United States District Court, N.D. TexasJul 10, 2001
Civil Action No. 3:99-CV-2522-D (N.D. Tex. Jul. 10, 2001)

Civil Action No. 3:99-CV-2522-D

July 10, 2001



The instant motions for leave to designate expert witnesses and to strike untimely designation and disclosure of expert witnesses and for sanctions present the question whether plaintiff should be permitted to designate three expert witnesses nine months after the court-ordered deadline and 120 days before the current trial setting. The court decides these two related motions together and concludes that plaintiff should be allowed to designate an expert witness on attorney's fees but not expert witnesses on monetary or emotional damages.


Plaintiff Alyssa Wright ("Wright") filed suit against defendants on May 5, 1999 in the Eastern District of Texas alleging claims against one or more of them for violating Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., or committing the Texas-law torts of intentional infliction of emotional distress, assault and battery, or conspiracy. After the case was transferred to this district, the court filed a scheduling order on December 15, 1999 that established August 1, 2000 as the deadline by which "[a] party with the burden of proof on a claim or defense must designate expert witnesses and otherwise comply with [Fed.R.Civ.P.] 26(a)(2)[.]" In an order filed June 28, 2000 the court set the case for the April 2, 2001 two-week trial docket. On December 8, 2000 the court granted the parties' joint motion, filed the same date, for extension of time and continuance. It continued the trial setting from April 2, 2001 to June 4, 2001. The court also modified its December 15, 1999 scheduling order to extend the deadlines for filing motions for leave to amend pleadings, to complete discovery and file a joint estimate of trial length and joint status report concerning the progress of settlement negotiations, to file motions for summary judgment, and to file motions not otherwise covered. The parties did not request that the court modify, nor did it alter, any other aspects of its June 28, 2000 trial setting order or its December 15, 1999 scheduling order, including the deadline to designate expert witnesses.

After the case was transferred to this district, the court granted in part defendants' motion to dismiss and dismissed Wright's claims under the Violence Against Women Act, 42 U.S.C. § 13981-14040, her claims against the individual defendants under Title VII, her negligence claim, and her claim for intentional infliction of emotional distress against all individual defendants except James L. Blythe. See Wright v. Blythe-Nelson, 2000 WL 349747, *2-*4 (N.D. Tex. Apr. 3, 2000) (Fitzwater, J.).

On May 4, 2001 — nine months after the court-ordered deadline of August 1, 2000 and one month prior to the June 4, 2001 trial setting then in effect — Wright for the first time designated the following expert witnesses: Elizabeth Ann Schrupp, C.P.A. ("Schrupp"), to testify concerning monetary damages such as front pay, Katherine R. DiFrancesca, Ph.D. ("Dr. DiFrancesca"), to testify concerning emotional suffering, and Michael K. Hurst, Esquire ("Hurst"), to testify concerning attorney's fees. On May 16, 2001, after defendants' counsel advised Wright's counsel that they intended to file a motion to strike the designations, she filed a motion for leave to designate expert witnesses. The motion was also filed over two months after the court-ordered deadline of March 1, 2001 for filing motions not otherwise covered, which the court had on December 8, 2000 extended by the parties' agreement. On May 18, 2001 defendants filed a motion to strike untimely designation and disclosure of expert witnesses and for sanctions. On June 5, 2001 the court, on its own initiative, reset the trial to the two-week docket of November 13, 2001.

Hurst is Wright's lead counsel in this case.

The deadline had been January 1, 2001.


The court addresses first whether Wright should be permitted to call Schrupp and Dr. DiFrancesca. In deciding whether to exclude the testimony of an expert witness whom a party did not properly designate, this court's discretion is guided by the following factors: (1) the explanation for the failure to identify the witness, (2) the importance of the testimony, (3) the potential prejudice in allowing the testimony, and (4) the availability of a continuance to cure such prejudice. Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990) (citing Bradley v. United States, 866 F.2d 120, 125 (5th Cir. 1989)).


Before reaching the relevant considerations, the court considers and rejects Wright's apparent contention that the court should deem important the fact that she designated and disclosed expert witnesses 30 days before the June 4, 2001 trial docket. See P. Mot. at 4; P. Resp. at 2-3. To the extent she is asserting that she complied with Rule 26(a)(2)(B) and that such obedience warrants the relief she seeks, her argument is misplaced. First, Rule 26(a)(2)(C) specifies that the default rule ( i.e., when the court has not set a different deadline) is 90 days before trial, not 30 days. Wright missed even the deadline that applies absent a court order. Second, the Rule 26(a)(2)(C) deadline is expressly subject to the court's authority to impose an earlier deadline. In the present case, the court exercised its power under Rule 16(b)(4) to set a more advanced time limit for designating expert witnesses.


The court initially considers Wright's explanation for failing to identify these witnesses. Although Wright has not explicitly addressed this element under a clearly — identified rubric in her briefing, when the court reads together her motion for leave and reply brief, and her response to defendants' motion to strike, it appears that her rationale is as follows.

Wright was previously represented in this case by Joe Brown, Esquire ("Brown"). Brown was involved in a hotly contested campaign for County Attorney of Grayson County, Texas and believed he had an agreement with defendants' counsel that the discovery deadline would be extended. This agreement was never memorialized in writing. P. Resp. at 3-4; P. Rep. at 2. "Plaintiff's failure to timely designate her expert witnesses was rooted in the confusion surrounding the necessity for plaintiff to substitute counsel." P. Rep. at 2. Brown was involved in his campaign during the discovery phase of this suit. He operated under the impression that the discovery deadline would be extended, especially considering his campaign. Id.

Citations to "P. Resp." are to Wright's June 7, 2001 response to defendants' motion to strike.

Citations to "P. Rep." are to Wright's June 8, 2001 reply in support of her May 16, 2001 motion for leave to designate expert witnesses.

After Brown was elected, he withdrew, as required, from the private practice of law. Id. On December 11, 2000 Wright's present counsel, Godwin White Gruber, P.C. ("Godwin"), substituted in Brown's stead. P. Resp. at 2. After substitution, Godwin began the process of identifying experts to support Wright's damages claims, P. Mot. at 3, had no reason to believe the parties did not have an understanding regarding the August 1, 2000 deadline (similar to the one concerning extending the discovery deadline), see P. Resp. at 5-6; P. Rep. at 2, and has made reasonable efforts to identify and designate expert witnesses expeditiously, P. Resp. at 4; P. Rep. at 2. Additionally, on January 11, 2001 the parties agreed in writing to extend the discovery deadline past the one established by the court and to work with each other regarding discovery matters. See P. Mot. at 2-3; P. Mot. App. 1-2; P. Resp. at 2. Wright relied on the agreement and cooperated with defendants in providing discovery and depositions. P. Mot. at 3.

Citations to "P. Mot." are to Wright's May 16, 2001 motion for leave to designate expert witnesses.

Citations to "P. Mot. App." are to the May 16, 2001 appendix that Wright filed in support of her motion for leave to designate expert witnesses.

The court divides Wright's explanation into two periods — August 1, 2000 to December 11, 2000 and December 11, 2000 to May 4, 2001 — and finds it lacking in both respects. The period August 1, 2000 to December 11, 2000 covers the part of the case when Wright's designation of expert witnesses was overdue and Brown was her attorney. The sole explanation for failing to designate experts during this time frame is Brown's supposed belief that the parties had an unwritten agreement concerning extending the discovery deadline. Even assuming arguendo that they did, this does not address enlarging the expert designation deadline. Nor does an agreement regarding extending the discovery deadline necessarily impact the expert designation deadline since discovery can relate to fact witnesses and documents alone. Brown's participation in a campaign for County Attorney does not provide a valid explanation since he opted to remain as counsel in this case while he sought public office.

No evidence has been obtained from Brown and submitted in support of Wright's motion for leave or in opposition to defendants' motion to strike.

When the court considers the December 11, 2000 to May 4, 2001 period, it also finds Wright's explanation to be inadequate. During this time frame Wright has been represented by Godwin. Godwin has not justified why it did not file the motion for leave on or before the March 1, 2001 deadline for filing motions not otherwise covered. The court imposes such a deadline to avoid precisely what happened here — the filing of a flurry of significant motions on the eve of trial, when the parties and the court should be engaged in an orderly process of trial preparation.

As noted, when Wright filed her motion for leave on May 16, 2001, the June 4, 2001 docket setting was still in effect. This prompted defendants to file on May 18, 2001, and request an expedited ruling on, their motion to strike. Wright's tardy submission required that defendants prepare and file the motion at a time when they were also obligated to submit a proposed pretrial order, witness and exhibit lists, and other required pretrial materials. Had the court been able to reach the case for trial, it would have been obligated to rule on a substantive motion at a time when it was preparing for trial. The schedule that the court issues in civil cases is crafted to avoid such last-minute skirmishes by imposing a catch-all motion deadline.

Nor is Godwin's rationale for failing to designate experts until May 4, 2001 sufficient. First, any reliance on Brown's understanding that the parties had an agreement to extend discovery, and a purported absence of a reason to believe the parties did not also have an understanding regarding the August 1, 2000 expert designation deadline, is unreasonable under the circumstances. As the court has held above, an agreement (even assuming it was made) regarding discovery in general does not inexorably extend to expert designations. Moreover, the fact that the parties expressly agreed by December 8, 2000 joint motion to extend the discovery deadline, but did not also address the expert designation deadline, put Godwin on notice that the parties were treating the deadlines discretely and undercuts the contention that counsel could have thought one deadline was influenced by or tied to the other. Second, the January 11, 2001 letter concerning cooperation in discovery does not explicitly address the topic of expert designations. See P. Mot. App. 1-2. Third, even if, as is apparently the case, after Godwin entered as counsel it promptly undertook efforts to identify and retain experts, it did not also timely seek relief from the scheduling order. Godwin was on notice on December 11, 2000 (the date it replaced Brown) that any necessary expert designations were already woefully overdue and that Wright either must proceed without expert witnesses or must promptly seek modification of the scheduling order. Given that retaining an expert is feckless without also designating her, to fail to do so until 30 days before the trial setting is inexplicable.


The court next considers the importance of the testimony. Wright maintains that evidence from these two experts is critical and essential and that she will be extremely prejudiced if their testimony is excluded.

While the court recognizes that expert testimony on these subjects can assist the trier of fact, the evidence is not so vital, for example, that, without it, Wright faces dismissal of one or more of her causes of action. Cf., e.g., Christopherson v. Allied Signal Corp., 939 F.2d 1106, 1116 (5th Cir. 1991) (en banc) (per curiam) (holding that absence of admissible expert evidence of causation warranted summary judgment dismissing product liability claim), overruled on other grounds, Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Defendants concede that "Plaintiff does not need the experts to proceed with her case." Ds. Resp. at 10. And they acknowledge that she is free to rely on non-expert evidence of economic and emotional damages. See id. Moreover, although the court anticipates instructing the jury that Wright must establish the existence, nature, and severity of the emotional harm caused by the allegedly sexually hostile work environment and that there must be some specific discernable injury to her emotional state (such as through sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self esteem, excessive fatigue, or a nervous breakdown, and through physical symptoms such as gastrointestinal disorders, hair loss, headaches, and similarly serious maladies), it also intends to instruct the jury that no evidence of the monetary value of such intangible things as pain and suffering need be introduced in evidence, that there is no exact standard for fixing the compensation to be awarded for these elements of damage, that the law does not require that Wright prove her losses with mathematical precision, but only with as much definiteness and accuracy as circumstances permit, and that any award the jury makes should be fair in light of the evidence presented at the trial.

Citations to "Ds. Resp." are to defendants' May 25, 2001 response to Wright's May 16, 2001 motion for leave to designate expert witnesses.

Although Wright must introduce evidence that establishes the nature and extent of emotional harm, under settled precedent it need not necessarily be by way of expert testimony. See, e.g., Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 940 (5th Cir. 1996) (holding that to establish intangible loss such as emotional distress in action under 42 U.S.C. § 1981 or Title VII, evidence requires degree of specificity that may include corroborating testimony or expert medical or psychological evidence).

Under these circumstances, the court concludes that the importance of the testimony does not support allowing the late designation.


The court considers together the factors on which Wright focuses her motion and her opposition to defendants' motion: the potential prejudice in allowing the testimony and the availability of a continuance to cure such prejudice.

Wright essentially argues that defendants knew several months before she designated Schrupp and Dr. DiFrancesca that she intended to introduce expert testimony on monetary damages and emotional harm. She relies on assertions that (1) on February 12, 2001 she sent a settlement demand to defendants' counsel that was based on Schrupp's economic analysis, and a draft report prepared by Schrupp was attached to the offer, P. Mot. at 2, P. Mot. App. 5-18, P. Resp. at 2; (2) defendants took her deposition on February 12, 2001 and her counsel advised defendants' counsel that she had retained a licensed psychologist or psychiatrist who was then a consulting expert pending completion of an evaluation of her, P. Mot. at 2, 4, P. Mot. App. 19-23, P. Rep. at 2, P. Resp. at 2; (3) after February 2001 defendants did not inquire about Schrupp, and they allowed the deposition deadline to pass without requesting her deposition, P. Mot. at 3-4; (4) Dr. DiFrancesca did not prepare a report until the first week of May 2001, Wright was not in a position to designate her until Dr. DiFrancesca evaluated and analyzed Wright and she received her report, which counsel promptly forwarded to defendants after receipt, P. Mot. at 4, P. Rep. at 2, P. Resp. at 3; (5) defendants have not been prejudiced because the witnesses have been designated, their materials have been disclosed, and the court has reset the trial to the November 13, 2001 docket, which will allow them to be deposed before trial, P. Mot. at 5; and (6) Wright has expended approximately $7,000 for the services of these witnesses, id.

The fact that Wright has incurred fees in connection with obtaining the testimony of these witnesses is insufficient, alone or in combination with her other arguments, to warrant granting leave to designate them.

Wright's contention that "as early as February 12, 2001, Defendants were aware of Plaintiff s expert with regard to front pay[,]" P. Mot. at 3-4, because a draft report prepared by Schrupp was attached to the February 12, 2001 settlement offer not only lacks merit, it is highly misleading.

Neither the draft report, see P. Mot. App. 5-18, nor the settlement letter, see id. at 3-4, discloses that the economic analysis was prepared by anyone other than Godwin, whose name is the only one set out in the document. There is no indication that an outside expert had prepared the analysis, which consists primarily of a series of arithmetic calculations. Defendants were not on notice that Wright had retained an expert who would testify at trial.

Nor can Wright establish the absence of prejudice based on the fact that at her February 12, 2001 deposition, her counsel advised defendants' counsel that she had retained a licensed psychologist or psychiatrist who was then a consulting expert. See id. at 22. When defendants' counsel inquired whether Wright had sought medical, psychological, or other type of treatment or counseling as a result of the sexual harassment at issue, her counsel objected "on the basis of [the] consulting expert only privilege." Id. He advised defendants' counsel that "[s]he has talked with somebody . . . for the purposes of consulting with that person, who is a licensed psychologist or psychiatrist." Id. Defendants' counsel obtained from her only the fact that she had not yet met with the expert or sought any treatment from her, although she had talked to her. Other areas of inquiry were halted by objection and instruction from counsel not to answer. See id. at 22-23. This exchange alerted counsel to the fact that Wright had consulted with a licensed psychologist or psychiatrist, not that she would call this person as a witness. Indeed, the premise of her deposition objection was that this area of inquiry was off limits precisely because the expert was a consulting, not testifying, expert. Defendants could reasonably have expected that if the expert ever changed roles from consultant to witness, Wright would seek leave to designate the person as a witness, not that she would use this colloquy to argue in retrospect that it clued defendants to the fact that such a witness would be designated.

The court is not persuaded that the continuance of this case to the November 13, 2001 docket is sufficient to eliminate undue prejudice to defendants. It is true, of course, that in the approximately 120-day period that remains between now and the new setting, defendants can depose Wright's experts. But assuming the testimony is as critical and essential as plaintiff contends, defendants must have sufficient time after deposing these witnesses to retain their own experts and prepare them for trial. They may also find it necessary to conduct additional fact discovery to impeach Wright's experts' opinions or to support their own experts' opinions. Cf. Rushing v. Kan. City S. Ry. Co., 185 F.3d 496, 509 (5th Cir. 1999) (holding that party would be prejudiced by late designation of expert because it would have needed time to research the witness, review material, and probably conduct additional work). As defendants correctly point out, "[t]here is a reason that experts are required to be designated prior to the closure of discovery, as was the case herein. Frequently, expert disclosures and their depositions require further discovery to determine the validity of their position or to factually compromise their opinions." Ds. Rep. at 6-7 (citation omitted). And it may be necessary for defendants to raise and litigate Daubert challenges to Wright's evidence. They will incur prejudice if forced to engage in the process of deposing and/or challenging Wright's witnesses, conducting any necessary additional factual discovery, and developing expert testimony of their own, at a time when they are otherwise preparing for trial. The court should not allow plaintiffs unjustified tardiness in designating expert witnesses to dictate the focus of defendants' counsel's attention during the critical period of preparation that every able trial lawyer knows precedes a trial.

Given the age of this case, the court is unwilling to grant an additional continuance past November 13, 2001 for that purpose.

Citations to "Ds. Rep." are to defendants' June 22, 2001 reply in support of their motion to strike.


Considering the four factors together, the court concludes that Wright should not be granted leave to designate these two witnesses and that defendants' motion to strike should be granted. Wright's former counsel apparently failed to locate, and certainly did not designate, expert witnesses by the court-ordered deadline and during the several month period that followed during which he was still counsel of record. Wright's present counsel did retain experts but did not attempt to designate them until 30 days before the scheduled trial docket. No reasonable explanation has been presented for these failures. Wright will be permitted to offer lay evidence concerning her monetary damages and corroborating lay proof regarding the emotional harm that she has suffered. The jury will be instructed that no evidence of the monetary value of such emotional damages is required. Despite the resetting of this case to the November 13, 2001 docket, defendants will be palpably prejudiced if the court allows Wright to designate the two expert witnesses in question.


The court next considers the aspects of the parties' respective motions for leave and to strike that relate to Hurst.

This court has typically treated the designation of attorney's fee experts differently from other experts. In most instances, as in the present case, Rule 54(d) provides that attorney's fees are decided by the court on motion filed after the entry of judgment. Attorneys who represent parties against whom such fees are sought are not surprised by expert testimony because they can usually expect that opposing counsel will attempt to prove his attorney's fees and because they are themselves experts on the subject. Because the matter is handled by motion and usually decided on affidavits, the court can cure any prejudice that a party may face from a tardy designation by continuing submission of the attorney's fee issue if the party needs additional time to obtain its own expert. In the present case, defendants essentially acknowledge the unique manner in which attorney's fees are adjudicated by the trial judge. See Ds. Resp. at 10 (noting that under court's scheduling order, attorney's fees are to be tried to court and that court can hear counsel's fact evidence and take judicial notice of what is reasonable and necessary).

According to Wright, defendants' counsel offered in May 2001 to agree that the court would decide the issue of attorney's fees. See P. Resp. at 3.

Having considered the parties' arguments, the court concludes that there is no basis to vary from its usual approach. It therefore grants Wright leave to designate Hurst as an expert witness on attorney's fees and denies defendants' motion to strike and for sanctions to the extent directed to the designation of Hurst.


In addition to sanctions in the form of striking Wright's designation of expert witnesses, defendants also seek other relief, including attorney's fees and costs for litigating these motions. The court denies this aspect of their motion, concluding that striking the two witnesses is the appropriate remedy on the record presented to the court.

* * *

The court grants in part and denies in part Wright's May 16, 2001 motion for leave to designate expert witnesses and grants in part and denies in part defendants' May 18, 2001 motion to strike untimely designation and disclosure of expert witnesses and for sanctions.