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Ashley Bodden, Individually and As Personal Representative of the v. Deputy Ernest Cole

January 6, 2012

ASHLEY BODDEN, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF FRANKLIN RAYMOND BODDEN, PLAINTIFF,
v.
DEPUTY ERNEST COLE, INDIVIDUALLY, DAVID BRIGHT, II,INDIVIDUALLY, TOMMY SEAGRAVES, IN HIS OFFICIAL CAPACITY AS SHERIFF OF THE NASSAU COUNTY SHERIFF'S OFFICE, DEFENDANTS.



The opinion of the court was delivered by: Monte C. Richardson United States Magistrate Judge

ORDER

THIS CAUSE is before the Court on Defendants' Motions to Strike Plaintiff's Untimely Disclosed Expert Witness and Opinions (Docs. 11, 12) filed December 14, 2011 and December 27, 2011. Plaintiff filed its Response in Opposition to Defendants' Motions on January 3, 2012. (Doc. 13). Accordingly, this matter is now ripe for judicial review.

I. BACKGROUND

The Complaint in this action was filed on February 11, 2011. (Doc. 1). On April 1, 2011, the parties filed their Case Management Report. (Doc. 5). In the Case Management Report, the parties proposed Plaintiff's expert disclosure deadline to be July 22, 2011. (Doc. 5, pp. 2, 4).

On April 22, 2011, the Court entered its Case Management and Scheduling Order ("Scheduling Order"). (Doc. 6). In the Scheduling Order, the Court set a discovery deadline of October 14, 2011. (Doc. 6, p. 1). However, the Scheduling Order did not set forth expert disclosure deadlines.

On October 14, 2011, Plaintiff moved to continue the trial date and extend the deadlines set forth in the Scheduling Order. (Doc. 8). On November 2, 2011, the Court granted Plaintiff's Motion and extended the discovery deadline to December 16, 2011.*fn1

(Doc. 10). On December 9, 2011 and December 16, 2011, Plaintiff served her Rule 26(a)(2) expert disclosures of Chuck Drago and Thomas J. Sobolewski. (Docs. 11-1, 12-1). On December 14, 2011 and December 27, 2011, Defendants filed the instant motions seeking to strike Plaintiff's expert disclosures as untimely. (Docs. 11, 12).

II. ANALYSIS

Federal Rule of Civil Procedure 26(a)(2)(A) provides that "a party must disclose to the other parties the identity of any witnesses 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). This disclosure 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 [] [or] absent a stipulation or court order ... at least 90 days before the date set for trial[.]" Fed. R. Civ. P. 26(a)(2)(D)(I).

Federal Rule of Civil Procedure 37 states that [i]f a party fails to provide the information required by Rule 26, "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). 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. Group, Inc., 268 F.R.D. 681, 682. (M.D. Fla. 2010). 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 failing to comply with Rule 26(a) bears the burden of establishing that its nondisclosure was either substantially justified or harmless. Id.

The Scheduling Order in the instant case does not specifically address the time for the disclosures of expert testimony. See (Docs. 6, 10). Therefore, the general provisions of Federal Rule of Civil Procedure 26(a)(2)(D) apply. McMahon v. Presidential Airways, Inc., 2009 WL 2151316, *1 (M.D. Fla. 2009).*fn2 Under Rule 26(a)(2)(D)(i), an expert disclosure is timely if it is made "at least 90 days before the date set for trial or for the case to be ready for trial[.]". Here, Plaintiff's expert disclosures were made well in excess of 90 days before the scheduled trial date of July 2, 2012. Therefore, Plaintiff's disclosures of Mr. Drago and Mr. Sobolewski as expert witnesses are timely pursuant to Rule 26(a)(2)(D)(i).*fn3

The Court recognizes Defendants' argument there was an expert disclosure stipulation made by the parties in the Case Management Report wherein the parties proposed Plaintiff's expert disclosure deadline to be July 22, 2011. See (Doc. 11, p. 8). However, Rule 26(f) requires that the parties develop a discovery plan and submit it to the Court. Fed. R. Civ. P. 26(f). Thereafter, the Court, pursuant to Rule 16, reviews the discovery plan report and issues its own scheduling order. See Fed. R. Civ. P. 16(b)(1)(A). The rules therefore contemplate that the Court's Rule 16 scheduling order controls over the proposals of the parties in their Rule 26(f) report.

Even assuming arguendo that Plaintiff's expert disclosures were untimely, such alleged untimely disclosures are substantially justified and harmless. Plaintiff's alleged untimely disclosures are substantially justified for the above-stated reasons. Additionally, Plaintiff's alleged untimely disclosures are harmless because Defendant will not suffer any prejudice as trial is not scheduled until July 2, 2012, and the Court will reopen discovery for this limited purpose. See Hewitt, 268 F.R.D. at 683 (holding that ...


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