LAMONICA v. HARTFORD INSURANCE COMPANY OF THE MIDWEST (2020)

DECISION AND ORDER

This matter is before this court on Defendant's motion to strike Plaintiff's untimely expert disclosures. For the reasons set forth below, this court will deny this motion.

I. Background

Plaintiff's residential property was damaged by Hurricane Michael, a Category 5 hurricane that made landfall near Panama City, Florida, on October 10, 2018. Defendant insured the property. Plaintiff claims that Defendant breached the insurance contract.

The parties proposed that Plaintiff's expert witness disclosures would be served on Defendant on or before July 24, 2020, and the district court entered a scheduling order that adopted that deadline.

More than one month after Plaintiff's deadline, specifically on August 28, 2020, Plaintiff served on Defendant his “Rule 26(a)(2) Expert Witness Disclosures” which disclosed that two expert witnesses—Alfredo Brizuela and Sergio Arce—may testify at the trial. According to Plaintiff, Brizuela is an engineer who may testify about causation, repair methods, and pricing. Arce is an accredited claims adjuster who may testify regarding the scope and valuation of the damages sustained by Plaintiff's property.

Because Plaintiff's expert disclosures were untimely, Defendant filed the instant motion to strike the disclosures.

II. Discussion

Federal Rule of Civil Procedure 26(a)(2)(A) provides that “a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” Fed. R. Civ. P. 26(a)(2)(A). Such disclosures must include a “written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony.” Fed. R. Civ. P. 26(a)(2)(B).

These disclosures must be made “at the times and in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D)(i). The time limitations imposed on expert disclosures are designed “to provide opposing parties ‘reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses.’ ” Reese v. Herbert, 527 F.3d 1253, 1265 (11th Cir. 2008) (quoting Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000) (quoting Fed. R. Civ. P. 26(a)(2) advisory committee's note)). “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).

Rule 37 gives a district court discretion to address a litigant's failure to make a required disclosure timely. Taylor v. Mentor Worldwide LLC, 940 F.3d 582, 593 (11th Cir. 2019). When a party fails to provide timely “information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1); see OFS Fitel, LLC v. Epstein, Becker & Green, P.C., 549 F.3d 1344, 1363 (11th Cir. 2008) (“Under Rule 37(c)(1), a district court clearly has authority to exclude an expert's testimony where a party has failed to comply with Rule 26(a) unless the failure is substantially justified or harmless.”).

Courts, therefore, have broad discretion to exclude untimely expert disclosures. Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 718 (11th Cir. 2019); Corwin v. Walt Disney Co., 475 F.3d 1239, 1252 (11th Cir. 2007) (noting that “a supplemental expert report may be excluded pursuant to Federal Rule of Civil Procedure 37(c) if a party fails to file it prior to the deadline imposed”). “ ‘[I]n addition to or instead of [the] sanction [of exclusion]’ the court may: (1) order payment of the expenses caused by the failure, (2) ‘inform the jury of the party's failure,’ and (3) ‘impose other appropriate sanctions.’ ” Taylor, 940 F.3d at 593 (quoting Fed. R. Civ. P. 37(c)(1)).

For purposes of Rule 37, “substantial justification” is justification “to a degree that could satisfy a reasonable person that parties could differ as to whether the 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) (quotations omitted). “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 that failed to comply with Rule 26(a) bears the burden of establishing that its untimely disclosure was either substantially justified or harmless. Bresler v. Wilmington Trust Co., 855 F.3d 178, 190 (4th Cir. 2017); Wilson v. Bradlees of New England, Inc., 250 F.3d 10, 21 (1st Cir. 2001); Hewitt, 268 F.R.D. at 683. “The district court has broad discretion in determining whether a violation is justified or harmless.” Abdulla v. Klosinski, 898 F. Supp. 2d 1348, 1359 (S.D. Ga. 2012).

A. Plaintiff Filed His Expert Disclosures Untimely

The district court ordered Plaintiff's expert witness disclosures to be served on Defendant on or before July 24, 2020. On August 28, 2020, Plaintiff served on Defendant his “Rule 26(a)(2) Expert Witness Disclosures.”

Plaintiff argues that, although it is true that he served his expert witness disclosures on August 28, 2020, on June 8, 2020, Plaintiff provided Defendant with a copy of Alfredo Brizuela and Sergio Arce's expert reports in response to Defendant's request for production of documents. Thus, Plaintiff argues that his Rule 26(a)(2) expert witness disclosures were not untimely.

Defendant argues that Plaintiff's transmission of these reports did not constitute expert witness disclosures and simply were responses to Defendant's first request for production of documents. Defendant notes that the documents Plaintiff provided on June 8, 2020, did not indicate “whatsoever that they were intended to be plaintiff's expert reports in the instant lawsuit.”

Federal Rule of Civil Procedure 26(a)(2)(A) unequivocally states that a party “must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” Fed. R. Civ. P. 26(a)(2)(A) (emphasis added). Plaintiff clearly did not do this. Merely responding to Defendant's request for production of documents with a report is insufficient to meet Plaintiff's discovery obligations with respect to his experts. Furthermore, on June 8, 2020—the same date Plaintiff provided the expert reports in response to Defendant's request for production of documents—Plaintiff responded to Defendant's interrogatory no. 17 that asked, “Please Identify each Person You expect to call as an expert witness at trial.” Plaintiff stated the following:

Objection, premature. Plaintiff will disclose its retained experts in accordance with the Court's Trial Order. Additionally, please see documents produced in response to Defendant's Request for Production including but not limited to: AAES Report, GRK Engineers Report of Findings, Hartford Inventory Pricing Review, Hurricane Wind Damage Report p1, Hurricane Wind Damage Report p2, JM Reagan Consulting Final Estimate.

(Doc. 25-1 at 6) (emphasis added). Because this objection does not include the names of Plaintiff's expert witnesses, it undercuts any notice that Plaintiff provided to Defendant by producing expert reports in his responses to Defendant's requests for production of documents.

B. The Untimeliness of Plaintiff's Disclosures Is Harmless

When exercising its discretion to determine whether a Rule 26 violation is substantially justified or harmless for purposes of a Rule 37(c)(1), courts may consider the following factors:

(1) the extent of the surprise to the party against whom the evidence would be offered;

(2) the ability of the parties to cure the surprise and its effects;

(3) the extent to which allowing the evidence would disrupt the trial;

(4) the importance of the evidence;

(5) the party's explanation for its untimely disclosure of the evidence;¹ and

(6) whether it appears that that disclosing party was merely negligent or acted intentionally to obtain an unfair advantage.

See Howe v. City of Akron, 801 F.3d 718, 747 (6th Cir. 2015); CQ, Inc. v. TXU Min. Co., 565 F.3d 268, 280 (5th Cir. 2009); Romero v. Drummond, Co., 552 F.3d 1303, 1321 (11th Cir. 2008); OFS Fitel, LLC, 549 F.3d at 1365; S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596-97 (4th Cir. 2003); Abdulla, 898 F. Supp. 2d at 1359. Courts should differentiate between “innocent” mistakes which truly are harmless from intentional acts by a party that are designed to game the system. Bisig v. Time Warner Cable, Inc., 940 F.3d 205, 219 (6th Cir. 2019); OFS Fitel, LLC, 549 F.3d at 1365 (analyzing the facts surrounding a failure to produce an expert report to determine if it was the result of “willful delay or stonewalling”).

First, although Plaintiff's act of transmitting the expert reports to Defendant is not a substitute for a proper expert disclosure report, this did provide some notice to Defendant that Plaintiff might seek to have these expert witnesses testify at trial. A discovery violation is more likely to be harmless when the injured party was provided some knowledge of the relevant information. See Howe, 801 F.3d at 747; OFS Fitel, LLC, 549 F.3d at 1363. Plaintiff's tardy disclosure also did not “interject an additional, and considerably complex, legal theory” into the case, nor did it “substantially change the character of the case and render obsolete much of the parties' trial preparation.” Rambus, Inc. v. Infineon Tech. AG, 145 F. Supp. 2d 721, 730 (E.D. Va. 2001). Defendant, therefore, cannot credibly claim that it was completely blindsided or terribly surprised by Plaintiff's dilatory disclosure.

Second, there is ample time for the parties to ameliorate any surprise that Plaintiff's late disclosure caused. “Most commonly, the harm associated with untimely expert witness disclosures is the non-disclosing party's inability to adequately prepare its case by deposing the witness during the discovery period.” Morrison v. Mann, 244 F.R.D. 668, 673 (N.D. Ga. 2007). Courts more frequently find that a late disclosure is prejudicial when it occurs after the close of discovery. See, e.g., Wilkins v. Montgomery, 751 F.3d 214, 223 (4th Cir. 2014) (holding that a tardy expert witness disclosure was not harmless when it “was made after the agreed-upon expert disclosure date, after discovery was closed, after Appellee filed a motion for summary judgment, and on the very date set by the court for the filing of motions to exclude experts”); Reese, 527 F.3d at 1264-65 (holding that the district court did not err in striking an expert's report when the plaintiff filed his expert report almost seven weeks after the close of discovery, which prevented the defendant from deposing the expert).

Here, because the discovery period continues through December 14, 2020, there should be plenty of time for Defendant to depose both expert witnesses. When a party has “ample time to depose” a witness “or otherwise seek discovery” with respect to the witness and his likely testimony, any tardiness in disclosing the witness typically is harmless. Baker Hughes, Inc. v. S & S Chem., LLC, 836 F.3d 554, 569 (6th Cir. 2016). Furthermore, even if Defendant is unable to depose Plaintiff's expert witnesses before termination of the discovery period, Defendant could move for a brief extension of the discovery deadline.

Third, the district court has not fixed a trial date in this case. Thus, Plaintiff's late disclosure necessarily did not result in a trial having to be rescheduled. Courts tend to find that a late disclosure was harmful when it results in postponement of a trial. See, e.g., NutraSweet Co. v. X–L Eng'g Co., 227 F.3d 776, 786 (7th Cir. 2000) (holding that a late disclosure was harmful and the district court did not abuse its discretion in excluding an expert witness from testifying a trial when disclosure was made after the district court postponed the trial date once and trial was set to begin in six weeks).² In contrast, when a trial is not imminent, a failure to disclose evidence or an expert is more likely to be harmless. See OFS Fitel, LLC, 549 F.3d at 1363.

Fourth, Plaintiff contends that the “importance of the evidence at hand is critical and exclusion would be highly detrimental, if not fatal” to Plaintiff's claims. This court has no reason to doubt Plaintiff's claim as to the importance of these witnesses. Indeed, if they were unimportant witnesses, Defendant likely would not bother to seek to exclude their testimony. When evidence from an expert witness is important to a litigant's case and a late disclosure caused no prejudice to the opposing party, a court should not exclude the witness from testifying. Murphy v. Magnolia Elec. Power Ass'n, 639 F.2d 232, 235 (5th Cir. 1981); DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193, 1201-02 (3d Cir. 1978).

Fifth, the facts of the case do not suggest that Plaintiff's failure to disclose its intention to have two experts testify at trial was an intentional act of stonewalling on the part of Plaintiff. See Bisig, 940 F.3d at 219; OFS Fitel, LLC, 549 F.3d at 1365. Rather, Plaintiff's tardiness appears to be the result of negligence.

In light of these facts, among others, it is clear that Plaintiff's untimely disclosure of his expert witnesses is harmless and striking Plaintiff's expert disclosures would be an excessive sanction that is unwarranted in this case. Nevertheless, this court exhorts Plaintiff to abide by court-imposed deadlines in the future. “Deadlines, in the law business, serve a useful purpose and reasonable adherence to them” is important. Spears v. City of Indianapolis, 74 F.3d 153, 157 (7th Cir. 1996).

III. Conclusion

For the reasons set forth above, Defendant's motion to strike Plaintiff's untimely expert disclosures is denied.

FOOTNOTES

1.   This factor primarily is concerned with the possibility of a “substantial justification” for a late disclosure, although it might also be relevant to determining whether a party was acting in bad faith. See Bresler, 855 F.3d at 190.

2.   Even if a scheduled trial would need to be postponed, “a continuance is the preferred means of dealing with a party's attempt to designate a witness out of time.” Campbell v. Keystone Aerial Surveys, Inc., 138 F.3d 996, 1000 (5th Cir. 1998).

Michael J. Frank, United States Magistrate Judge