Notably, plaintiff has not cited one case in support of this argument — and, indeed, fails to address any of the cases cited in defendants' brief in support of the motion to strike, a number of which explicitly arise in the summary judgment context. See, e.g., Williams v. Gonzales, 2005 WL 3447885, at * 6 (E.D. Tex. Dec. 14, 2005); Cleave, 2005 WL 1629750, at * 1; Brumley, 200 F.R.D. at 603; see also Thompson v. Barnett, 734 F.Supp. 751, 753 (S.D. Miss. 1989) (striking untimely expert reports filed in response to defense motion for summary judgment). The court finds that this position is untenable.
In further response to defendants' motions, plaintiffs have moved pursuant to Rule 37 of the Federal Rules of Civil Procedure to strike the affidavits of each of defendant's experts asserting that while defendants did timely designate the affiants as experts, they did not, in response to plaintiffs' expert interrogatories, identify them as experts, state their qualifications and give the substance of their facts and opinions together with the bases therefor as required by Rule 26(b)(4). Though the court is clearly authorized to strike the affidavit of an untimely designated expert or an expert as to whom information has not been provided in compliance with proper discovery requests, see Geiserman v. MacDonald, 893 F.2d 787, 792 (5th Cir. 1990); Thompson v. Barnett, 734 F. Supp. 751, 753-54 (S.D.Miss. 1989), the court declines to impose such a sanction in this case. Each side was at least arguably made aware of the other's plans regarding the use of expert testimony.