SO ORDERED: October 10, 2013

OPINION AND ORDER

This matter is before the Court on the Defendants' Motion to Strike the Plaintiff's Designation of Dr. Rocco A. Barbieri as an Expert on the Plaintiff's Alleged Disabilities ("Motion to Strike") [25]. Having considered the parties' submissions, the record and the applicable law, the Court finds that the motion should be granted in part and denied in part.

On July 3, 2012, Plaintiff Dr. Bonnie Gerald filed suit against the University of Southern Mississippi (the "University") and several University officials in the Circuit Court of Forrest County, Mississippi. (See Compl. [1-1 at ECF p. 10].) Plaintiff alleges numerous federal and state law claims, including disability discrimination under the Americans with Disabilities Act ("ADA") and the Rehabilitation Act of 1973, relating to her former employment at the University. On August 31, 2012, the Defendants timely removed the proceeding to this Court on the basis of federal question subject matter jurisdiction under Title 28 U.S.C. § 1331. (See Notice of Removal [1].)

On December 5, 2012, a Case Management Order [6] was entered, which set, inter alia, May 15, 2013, as Plaintiff's expert witness designation deadline and August 15, 2013, as the discovery deadline. The Case Management Order provides that"Plaintiff is not including treating physicians in the number of experts [she expects to call to testify at trial]; plaintiff will call treating physicians as non-retained experts." (Case Mgmt. Order [6] at ¶ 1.)

It does not appear that the Plaintiff has served a formal expert witness designation in this action. However, Plaintiff's February 26, 2013 interrogatory responses identify Dr. Rocco A. Barbieri and three other medical providers in response to Defendants' request for expert witness information. Plaintiff's response to Interrogatory No. 2 lists these individuals' addresses and telephone numbers, provides that they all have admitting privileges to Forrest General Hospital, and states: "At this time, the only known experts are essentially fact witnesses and are the treating physicians of the Plaintiff." (Doc. No. [25-2 at ECF p. 2].) No substantive information, such as a summary of the facts and opinions to which each physician is expected to testify, is listed in Plaintiff's response. Further, the Plaintiff did not produce any medical records from these providers with her February 26 responses to the Defendants' document requests. Nonetheless, an Order Waiving Medical Privilege [12] had been entered on January 8, 2013, which authorized the Defendants to obtain copies of Plaintiff's medical records from any medical provider providing treatment relevant to the claims asserted in the Complaint.

On June 12, 2013, Plaintiff produced to the Defendants copies of certain medical records from Dr. Barbieri and his clinic, Southern Bone & Joint Specialists, P.A. ("SBJS"). These records largely consist of billing statements and do not evidence opinions held by Dr. Barbieri regarding the Plaintiff's treatment or medical condition. Prior to the filing of this lawsuit, the University received a certificate to return to workfrom SBJS and a letter from Dr. Barbieri, both pertaining to the Plaintiff. The certificate is dated August 16, 2010, and advises that the Plaintiff is able to return to work without restrictions on August 17, 2010. The letter is dated February 1, 2011, and describes certain treatment provided to the Plaintiff for severe injuries suffered during a motorcycle accident. Copies of the certificate and letter were produced with the Defendants' initial disclosures.¹

On August 15, 2013, the last day for discovery, Plaintiff served her Supplementation of Discovery ("Supplementation") [25-1]. This document adds the following information to Plaintiff's response to Defendants' Interrogatory No. 2:

Moreover, in supplementation, the Defendants are reminded that they possess a medical waiver to obtain the medical records of Dr. Barbieri. Indeed, as Plaintiff's counsel has stated to defense counsel, the waiver was provided for that very purpose.

Additionally, numerous medical records and bills regarding the medical treatment of Plaintiff have been provided Defendants. Those documents supplement this response.

Lastly, Dr. Barbieri, although not retained or specially employed to provide expert testimony, is, of course, an expert medical physician as stated previously in the original response provided herein. He was and is, as Defendants have been previously informed in discovery responses and depositional responses and otherwise, the primary treating physician of Plaintiff. He will, in that vein, provide expert testimony regarding the fact of and extent of disability of Plaintiff while employed at USM, the impact of thatdisability regarding significant and substantial life activities, and the obvious needs she had regarding her need to be accommodated regarding her disabilities while employed at USM.

(Pl.'s Suppl. of Disc. [25-1] at pp. 2-3.) No other discovery response was augmented by the Plaintiff.

On September 4, 2013, Defendants filed their Motion to Strike [25]. Defendants contend that Plaintiff's disclosure of Dr. Barbieri's opinions is untimely and improper, and that Dr. Barbieri should be prohibited from offering any expert opinions regarding Plaintiff's alleged disability at the trial of this cause. Defendants principally rely on the expert witness disclosure requirements of the Federal Rules of Civil Procedure and the Local Uniform Civil Rules of the United States District Courts for the Northern District and the Southern District of Mississippi (the "Local Rules") in support of their motion.

Plaintiff opposes the Motion to Strike [25]. (See Pl.'s Resp. to Mot. to Strike [31].) As a preliminary matter, the Plaintiff characterizes the parties' disagreement as a belated discovery dispute. Thus, Plaintiff argues that the Motion to Strike [25] is untimely under Local Rule 7(b)(2)(B), and suffers due to the absence of a Local Rule 37 Good Faith Certificate. Local Rule 7(b)(2)(B) provides: "A party must file a discovery motion sufficiently in advance of the discovery deadline to allow response to the motion, ruling by the court and time to effectuate the court's order before the discovery deadline." Local Rule 37 requires counsel to confer in good faith to attempt resolution of a discovery dispute prior to the filing of a discovery motion. The Rule also requires a party filing a discovery motion to include a Good Faith Certificate, advising that counsel have attempted to resolve the dispute informally and whether the motion is unopposed by any party.

Plaintiff's procedural arguments are not well taken. Plaintiff's Supplementation [25-1], which is the subject of Defendants' Motion to Strike [25], was served on the discovery deadline of August 15, 2013. Therefore, even accepting Plaintiff's argument that the subject motion is a "discovery motion," it could not have been filed sufficiently in advance of the discovery deadline to comply with Local Rule 7(b)(2)(B). The Court will not penalize the Defendants for failing to meet a procedural impossibility. Moreover, the Court finds that the Defendants were adequately diligent in bringing the dispute regarding the August 15 Supplementation [25-1] to the Court's attention via their September 4 Motion to Strike [25]. Accordingly, Local Rule 7(b)(2)(B) is no impediment to the Court's consideration of the merits of the Motion to Strike.

This Court and its sister Court for the Northern District of Mississippi typically reference Local Rule 37's Good Faith Certificate requirement in the context of motions to compel or to restrict discovery.² Plaintiff fails to cite, and this Court is unaware of any authority denying a motion to exclude untimely expert opinions on the basis that the moving party failed to comply with Local Rule 37. Perhaps, the scarcity of such precedent is due to the mandatory nature of the expert witness disclosure requirements of the Federal Rules and Local Rules,³ and the Court's ability to exclude inadequately disclosed expert opinions sua sponte or on a motion. See Fed. R. Civ. P. 37(c)(1);L.U.Civ.R. 26(a)(2)(B). Perhaps also, it is unrealistic to expect a party to agree to the exclusion of its expert witness from trial in response to an informal request from an opposing party. In either event, the Local Rules are not jurisdictional and the Court determines that the absence of a Local Rule 37 Good Faith Certificate in support of the Motion to Strike [25] fails to preclude the consideration of Defendants' requested relief at this time. See Agee v. Wayne Farms, L.L.C., No. 2:07cv1010, 2008 WL 4849669, at *1 (S.D. Miss. Nov. 6, 2008) ("[E]ven if a Good Faith Certificate should have been filed along with the instant motions, this court has the authority and jurisdiction to consider the motion without it, as the Local Rules are not jurisdictional in nature, and the Court is free to rule on motions not served in precise compliance with them.") (citation and internal quotation marks omitted).

More substantively in opposition to the Motion to Strike [25], Plaintiff takes the position that Dr. Barbieri is essentially a fact witness and not an expert witness requiring formal designation. "Obviously, a treating physician has expert credentials and background, but Dr. Barbieri is a fact witness who, with the Court's permission, will testify with regard to his medical records, explain them, and explain what he meant when he prepared them. He will also testify as to his personal observations...