Jordan v. Stonemor Partners L.P.

Decision Date27 February 2018
Docket NumberCASE NO. 6:16-CV-00048
CourtU.S. District Court — Western District of Virginia
PartiesBRANDI JORDAN, Plaintiff, v. STONEMOR PARTNERS L.P., Defendant.


Brandi Jordan ("Jordan") accused her former employer StoneMor Partners L.P. ("StoneMor") of discriminating against her based on her race and sex. She brought race discrimination (Count I), sex discrimination (Count II), hostile work environment (Count III), and retaliation (Count IV) claims under Title VII and Section 1981.1 The Court previously granted a motion to dismiss a state law claim (Count V), but did not address the first four counts. (Dkt. 37). StoneMor now moves for judgment on the pleadings, or in the alternative, summary judgment on all remaining counts. (Dkt. 66). Jordan moves for summary judgment on Counts I, III, and IV. (Dkt. 67). Three evidentiary motions are also before the Court. (Dkts. 65, 69, 74).

First, I grant StoneMor's motion to exclude Jordan's expert, but deny Jordan's motion to exclude StoneMor's expert. Second, I deny StoneMor's motion for judgment on the pleadings, as it is more efficient for the Court to utilize its discretion to address these claims on summary judgment. Third, I address the motions for summary judgment. At oral argument, Jordan conceded that StoneMor is entitled to summary judgment on the sex discrimination claim. I also grant StoneMor's motion for summary judgment on the race discrimination and retaliation claims because Jordan was fired for a legitimate reason, but I deny its motion for summaryjudgment on the hostile work environment claim because of remaining disputes of material facts. Likewise, I deny Jordan's cross-motion for summary judgment on the hostile work environment claim because of the same disputes of material facts. Finally, I limit the categories of damages that will be available to Jordan, but do not grant StoneMor's motion for summary judgment on damages in whole.


StoneMor first moves for judgment on the pleadings. (Dkt. 66-1).2 When, as here, the parties have also put forward evidence from the record, "it is within the district court's discretion whether to accept extra-pleading matter on a motion for judgment on the pleadings and treat it as one for summary judgment or to reject it and maintain the character of the motion as one under Rule 12(c)." McBurney v. Cuccinelli, 616 F.3d 393, 410 (4th Cir. 2010) (Agee, J. concurring in part and dissenting in part) (quoting 5C Wright & Miller, Federal Practice and Procedure § 1371 (3d ed. 2010)); Covey v. Assessor of Ohio Cty., 777 F.3d 186, 193 n.7 (4th Cir. 2015). Here, I will consider StoneMor's arguments for judgment on the pleadings as part of its motion for summary judgment because, if I granted the motion for judgment on the pleadings, I would likely to have to look at the evidence to decide whether to allow Jordan leave to amend.


There are cross-motions to exclude the parties' respective experts. Because this testimony determines whether there is a genuine dispute regarding certain categories of damages, I address it before the motions for summary judgment. See Ruffin v. Shaw Indus., Inc., 149 F.3d 294, 296 (4th Cir. 1998). I will grant StoneMor's motion to exclude Jordan's expert testimony,(dkt. 65), because Jordan did not disclose her expert until 377 days after the Court's deadline and because discovery was then closed. I will deny Jordan's motion to exclude StoneMor's expert because StoneMor's expert is adequately qualified and was disclosed in a timely manner.

A. StoneMor's Motion to Exclude Jordan's Expert Testimony

After discovery had closed and the deadline for dispositive motions and motions to exclude approached, StoneMor filed a motion to exclude all of Jordan's expert testimony. (Dkt. 65). The basis for this motion was simple: Jordan had yet to disclose any expert testimony in accordance with Fed. R. Civ. P. 26(a)(2) and the pretrial order. (Dkt. 31). Jordan never directly responded to this motion; instead she filed a "Disclosure of treating physicians and clinicians expected to testify" five days later, on December 26, 2017. (Dkt. 70).3 Jordan's disclosure identified at least one doctor (Kristi Kidd) as a purported expert, and mentions in passing one other individual and an entity (Teresa Warner and Central Virginia Family Physicians, respectively). (Dkt. 70). It is not clear whether Jordan was also disclosing them as potential witnesses. Generally, the expert's testimony relates to Jordan's miscarriage that was allegedly caused by the harassment. (Id.). StoneMor then moved to strike this disclosure as tardy and irrelevant. (Dkt. 74). Then, for the first time at the hearing on these motions, Jordan argued that she was offering the doctor only as a fact witness (even though her belated disclosure of the treating doctor was as an expert under ¶ 19 of the pretrial order, (dkt. 11)).

In any event, Jordan's belated disclosure of her treating physician as a witness requires that the doctor's testimony be excluded. As relevant here, the pretrial order states:

With respect to expert witnesses who are not retained or specially employed to provide expert testimony or whose duties as an employee of the party do not regularly involve giving expert testimony, such as a treating physician orclinician, the plaintiff must disclose the identity of any such witness and provide a summary of all opinions the witness will render and the basis therefore not later than 75 days from the date of this order, and the defendant must disclose the identity of any such witness and provide a summary of all opinions the witness will render and the basis therefore not later than 90 days from the date of this order.

(Dkt. 11, ¶19) (emphasis added). The pretrial order required Jordan to make particular disclosures about her treating physician if she wishes her to testify. And even if it did not, "a party seeking to introduce treating physician testimony should generally comply with Rule 26(a)(2)(C)." Kristensen ex rel. Kristensen v. Spotnitz, Case No. 3:09-cv-00084, 2011 WL 5320686, at *1 (W.D. Va. June 3, 2011). Jordan's disclosure was late even under this more generous background rule. The pretrial order was issued on September 30, 2016. (Dkt. 11). Jordan was required to disclose any treating physician that she expected to testify and provide a summary of the expert's opinions by December 14, 2016. Jordan did not disclose her treating physician until over a year later, on December 26, 2017. This disclosure was after the close of discovery, and so StoneMor was unable to depose the treating physician.

Fed. R. Civ. P. 37(c)(1) anticipates this sort of tardiness; it provides that "[i]f a party fails to provide information or identify a witness[,] . . . the party is not allowed to use that information or witness to supply evidence[,] . . . unless the failure was substantially justified or is harmless." See also Wilkins v. Montgomery, 751 F.3d 214, 220, 223 (4th Cir. 2014). Rule 37(c)(1) continues by giving courts the authority to order lesser penalties (e.g. forcing the party to pay fees caused by the delay). The Fourth Circuit has provided five factors for district courts to consider when exercising this discretion: "(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for its failure to disclose the evidence." Russell v. AbsoluteCollection Servs., Inc., 763 F.3d 385 (4th Cir. 2014). "The burden of establishing these factors lies with the nondisclosing party." Wilkins, 751 F.3d at 222.

Taken together, these factors demonstrate that the testimony of the treating physician must be excluded. Jordan does not even attempt to carry her burden under these factors because she wrongly assigns that burden to StoneMor. (Dkt. 80 at ECF 2-3). This alone provides reason to rule against her. Still, I consider the factors, and find that they cut strongly against Jordan's position. StoneMor's surprise and ability to cure are both directly related to the fact that discovery has already closed, and so StoneMor cannot depose Jordan's experts. To the extent the Court allowed StoneMor to depose the physician, it would delay trial, implicating the third factor. Admittedly, this evidence is important—without it Jordan will not be able to causally connect her miscarriage to her work-related stress. Still, Jordan has provided no explanation for her failure to disclose the evidence. Considering these factors together, and the fact that Jordan did not attempt to carry her burden under them, I will exclude Jordan's expert testimony.

B. Jordan's Motion to Exclude StoneMor's Expert Testimony

After StoneMor moved to exclude Jordan's expert testimony, Jordan belatedly responded by moving to exclude StoneMor's expert testimony. (Dkt. 69).4 StoneMor's expert would testify about whether Jordan's miscarriage was caused by stress. (Dkt. 69-1). Jordan argues (1) StoneMor's disclosure of the expert was untimely and (2) the expert is unqualified. (Dkt. 69). Jordan's argument that StoneMor's expert disclosure was untimely fails because the Court granted StoneMor's request for an extension of time to file its expert disclosure. (Dkt. 43).

Jordan's second argument is that StoneMor's expert is not qualified to testify about miscarriages under Fed. R. Evid. 702 and Daubert. (Dkt. 69 at ECF 2-3). An expert qualified"by knowledge, skill, experience, training, or education, may testify" as to scientific, technical, or other specialized knowledge if it will assist the trier of fact. Fed. R. Evid. 702. Such testimony is only admissible if (1) "the testimony is based upon sufficient facts or data," (2) "the testimony is the product of reliable...

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