DAVID A. SANDERS, Magistrate Judge.
This matter is before the court on defendant's motion (#131) and seeks to strike plaintiff's supplementation of Dr. Missun's expert designation. Having considered the motion, the court finds that it should be denied for the reasons that follow.
According to the original case management order for this action, plaintiff's expert witness designations were due on March 3
Pursuant to the Federal Rules of Civil Procedure, "a party must disclose the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705."
When reviewing a motion to strike untimely supplemental expert testimony, the Fifth Circuit requires courts in this district to consider the following factors: (1) the importance of the witness' testimony; (2) the explanation for the party's failure to comply with the discovery order;
(3) the prejudice to the opposing party of allowing the testimony; and (4) the possibility of curing such prejudice by a continuance."
The first factor favors plaintiff. According to plaintiff's response, the VEA concerns plaintiff's loss of capacity to perform work and earn money as a result of his disability. As such, Dr. Missun's supplemental opinions will be very important on the issue of past and future damages. Notably, defendant's argument does not appear to address the subject matter contained within the supplemental VEA. Rather, defendant states Dr. Missun's VEA is not important because Mississippi law does not require physician testimony to prove the necessity and reasonableness of medical expenses.
The second factor is the explanation for failing to comply with the discovery order. Candidly, plaintiff states the VEA was accidentally omitted when he filed Dr. Missun's expert designation. The omission was quickly rectified, however, because the VEA was filed only two days later. Since the failure to comply stems from an administrative oversight, the court finds this factor favors neither party.
The third and fourth factors are prejudice to the defendant and the ability to cure any prejudice with a continuance, respectively. Because the VEA was filed merely two days after the designation deadline, the court finds that the prejudice to defendant, if any, is nominal. Consequently, the risk of having to continue this action for issues arising from Dr. Missun's supplemental opinions is very low. Therefore, factors three and four weigh in favor of plaintiff.
Having considered the matter, the court holds that the Betzel factors weigh heavily against defendant's motion to strike. The VEA is important to plaintiff's case because it concerns past and future damages. Although Dr. Missun's VEA was filed outside of the deadline, it was only just. The court is not persuaded that defendant suffered any prejudice by receiving the VEA two days later than it was due. Furthermore, plaintiff intended for the VEA to be included in his initial filing and was omitted by accident.
THEREFORE, IT IS HEREBY ORDERED THAT defendant's motion to strike is denied.
SO ORDERED.