Anderson Ross v. Target
CourtCourt of Appeals for the Fifth Circuit
Date FiledNovember 6, 2026
Docket26-20180
StatusUnpublished
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Full Opinion
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United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 26-20180 November 6, 2026
____________
Thomas B. Plunkett, III
Clerk
Erica Anderson Ross,
Plaintiff—Appellant,
versus
Target Corporation,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:24-CV-3666
______________________________
Before King, Higginson, and Douglas, Circuit Judges.
Per Curiam:*
In 2023, Erica Anderson Ross was struck by a warehouse cart inside a
Target store, which she says resulted in pain and injury to her right arm and
head. She sued Target, alleging negligence and premises liability. Ross did
not designate any experts by the deadline set by the district court’s
scheduling order, instead seeking leave to designate over two dozen experts
from sixteen medical practices about two-and-a-half months after the court’s
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 26-20180
deadline, days before docket call (known in other district courts as the final
pretrial conference). The tardy designation did not include summaries of the
expert opinions, instead stating with identical language that each expert
would testify about “whether the incident that forms the basis of this lawsuit
was the cause of Plaintiff’s injuries . . . [and] the reasonableness of the
medical bills incurred in this case.”
In response to a motion from Target, the district court denied Ross’s
motion for leave to file late expert disclosures and granted Target’s motion
to exclude the testimony of any late-designated experts at trial. With
permission of the court, Target then moved for summary judgment, arguing
that no reasonable jury could find that Ross’s injuries were caused by the
incident absent this expert testimony. The district court granted that motion.
Ross now appeals the district court’s exclusion of her expert witnesses
designated after the court’s deadline and the court’s grant of summary
judgment to Target. We AFFIRM both rulings.
We review for abuse of discretion a district court’s decision to exclude
expert witnesses who were not timely designated. Newsome v. Int’l Paper Co.,
123 F.4th 754, 766 (5th Cir. 2024); Hamburger v. State Farm Mut. Auto. Ins.
Co., 361 F.3d 875, 883 (5th Cir. 2004).
Federal Rule of Civil Procedure 26(a)(2) establishes procedures
governing the disclosure of information regarding experts. See Fed. R.
Civ. P. 26. If a party fails to abide by Rule 26(a), “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 is
harmless.” Fed. R. Civ. P. 37(c)(1).
“We consider four factors when reviewing a district court’s
‘discretion to exclude evidence that was not properly designated’: ‘(1) the
explanation for the failure to identify the witness; (2) the importance of the
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testimony; (3) potential prejudice in allowing the testimony; and (4) the
availability of a continuance to cure such prejudice.’” Newsome, 123 F.4th at
766 (quoting Stewart v. Gruber, No. 23-30129, 2023 WL 8643633, at *4 (5th
Cir. Dec. 14, 2023)).
Beginning with the first factor, Ross explains that she failed to comply
with the district court’s deadline because of an internal calendaring error.
But “[m]ere inadvertence on the part of the movant, even when coupled with
the absence of prejudice to the non-movant, is insufficient to establish good
cause.” Id. at 767 (quoting Akpan v. United States, No. CV-H-16-2981, 2017
WL 6527427, at *2 (S.D. Tex. Dec. 21, 2017)).
Turning to the third factor, Target faced substantial potential
prejudice if the expert testimony were admitted. Target had some
information on the potential identities of Ross’s experts from her initial and
supplemental disclosures. But Ross had never, even in her designations,
provided summaries of the facts and opinions to which these witnesses would
testify. Target therefore lacked insight into which providers would testify
regarding the necessity of treatment, the reasonableness of medical expenses,
or the causation of Ross’s injuries by the incident. Ross had several
preexisting conditions and injuries to different regions of the body, described
in more detail below, and Target could not determine from the designations
how the experts would address these various conditions. It would have
required substantial time and resources for Target to depose each expert,
prepare updated expert reports from its existing experts, and designate
additional responsive experts beyond its spine and shoulder experts. And the
timing of the disclosure—just weeks before trial—significantly enhanced the
prejudice against Target.
When the first and third factors weigh against admitting the
testimony, the district court is not obligated to continue the trial;
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“Otherwise, the failure to satisfy the rules would never result in exclusion,
but only in a continuance.” Hamburger, 361 F.3d at 883–84. The district
court did not abuse its discretion in so concluding here.
The second and fourth factors similarly support the district court’s
ruling. Turning to the second factor, the expert testimony was critical to
Ross’s ability to prove causation and prevail before a jury, as both sides
acknowledge. “[W]here an expert is crucial to the plaintiff’s case, it ‘only
underscores the importance of plaintiffs’ compliance with the court’s
deadlines.’” Newsome, 123 F.4th at 767 (quoting Stewart, 2023 WL 8643633,
at *4–5). The second factor has at times been applied differently, with courts
weighing the importance of testimony as a point in favor of the inclusion of
that testimony. See, e.g., Betzel v. State Farm Lloyds, 480 F.3d 704, 708 (5th
Cir. 2007). But that weighing is “inconsistent with longstanding Fifth
Circuit precedent and our rule of orderliness[.]” Newsome, 123 F.4th at 767.
Finally, as to the fourth factor, a continuance would not have fully
cured the prejudice to Target. The parties were preparing for trial to begin
within a few weeks of Ross’s tardy disclosure. A continuance would have
delayed trial and required Target to incur additional expenses, essentially
reworking its trial strategy after the close of discovery. See id. at 767–68 (“No
continuance would prevent the increased expense of reviewing and
responding to a new expert, preparing for and deposing that expert, and
potentially preparing rebuttal opinions—before, if needed, re-drafting and
re-filing dispositive motions which had already been completed.”).
Ross contends that the district court’s exclusion of all her experts was
overbroad, as Target had notice from earlier disclosures that she intended to
call certain of her listed experts. That is relevant to the degree of prejudice
to Target, but it does not cure the significant prejudice that Target faced
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based on the newly disclosed experts and complete lack of substantive
information about the experts’ proposed testimony, in violation of Rule 26.
Next, we turn to the district court’s grant of summary judgment to
Target. “We review a district court’s grant of summary judgment de novo.”
Rogers v. Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014).
Summary judgment is warranted if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a).
Under Texas law, “[t]he general rule has long been that expert
testimony is necessary to establish causation as to medical conditions outside
the common knowledge and experience of jurors.” Guervara v. Ferrer, 247
S.W.3d 662, 665 (Tex. 2007). Whan a plaintiff has pre-existing medical
conditions, expert testimony is particularly useful. Id.; Flynn v. Racicot, No.
09-11-00607-CV, 2013 WL 476756, at *5 (Tex. App.—Beaumont Feb. 7,
2013, no pet.) (“The presence of a medical condition before an accident may
complicate a causation connection and require expert evidence to support
causation.”). Ross had a history of pain in her neck, back, right shoulder,
right wrist, and head, and she had been injured in two automobile accidents
and a slip-and-fall. Before the incident, she was diagnosed with complex
regional pain syndrome. She previously had neck surgery and back surgery.
Ross concedes that, without expert testimony, she “could not present
admissible proof necessary to establish an essential element of the claims.”
The district court appropriately granted summary judgment to Target
because no reasonable jury could find that Ross’s injuries were caused by the
Target incident absent this testimony.
Accordingly, we AFFIRM the district court’s exclusion of Ross’s
expert witnesses and award of summary judgment to Target.
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