United States District Court, M.D. Florida, Tampa Division
LISA N. BOSTIC, Plaintiff,
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE.
matter comes before the Court pursuant to Plaintiff Lisa
Bostic's Motion to Exclude Expert Testimony (Doc. # 45),
which was filed on March 24, 2017. On March 31, 2017,
Defendant State Farm Mutual Automobile Insurance Company
filed a Response in Opposition to the Motion. (Doc. # 46).
For the reasons that follow, the Motion is denied.
sustaining injuries in a November 14, 2013, car accident,
Bostic filed a state court complaint against State Farm
alleging breach of contract and seeking recovery of uninsured
motorist benefits. (Doc. # 2). State Farm removed the case on
June 2, 2016, based on complete diversity of citizenship.
(Doc. # 1). Referencing Bostic's interrogatory answers,
State Farm represented that Bostic “claims to have
incurred . . $257, 315.95 in total medical bills, with $98,
699 plus liens outstanding.” (Id. at 2).
Court entered its Case Management and Scheduling Order on
June 29, 2016. (Doc. # 13). Relevant to the present Motion,
the Court established December 19, 2016, as the deadline for
Bostic to disclose expert reports and January 23, 2017, as
the deadline for State Farm's expert report disclosure.
Bostic filed an unopposed Motion to extend the expert
disclosure deadlines and the Court granted the extension.
(Doc. ## 34, 35). Bostic's expert disclosures were
extended to February 14, 2017, and State Farm's expert
disclosures were extended to March 10, 2017. (Doc. # 35).
Then, State Farm sought an extension of the dispositive
motions deadline and other operative dates, which the Court
granted. (Doc. ## 38-39). On March 14, 2017, the Court
entered its Amended Case Management and Scheduling Order
establishing the discovery deadline as April 20, 2017, and
the dispositive motions deadline as May 4, 2017, setting an
August 17, 2017, pretrial conference, and placing the case on
the September 2017, trial term. (Doc. # 41).
March 10, 2017, State Farm disclosed to Bostic that State
Farm retained Ronald Fijalkowski, Ph.D. and provided Bostic
with Fijalkowski's address and credentials. However,
State Farm did not provide Bostic with Fijalkowski's
formal expert report until April 3, 2017. Bostic now moves
the Court to strike Fijalkowski's testimony.
37(c), Fed. R. Civ. P., provides that “if a party fails
to provide 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.” As explained in Mitchell
v. Ford Motor Co., 318 Fed.Appx. 821, 824 (11th Cir.
2009), “[t]he burden of establishing that a failure to
disclose was substantially justified or harmless rests on the
nondisclosing party.” Furthermore, “in
determining whether the failure to disclose was justified or
harmless, [the Court] consider[s] the non-disclosing
party's explanation for its failure to disclose, the
importance of the information, and any prejudice to the
opposing party if the information had been admitted.”
Lips v. City of Hollywood, 350 Fed.Appx. 328, 340
(11th Cir. 2009).
Farm admits that its disclosure of Fijalkowski's expert
report was untimely, but submits that the late disclosure
caused no prejudice because the discovery deadline of April
20, 2017, as not yet expired. State Farm also explains that
Fijalkowski is a rebuttal witness retained to refute the
testimony of Bostic's expert Stephen Koontz, disclosed on
February 14, 2017, as a biomechanics expert that performed an
accident reconstruction. State Farm indicates: “There
is not a plethora of biomechanical engineers that do or will
perform trial related work. It took some time to find a
biomechanical engineer qualified, capable, and available to
be retained in this matter.” (Doc. # 46 at 2). State
Farm also notes that Bostic has retained several expert
witnesses that will testify regarding her medical condition
and that State Farm did not anticipate that an accident
reconstruction would be needed as “liability for the
accident has never been in dispute, and rests with a
non-party tortfeasor, Blair Alsup.” (Doc. # 46 at 1).
Court denies the Motion. From the Court's review of the
file, it appears that both sides are preparing the case for
its final resolution and that State Farm's untimely
disclosure has not prejudiced Bostic such that the Court
would be justified in excluding Fijalkowski. The purpose of
discovery under the Federal Rules of Civil Procedure is to
require the timely disclosure of relevant information to aid
in the ultimate resolution of disputes in a civil action.
United States v. Procter & Gamble Co., 356 U.S.
677, 682 (1958). These Rules “make a trial less a game
of blindman's bluff and more a fair contest with the
basic issues and facts disclosed to the fullest practicable
extent.” Id. “The concept of trial by
ambush has long ago fallen into desuetude in both state and
federal courts.” Perfect Web Techs. v. InfoUSA,
Inc., No. 07-80286, 2008 U.S. Dist. LEXIS 20761, at *4-5
(S.D. Fla. Mar. 17, 2008).
the expert was timely disclosed, but his report was not
turned over until after the deadline. Although the Court does
not condone tardy disclosures of expert reports, it finds
that State Farm's delay was substantially justified. And,
because the discovery deadline has not yet expired, Bostic
has the opportunity to gather relevant information from
Fijalkowski to fully investigate his testimony and theories.
Had the expert report been disclosed after the discovery
deadline, the result would be different.