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Robert E. Tardif, Jr., As Trustee For Jason Yerk v. People For the Ethical Treatment of Animals

December 1, 2011

ROBERT E. TARDIF, JR., AS TRUSTEE FOR JASON YERK, PLAINTIFF,
v.
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, A VIRGINIA NOT-FOR-PROFIT CORPORATION, DEFENDANT.



OPINION AND ORDER

This matter comes before the Court on Defendant's Motion to Strike Plaintiff's Expert Report and Preclude Testimony of Dr. Pettingill (Doc. #133) filed on June 16, 2011. Plaintiff filed a Response (Doc. #144) on June 30, 2011. Defendant seeks to exclude plaintiff's expert, Dr. Bernard Pettingill, from testifying at trial and from submitting his report as evidence of plaintiff's employment-related damages.

I.

Defendant first argues that the expert report should be stricken because the disclosure of it was untimely and failed to comply with the Federal Rules of Civil Procedure and this Court's Case Management and Scheduling Order. Rule 26(a)(2) provides:

(A) In General. In addition to the disclosures required by Rule 26(a)(1), 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.

(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by 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. The report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case.

"If a party fails to provide information or identify a witness as required by Rule 26(a)[], the party is not allowed to use that information or witness to supply evidence... at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). The following factors guide the Court in determining whether to exclude evidence pursuant to Rule 37(c)(1): "(1) the prejudice or surprise to the party against whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing the evidence at an earlier date." Vitola v. Paramount Automated Food Servs., Inc., No. 08-61849, 2009 WL 5067658 (S.D. Fla. Dec. 17, 2009)(citing David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)).

Here, the Court's Case Management and Scheduling Order required plaintiff to disclose his expert report on April 14, 2007. (Doc. #73.) Plaintiff petitioned the Court for extra time and was permitted to submit his report on or before May 18, 2011. (Doc. #120.) On May 17th, plaintiff submitted Dr. Pettingill's report to defendant but the report failed to include the specific data upon which his opinion was based, failed to include Dr. Pettingill's qualifications, publications and other cases in which Dr. Pettingill had testified, failed to include a statement of compensation and was not signed. On June 27th, plaintiff provided defendant with an amended report. (Doc. #144-2.)

The Court finds that in the instant case, plaintiff's failure to submit a complete report on or before May 18, 2011 was harmless. Defendant cannot claim surprise or prejudice, as this case has been extensively litigated and plaintiff has consistently asserted his claim for lost wages and benefits. Additionally, as of at least June 30, 2011, plaintiff has offered to make Dr. Pettingill available for deposition at the defendant's convenience. Disruption of the trial is unlikely because defendant would still have over one month to depose plaintiff's expert. Lastly, there is no evidence of bad faith or willfulness on plaintiff's part. Accordingly, the motion to strike Dr. Pettingill's report on the basis of untimeliness will be denied.

II.

Next, defendant argues Dr. Pettingill's report should be excluded because it is not probative of any fact in issue and provides for damages not allowable under Florida law. The report is entitled "The Present Value Analysis of the Loss of Back Pay and Front Pay of Jason Yerk" and discusses "the present value of the funds needed to finance the loss of back pay and front pay resulting from [Yerk's] constructive termination." (Doc. #144-2, p. 4.) Defendant argues that "front pay" and "back pay" damages are not allowable in this case because PETA was not Yerk's employer and, thus it could not have "constructively terminated" him. Front pay, back pay and constructive termination are terms of art used in the employment context, typically involving discrimination or retaliation claims. The fact that this is not a typical employment case does not mean that Yerk's lost wages cannot be an item of damage. Tort recovery involves all damages which are the natural, direct and proximate cause of the tortious conduct and recovery for breach of contract involves damages which were or should have been within the reasonable contemplation of the parties at the time the contract was made. Tillman v. Howell, 634 So. 2d 268, 270 (Fla. 4th DCA 1994). Thus, depending on what the jury finds, lost wages may be an allowable element of damages in this case. Testimony consistent with the report will not be excluded on this basis.

III.

Finally, defendant argues that Dr. Pettingill's report and testimony should be excluded pursuant to Federal Rule of Evidence 702. The legal principles governing the admissibility of expert testimony are well settled. Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) and Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993) the Supreme Court held that the trial court had a "gatekeeper" function designed to ensure that any and all expert testimony is both relevant and reliable. The importance of this gatekeeping function "cannot be overstated." United States v. ...


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