Mitchell v. City of Mobile

Decision Date03 May 2017
Docket NumberCIVIL ACTION NO. 15-0360-CG-C
PartiesANN MITCHELL, Personal Representative of the Estate of Ray Anson Mitchell, Deceased, Plaintiff, v. CITY OF MOBILE, ALABAMA, et al., Defendants.
CourtU.S. District Court — Southern District of Alabama

This matter is before the Court on Defendant Steven Chandler's ("Chandler") Motion for Summary Judgment (Doc. 73) and Memorandum in Support (Doc. 75); Defendant Miranda Wilson's ("Wilson") Motion for Summary Judgment (Doc. 78) and Memorandum in Support (Doc. 80); and Defendant City of Mobile, Alabama's ("the City") Motion for Summary Judgment (Doc. 82).1 Plaintiff Ann Mitchell ("Plaintiff") responded in opposition (Doc. 89), to which Chandler and Wilson replied (Doc. 94 and Doc. 99, respectively). The City adopted Chandler's and Wilson's replies. (Doc. 97). Also before the Court is a joint motion to strike the expert report of retired Judge LaDoris Cordell filed by Defendants. (Doc. 98). For the reasons stated below, the Court GRANTS the motions for summary judgment filed by Defendants and GRANTS the motion to strike the expert report of retired JudgeLaDoris Cordell.


This case arises out of a police shooting that took the life of Ray Anson Mitchell ("Mitchell"). His mother, Plaintiff Ann Mitchell, personal representative of Mitchell's estate, brought the present action against the police officers involved, Chandler and Wilson, and their employer, the City. The Complaint contains five separate counts. See (Doc. 1). Plaintiff alleges in Count I, pursuant to 42 U.S.C. § 1983, that Chandler and Wilson "unlawfully used excessive, unreasonable[,] and unnecessary deadly force" in violation of "the Fourth, Fifth, and/or Fourteenth Amendment to the United States Constitution." Id. at 5. From the best the Court can surmise, Count II alleges Chandler and Wilson assaulted and battered Mitchell, while a third officer, Patrick Palmer, neglected, or refused to prevent, their actions. Id. at 5-6.2 Count III alleges the City conducted an improper investigation into the death of Mitchell. Id. at 6. Count IV alleges the City failed to properly train, investigate, supervise, or discipline its officers. Id. at 6. Count V alleges Defendants are liable for the wrongful death of Mitchell under Alabama law. Id. at 7.

Early on, the City moved to dismiss Count Five against it due to Plaintiff's noncompliance with Alabama Code § 11-47-23 ("All claims against the municipality ... shall be presented to the clerk for payment within two years from the accrual of said claim or shall be barred. Claims for damages growing out of torts shall bepresented within six months from the accrual thereof or shall be barred.") and § 11-47-192 ("No recovery shall be had against any city or town on a claim for personal injury received, unless a sworn statement be filed with the clerk by the party injured or his personal representative in case of his death stating substantially the manner in which the injury was received, the day and time and the place where the accident occurred and the damages claim.") (Doc. 9). The Court granted the motion and dismissed Count Five inasmuch as it applied to the City. (Doc. 21). Defendants now move for summary judgment on the remaining counts. The parties having fully briefed the issues, this matter is ripe for consideration.


Before addressing the substantive issues of Defendants' summary judgment motions, it is necessary to decide the joint motion to strike Plaintiff's expert report filed by Defendants. (Doc. 98). Defendants offer three bases to strike the expert report of retired Judge LaDoris Cordell. First, Defendants contend that the expert report of retired Judge Cordell does not comply with the basic requirements of an affidavit or declaration and, therefore, is improper. Id. at 1. Second, Defendants contend that expert reports are inadmissible at the summary judgment stage. Id. at 2. Third, Defendants contend that the expert report of retired Judge Cordell is untimely under the Federal Rules of Civil Procedure and, therefore, inappropriate evidence upon which she may overcome summary judgment. Id. Furthermore, Defendants argue that, due to her untimely disclosure, Plaintiff should be barred from calling retired Judge Cordell as an expert witness should this matter proceedto trial. Id. at 7. Plaintiff filed no response to Defendants' motion. Since this issue can be decided on Defendants' first and third bases, the Court does not address Defendants' contention that expert reports are inadmissible at the summary judgment stage.

Federal Rule of Civil Procedure 26(a)(2) "requires a party to disclose to the other parties the identity of any expert witness it may use at trial to present evidence and '[e]xcept as otherwise stipulated or directed by the court, this disclosure [must] ... be accompanied by a written report—prepared and signed by the witness.'" OFS Fitel, LLC v. Epstein, Becker and Green, P.C., 549 F.3d 1344, 1360-61 (11th Cir. 2008) (citing Fed. R. Civ. P. 26(a)(2)). Disclosure of the expert report must comply with "the times" and "the sequence that the court orders." Fed. R. Civ. P. 26(a)(2)(D). Compliance with a set deadline is necessary because "the expert witness discovery rules are designed to allow both sides in a case to prepare their cases adequately and to prevent surprise, compliance with the requirements of Rule 26 is not merely aspirational." Cooper v. S. Co., 390 F.3d 695, 728 (11th Cir. 2004), overruled on other grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454, 457-58 (2006).

If a party fails to make expert disclosures in accordance with a court's order, "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 harmless." Fed. R. Civ. P. 37(c)(1). Substantial justification is "justification to a degree that could satisfy a reasonable person that parties could differ as to whetherthe party was required to comply with the disclosure request." Hewitt v. Liberty Mut. Grp., Inc., 268 F.R.D. 681, 682 (M.D. Fla. 2010). A failure to timely make the required disclosures is harmless when there is no prejudice to the party entitled to receive disclosure. Id. at 683. The party failing to comply with Rule 26(a) bears the burden of establishing that its nondisclosure was either substantially justified or harmless. Id. It is within a court's discretion to preclude a party from relying on an expert's report to overcome summary judgment and preclude said expert from testifying at trial when the party fails to comply with Rule 26(a)(2) or carry its burden under Rule 37(c)(1). Reese v. Herbert, 527 F.3d 1253, 1266 (11th Cir. 2008).

Here, the original scheduling order required Plaintiff provide any expert disclosure to Defendant no later than April 22, 2016. (Doc. 32, p. 2). Upon motion by Plaintiff (Doc. 54), the Court extended the initial deadline to allow Plaintiff to file any expert disclosure no later than July 22, 2016 (Doc. 58, p. 1). Just three days prior to this extended deadline, Plaintiff again moved for an extension of, among other things, her expert report disclosure deadline due to medical issues her counsel faced. (Doc. 71). The Court extended Plaintiff's Rule 26(a)(2) deadline until September 30, 2016, concluding that such a deadline was sufficient for Plaintiff to disclose any expert report for any expert Plaintiff had presumably garnered. (Doc. 72, p. 2). Indeed, it at least appears, based upon Defendants' representation, that Plaintiff had already garnered retired Jude Cordell as an expert witness as far back as December 2015 since her initial discovery disclosure listed retired Judge Cordell as an expert witness. (Doc. 98, p. 4 n.1). However, Defendants note all Plaintiffprovided was the expert's name and curriculum vitae. Id. Plaintiff disclosed, at that time, retired Judge Cordell had yet to reach a final opinion. Id.

Defendants state that September 30, 2016, came and went with no expert disclosure by Plaintiff. (Doc. 98, p. 3). It was not until Plaintiff filed her response to Defendants' motions for summary judgment that she provided retired Judge Cordell's expert report, approximately ten weeks after the September deadline. (Doc. 93-3, pp. 1-14). Plaintiff cannot show reasonable justification for missing the September deadline. Her awareness of her required disclosure compliance is evidenced by the fact that she requested the deadline be extended on two separate occasions. See Hewitt, 268 F.R.D. at 682. Additionally, Plaintiff's untimely expert disclosure cannot be said to be harmless or render no prejudice upon Defendants. It was reasonable for Defendants to move for summary judgment with the expectation Plaintiff abandoned any intentions to rely on expert evidence given she failed to meet the necessary deadline. But now, Plaintiff attempts to refute Defendants' position based upon an expert conclusion Defendants were afforded no opportunity to cross-examine or refute.3 Moreover, several months have passed since Defendants moved to strike retired Judge Cordell's expert report and Plaintiff has offered no basis for the Court to extend its September 30, 2016, deadline. Therefore, the Court finds Plaintiff failed to show that its nondisclosure was either substantially justified or harmless.

Moreover, even if the report were timely, its still suffers another shortcoming.A review of the report provided shows it neither names nor is signed by the author, (presumably Judge Cordell). The only indication that retired Judge Cordell authored the report is Plaintiff's table of contents to her evidentiary material provided in opposition to summary judgment. (Doc. 92, p. 2). Therefore, the Court concludes that Plaintiff's expert report fails to comply with the minimum content requirements of Rule 26(a)(2). Given this, the Court GRANTS the motion to strike the expert report of...

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