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Kendall Lakes Towers Condominium Association, Inc v. Pacific Insurance Company

December 20, 2011

KENDALL LAKES TOWERS CONDOMINIUM ASSOCIATION, INC., PLAINTIFF,
v.
PACIFIC INSURANCE COMPANY, LIMITED, DEFENDANT.



[CONSENT CASE]

ORDER ON MOTION TO STRIKE "REBUTTAL" REPORT OF PLAINTIFF'S EXPERT WITNESS

This cause is before the court on Defendant, Pacific Insurance Company, Limited's Motion to Strike Plaintiff's "Rebutal" Report of Alan Roser, or, in the Alternative, for Leave to Respond to Plaintiff's "Rebuttal" Report (DE 58). The Court has reviewed the motion, the response (DE 65) and the Reply (DE 77). In this motion, Pacific asks the Court to strike the "Rebuttal" Report of Alan Roser, Plaintiff's expert witness, on the cost of repairing the building (which would, in effect, preclude his testimony at trial) or, to permit Pacific to obtain an expert in response to Roser. For the reasons outlined below, the motion is granted in part and denied in part.

BACKGROUND

Bob Dylan, the iconic songwriter-poet-musician, famously said, albeit in the form of song lyrics, "you're gonna have to serve somebody."*fn1 For parties litigating a civil lawsuit in the Southern District of Florida, the "somebody" who has to be served (at least metaphorically) is the Federal Rules of Civil Procedure, the Local Rules for the United States District Court for the Southern District of Florida and the Court's Trial Scheduling Order.

These authorities impose deadlines on many aspects of pre-trial procedure, including the designation of expert witnesses and the production of expert witness reports. Federal Rule of Civil Procedure 26(a)(2)(D) requires parties to disclose expert testimony "at the times and in the sequence that the court orders." Absent a stipulation or a court order, the disclosures must be made "at least 90 days before the date set for trial or for the case to be ready for trial" or, if the expert is intended "solely to contradict or rebut" evidence, then the disclosure must be made "within 30 days after the other party's disclosure."

This is an insurance coverage dispute concerning the issue of whether there is coverage for property damage allegedly arising from Hurricane Wilma on or about October 24, 2005. In a March 2, 2011 Scheduling Order (DE# 17), United States District Court Judge Donald L. Graham established September 2, 2011 as the deadline to exchange expert witness information and September 16, 2011 as the deadline to exchange rebuttal expert witness information. The Order specifically provided that only those witnesses "who have been properly identified and who have exchange information in compliance with Local Rule 16.1(K) shall be permitted to testify."

Local Rule 16.1(K) imposes specific disclosure obligations on the parties and requires, among other things, "lists of the expert's qualifications to be offered at trial, publications and writings, style of the case and name of court and Judge in cases in which the expert has previously testified and the subject of that expert's testimony, the substance of the facts and all opinions to which the expert is expected to testify and a summary of the grounds for each opinion."

Judge Graham later extended the deadline for expert witness disclosures to September 16, 2011 and extended the deadline for exchanging rebuttal expert disclosures to October 19, 2011 (DE 48, 53).

Before the expiration of the September 16, 2011 expert witness disclosures deadline, the parties exchanged information and reports of five expert witnesses. Plaintiff provided Pacific with one expert witness report and Pacific provided Plaintiff with four reports. Specifically, Plaintiff provided Pacific with a "Building Damage Assessment" report prepared by architect Neil B. Hall. Pacific, in turn, provided expert reports entitled "Evaluation of Roofing Damage Claim," prepared by a consulting engineering firm; "Windstorm at the Kendall Lakes Towers Condominiums, Miami, Florida, from January 1992 through August 2011," prepared by Climatological Consulting Corporation;

"Engineering Inspection Report," prepared by an engineering group; and a report from Dr. Lee Swanger, an engineer.

Plaintiff did not make any expert witness disclosures concerning the costs of repairing alleged damages before the expiration of the September 16, 2011 deadline. Likewise (and perhaps as a result of this), none of Pacific's four reports discussed the costs of repairs either.

On October 19, 2011, the deadline for disclosing rebuttal expert witness information, Plaintiff's counsel sent pacific's counsel a report by Alan Roser, entitled "Construction Estimates and Insurance Appraisals," which was designated as a "rebuttal report." The so-called "rebuttal report" prepared by Roser includes his resume and an estimate of the repair costs.

Pacific seeks to strike the report because it is untimely. Pacific contends that the Roser Report is not a rebuttal report at all, but, instead, is a report which should have been disclosed by the original deadline for expert witness disclosures. Pacific argues that Plaintiff has purposefully but incorrectly branded the Roser report as a rebuttal report because it already missed the actual deadline and is desperately trying to use Roser's expert testimony at trial by pursuing the tactic of misdescribing the nature of the expert report, in order to "back door" it into the case. In addition, Pacific argues that the Roser report should be stricken for an additional reason: failure to comply with the specifics of the Local Rule's disclosure requirements. Finally, Pacific argues, in the alternative, that it should be permitted to locate its own rebuttal expert to respond to Roser's report if the Court denies the motion to strike.

Plaintiff disputes the allegations about its strategy and argues that the expert report is a rebuttal report which was timely provided and is sufficiently detailed to comply with the Local Rule's disclosure requirements. Plaintiff also contends that Pacific failed to demonstrate how it would be prejudiced by Roser's report, given that Pacific takes the position that no covered damages are recoverable. Nevertheless, Plaintiff says that it is not opposed to giving Pacific the opportunity to ...


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